Kisun @ Sunaram Patra vs State Of Odisha

Sashikanta Mishra, J

The appellant faced trial with two other persons in S.T. Case No.18/105 of 2001 in the Court of learned Additional Sessions Judge, Rairangpur for committing murder of one Sadhu Das in village Badasia under Bahalda Police Station of Mayurbhanj district. By judgment passed on 18.12.2001, the trial Court, while acquitting the other two persons, convicted the appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life.

Being aggrieved, the appellant has preferred the present appeal.

The prosecution case, briefly stated, runs as follows:-On 03.01.2001, in village Badasia, a dead body was found floating in the village tank. One, Bishnu Halda informed the Grama Rakhi of the above. Hearing this, the Grama Rakhi along with other persons of the village went to the tank and found a cycle parked in the middle of Chatani Sahi road. A plastic sack containing rice was kept in its carrier along with a pair of slippers tied to it. A bag containing some vegetables also hung from the handle. No one came forward to claim the cycle. A crowd had gathered on the embankment of the tank. Marks of dragging along with blood were seen near the field of Padmini Halda along with dried blood at several places. A blood stained steel glass was also lying nearby. In the eastern portion of the tank, a pant and a shirt were found floating. In the western side, in about knee deep water, a corpse was floating. Being advised by the Sarpanch, the Grama Rakhi, Laxminarayan Patra went to Jamda Police Station and lodged F.I.R. On such report, Bahalda P.S. Case No.01 of 2001 was registered under Section 302 of IPC, followed by investigation. In course of investigation, said dead body floating in the village tank was identified to be of Sadhu Das. Further, during the investigation, the complicity of the appellant and two other persons namely, Nauru Bage and Marda Bage came to light for which charge-sheet was submitted against them under Sections 302/34 IPC.

The defence plea was of denial and false implication.

To prove its case, prosecution examined eleven witnesses and proved sixteen documents. Prosecution also proved six material objects. Defence did not adduce any evidence.

After considering the evidence on record, particularly that of P.Ws. 4, 6 and 11 coupled with the recovery of a blood stained budia (axe), the trial Court was of the view that Sadhu Das was brutally murdered by the present appellant. Thus, while acquitting the other two accused persons, the trial Court convicted the present appellant and sentenced him as aforesaid.

Heard Ms. Diptimayee Dhal, learned counsel for the Appellant and Mr. Debaraj Mohanty, learned Additional Government Advocate for the State-Respondent.

Ms. Dhal would argue that the trial Court convicted the accused without any evidence, either direct or circumstantial. Prosecution could not establish a complete chain of circumstances inspite of which, the trial Court, basing on the inadmissible statements of the witnesses recorded by the I.O. under Section 161 of Cr.P.C., held the accused guilty. Since the other two accused persons facing trial stood on the same footing as the appellant and were acquitted of the charge, the appellant should also have been acquitted.

Per contra, Mr. D. Mohanty would argue that the chain of circumstances against the accused is complete in every respect, inasmuch as there is clear evidence of prior enmity and assault by the accused persons on the deceased a few days prior to the occurrence along with evidence of threat being given by them to kill him. On the date of occurrence, the accused came to the house of the deceased and confessed of killing him before his wife. Mr. Mohanty further argues that the weapon of offence was also recovered at the instance of the accused.

Perusal of the case record reveals that prosecution relies upon the evidence of P.W. Nos.4, 6 and 11. P.W. 4 is the sister of the deceased. She stated that at about twelve noon on a Tuesday, the accused persons assaulted the deceased and on the next morning of the occurrence, the accused wanted to know if her brother had returned from the market or not. She has not stated if she had actually seen the accused persons taking her brother to the market or of assaulting him. P.W. 6 also stated that about seven days prior to the occurrence, the deceased and the accused persons had quarreled and they threatened to kill him in future. P.W. 6 also does not say if he had seen the occurrence. P.W. 11 is the wife of the deceased. According to her, much before the occurrence on a Tuesday, the accused persons quarreled with her husband. On the next morning of the occurrence, the accused persons came to her house and enquired about the whereabouts of her husband, to which she stated her ignorance and then the accused persons told her that they had killed her husband and thrown the dead body in the village tank. The last part of her statement was an improvement not being stated earlier to the I.O. Be that as it may, we find that none of the three witnesses (P.Ws. 4, 6 and 11) have stated to have seen the actual quarrel/assault/threat by the accused persons to the deceased. The trial Court has laid much emphasis on the statement of P.W. 11 regarding the prior assault but prosecution has not come up with any evidence as to her source of knowledge of such assault. The trial Court further held that if the appellant had not committed the murder then why would he come to the house of P.W. 11 on the next day. We find this surprising as well as untenable for the reason that on the same fact a question can also be asked as to why should a person committing the murder visit the house of his victim and confess before his wife of killing him. This militates against normal human conduct. The trial Court appears to have been swayed away by certain wrong statements made by the I.O., before the Court being confronted with the Section 161 of Cr.P.C. statement of P.W. 11. We are not inclined to place any importance on such discrepancy, if at all.

Fact remains that, there is no eye-witness to the occurrence. The only thing that appears from the evidence is that of a prior quarrel between the accused persons and the deceased but then the exact time gap between the date of prior assault and the occurrence is not very clear because, according to P.Ws. 4 and 6, the same was seven days but according to P.W.

11, it was ‘much before’ the occurrence. Further, as already stated, none of them have specifically claimed to have seen such quarrel/assault themselves. Even assuming there was a quarrel, the same automatically does not prove that the accused persons had killed the deceased.

Another important aspect is that according to P.W. 6, the blood stained budia was recovered from the house of the present appellant but according to the I.O., the same was seized from the house of the co-accused Nauru Bage. So, if there was evidence of the axe being recovered from the house of Nauru Bage, how could he then be acquitted? We find considerable force in the submission of Ms. Dhal that on same set of facts and evidence, the appellant ought to have been treated in the same manner as the co- accused persons.

Surprisingly, the trial Court held that the blood stained budia was seized ‘either from the house of accused Sunaram Patra or Nauru Bage’. The trial Court thereafter, proceeds to hold that accused Sunaram Patra might have kept the blood stained budia in the house of Nauru Bage with a view to escape from the liability. This is an absolutely baseless finding, inasmuch as the prosecution itself does not say so. The trial Court made out a third case altogether.

Thus, we are unable to persuade ourselves to agree with the contention of learned State counsel that there is a complete chain of circumstances to link the accused persons with the occurrence. Law relating to use of circumstantial evidence is too well settled to be reiterated. Nonetheless, we may profitably refer to the oft quoted judgment of the Supreme Court in the Case of Sharad Birdhichand Sarda V. State of Maharashtra[(1984) 4 SCC 116], wherein the following observations are noteworthy.

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

From what has been narrated hereinbefore, this is a case where prosecution must be held to have failed in its attempt to bring home the charges by proving a complete chain of circumstances. There are glaring gaps in the evidence as pointed out in the preceding paragraphs. It would therefore, be unsafe to rely upon the prosecution evidence to hold the accused persons guilty. The trial Court must therefore, be held to have committed an error in doing so. The impugned judgment warrants interference for such reason.

In the result, the appeal succeeds and is therefore, allowed. The impugned judgment of conviction and sentence dated 18.12.2001 passed by learned Additional Sessions Judge, Rairangpur in S.T. Case No.18/105 of 2021 are hereby set aside. The accused appellant being on bail his bail bonds be discharged.