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2016 DIGILAW 421 (ORI)

State of Orissa v. Jaisu @ Baikuntha Putel

2016-06-07

D.P.CHOUDHURY, S.K.MISHRA

body2016
JUDGMENT Dr. D.P. CHOUDHURY, J. - This is a Government Appeal filed by the State against the order of acquittal passed by learned Additional Sessions Judge, Titilagarh in S.C. No. 35(B)/9 of 1999. We have heard Ms. Sabitri Rath, learned Additional Government Advocate. Even if none appears for the respondent, after hearing argument from the State and perusal of L.C.R., we dispose of herein this Appeal today. 2.The backdrop of the case of the prosecution is that accused Baikuntha Putel is the only son of deceased Jugeswar Putel. The other accused Basanta Putel is the son of accused Baikuntha Putel. It is alleged inter alia by the prosecution that there was strained relationship between the parties prior to the occurrence, for which deceased had filed a maintenance case against the present accused Baikuntha Putel and the said accused was directed to pay maintenance allowance. The deceased was compelled to live on beggary and taking shelter in the temple. It is further alleged that on the occurrence night the accused persons committed murder of the deceased and put his dead body in a gunny bag and threw the same to a village pond. When the dead body was floated in the water, the same was brought to the notice of the villagers and then F.I.R. lodged by one Judhistir Putel. After necessary investigation charge sheet was submitted. 3.The plea of the defence was complete denial to the occurrence and the charge leveled against them. 4.Learned trial Court after analyzing the evidence adduced by the prosecution and the defence, acquitted the accused persons by disbelieving the case of the prosecution. 5.Learned Addl. Government Advocate appearing for the State submitted that the appreciation of evidence by the learned trial Court is erroneous and illegal and there are lot of material on record to prove the circumstantial evidence against the accused persons and all the incriminating facts and circumstances cumulatively and unerringly point out the guilt of the accused persons. She further submitted that even if it is an appeal against acquittal, but there remains enough material on record to show that the evidence on record duly proved guilty of accused. The false plea taken by the defence is additional link to the case of the prosecution, for which the Court is required to interfere with the appeal against acquittal. She further submitted that even if it is an appeal against acquittal, but there remains enough material on record to show that the evidence on record duly proved guilty of accused. The false plea taken by the defence is additional link to the case of the prosecution, for which the Court is required to interfere with the appeal against acquittal. 6.On going through the judgment of the learned trial Court it appears that the learned trial Court has discussed the evidence in detail. This case is solely based on circumstantial evidence as there is no eye witness to the occurrence. 7.In Nizam & Anr. V. State of Rajasthan, reported in 2015 STPL (WEB) 2348 S.C., the Hon’ble Apex Court have held as follows:- "9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmire, (2002) 8 SCC 45 , wherein this Court quoted number of judgments and held as under :- “10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99 , Eradu v. State of Hyderbad AIR 1956 SC 316 , Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 , State of U.P. v. Sukhbasi (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to e shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 11. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 11. We may also make a reference to decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: (SCC pp. 206-207, para 21)”. 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.” 10.In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , this Court held as under: “12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle on a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstance 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.” The same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 , Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions 8.With due respect to said decision let us analyze the facts and evidence of this case. It is well settled in law that the motive is great circumstance when there is no direct evidence. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions 8.With due respect to said decision let us analyze the facts and evidence of this case. It is well settled in law that the motive is great circumstance when there is no direct evidence. In this case the motive for the murder of the deceased being quite important circumstantial evidence has been dealt by the trial Court by relying on the decisions of the Hon’ble Apex Court in the case of S.C. Bahir v. State of Bihar, reported in AIR 1994 SC 2420 and Mathias Kulu v. State of Orissa, reported in (2002) 22 OCR 549. In this regard it is submitted by learned Addl. Government Advocate that the evidence of P.Ws. 2 and 3 are relevant . On going through the evidence it appears that they have no personal knowledge about the dispute between the parties and P.W. 3 has no acquaintance with the accused persons. The learned trial Court also categorically observed that the evidence of the witnesses along with documents adduced is not enough to prove the motive of the accused persons to kill him inside the temple on the occurrence night. 9.There is another circumstance as submitted by learned Addl. Government Advocate that leading to discovery at the instance of the accused persons in one of the best piece of evidence to nail them and also the prosecution proved such evidence beyond all reasonable doubt. It appears from the judgment of the learned trial Court that evidence to prove circumstance has been well discussed. It is the finding of the learned trial Court that even though the jerry bag has been recovered, but that cannot be connected with the recovering of dead body as statement of P.W. 10 shows that prior to such statement of accused dead body of deceased has been brought out from the pond and seized dead body with dhoti. It is also pertinent to note that the statement under Section 27 of the Evidence Act leading to discovery is important evidence but if statement of accused was recorded after the leading to discovery, it has no evidentiary value. Learned Addl. Government Advocate placed Ext. 4 and it is conceded by her that the statement appears to have been recorded later to the recovery. Learned trial Court has also observed such fact in the judgment. Learned Addl. Government Advocate placed Ext. 4 and it is conceded by her that the statement appears to have been recorded later to the recovery. Learned trial Court has also observed such fact in the judgment. So the evidentiary value of such statement of accused persons recorded under Section 27 of the Evidence Act being important circumstance has not been proved. The next circumstance as indicated by the learned Additional Government Advocate that the earth in the nail of the accused has been sent for chemical examination and it has been proved to be the same earth which was inside the jerry bag. Btu learned trial Court has disbelieved such piece of evidence on the very ground that there is discrepancy in the evidence about collection of the soil from the spot and also from the jerry bag. It is observed by the learned trial Court that nail clipping were not preserved in proper sealed packet. It is also settled in law that report of chemical examination has to be weighed in evidence if there is proper collection, preservation and examination of material object. 10.Lastly it is strenuously argued by learned Addl. Government Advocate that the plea of the defence should also be taken into consideration to prove the circumstances against the defence. It is well settled in law that before taking the defence plea into consideration the prosecution has to establish the chain of circumstance unerringly pointing out the guilt of the accused persons. On such point the learned trial Court has also discussed. Law on this point is no more res integra. However, since chain of circumstantial evidence against accused persons have not been proved beyond all shadow of doubt, any plea or denial of accused persons or statement of accused persons about filing of case against them by deceased cannot be made additional link to chain of circumstantial evidence adduced by the prosecution. Since it is an appeal against acquittal, we are of the considered view that the appreciation of evidence by the trial Court being correct and legal, not perversive, we are reluctant to interfere with the order of acquittal passed by the trial Court and hence the submissions of the learned Addl. Government Advocate are jettisoned. In the result the Government Criminal Appeal being devoid of merit stands dismissed. S. K. MISHRA, J.I agree. Appeal dismissed.