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2002 DIGILAW 216 (ORI)

ROHIT NAIK v. STATE OF ORISSA

2002-04-09

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - The order of conviction and sentence u/s 302 of the Indian Penal Code, in short 'IPC', dated 23.12.1994 passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal, in Sessions Trial Case No. 90 of 1992 directing the appellant to undergo imprisonment for life has been assailed in this appeal. 2. The fact leading to the filing of this appeal is as follows : The appellant who was the cousin brother of the deceased Rukuna Naik impressed on the latter that her mother was ailing and, therefore, he had come to take her with him. Believing the statement of the appellant, the deceased Rukuna had gone in the company of the appellant in his bicycle borrowed from Sikhar Behera (P.W. 1). It is stated that on the way towards Nuabaga, the dead body of the deceased Rukuna was lying which was witnessed by one Rabi Narayan Mishra and one Gandharb Biswal. They informed the village Gramarakhi, Sarat Naik (P.W. 2), who immediately after hearing such information rushed to the spot and noticed the headless, body of a female lying in Madhiapal jungle on the Nuabaga-Baghajharia Road. He proceeded to the police station, and lodged a written report vide Ext. 1, on the basis of which a case was initiated u/s 302/201, IPC. In course of investigation, it was found that the head was concealed in a paddy field near Madhiapal jungle. Inquest was conducted over the trunk of the body and also the head and both the body and head were sent for postmortem examination. It was further ascertained during investigation that the appellant was the assailant of the deceased Rukuni. Accordingly, charge-sheet was laid against him. 3. Admittedly, there was no eye witness to the occurrence and the whole prosecution case rested on circumstantial evidence. The prosecution relied on some circumstances, from which the learned Sessions Judge had formed an opinion that it was the appellant who committed the offence of homicidal death of Rukuni. 4. The learned Sessions Judge has emphasized the following circumstances in order to bring home the guilt to the accused. (1) That the appellant came to the house of the deceased and persuaded her to go with him to see his ailing mother. (2) The deceased was found in the company of the appellant going on a bicycle. 4. The learned Sessions Judge has emphasized the following circumstances in order to bring home the guilt to the accused. (1) That the appellant came to the house of the deceased and persuaded her to go with him to see his ailing mother. (2) The deceased was found in the company of the appellant going on a bicycle. (3) The appellant had removed the gold ornaments of the deceased and disposed them of at Cuttack. (4) The sale proceeds had been recovered at the instance of the appellant u/s 27 of the Evidence Act. (5) The bicycle borrowed from P.W. 1 was lying near the dead body. (6) The katari which was lying in a field was seized at the instance of the appellant u/s 27 of the Evidence Act. (7) The wearing apparels of the deceased contained human blood of 'B' group which tallied with the group of blood contained on the cloths of the deceased. 5. According to the learned Sessions Judge, these circumstances unerringly point at the guilt of the appellant that he committed the murder. 6. Miss. Vijayshree, learned State Defence Counsel has submitted that in a case where the prosecution case has totally rested on circumstantial evidence, it has to be proved by clinching circumstances that it was the appellant alone who was responsible for causing the ghastly murder of the deceased. In this case, all the circumstances taken together do not form a complete chain to point at the guilt of the appellant Therefore, the learned Sessions Judge committed serious illegality in holding that the accused was the culprit of killing the deceased Rukuni. 7. Though P.W. 1 has stated that the appellant had taken the bicycle, (M.O. I) from him, but no evidence is forthcoming that M.O.I, was recovered from the place of occurrence save and except that a cycle was seized therefrom. Although the cycle seized by the Investigating Officer under Ext. 19 was an old Hercules cycle, no where P.W. 1 has stated that the appellant had taken a Hercules cycle, much less any T.I. parade was conducted to identify the said cycle. In the above situation, even assuming that M.O.I, was used by the accused to take the deceased with him, that has not been established by the prosecution. As such, we are unable to place reliance on the recovery of the cycle from the spot. 8. In the above situation, even assuming that M.O.I, was used by the accused to take the deceased with him, that has not been established by the prosecution. As such, we are unable to place reliance on the recovery of the cycle from the spot. 8. While proving the second situation against the appellant, the prosecution has mainly relied upon the evidence of P.Ws. 5 and 6. P.W. 5, Kuntala Naik stated to have seen the appellant in the company of the deceased Rukuna around 11.00 A.M. near Nuabandhahuda. She stated that the appellant was going with the deceased towards Satamile. In cross-examination, P.W. 5 could not say the direction in which they proceeded. No proximity of time between the death of the deceased and the last seen has been established. In similar way, P.W. 6 has deposed to have seen the appellant in the company of the deceased at about 11 A.M., but P.W. 6 never stated to have seen P.W. 5 and vice versa. The recovery of katari was not made from the appellant's possession. It was concealed in a nearby bush of Madhiapal jungle. Even though the katari contained blood stains of 'B' origin, but it has not been established by the prosecution that the appellant had used the katari. The trial Court has disbelieved the recovery of ornaments u/s 27 of the Evidence Act. The person from whom the sale proceeds as well as ornaments were seized had not been examined by the prosecution in the trial Court and no explanation whatsoever has been offered by the prosecution for such non-examination. In such situation, the trial Court had rightly not placed reliance on recovery of golden ornaments. 9. In a case of homicidal death, based on circumstantial evidence, it is the primary duty of the prosecution to establish the motive for commission of crime. Although motive has been alleged against the appellant for causing the death of Rukuna, but that has not been established in the trial Court. All the circumstances relied upon by the prosecution had failed except the blood stains appearing on the wearing apparels of the accused. We are of the considered opinion that the only one circumstance of presence of blood stains on the garment of the appellant, which belongs to the same blood group of the deceased, cannot be treated as clinching evidence to connect the appellant with the crime. We are of the considered opinion that the only one circumstance of presence of blood stains on the garment of the appellant, which belongs to the same blood group of the deceased, cannot be treated as clinching evidence to connect the appellant with the crime. In a case where it depends upon circumstantial evidence from which conclusion of guilt has to be drawn, the circumstance, should, in the first instance, be fully established and all the facts so established should be consistent with the only hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and it should not leave any slightest room for doubt in the prosecution case. In other words, there must be a chain of events so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. Circumstantial evidence must be such that it cannot be explained on any other reasonable hypothesis except the guilt of the accused. In this case there are many factual and legal infirmities, and many missing links in the chain of events in connecting the appellant with the crime. Therefore, we are not in a position to agree with the finding of the learned Sessions Judge that the accused had committed the crime. 10. In the result, the appeal is allowed. The order of conviction and sentence-passed against the appellant is hereby set aside. He be set at liberty forthwith. P.K. Misra, J. 11. I agree. Final Result : Allowed