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2014 DIGILAW 830 (ORI)

Poti alias Sundarsingh Gond v. State of Orissa

2014-12-03

PRAMATH PATNAIK, VINOD PRASAD

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JUDGMENT : Pramath Patnaik, J. This criminal appeal has been preferred challenging the impugned judgment dated 30.07.2012 passed by the learned Sessions Judge, Nabarangpur in Criminal Trial No. 11 of 2008 convicting the appellant under Sections 364/302/201, IPC and sentencing him to undergo R.I. for life and pay fine of Rs. 10,000/- and to undergo further R.I. for two years, under Section 302, IPC and to undergo R.I. for 10 years under Section 364, IPC and to undergo R.I. for two years, under Section 201, IPC and learned Sessions Judge directed all substantive sentences to run concurrently subject to set off all the period already undergone by the appellant convict as U.T.P. as per Section 428, Cr.P.C. 2. Shorn of unnecessary details, the prosecution case as revealed from the F.I.R. in a nut-shell is that on 11.09.2007 two small kids both aged about five years old namely Gudu, son of Manbodh Gond (P.W.9) and Dablu son of Kartik Gond (P.W.4) were found missing from the rear side of the house of the informant namely Duksai Gond (P.W.2) while they were playing. After being informed about the missing of the said two kids from his wife, P.W.2 along with others made frantic search in different places to trace out the missing kids. Ultimately, the informant and father of the two kids were able to locate the beheaded body of the two kids from the nearby nursery adjacent to the village and the cut heads of the two kids were found at a distance kept lying beneath a tree wrapped with a towel. The said unfortunate incident was reported to the Raighar Police Station and the case was registered thereon. In course of investigation, inquest was held over the dead bodies and the same was sent for post mortem examination. The witnesses were examined and the accused was apprehended. While in police custody it came to the notice of the investigating Officer that the appellant accused under superstition and blind belief to satisfy one goddess sacrificed the two kids in a brutal and gruesome manner by means of an axe which was the admission of the appellant accused in extra judicial confession. While in police custody it came to the notice of the investigating Officer that the appellant accused under superstition and blind belief to satisfy one goddess sacrificed the two kids in a brutal and gruesome manner by means of an axe which was the admission of the appellant accused in extra judicial confession. The appellant accused also disclosed the place of concealment of the weapon of offence, i.e. axe with which two kids were killed, which led to recovery and seizure of the said weapon of offence along with his lungi and banian from his house. After completion of investigation, the police submitted charge sheet under Sections 364, 302 and 201, IPC against the accused. The case was committed to the Sessions Court for trial, where the accused was charged with offences as above and since he denied those charges his prosecution commenced. 3. The prosecution to prove the case to the hilt has examined as many as 15 witnesses including the informant P.W.2. P.W.1 is the autopsy doctor. P.W.3 is the wife of the informant. P.Ws. 3 and 9 are the fathers of the two deceased kids, namely, Dablu and Gudu, who were witnesses to the inquest. P.W.5 is the scribe of the F.I.R. so also P.Ws. 5 and 6 are witnesses to the confessional statement made by the accused before the I.O. followed by recovery and seizure of the weapon of offence and wearing apparels of the accused. P.Ws. 7 and 12 are witnesses to the collection of nail clippings of the accused by the doctor. P.W. 8 is the police constable, who was escorted the dead body bodies for post mortem examination. P.W.13 is the witness to the seizure of wearing apparels of the deceased kids. P.W. 14 is the post occurrence witness. P.W. 15 is the initial I.O. and P.W.10 is the subsequent I.O. who submitted the charge sheet after completion of investigation. 4. The defence plea is one of denial and false implication. 5. P.W.13 is the witness to the seizure of wearing apparels of the deceased kids. P.W. 14 is the post occurrence witness. P.W. 15 is the initial I.O. and P.W.10 is the subsequent I.O. who submitted the charge sheet after completion of investigation. 4. The defence plea is one of denial and false implication. 5. Learned trial Court taking into account the cumulative effect of circumstantial evidences which were found to be incompatible with the innocence of the accused or with the guilt of any other person, came to the conclusion that in all probabilities it was the appellant accused who committed gruesome murder of the two deceased kids and the conduct of the appellant unerringly pointed out his guilt and to be the author of the crime. Accordingly, learned trial Court from the evidence on record, fastened the culpability on the appellant accused under Section 302, IPC and convicted and sentenced him as above. Hence this appeal. 6. Mr. N. Panda, learned counsel for the appellant has assailed the impugned judgment mainly on the following grounds:- (i) That the entire case of prosecution which is built up on circumstantial evidence has not been supported by any corroborative material to fasten the guilt on the accused. (ii) Learned Sessions Judge ought not to have relied on the extra judicial confession of the accused appellant to sustain the guilt under Section 302, IPC and convict the appellant considering that the extra judicial confession before the police was hit by Section 25 of the Indian Evidence Act. Moreover, the circumstantial evidence being a weak piece of evidence, no conviction could have been made basing on a circumstantial evidence. (iii) Learned Sessions Judge although admitted the entire contents of Ext. 13 are not admissible in the evidence under Section 27 of the Indian Evidence Act but failed to appreciate settled position of law that the burden lies on the prosecution to establish a close link between the discovery of material objects and its use in the commission of offence. (iv) Learned Sessions Judge has erred in accepting the evidence leading to discovery of the alleged weapon Tangia which did not contain any blood spot/stain and the same was hit by Section 8 of the Indian Evidence Act. (iv) Learned Sessions Judge has erred in accepting the evidence leading to discovery of the alleged weapon Tangia which did not contain any blood spot/stain and the same was hit by Section 8 of the Indian Evidence Act. (v) Learned Sessions Judge ought to have considered the omission on the part of prosecution for not examining the priest of the deity before whom the alleged sacrifice of the two kids have been made which whereby prosecution failed to prove the case to the hilt. (vi) Learned Sessions Judge ought to have considered on the evidence of P.Ws. 5 and 6 which appeared to be discrepant so far as disclosure statement of the accused appellant before the I.O. relating to Oriya, Linea or Chhatisgarh language are concerned though the learned Sessions Judge has not given much credence to that part of the testimony of P.Ws. 5 and 6. 7. On the other hand, Mr. S.K. Zafarulla, learned Additional Standing Counsel vehemently submits that from the totality of circumstances the irresistible conclusion is that the accused appellant after kidnapping the two deceased kids with intention to sacrifice them to the deity and deliberately beheaded the head from the trunk so as to cause disappearance of evidence of commission of murder and to screen himself from legal punishment therefor. Therefore, none but the appellant was the author of the crime. Learned counsel for the State supports the conviction recorded by the learned Sessions Judge and submits that the impugned order of conviction and sentence does not, warrant any interference by this Court. 8. We have perused the lower Court record and gone through the evidence of the prosecution witnesses minutely. At the outset, it may be noted that none has disputed that the death of the two deceased kids was a homicidal one. 9. P.W.1 is the Medical Officer who conducted the autopsy of two deceased kids Dablu Gond and Gudu Gond has opined that the cause of death is due to complete transaction of spinal cord, trachea, esophagus, blood vessels and muscles mass due to sharp cutting wound at the base of neck and the nature of death is homicidal. P.W.2, the informant, has testified that on being informed by his wife about missing of the two children playing near his house, he reported the matter on the next day, i.e., Wednesday at the police station. P.W.2, the informant, has testified that on being informed by his wife about missing of the two children playing near his house, he reported the matter on the next day, i.e., Wednesday at the police station. On Thursday the informant along with villagers made frantic search and could detect the dead bodies of the two kids lying inside the nursery of his village which is one kilometer away from his village. The dead bodies were found without their heads. The cut heads were found at a distance kept lying beneath a tree being wrapped with a towel. He had further testified that his wife reported that the accused appellant had been to their house on Tuesday during his absence and the informant put his LTI in the F.I.R. The F.I.R. being drafted by one Raisingh and the F.I.R. was read over and explained to him. The dead bodies were identified by them. P.W.2 in her deposition had stated that at the relevant time the appellant accused came to her house and asked where about of her husband. The appellant then went away to the backside yard of her house. When she went backside, she did not find the two kids playing there. The appellant was wearing a banian and a towel was on his shoulder and the appellant was holding an axe. At about 4 P.M. she reported the matter to her husband regarding missing of the two kids. During search on Wednesday, the villagers found the appellant accused moving around the place from where the dead bodies were recovered on Thursday by Police. She also stated before the police that she suspected the appellant accused to have killed the two children. P.W.4 is the father of deceased kid Dablu Gond. He has stated that the two kids were playing behind the house of Duksai Gond (P.W.2). He was informed at 4 P.M. that his son and son of Manbodh Gond were missing. It was Tuesday P.W.4 and the villagers searched but could not trace out the kids on that night. On the next day the matter was reported at the police station. On Thursday during search the villagers found the dead body of the two children without their heads. The two dead bodies were lying at two different places. It was Tuesday P.W.4 and the villagers searched but could not trace out the kids on that night. On the next day the matter was reported at the police station. On Thursday during search the villagers found the dead body of the two children without their heads. The two dead bodies were lying at two different places. Then his brother Duksai Gond went to the police station to lodge an F.I.R. They had also found two cut heads of the said two kids being wrapped with a towel kept beneath a tree. They identified the dead bodies of said two kids. The appellant had been, to their house on the date of the occurrence as reported by Jaybati (P.W.3). In the cross-examination by the defence, P.W.4 had testified that the appellant accused used to come to their house. P.W.5 drafted the F.I.R. as per the instructions of P.W.2 and the contends of the F.I.R. were read over and explained to the informant and after going through the contents, the informant P.W.2 had put LTI. P.W.5, had stated that in his presence that the appellant had confessed before the police that twenty days prior to the incident out of illness his daughter succumbed to the death and it was rumored in the village that his daughter was killed by the goddess. P.W.5 had further testified that the appellant has confessed his guilt to have committed the murders of two kids and the appellant also disclosed before the police that he had kept concealed the alleged weapon tangia, lungi and banian in his house. Ext. 11 is the seizure list. Ext. 11/1 is his signature M.O. I is the tangia recovered by the police. M.O. II is the lungi and M.O. III is the banian. The wearing apparels of the appellant were seized in his presence. Ext. 12 is the seizure list. Ext. 12/1 is his signature. The confessional statement was recorded by the police in his presence. Ext. 13 was the statement recorded under Section 27 of the Indian Evidence Act. Ext. 13/1 is his signature. P.W.6 in his deposition had stated that he along with Raisingh P.W.5 had been to the police station where the appellant accused was found there being arrested by police. The appellant accused confessed to have killed two kids by means of a tangia. Ext. 13/1 is his signature. P.W.6 in his deposition had stated that he along with Raisingh P.W.5 had been to the police station where the appellant accused was found there being arrested by police. The appellant accused confessed to have killed two kids by means of a tangia. The appellant also disclosed that he would give recovery of the alleged tangia. Accordingly, P.W.6 along with P.W.5 and police went to the house of the appellant. The police seized the articles. Ext. 11/2 was his signature. The confessional statement of the appellant accused was recorded in his presence. Ext. 13/2 was his signature. P.W.9 is the father of the deceased Gudu. He has corroborated the version of P.W.4. P.W.5 is the O.I.C. of Raigarh Police Station who has conducted the investigation. In course of investigation, P.W.15 examined the complainant and other witnesses. He also held inquest over the dead bodies of the two kids. The post mortem was conducted by the doctor over the dead bodies of the two kids and P.W.15 seized the wearing apparels of two deceased kids along a towel and prepared the seizure list. On 15.09.2007, P.W.15 apprehended the appellant and brought him to police station for interrogation. In course of interrogation, the appellant while in police custody had confessed his guilty for commission of killing of the two kids. 10. The sole question to be determined/answered in this appeal is whether the prosecution has proved its case against the appellant to the hilt and beyond all reasonable doubts basing on circumstantial evidence. 11. The Hon'ble apex Court for proper appreciation of circumstantial evidence, in the case of State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 , observed in paragraph-9 that:- "xx xx xx only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence". Great care must be taken in evaluating circumstantial evidence and if the evidence relied on "is reasonably capable of two inferences" the one in favour of the accused must be accepted". The circumstance relied upon must be found to have been fully established and the "cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. xx xx xx" 12. The circumstance relied upon must be found to have been fully established and the "cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. xx xx xx" 12. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , the apex Court observed that while dealing with circumstantial evidence, the onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in appraising circumstantial evidence as laid out in paragraph-153 are:- "(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (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." 13. The Hon'ble Supreme Court also laid out the following grounds in Padala Veera Reddy v. State of Andhra Pradesh and others, AIR 1990 SC 79 at paragraph-10 that:- "(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 14. The Hon'ble Supreme Court further observed in the case of C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390 , at paragraph-20-A that:- "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the presence case the Courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 15. In the instant case, learned Sessions Judge basing on the evidence of P.Ws. 2 and 3 came to the conclusion that the appellant accused was seen with a Tangia prior to the missing of the deceased two kids. Secondly the suspicious movement of the accused appellant near the place where the cut heads of the deceased kids were lying wrapped in a towel and the confessional statement of the appellant accused before the police coupled with medical evidences indicating the possibilities of the deceased kids being killed by the said weapon vide M.O. I were also found establishing culpability of the appellant. 16. The prosecution case appears to have been based on assumption, presumption surmises and conjectures. The most notable feature which has been lost sight by the learned Sessions Judge is that none has seen the appellant accused with the deceased kids prior to their missing. Therefore it raises serious doubt as to the culpability of the appellant accused in the commission of offence. Moreover the confessional statement before the police by the appellant accused was not strong enough of evidence to fasten guilt on, the appellant accused. The prosecution has failed to examine the pries of the so-called deity so as to come to a definite finding that the appellant accused in order to satisfy the goddess had kidnapped the deceased kids for commission of murder. Had the priest of the goddess would have been examined it would have thrown light on the culpability of the appellant, the same having not been done, it has weakened the prosecution. Had the priest of the goddess would have been examined it would have thrown light on the culpability of the appellant, the same having not been done, it has weakened the prosecution. The so-called weapon of offence which has been recovered on the basis of the disclosure statement of the accused appellant did not contain the blood so also the wearing apparels of the accused appellant did not contain any blood which casts serious doubt on the prosecution story. Since the entire case hinges on the circumstantial evidence, the chain having not been completed, the benefit of doubt ought to be extended to the appellant accused. Therefore we are unable to appreciate the conclusion arrived at by the learned Sessions Judge so as to conclusively find the guilt of the accused appellant established beyond all reasonable doubts. 17. In view of the discussions made in the foregoing paragraphs, we are not enable to concur with the findings of the learned Sessions Judge. We hold that the prosecution has failed to establish the case against the appellant beyond all reasonable doubts. 18. In the result, the appeal is allowed and the impugned judgment dated 30.07.2012 and order of conviction and sentence are set aside the appellant is acquitted of the charge under Sections 364/302/201, IPC. He shall be set at liberty forthwith, if not required, in connection with any other offences. The appeal is allowed. I agree.