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2019 DIGILAW 494 (ORI)

Sanjit Mandal v. State of Orissa

2019-07-31

A.K.MISHRA, S.K.MISHRA

body2019
JUDGMENT : S.K. Mishra, J. In this appeal, the appellant-Sanjit Mandal being the convict in Sessions Case No.67 of 1999 (SC No.306/97 of Sessions Judge, Koraput-Jeypore) of the court of learned Addl. Sessions Judge, Malkangiri assails the judgment dated 20.06.2000, whereby he has been convicted for the offence U/s. 457 and 302 of the IPC (hereinafter referred to as “I.P.C.” for brevity) and has been sentenced to undergo imprisonment for life. 2. Case of the prosecution in short is that one Ananda Sarkar of village M.V.82 lodged a report on 17.07.1997 at about 2 A.M. before the O.I.C., Motu Police Station to the effect that on 16.07.1997 night on a Wednesday, his brother Govinda Sarkar, aged about 23 years, was sleeping in his Book Shop in the Bazar. At about 11.30 P.M., one Parimal Sarkar called him and told him that Govinda is dead and hearing this news, he came running and found a gathering there. He entered into the shop and found the dead body was lying with full of blood and there were injuries on the neck, back, head and hand. He came to know from Jadunath that at about 10 P.M., his brother Govinda and accused Sanjit Mandal were talking on the backside of the Shop. The prosecution further alleged that the accused was not pulling well with his brother due to the reason that 4 years back, the sister of the accused namely Krishna was in love with deceased-Govinda. He agreed for the marriage but the father of Krishna did not agree. Thereafter, Krishna died taking poison. From that day, the accused was not pulling well with Govinda. So, he suspected that the accused might have murdered his brother. He and others went to the house of the accused and found that the accused was absent from his house. He was also absent from the village. So, the informant suspected that the accused after murdering his brother left the village. On the written report of the informant Motu P.S. Case No.13/97 was registered and the matter was investigated. After investigation, finding a prima facie case against the accused, the Investigating Officer submitted charge-sheet under Sections 457 and 302 of IPC. Hence, the accused faced trial for the aforesaid offences. The plea of the accused is one of complete denial. 3. In order to prove its case, the prosecution has examined 15 (fifteen) witnesses. After investigation, finding a prima facie case against the accused, the Investigating Officer submitted charge-sheet under Sections 457 and 302 of IPC. Hence, the accused faced trial for the aforesaid offences. The plea of the accused is one of complete denial. 3. In order to prove its case, the prosecution has examined 15 (fifteen) witnesses. P.W.3-Ananda Kumar Sarkar is the informant in this case. P.W.11 is the scribe of F.I.R. 3.(a) P.W.1 is the Doctor, Ramakanta Panda, who has conducted post-mortem examination on the dead body of the deceased. P.W.14 is the Investigating Officer of this case and P.W.15 is the Police Officer before whom the appellant allegedly surrendered and produced the weapon of offence i.e. one sickle and his wearing apparels. Rest of the witnesses were either post-occurrence witnesses or formal witnesses. No witness has been examined on behalf of defence. 3.(b) Admittedly, this case is based upon the circumstantial evidence as there is no direct evidence in the shape of narration of any eye-witness. 4. Learned Addl. Sessions Judge has come to the conclusion that the death of the deceased was homicidal in nature. This aspect is not challenged by the appellant. In fact, the evidence of P.W.1 and the post-mortem report well proves that the deceased died of several injuries on his person which could have been inflicted by a sharp cutting weapon. The Doctor has also opined that the death of the deceased was homicidal in nature. That aspect need not be disturbed in this appeal. 4.(a) As far as the complicity of the appellant in the crime is concerned, learned Addl. Sessions Judge has relied upon following circumstances to record conviction of the appellant. These are as follows:- i. There was prior enmity between the accused and the deceased. ii. The accused had motive to murder the deceased. iii. The accused after the occurrence, was found absent from his house and from the village. iv. He was also found absent from the place where he was sleeping prior to the occurrence. v. He surrendered before P.W.15 (O.I.C., M.V.79 P.S.) by producing material objects (M.Os. I to V). vi. The Chemical Examination report i.e. Ext. 11 clearly reveals the earth was found having human blood, the “KATI” was found stained with human blood, the banian, full-pant and nail-clippings of the accused was also found with the human blood. v. He surrendered before P.W.15 (O.I.C., M.V.79 P.S.) by producing material objects (M.Os. I to V). vi. The Chemical Examination report i.e. Ext. 11 clearly reveals the earth was found having human blood, the “KATI” was found stained with human blood, the banian, full-pant and nail-clippings of the accused was also found with the human blood. 4.(b) Basing upon the aforesaid circumstances coupled with the fact that the death of the deceased was homicidal in nature, learned Addl. Sessions Judge convicted the appellant as aforestated. 5. Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 has laid down five golden principles of appreciation of evidence in a case solely based upon the circumstantial evidence. These are as follows:- 1. The circumstances from which the conclusion of guild 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 guild 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.” 5.(a) Judging this case from the above quoted judgment of the Hon’ble Supreme Court, this Court finds that the case of the prosecution cannot be held to be established by the circumstances that has been established in this case. No doubt, there was previous enmity between the accused and the deceased, because of the suicide of the death of the sister of the accused. So he has a motive to commit murder of the deceased. However, the other circumstances like the accused after murder who was found absent from the village cannot be taken as a circumstance which is consistent only with a hypothesis of guilt of the accused and no other hypothesis is consistent with such circumstances. So he has a motive to commit murder of the deceased. However, the other circumstances like the accused after murder who was found absent from the village cannot be taken as a circumstance which is consistent only with a hypothesis of guilt of the accused and no other hypothesis is consistent with such circumstances. 5.(b) As far as the circumstance of his being found absent from the spot, where he was sleeping also is not a circumstance which is consistent only with the guilt of the accused. 6. In order to appreciate the circumstances better, it is appropriate to take note of the evidence of the witnesses, P.W.3-Ananda Kumar Sarkar stated that two years and three months prior to his depositions, accused murdered his brother. Four to five years back, the deceased was in love with Krishna i.e. the sister of the accused. The witness further stated that they did not agree for the marriage and when the marriage of Krishna was settled elsewhere, Krishna committed suicide. So, there was enmity between the family of the accused and family of the deceased. The accused was sleeping on the sand hip along with Arun Mandal, Kartik Sarkar beyond his shop. At about 11.30 P.M., he heard hullah and went there by running and found a gathering. He also found that his brother lying dead. They doubted the accused to have committed the murder the deceased. Hence, he asked Jadunath Biswas that the deceased was sleeping on the sand heap along with Arun Mandal, Kartik Sarkar. He searched for the accused but could not trace him. Jadunath Biswas scribed the F.I.R. according to the instructions of P.W.3 and read over and explained it to him. Thereafter he signed the F.I.R. Ext.6 is the F.I.R. and Ext.6/1 is his signature in Ext.6. On cross-examination, he has stated that he has not seen the murder of his brother. There are some other shops near the spot. Parimal and Jadunath Biswas have their shops. Jadunath has also not seen the accused murdering the deceased. 6.(a) Jadunath Biswas has been examined as P.W.11. He has not supported the case of the prosecution. He has stated that he does not know anything about the case. Though cross-examined by the prosecution, he has not been confronted with the F.I.R., which he allegedly wrote, by the prosecution and there is no explanation why the same was not done. 6.(a) Jadunath Biswas has been examined as P.W.11. He has not supported the case of the prosecution. He has stated that he does not know anything about the case. Though cross-examined by the prosecution, he has not been confronted with the F.I.R., which he allegedly wrote, by the prosecution and there is no explanation why the same was not done. 6.(b) P.W.4- Parimal has stated that he heard hullah at about 11 P.M. found the dead body of the deceased in a house. Police seized earth and the earth stained with blood from the sport in his presence. Ext. 8 is the seizure list and Ext.8/1 is his signature in Ext.8. 6.(c) P.W.5-Sapan Mandal has also stated that he cannot say who killed the deceased. Only after hearing hullah, he went to the spot and found the dead body lying. 6.(d) P.W.6-Debadash Bala has also not seen the occurrence. He has stated that prior to the occurrence there was enmity between the family of the accused and family of the deceased. 6.(e) P.W.7- Chitaranjan Choudhury is a seizure witness and has turned hostile and not supported the case of the prosecution. 6.(f) P.W.8 has stated that he has no knowledge about the case and police never seized anything from the possession of the accused in his presence. 6.(g) P.W.9-Saiba Sarkar is the father of the deceased and he stated that he saw the accused running but he has not seen who killed his son. In the cross-examination, it is brought out that he has not stated that the accused was found running, in his statement recorded U/s. 161 Cr.P.C. 6.(h) P.W.10-Parimal Mandal also stated that he has not seen the occurrence and hearing hullah he went to the spot and found that the dead body of the deceased was lying. 6.(i) P.W.12-Pradip Mandal has stated that he has no knowledge about the occurrence or the case. 6.(j) P.W.13-Rabindra Kumar Sethi is a Police Officer who submitted charge-sheet after taking over charge of the investigation from the S.I.S.P., Chituri. 6.(k) As stated earlier, P.W.14 is the Investigating Officer and P.W.15-Sada Hantal, S.I. of Police before whom the accused surrendered and produced the material objects. 7. 6.(j) P.W.13-Rabindra Kumar Sethi is a Police Officer who submitted charge-sheet after taking over charge of the investigation from the S.I.S.P., Chituri. 6.(k) As stated earlier, P.W.14 is the Investigating Officer and P.W.15-Sada Hantal, S.I. of Police before whom the accused surrendered and produced the material objects. 7. The fact that the accused surrendered before the witness-P.W.15 and produced M.O.I. to M.O.V. and on chemical examination the said material objects were found to be stained with human blood of Group-“B” by themselves do not form a complete chain of circumstances unerringly pointing to the guilt of the accused-appellant. In other words, the circumstances that has been brought out in this case do not form a complete chain, without any gap, definitely pointing to the only possibility of the accused-appellant having committed the murder of the deceased. As the chain is not complete, as per the judgement rendered by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra), we are of the opinion that the conviction recorded and sentence imposed by the learned Addl. Sessions Judge cannot be sustained. 8. Thus, on the conspectus of the materials as discussed above, we are of the opinion that the appeal has to be allowed and the conviction should be set aside. Accordingly, the appeal is allowed. 9. Conviction of the appellant for the offence U/s.457 and 302 of I.P.C. are hereby set aside. We also set aside the sentence of imprisonment for life. Accordingly, the criminal appeal is disposed of. It is submitted that the accused is on bail. The bail bond be cancelled. LCRs be returned immediately to the lower court. Dr. A.K. Mishra, J.- I agree.