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2006 DIGILAW 587 (ORI)

Sanjee @ Sanjay Kumar Roul v. State of Orissa

2006-08-09

A.K.SAMANTARAY, P.K.TRIPATHY

body2006
JUDGMENT P. K. TRIPATHY, J. — Appellant is the accused in Criminal Trial (Sessions) Case No. 21/115 of 2003-02 of the Court of Ad hoc Addl. Sessions Judge, Kamakhyanagar. In this appeal he has chal¬lenged the order of conviction for the offence under Section 302, I.P.C. and the sentence of imprisonment for life. 2. Fact involved in this case is that Raj Kishore Biswal, the deceased was working as a Mistri (sweet maker) in the Hotel of the accused. The deceased had taken a loan of Rs.5,000/- from the accused to meet the marriage expenditure of his daughter. He was repaying the said loan in instalment from his monthly wage. In that process, an arrear of Rs.1,500/- was still outstanding. At that juncture, deceased came to his house on leave from the hotel and sent a substitute to work in his place. That substitute is Cheru Mahalik (P.W.6). The substitute expressed his incapabil¬ity to prepare sweets for the shop of the accused. Therefore, on 12.7.2002, the accused came to the house of the deceased together with P.W.6 at about 1.00 P.M. According to the allegation of the prosecution, at about 1.15 P.M., he carried the deceased as a pillion rider in his motorcycle and at about 3.00 P.M., the cow-herd boys of the village could see the dead body of the deceased lying near a pond and intimated that fact to the widow of the deceased (P.W.1). Two F.I.Rs. each being signed by P.W.1, were lodged. Two different persons wrote the said reports. Out of the same, the F.I.R. Ext.7 (which was also wrongly marked as Ext.A) was accepted as the report for registering U.D. case and to under¬take the enquiry. It is stated that villagers of the occurrence village detained the dead body of the deceased and demanded for arrest of the culprit and at that stage, the F.I.R., Ext.1 was lodged by P.W.1 mentioning therein that the deceased went as a pillion rider on the motorcycle of the accused. In course of investigation, investigating officer held inquest over the dead body, forwarded the same for post mortem examination, examined the witnesses, seized the incriminating materials available at the spot and on completion of investigation, submitted charge-sheet against the accused. In course of investigation, investigating officer held inquest over the dead body, forwarded the same for post mortem examination, examined the witnesses, seized the incriminating materials available at the spot and on completion of investigation, submitted charge-sheet against the accused. After commitment of the case to the Court of Session, accused pleaded not guilty before the trial Court to the charge for the offence under Section 302, I.P.C. and claimed for trial. In course of trial, prosecution examined 22 witnesses and relied on series of documents. On assessment of such evidence, learned Addl. Sessions Judge found the accused guilty of the offence on the ground that the circumstance of last seen theory and homicidal death of the deceased are complementary and supple¬mentary to each other to prove the guilt of the accused. Accord¬ingly, he convicted the accused and sentenced him to imprisonment for life. 3. P.W. 16 is the doctor, who conducted the post mortem examination on 14.7.2002 and he opined that cause of death was due to suffocation from smothering and the nature of death was homicidal in nature. He proved the post mortem report, Ext.5 in support of that opinion. Mr. Sahoo, learned counsel for the appellant, does not dispute to the evidence of P.W. 16 nor to the finding recorded by the trial Court that the deceased suffered a homicidal death. Therefore, that part of the finding of the trial Court is not disturbed. 4. Learned counsel for the accused/appellant argues that whole case of the prosecution as against the accused is accept¬able, credible and reliable in the event the last seen theory is believed. According to him, in that context, prosecution has adduced contradictory evidence to discredit the version of P.W.1 in relation to the last seen theory and, therefore, prosecution has failed to prove that circumstance against the accused unfail¬ingly and under such circumstance, accused is entitled to acquit¬tal. Mr. Khuntia, learned Addl. Government Advocate argues that P.W.1 being the widow of the deceased, is interested to see that the real culprit is booked and therefore evidence of P.W.1 should be accepted as trustworthy to prove the factum of last seen theory and accordingly, the order of conviction be maintained. 5. The aforesaid argument of the parties requires the Court to examine and assess the relevant evidence carefully because the case of prosecution is totally based on circumstan¬tial evidence. 5. The aforesaid argument of the parties requires the Court to examine and assess the relevant evidence carefully because the case of prosecution is totally based on circumstan¬tial evidence. Out of the twenty-two witnesses examined in this case, evidence of P.W.2, the scriber of F.I.R., Ext.1, P.Ws. 5 and 15 the cowherd men, who saw the dead body of the deceased, P.W.8, a witness to the inquest, vide inquest report, Ext.2, P.Ws.9 and 12 the two witnesses in the seizure list, Ext.3, P.Ws. 13 and 19, the two witnesses in the seizure list, Ext.4, P.Ws. 10, 11, 17 and 18, who unchallengedly stated to have no knowledge about the occurrence and P.Ws. 20, 21 and 22, three police offi¬cers figuring as Investigating Officers, are of no use to prove or substantiate the last seen theory. Similarly, evidence of P.W. 7, a co-villager of the deceased is also of no help in that re¬spect. Deposition of such witnesses are not required to be dis¬cussed or considered in the matter relating to last seen theory. Evidence of P.W.6 is that he along with the accused came to the house of the deceased at about noontime and that the deceased was absent in his house having gone to the house of Chita Sahu (P.W.14) to prepare sweets and therefore accused went away. It is the statement of P.W.1 in Ext.7 that accused came to her house and after knowing about presence of the deceased in the house of P.W.14, he left the house and P.W.1 could learn that deceased went with the accused from the house of P.W.14. In Ext.1, P.W. 1 made the statement that after preparing the sweets in the house of P.W. 14, deceased returned to his house at about 1.00 P.M. Accused came to their house at about 1.15 P.M. and took away the deceased in his motorcycle. In the Court P.W.1 stated that when the accused came with P.W.6, by then the deceased was preparing sweets in the house of P.W.14, accused asked P.W. 1 to call the deceased. P.W.1 took help of her uncle Kambhu Biswal (P.W. 3) to call the deceased from the house of P.W. 14 and responding to that intimation, deceased returned to his house and therefrom he went away with the accused on the latter’s motorcycle. P.W.1 took help of her uncle Kambhu Biswal (P.W. 3) to call the deceased from the house of P.W. 14 and responding to that intimation, deceased returned to his house and therefrom he went away with the accused on the latter’s motorcycle. In the above context, P.W.3 has supported her (P.W.1) version to the extent that on the request of P.W.1 he went and intimated to the deceased to return to his house, but P.W. 3 has not stated in his evidence that he saw the deceased returning to his house or going with accused. P.W.4 has stated in his evidence that on the date of occurrence he was celebrating Griha Pratista of his house and after performing that ceremony, he was returning and then he saw the deceased going on a motorcycle. He has stated that he does not know the accused. P.W. 14 stated in his evidence that on the date of occurrence deceased prepared sweets in his house. P.W. No.3 came to call him and the deceased took his lunch, received the wage and went to his house. 6. When the evidence from the side of prosecution relating to the last seen theory exists in such a contradictory manner, trial Court presumed that the evidence of P.W. 4 having seen the deceased going on a motorcycle must be with the accused in view of the evidence of P.W.1 and that P.W. 6 must have seen them going together. To find credibility in that respect, he relied on the corroboration of the evidence of P.W. 1 by P.W. Nos. 3 and 14 that P.W. No. 3 had gone to call the deceased. On perusal of the aforesaid evidence, which is relevant for consideration of last seen theory, we find that P.W. 1 changed her statement and nar¬rated the incident in different manner in Exts.7 and 1 and there¬after in her evidence in the Court. That evidence lacks corrobo¬ration from any other witnesses regarding accused and deceased proceeding together on a single motorcycle. Therefore, evidence of P.W.1 is not credible enough to record a finding on last seen theory advanced by the prosecution. If the deceased went with the accused in broad day light at about 1.15 P.M., there is no inde¬pendent corroboration to that evidence from any other witness/villagers. Under such circumstance, we find that the last seen theory is not proved clinchingly against the accused. If the deceased went with the accused in broad day light at about 1.15 P.M., there is no inde¬pendent corroboration to that evidence from any other witness/villagers. Under such circumstance, we find that the last seen theory is not proved clinchingly against the accused. Once that aspect is not properly proved by the prosecution other circumstances are not sufficient to prove the charge against the accused beyond reasonable doubt. Thus, conviction of the accused is set aside and he is acquitted. He be set at liberty forthwith. Criminal appeal is accordingly allowed. Crl. Appeal allowed.