Dasarathi Chhanchan vs State of Orissa

S.K. Sahoo, J. - The Appellant in Criminal Appeal No. 332 of 2010, namely Dasarathi Chhanchan & the Appellant in Criminal Appeal No.354 of 2010, namely Shyama Mahananda faced trial in the Court of Learned Addl. Sessions Judge, Deogarh in Sessions Trial No. 39 of 2005 for offences punishable under Section 302/34 for committing murder of four children namely Miss ''S'' (hereafter for short ''D-1''), Sagarika Dev (hereafter for short ''D-2''), Dolamani Dev (hereafter for short ''D-3'') & Eliza Dev (hereafter for short ''D-4'') in furtherance of common intention; Section 376(f)/34 for committing rape on D-1 in furtherance of common intention & Section 201/34 for causing disappearance of evidence in furtherance of common intention read with Section 120-B Indian Penal Code.

The Learned Trial Court vide impugned Judgment & Order Dated 6.7.2010 though acquitted the Appellants of the charge under Section 120-B IPC but found them guilty under Sections 302/34, 376(2)(f)/34 & 201/34 Indian Penal Code & accordingly convicted them of such offences & sentenced each them to undergo rigorous imprisonment for life & to pay a fine of Rs.10,000 each, in default, to undergo rigorous imprisonment for six months more each for the offence under Section 302/34 I.PC, rigorous imprisonment for ten years & to pay a fine of Rs.10,000/- each, in default, to undergo rigorous imprisonment for six months more each for the offence under Section 376(2)(f)/34 I.PC. & rigorous imprisonment for seven years & to pay a fine of Rs.5000/- each, in default, to undergo rigorous imprisonment for three months more each for the offence under Section 201/34 I.PC. All the substantive sentences were directed to run concurrently.

The prosecution case as per the First Information Report (Ext. 1) lodged by Santosh Kumar Sahu (P.W.1) before Officer-in-charge, Deogarh police station is that the four deceased children were prosecuting their studies in Dhobalipathar Primary School. On 1.7.2004 at about 4.00 p.m. after the school hours, the four deceased children were returning home but they were murdered on the way at Burgimunda. Since the deceased children did not return to their respective houses, their parents & guardians started searching for them & ultimately detected their dead bodies in a pond. Hearing about such unfortunate incident, villagers from the nearby villages congregated at the spot & found the dead bodies of four deceased children. The informant was sent to the police station by the villagers to intimate the matter & accordingly he lodged the FIR.

After registration of the FIR, PW.51 Sangram Tudu who was the Officer-in-charge of Deogarh Police Station took up investigation of the case. During course of investigation, he examined the informant & other witnesses, visited the spot & also the houses of the deceased persons, where he found the dead bodies of the children lying in their respective houses. On 2.7.2004 early morning, the I.O. visited the pond which is locally known as Burgimunda Kata of village Jagannathpur from where the dead bodies were recovered a day before. He found the school bags, slippers/chappals of the deceased children were lying on the ridge of the pond. He also sent requisitions to the photographer to take photographs of the spot so also to the Scientific Team, Sambalpur to help him in the investigation. He held inquest over the dead bodies on 2.7.2004 & prepared inquest reports vide Exts.2, 3, 9 & 10. The dead bodies were sent for post mortem examination. The school bags with books & khatas etc. of the deceased children along with slippers/chappals were seized under seizure list Ext.24 & given in the zima of their respective parents. The wearing apparels of the deceased children were produced before the I.O. after post mortem examinations which were seized under seizure list Ext.29. The I.O. also received the post mortem examination reports. He also produced the seized exhibits before the Learned SD.J.M, Deogarh with a prayer to send the same to S.F.S. L, Bhubaneswer for chemical examination. On 3.7.2004, he handed over the charge of investigation to Prasant Kumar Mohanty (PW.17), Circle Inspector of Police, Deogarh as per the direction of the S.P, Deogarh. P. W.17 after taking over the charge of investigation visited the spot & prepared the spot map Ext.11. He sent requisition to the Director, RFSL, Ainthapali, Sambalpur to depute dog squad & the Scientific Team to the spot. He also seized some blood stained earth, sample earth & broken bangles under seizure list Ext. 12 & on 4.7.2004 he handed over the charge of investigation to P.W.52 Uttam Kumar Singh, Inspector of C.I.D., (CB), Cuttack.

P.W.52 visited the spot & utilised two diesel pumps for draining out the water of the pond. He recovered green colourchadi with mud, one red & white plastic cotton belt & one red colour hair band from inside the pond after it was dried up under seizure list Ext.28. Subsequently he produced the chadi, belt, hair band etc. before Deputy Director, RFSL, Sambalpur for examination & opinion. The Appellants Shyama Mahananda & Dasarathi Chhanchan were arrested on 12.7.2004 & their wearing apparels were seized & they were sent for medical examination. The I. O. visited the houses of the Appellants & seized One Gamuchha each from the respective houses of the Appellants. The sample semen of Appellant Dasarathi Chhanchan was collected by the Medial Officer, DHH, Sambalpur but Appellant Shyama Mahananda did not cooperate with such collection. After completion of investigation, P.W.52 submitted charge sheet against the two Appellants under Sections 302/201/376(2)(f)/120(B) read with Section 34 IPC.

The defence plea is one of denial.

In order to prove its case, the prosecution examined 52 witnesses. P.W1 Santosh Kumar Sahu is the informant in the case who stated to have lodged the FIR at the instance of gentlemen of the village.

P.W.2 Khirod Bihari Pradhan is a witness to the inquest over the dead body of D-2 as per inquest report Ext.2.

P.W.3 Janmejay Rout was a student of the same school where the four deceased children were prosecuting their studies. He stated to have accompanied the deceased children while going to the school & also returned with them after school. He further stated that on the way since the deceased children stopped for taking ''Khiria Pan'', he alone returned back home. He further stated about the conduct of Appellant Shyama Mahananda in asking his maternal aunt Sabita Dev who is also the mother of D-4 as to whether D-4 had returned home & also informed her that the bags of the children were lying near Kata. He further stated that when his aunt asked the Appellant as to how he could know that the bags & chappals were of her daughter, the Appellant trembled & left the place hurriedly.

P.W.4 Bari Bhoi stated to have seen school bags, cane & a pair of chappals near the Kata being pointed out by Appellant Shyama Mahananda. He further stated that Appellant Shyama Mahananda brought a child from the water of Kata & asked him & others to leave the spot & also threatened them.

P.W.5 Kandarp Dev is the father of D-4 who stated what he heard from his wife Sarita Dev & nephew Janmejay after the dead body of D-4 was found. He further stated about his political enmity with one Binodini Suhula & Soubhagya Patra.

P.W.6 Sabita Dev is the mother of D-4 & she stated about the conduct of Appellant Shyama Mahananda coming to her house in a perturbed manner & asking her about D-4 & also informed her that the books & school bags were lying near Burgimunda Kata. She further stated about the rescue act of the dead bodies of three children by one Khira Pradhan & rescue of dead body of another child by Appellant Dasarathi Chhancha from Burgimunda Kata.

P.W.7 Lili Dev is the aunt of D-2 & she also stated about the conduct of Appellant Shyama Mahananda in making a query to P.W.6 & further stated about the recovery of the dead bodies from Burgimunda Kata.

P.W.8 Birendra Dev stated about the recovery of the dead bodies from Burgimunda Kata & also about the political rivalry between him on the one hand & Binodini Suhula & Soubhagya Patra on the other hand. He further stated about the seizure of one napkin from the house of Appellant Shyama Mahananda vide seizure list Ext.6 & another napkin from the house of Dasarathi Chhanchan under seizure list Ext.7 He further stated about taking of zima of bags & books of the children under Zimanama Ext. 8. He is also a witness to the inquest over the dead body of D-3 vide inquest report Ext. 9.

P.W.9 Sasibhusan Gangdev stated about the political hostility between him & Binodini Suhula & Soubhagya Patra.

P.W.10 Harischandra Garnaik stated to have seen the school bags & a pair of chappals inside Burgimunda Kata being pointed out by Appellant Shyama Mahananda. He further stated that Appellant Shyama Mahananda brought out one child from the water of the Kata & threatened them to murder if they disclose before others.

P.W.11 Surendra Kumar Swain & P.W.12 Lalmohan Garnaik are formal witnesses. P.W.13 Krushna Chandra Dev is a witness to the inquest of the dead body of D-3 vide inquest report Ext.9

P. W.14 Alekh Kumar Dev is a witness to the inquest of the dead body of D-1 vide inquest report Ext. 10.

P.W.15 Panu Luhura stated to have seen one school bag & chappals near the water of Burgimunda Kata being pointed out by Appellant Shyama Mahananda. He further stated that the Appellant lifted a child from the water of Kata & threatened them to murder if they disclose about the facts before anybody.

P.W.16 Dayasagar Pradhan stated about the seizure of green chadi, one school bag & one hair band after the water of Burgimunda Kata was drained out with the help of a pump.

P.W.17 Prasant Kumar Mohanty was the Circle Inspector of Police, Deogarh who is one of the Investigating Officers.

P.W.18 Kishore Chandra Swain stated to have noticed school bags & tiffin box lying near Burgimunda Kata.

P.W.19 Gangadhar Pradhan was the Asst. Surgeon of District Headquarters Hospital, Deogarh, who conducted post mortem examination over the dead body of D-4 on 2.7.2004 & proved the post mortem report Ext. 13.

P.W.20 Gopinath Dev is the father of D-1 & he is a witness to the inquest over the dead body of D-1 vide inquest report Ext. 10.

P.W.21 Rangadhar Paramani was the Medicine Specialist in the District Headquarters Hospital, Deogarh who conducted post mortem examination over the dead body of D-3 & proved the post mortem report Ext.15.

P.W.22 Dr. Debadutta Mohanty was the Asst. Surgeon at District Headquarters Hospital, Deogarh who conducted post mortem examination over the dead body of D-2 & proved the post mortem report Ext.17

P.W.23 Dr. Manoj Kumar Upadhya was the Asst. Surgeon District Headquarters Hospital who examined Appellant Dasarathi Chhanchan on 12.7.2004 & proved his report Ext.19.

P.W.24 Jogendra Kumar Swain is a witness to the seizure of monthly proceeding register of Chepilipali Gram Panchayat so also the notice register of the said Gram Panchyat under seizure list Ext.20.

P.W.25 Trilochan Barai & P.W.26 Sebak Chandra Pradhan were the Head Clerks of District Panchayat Office, Deograh who stated about the seizure of some documents from their office under seizure list Ext.22.

P.W.27 Laxman Lohar is a witness to the seizure of school bags, books etc. near the water reservoir at village Kata & also the seizure of sample earth & water under seizure list Ext.24.

P.W.28 Umakanta Swain stated about the recovery of green colour chadi, plastic belt & hair band after draining out of water from the reservoir of Kata.

P.W.29 Kishore Chandra Suna was the constable who stated about the seizure of one envelope containing soaked dried semen under seizure list Ext.25.

P.W.30 Nirakara Sahoo was the Revenue Inspector who on police requisitions prepared the spot maps vide Ext.26 & 27.

P.W.31 Minaketan Kar stated about the seizure of a bottle containing semen.

P.W.32 Sapteswar Sahoo stated about the seizure of one chadi under seizure list Ext.12. P.W.33 Gyaniram Gadnaik did not support the prosecution case for which he was declared hostile.

P.W.34 Harapriya Swain is a formal witness

P.W.35 Sankar Prasad Dev stated about the seizure of one chadi, one belt & one hair band under seizure list Ext.28 from Burgimunda Water reservoir.

P.W.36 Golakha Bihari Pradhan was the constable attached to Deogarh Police Station who stated about the seizure of one sealed envelope under seizure list Ext.25.

P.W.37 Kandarpa Adabar was the Constable who carried the dead bodies to the District Headquarters Hospital, Deogarh for post mortem examination & he brought the wearing apparels of the deceased after post mortem examination & produced before the Officer-in-charge which were seized under seizure list Ext.29.

P.W.38 Santosh Kumar Dev is a witness to the seizure of one chadi, bangles, school bag & belt under seizure list Ext.28.

P.W.39 Purusotam Pradhan did not support the prosecution case for which he was declared hostile.

P.W.40 Pradipta Patnaik & P.W.41 Ramanath Swain were the Asst. Director, Serology & in-charge Dy. Director of R.F.S.L., Sambalpur respectively who examined the chadi, hair band & one belt at Deogarh Police Station & instructed the I.O. to send the same to SFSL, Rasulgarh.

P.W.42 Birabara Nayak was the Superintendent of Special Sub-Jail, Deogarh who stated about the interrogation of the Appellants by the Inspector of CID (CB) inside the jail premises.

P.W.43 Purusotam Dehury was the Haviladar attached to Deogarh Police Station who collected the dresses of the deceased children after post mortem examination & produced before the Officer-in-Charge, Deogarh Police Station which were seized under seizure list Ext.29.

P.W.44 Bhabani Sankar Dev is a witness to the seizure of School bags, books, chappals etc. near Burgimunda Kata under seizure list Ext.24.

P.W.45 Sunanda Mohapatra was the Pediatrics Specialist attached to District Headquarters Hospital, Deogarh who conducted post mortem examination over the dead body of D-1 & proved the post mortem report Ext.32.

P.W.46 Abhiram Behera was the Asst. Professor & HOD of FMT at VSS Medical College, Burla who visited the spot & also replied to the query of the I.O. after examining the post mortem reports.

P.W.47 Lalit Mohan Gadnaik stated about the seizure of one gamuchha from the house of Appellant Dasarathi Chhanchan under seizure list Ext.7.

P.W.48 Daktar Behera stated to have chewed some Khiria Pan leaves (a type of grass) collected from the spot at the request of police.

P.W.49 Baru Charan Swain stated to have seen the dead bodies of the children in their respective houses.

P.W.50 Sunil Deb is the brother of D-1 who took the lima of the ear ring, school bag, books & note books of D-1 under zimanama Ext.36 & 37.

P.W.51 Sang ram Tudu was the Officer-in-Charge, Deogarh Police Station who is one of the Investigating Officers.

P.W.52 Utam Kumar Singh was the Inspector of CID (CB), Cuttack who is another Investigating Officer. The prosecution exhibited 51 documents & proved eight material objects Ext. 1 is the FIR, Exts.2, 3, 9 & 10 are the inquest reports, Exts. 38, 39, 40, 41 are dead body challans, Exts.13, 15, 17, 32 are the post mortem reports, Exts.6, 7, 12, 20, 22, 24, 25, 28, 29, 30, 31 & 44 are seizure lists, Exts. 4, 5, 8, 21, 23, 36 & 37 are zimanama, Exts.11, 26, 27 & 42 are the spot maps, Ext. 14 is the report of the doctor PW19 to the query of the I.O., Ext.16 is the report of the doctor PW21, Ext. 18 is the report of doctor PW-22 to the query of the I.O., Ext.19 is the Medical Examination Report of Appellant Dasarathi Chhanchan, Ext. 33 is the report regarding spot visit, Exts. 34, 35/2 are the police requisitions, Ext.43 is the fax "message sent to S.P Deogarh, Exts. 45 & 46 are the Chemical Examination Reports, Exts.47, 48, 49, 50 & 51 are the reports of SFSL. M.O. I is a pair of chappals, M.O.II & M.O.III are old gamucha, M.O.IV & M.O.V are lungi, M.O.VI is a banion, M.O.VII is a chadi & M.O.VIII is the full shirt.

No witness was examined on behalf of the defence.

Now it is to be seen how far the prosecution has established that the death of D-1, D-2, D-1 & D-4 are homicidal in nature & that D-1 was subjected to rape.

D-1

So far as D-1 is concerned, in order to establish such aspect, apart from the inquest report (Ext. 10), the prosecution has examined doctor (P.W.45) who conducted autopsy over the dead body of D-1 on 2.7.2004 & found the following external injuries:

External Injuries

(i) Lacerated injury on the lower lip of size 1" x �" x �" on the mucus membrane;

(ii) Hematoma present on the mucus membrane of upper lip & lower lip. Lips were slightly swollen;

(iii) Abrasion on the right hand dorsum on the medial aspect of size �" x �" ;

(iv) Abrasion on the right scapula region of size 2" x �" ;

(v) Lacerated injury on the left foot second toe adjacent to the nail of size �" x �" x �".

(vi) Abrasion on the fourth toe of left foot of size �" x �"

(vii) Lacerated injury on the right upper eye lid of size 1" x �" x �". Eye lid swollen;

(viii) Bruise on the left upper eye lid of size 1" x 1".

The doctor found dry blood was sticking into the both sides of thigh medial aspect. Vulva & perineum, libia majora & libia minora were slightly swollen. There was tear of hymen on the posterior aspect extending to posterior vaginal wall. Two radial tears were found present at 4 O'' clock & 9 O'' clock position. The doctor opined the case to be smothering which is homicidal in nature & he also suspected commission of sexual offence (rape) on D-1. The post mortem report has been proved as Ext.32.

D-2

So far as D-2 is concerned, in order to establish such aspect, apart from the inquest report (Ext.2), the prosecution has examined doctor (P.W.22) who conducted autopsy over the dead body of D-2 on 2.7.2004 & found eyes congested, blood stains running from angle of mouth, tooth bite mark found in the inner side of lower lip, teeth clinched, face congested & cyanosed. On internal examination, he found brain congested, mucous membrane of larynx & trachea red & congested, lungs congested, right side of heart contained dark fluid blood, left side empty, pulmonary artery & vena cava contained fluid blood, aorta & pulmonary vein empty, liver, spleen & kidneys were found congested. Bladder empty. The doctor opined the death was due to asphyxia resulting from smothering. The post mortem report has been proved as Ext.17.

D-3

So far as D-1 is concerned, in order to establish such aspect, apart from the inquest report (Ext.9), the prosecution has examined doctor (PW.21) who conducted autopsy over the dead body of D-1 on 2.7.2004 & found the following external injuries:

(i) Lacerated injury on right upper eye lid & lower eye lid;

(ii) Subconjunctival haemorrhage in both eyes more on right side;

(iii) A lacerated injury on right angle of mouth of size 2" x �" x �"

(iv) Lacerated injury to left tragus & anti tragus;

(v) Lacerated injury to right margin of pinna about 2" length. No ligature mark found on the neck. The doctor opined the injuries to be ante mortem in nature & cause of death was due to asphyxia on account of smothering. The post mortem report has been proved as Ext.15.

D-4

So far as D-4 is concerned, in order to establish such aspect, apart from the inquest report (Ext.3), the prosecution has examined doctor (PW.19) who conducted autopsy over the dead body of D-4 on 2.7.2004 & found the following external injuries:

(i) Lacerated injury of size 1�" x 1" x ⅛" over right upper eye lid;

(ii) Lacerated injury of size 1" x 1" x �" over the eye lid meeting the both wounds in medial canthus;

(iii) Lacerated injury of size �" x 1" x �" over the left lower eye lid �" apart of medial canthus;

(iv) Lacerated injury of size 2" x 1" x 1" on the right angle of the mouth;

(v) Multiple lacerated wounds of different size on vocal surface of upper & lower lips.

The doctor opined the cause of death due to asphyxia on account of smothering. The post mortem report has been proved as Ext.13. The Learned Counsel for the Appellants has neither challenged the evidence of the doctors P.W.45, P.W.22, P.W.21 & P.W.19 nor the findings in the post mortem examination reports Ext.32, Ext.17, Ext.15 & Ext.13. P.W.46 who was the Asst. Professor & H.O.D. of F.M.T.,VS.S. Medical College, Burla on perusal of all the inquest reports, dead body challans, post mortem reports & also basing on his spot visit opined that from the pattern of injuries, it appeared that more than one persons were involved for causing those injuries. The injuries on the face & lip were consistent with smothering leading to asphyxial deaths. He further opined that the genital injuries mentioned in the P.M. report of D-1 are suggestive of forcible sexual intercourse. After perusing the evidence on record, the post mortem examination reports & the statements of doctors & medical expert, we are of the view that the prosecution has successfully proved the death of all the four deceased to be homicidal in nature & D-1 was subjected to forcible sexual intercourse.

It is a case which is based on circumstantial evidence. There are mainly four circumstances appearing against the Appellants:

(i) Conduct of Appellant Shyama Mahananda in making a query to PW.6 about D-4 & also intimating her about the school bags & books of the children lying near Burgimunda Kata & at that time the Appellant was in a perturbed state of mind;

(ii) Recovery of dead bodies from the water of Burgimunda Kata by the Appellants;

(iii) Presence of Appellant Shyama Mahananda at the spot & threatening others to leave the spot;

(iv) Political hostility

The Learned Counsel for the Appellants Miss. Deepali Mohapatra contended that the circumstances projected by the prosecution have not been fully established & those circumstances taken together do not form a chain so complete to unerringly point towards the guilt of the Appellants She further contended that the Learned Trial Court has not assessed the evidence in its proper perspective & merely because four children were murdered & one of them was subjected to forcible sexual intercourse, the Court is not absolved of its responsibility to act upon legal evidence rather than proceeding on the basis of conjectures & suspicion. The Learned Counsel for the State Mr. A.K. Mishra, on the other hand while supporting the impugned Judgment & order of conviction submitted that there is no infirmity in the approach of the Learned Trial Court & coming to the conclusion that the Appellants are the perpetrators of the crime.

Law is well settled that fouler the crime, the higher should be the degree of scrutiny. A moral opinion however strong or genuine cannot be a substitute for legal proof. A very careful, cautious & meticulous scrutinization of the evidence on record brings us to the following conclusions.

First Circumstance

So far as first circumstance is concerned, P.W.3 Janmajey Rout has stated that the Appellant Shyama Mahananda came & asked PW.6 Sabita Dev as to whether D-4 had come & further intimated that the bags of the children were lying near the Kata & that he smelt some foul play. When PW.6 asked the Appellant as to how he could know that the bags & chappals were of D-4, the Appellant trembled & left the place hurriedly without telling any word. The statement of PW.3 is somewhat contradictory to PW.6 who never stated that she had asked the Appellant Shyama Mahananda as to how he could know the bags & chappals belong to D-4 for which the Appellant trembled & left the spot hurriedly, rather it is the statement of P.W.6 that the Appellant Shyama Mahananda intimated her about the books & school bags lying near Burgimunda Kata for which she went to the spot. Of course she stated that the Appellant was perturbed & uneasy when he came to her house.

It is not believable & acceptable that the Appellant after committing the ghastly crime would come to the house of one of the deceased for ascertaining the whereabouts of the deceased from her mother & would behave in a suspicious manner which would raise question marks against his conduct in the mind of others. No doubt, the previous as well as subsequent conduct of an accused is relevant in a criminal case in view of Section 8 of the Evidence Act. The conduct of an accused after an incident plays an important part in the determination of the guilt & it is a corroborative piece of evidence. Conduct of accused to be relevant must have nexus with the crime committed.

In the present case, when the evidence of these two witnesses PW.3 & P.W.6 are contradictory to each other & the approach of the Appellant Shyama Mahananda to PW.6 for making a query about D-4 is a doubtful feature & it is very unlikely that an accused would like to create any incriminating piece of evidence against himself, we are unable to accept the prosecution evidence in this respect.

Second Circumstance

PW.4, PW.10 & PW.15 have stated that Appellant Shyama Mahananda brought a child from water by lifting the child whereas PW.6 & PW.7 stated that it is Appellant Dasarathi Chhanchan who brought the dead body of D-2 from the water of Burgimunda Kata.

The evidence of PW.6 & PW.7 indicate that after their arrival at the spot, one Khira Pradhan brought the bodies of three children from the water & as the dead body of D-2 was not amongst those dead bodies, P.W.7 cried & enquired about the whereabouts of her niece D-2 for which Appellant Dasarathi Chhanchan jumped into the water & brought the dead body of D-2. There is evidence on record that there was about 4 feet of water in the Burgimunda Kata which was measuring about 30 feet x 15 feet. Thus there are discrepancies between the witnesses as to which Appellant brought one of the dead bodies from the water of Burgimunda Kata. When schools bags & chappals etc. were lying around Burgimuda Kata & there was huge gathering at the spot & when three dead bodies were located by one Khira Pradhan from the water & when PW.7 cried aloud, the Appellant Dasarathi Chhanchan jumped into water & recovered the fourth dead body, it can not be said that the conduct of this Appellant was such that it would implicate him in the crime. Everybody must be expecting the dead bodies of four children inside the water of Burgimunda Kata when the school bags, chappals, etc were lying there & when three dead bodies were recovered, to trace out whether the fourth one is there or not, the Appellant Dasarathi Chhanchan might have jumped into water & recovered the dead body. Thus we are of the view that the second circumstance is also not clinching against any of the Appellants.

Third Circumstance

PW.4, PW.10 & PW.15 who were tending goats near Burgimunda Kata have stated that they saw the Appellant Shyama Mahananda lifting a child from the water & they were threatened at the spot by the Appellant to go to the village & not to disclose about the fact before anybody otherwise they would be murdered. It appears improbable that the Appellant would go to the spot & point out the bags & chappals to the witnesses & then in presence of the witnesses, would try to lift a child from the water. Such type of conduct is not ordinarily expected from a person who is having a guilty mind & therefore we are not in a position to place any reliance on such evidence.

Fourth Circumstance

So far as political hostility is concerned, PW.5 who is the father of D-4 has stated that he had political hostility with one Binodini Suhula & Soubhgya Patra who were the Sarapach & Samiti Savya of Chhepilipali Gram Panchayat respectively. P.W.7 who is the uncle of D-2 has also stated about the political hostility between him & Binodini Suhula & Soubhgya Patra. It has come on record that Appellant Dasarathi Chhanchan is the nephew of Binodini Suhula & son of maternal uncle of Saubhagya Patra. Even if we accept that there was some political hostility, it is very difficult to come to a conclusion that such political hostility was the motive behind the commission of the crime. When there exists absolutely no cogent & reliable evidence against the Appellants that they have committed the crime, the absence of an apparent motive is certainly a factor to be considered in favour of the Appellants particularly when the case is based on circumstantial evidence.

Analysing the evidence on record dispassionately, we find that the circumstances brought on record by the prosecution have not been fully established & those circumstances are not consistent with the hypothesis of the guilt of the Appellants & those are not of a conclusive nature & the chain of evidence is not complete enough to come to an irresistible conclusion that the act must have been done by the Appellants.

In view of the evidence available on record, we are not in a position to accept that the prosecution has established its case against the Appellants beyond all reasonable doubt. The reasoning assigned by the Learned Trial Court in convicting the Appellants seems to be based on conjecture & suspicion which have no place in the matter of legal proof of guilt of accused persons in a criminal trial & we are of the view that the impugned verdict is nothing but a sheer moral conviction. Thus we hold that the prosecution has failed to establish the charges against the Appellants beyond all reasonable doubt & therefore they are acquitted of the charge under Sections 302/34, 376(2)(f)/34 & 201/34 IPC.

In the result, the Criminal Appeal is allowed & the impugned Judgment & order of conviction & sentence passed thereunder is set aside & the Appellants are acquitted of the charge under Sections 302/34, 376(2)(f)/34 & 201/34IPC. Both the Appellants are in jail custody. They should be released forthwith unless their detention is required in any other case.

Accordingly the CRLA is allowed.