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2002 DIGILAW 466 (ORI)

RABI ALIAS MANOJ KUMAR PARIDA v. STATE OF ORISSA

2002-07-30

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - This appeal is directed against the order dated 30.04.1996 passed by the learned Additional Sessions Judge, Khurda, whereby he has convicted the Appellant u/s 302 of the Indian Penal Code (for short, "IPC") and sentenced him to undergo imprisonment for life. 2. The Appellant alongwith one Jogi alias Mihir Kumar Parida who is the brother of the Appellant, faced trial before the learned Additional Sessions Judge. Khurda. The Appellant was charged u/s 364, IPC for having abducted deceased Ganeswar Parida at about 9.00 a.m. on 28.09.1993 in order that the said Ganeswar could be murdered. He alongwith the co-accused was also charged under Sections 302/ 201/34, IPC for having intentionally caused the death of Ganeswar and caused disappearance of the dead body with the intention of screening themselves from legal punishment in furtherance of their common intention. The trial Court has acquitted the co-accused Jogi of the charges levelled against him. It also acquitted the Appellant of the charges u/s 364, IPC and u/s 201, IPC. However, he was convicted u/s 302, IPC and sentenced to undergo imprisonment for life. Being aggrieved, he has filed the present appeal. 3. The prosecution case, as narrated in the trial Court's judgment, is as follows: On 28.09.1993, the Appellant came to the house of the deceased and suggested to accompany him to Baliguda. He paid him Rs. 10/- to the deceased towards the loan which he had incurred and Anr. sum of Rs. 20/- towards the bus fare. The Appellant and the deceased went together on 28.09.1993, but on 30.09.1993 the Appellant alone returned to the village. When P.W.1, the mother of the deceased, made a query to the Appellant about the whereabouts of her son, he gave evasive replies. Therefore, P.W.1 lodged an FIR at Bolagarh Police-station, on the basis of which P.W.7 the investigating officer, immediately proceeded to the village and arrested the Appellant. It is further stated that on 03.10.1993, the Appellant made a disclosure statement on the basis of which the dead body of the deceased was recovered from a place in Kalinga Ghat. Inquest was conducted over the dead body in presence of witnesses'. In completion of investigation, charge-sheet was placed against the Appellant and his brother Jogi alias Mihir Kumar Parida. As stated earlier, the trial Court acquitted the co-accused Jogi alias Mihir Kumar Parida. Inquest was conducted over the dead body in presence of witnesses'. In completion of investigation, charge-sheet was placed against the Appellant and his brother Jogi alias Mihir Kumar Parida. As stated earlier, the trial Court acquitted the co-accused Jogi alias Mihir Kumar Parida. It however, convicted the Appellant u/s 302. IPC but acquitted him of the other charges. 4. The defence plea was one of complete denial. In his statement recorded u/s 313, Code of Criminal Procedure the Appellant also took the plea of his false implication in the case. 5. In order to prove its case, prosecution had examined nine witnesses. Admittedly, there is no eye-witness to the occurrence. The entire prosecution case rests on circumstantial evidence. It is the well settled position of law that where a case depends upon circumstantial evidence, every link in the chain of events must be proved from which the only conclusion of guilt of the accused can be inferred. There should not be any missing link in the chain of events so as to raise a reasonable inference about the innocence of the accused. Suspicion or juncture, howsoever strong, cannot take the place of legal proof. Keeping this in mind, let us advert to the facts situation of this case. 6. From the statement of the doctor (P.W.8), we find that the deceased met a homicidal death. This fact is not in dispute, nor has the Appellant challenged the same but we will have to find out how far the prosecution has been able to establish the charge against the Appellant. In order to bring home the charge, although nine witnesses have been examined, we find that except P.Ws. 7 and 8 none of them has supported the prosecution story. As stated earlier. P.W.8 has opined that the deceased met a homicidal death, to which there is no dispute. P.W.7 is the investigating officer. He has stated that he proceeded to Kalinga Ghat and held inquest over the dead body of the deceased. According to his evidence, on the basis of the information allegedly furnished by the Appellant, he proceeded to Kalinga Ghat, found the dead body of the deceased and held inquest over the same. In the inquest report, nothing has been spelt out that on the basis of the information of the Appellant the dead body was traced out. According to his evidence, on the basis of the information allegedly furnished by the Appellant, he proceeded to Kalinga Ghat, found the dead body of the deceased and held inquest over the same. In the inquest report, nothing has been spelt out that on the basis of the information of the Appellant the dead body was traced out. Another disquieting feature we have noticed is that even the I.O. has not cared to prepare the seizure list and recorded the statement alleged to have been made by the Appellant u/s 27 of the Evidence Act. Even assuming that the Appellant had furnished such information, without any further evidence, he should not have been held guilty for the commission of the alleged offence. 7. The trial Court has relied on the evidence of P.W.4. Though this witness had stated during investigation to have seen the deceased in the company of the Appellant, in Court he resiled from the previous statement and did not support the prosecution. The learned Additional Sessions Judge placed utmost reliance on the statement of P.W.4 recorded u/s 164, Code of Criminal Procedure Even though he is a very senior officer, it is unfortunate to notice that he relied upon such statement treating it to be a substantive evidence and convicted the Appellant u/s 302, IPC. While referring to the evidence of P.W.4 we found that he deposed in Court that under threat by police, he had given such a statement before the learned Magistrate. In this background the learned Additional Sessions Judge should have sought for corroboration from any other evidence but unfortunately no other evidence is forthcoming and the statement of P.W.4 made u/s 164, Code of Criminal Procedure should not have been relied upon since he has not deposed in Court to have seen the Appellant in the company of the deceased. The trial Court ought not to have recorded an order of conviction only on the basis of the statement, either u/s 161, Code of Criminal Procedure or u/s 164, Code of Criminal Procedure. 8. For the reasons stated above, while disagreeing with the observations of the learned Additional Sessions Judge, we hold that the prosecution has utterly failed to bring home the charge to the Appellant. Accordingly, the appeal is allowed and the order of conviction and sentence passed against the Appellant is hereby set aside. The bail bond stands discharged. 8. For the reasons stated above, while disagreeing with the observations of the learned Additional Sessions Judge, we hold that the prosecution has utterly failed to bring home the charge to the Appellant. Accordingly, the appeal is allowed and the order of conviction and sentence passed against the Appellant is hereby set aside. The bail bond stands discharged. P.K. Misra, J. 9. I agree. Final Result : Allowed