Jogendra Bhoi and Others vs State of Orissa

Heard argument from both the parties, hearing is concluded and the Judgment is as follows.

Appellants were accused persons in S.T. No. 147/36 of 1996 of the Court of Addl. Sessions Judge, Sambalpur. They were prosecuted for the

offence of murder and accordingly charged u/s 302/34, I.P.C. The impugned Judgment was delivered on 31.03.1997. Trial Court found the

Appellants guilty of the offence u/s 302/34, I.P.C. and for that conviction, sentenced each of them to imprisonment for life. That Judgment is under

challenge in this appeal.

Prosecution case, which reveals from the F.I.R., evidence of the family members of the deceased and the impugned Judgment, is that Jenamani

Bhoi, the deceased (hereinafter referred to as ''deceased'') faced a criminal case at the behest of the family of the accused persons and was

acquitted in that case in the previous year of the date of occurrence, i.e., 16.07.1995. About a few days before the aforesaid date of occurrence,

Jagamati Bhoi (P.W.2), mother of the deceased, had to drive out the cattle of accused Jogendra which had trespassed to their land. The act of

assault by accused Jogendra in that occurrence was reported by the deceased together with P.W. 2. On the date of occurrence, i.e., on

16.07.1995 at about 5 a.m. the deceased left his house and proceeded to the village pond to ease himself. As alleged by the prosecution, the

accused persons extended overt act on the spot by the side of the way to pond and by use of weapons like axe and knife inflicted as many as 25

injuries, as a result of which the deceased sustaining about 25 bleeding injuries all over the body, died at the spot. Janakram Bhoi (P.W. 5), an

uncle of the deceased could see the occurrence at the time of assault and decamping of the accused persons. On hearing the shout of the

deceased, Chaituram Bhoi (P.W. 4) and Pramila Bhoi (P.W. 3) went to see the state of affairs and they were informed by P.W. 5 about the

assault on the deceased by the accused persons. They went and saw the dead body of the deceased. P.W. 3 is the widow of the deceased and

P.W. 1 is the father of the deceased. In the early morning on that day he had come to his cultivable land and hearing the commotion in the village

he returned and discovered the death of his son and thereafter he went and lodged the report (F.I.R. - Ext. 1) in Brajaraj Nagar Police Station.

After receipt of the F.I.R - investigation was undertaken in a routine manner. In course of that investigation accused persons were arrested, the

knife (M.O. V) and the axe (M.O. VI) together with the wearing apparels of the accused persons suspected to be stained with blood were seized

u/s 27 of the Evidence Act besides making seizure of the blood-stained sample earth and the bloodstained wearing apparels of the deceased

collected after the postmortem examination.

Accused persons took the plea of complete denial but adduced no defence evidence.

To establish the charge against the accused persons, prosecution relied on the evidence of 11 witnesses and series of documents marked Exts. 1

to 19 and the Material Objects marked M.Os. I to X. As noted earlier, P.W. 5 was projected as the solitary eye-witness to the occurrence,

whereas P.Ws. 1 to 3 as the witnesses to the prior dispute establishing the motive for the, crime. P.Ws. 6 and 7, the two co-villagers were

examined to prove seizure of the incriminating evidence u/s 27 of the Evidence Act. The doctor, who conducted the post-mortem examination and

proved the post-mortem report (Ext. 15) and the opinion report (Ext. 16), has been examined as P.W. 10. A Police Constable, who carried the

dead body and the Investigating Officer who conducted investigation, were respectively examined as P.Ws. 9 and 11.

In course of the Trial, P.W. 5 declined to be an eye-witness to the occurrence and, therefore, prosecution was permitted to put leading

questions to him. In that process, statement of P.W. 5 recorded u/s 164, Cr.P.C. was proved as Ext. 3.

Learned Addl. Sessions Judge, on appreciation of the evidence of P.W. 10. and Exts. 15 and 16, held that deceased suffered homicidal death.

On assessment of the evidence of P.Ws. 1 to 8, he held that notwithstanding the conduct of P.W. 5 turning hostile to the prosecution in Court, his

statement u/s 164, Cr.P.C. (Ext. 3) together with the seizure list u/s 27 of the Evidence Act marked Exts 4 to 8 besides the statement of the

accused persons in course of the investigation marked Exts. 9 and 10 are sufficient to prove that accused persons are the author of the injuries

which led to the homicidal death of the deceased. Accordingly Learned Addl. Sessions Judge found them guilty of the offence of murder and

imposed penalty of imprisonment for life.

Learned Counsel for the Appellants argues that the Trial Court has bypassed all the legal norms in respect of determining evidence which is

legally acceptable by discarding the evidence which is not legally acceptable and on the basis of surmises and presumption he enforced a finding of

guilt against the accused persons. Learned Counsel for the Appellants further argues that barring the motive part stated by the P.Ws. 1 to 3, there

is no other evidence on record to show or suggest that accused persons are the author of the homicide and under such circumstance, if not a clean-

cut acquittal, at least benefit of doubt should have been granted in favour of the Appellant. After placing the evidence on record and criticizing the

finding of the Trial Court in the above indicated manner, Learned Counsel for the Appellants argues to acquit the accused persons.

Learned Counsel for the State has no reply to the contention on legal issues regarding non-acceptability of the evidence u/s 27 of the Evidence

Act and particularly the statements of the accused recorded and proved by the Investigating Officer. He is also unable to subscribe to the finding of

the Trial Court on the guilt of the accused persons on the face of weak evidence u/s 27 of the Evidence Act together with no evidence from the

circumstances of seizure of the wearing apparels of the accused and the deceased together with the weapon of offence. We have taken care to go

through the evidence in detail, both oral and documentary, and find that the criticism labeled against the impugned Judgment by the Appellants has

substantial merit. The principle of law is well settled, both statutorily so also by judicial pronouncement, that a charge framed for a crime shall

sustain on proof of the occurrence beyond all reasonable doubts. Such proof can be rendered by direct or circumstantial evidence. If there is no

direct evidence, then the chain of circumstance must be complete to unfailingly point the accusing finger at the accused persons and leaving no

doubt to be filled up by speculation or conjecture.

In this case, P.W. 5, an uncle of the deceased, has declined to be an eye-witness to the occurrence. That is his clear statement in Court. So far

as the statement u/s 164, Cr.P.C. is concerned, he explained that he was tutored in the Police Station and was tutored to make statement

implicating the accused persons. We would not have given any importance to the explanation of P.W. 5, but P.W. 4 in his evidence stated that,

In the said morning I was sleeping in my house and hearing the shout of Janakram, I came out and saw Janakram was standing in front of his

entrance door. When I came to him and asked him why he is shouting, he said that assault has taken place. He also said that the body is lying by

the side of the road. When myself and Janakram came to the spot where dead body was lying, the wife of Jenamani came and identified the

deceased to be her husband. We sent the villagers to the P.S. to lodge report and I returned to my house and later on being called by the police I

had gone to the spot. I had asked Janakram as to who committed murder of Jenamani, but he said that he had not seen who committed the

murder....

This part of the evidence of P.W. 4 has not been proved to be false or wrong. That part of his evidence corroborates with the evidence of P.W. 5

in his examination-in-chief. Apart from that, in the 164, Cr.P.C. statement (Ext. 3) P.W. 5 did not state that he saw any of the accused persons

assaulting the deceased. There only a statement was made that accused persons were running away and three of the accused persons were armed

with weapons. The statement u/s 164, Cr.P.C. having been disowned by P.W. 5, prosecution did not take care to examine the Magistrate who

recorded that statement so as to eliminate possible doubt about the influence exercised. There is no denial to the fact that P.W. 5 was produced

before the Court by the Police. Be that as it may, the aforesaid statement cannot be read as substantive evidence under the given facts and

circumstances.

The report from the Regional Forensic Science & Laboratory, Sambalpur indicates that except the ''Chadar'' of accused Murali under Seizure

List (Ext. 6) and ''Lungi'' of the deceased containing human blood group B, no other article seized and sent for chemical analysis and serological

test were found to be containing human blood. This remote circumstantial evidence alone is not sufficient to presume that all the accused persons

committed the murder of the deceased or even that accused Murali committed murder of the deceased.

Peculiarly enough the Trial Court ignored to read Section 25 of the Evidence Act when took into consideration the confession of the accused

before the police, marked Exts. 9 and 10 and even Exts. 4 to 8. Since the knife and the axe were not found with human blood and there being no

evidence on record from any source that such knife and axe belongs to the accused persons, mere seizure of the same and the opinion of the

doctor (Ext. 16) that injuries found on the dead body of the deceased are possible by such type of weapons is alone not sufficient to connect the

accused persons with the crime. Even, putting together the report of the serologist and the seizure list, the chain of circumstance is not completed to

prove the charge against the accused persons. As already indicated earlier, there is no other evidence on record to connect the accused persons

with the alleged crime.

Before parting with the discussion, we may observe that if the prosecution would have been conducted in a more sincere way and evidence

would have been tendered systematically, keeping in mind the facts involved and the charge framed against the accused persons, then the

prosecution would have been in a better position so as to place its point before the Court. The casual manner in which the prosecution was

conducted and the whimsical manner in which the evidence was introduced, has left the trial with inadequate materials to substantiate the charge.

the forgoing discussion, we find that the Judgment of conviction is not sustainable and the accused persons are entitled to benefit of doubt.

Accordingly, the order of conviction u/s 302/34, I.P.C. is set aside and the Appellants/accused persons are acquitted from the charges by granting

benefit of doubt. Since they were not granted bail during pendency of the Appeal, if they are detained in jail custody in connection with S.T. Case

No. 47/36 of 1996 of the Court of Addl. Sessions Judge, Sambalpur and if their detention is not required in connection with any other criminal

case, then they be set at liberty forthwith.