Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 674 (ORI)

Nakula Bag v. State of Orissa

2019-12-18

BIBHU PRASAD ROUTRAY, S.K.MISHRA

body2019
JUDGMENT : S.K. Mishra, J. 1. In this CRA, the sole appellant assails his conviction and sentence to undergo imprisonment for life for commission of offence under Section 302 of the I.P.C. and to undergo imprisonment for one year for commission of offence under Section 201 of the Indian Penal Code, 1860 (hereinafter referred to as "the I.P.C." for brevity) recorded by the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna in Sessions Case No. 75 of 1999 vide the judgment of conviction and order of sentence dated 28.03.2001. In the said case, it has further been directed that both the sentences are to run concurrently. 2. The case of the prosecution in short is that on 17.04.1999 at about 5.30 P.M. the complainant Kalakanhu Dhangada Majhi of village Kapsara appeared before the Officer-in-Charge of Sadar Police Station, Bhawanipatna and presented a written report alleging therein that on 08.04.1999 at about 7.00 P.M. his son Bibachha Dhangada Majhi went away to somewhere after taking his night meal wearing pant and shirt and holding a torch light and did not return even on the following morning. As such, his family members searched for him, far and near the village, and could not trace him out. On 17.04.1999 at about 12.00 noon, he came to know that a dead body of a person was lying near the Dengachanchara Nala. He went there and after due verification identified the dead body of his son from the sight of his shirt on the body and Turkish towel lying near the dead body which belonged to his son Bibachha Dhangada Majhi. He further reported that some unknown persons have killed his son and thrown his dead body there. The Officer-in-Charge, Sadar Police Station, Bhawanipatna registered the case and investigated the same. 2.1. In course of investigation, the Officer-in-Charge, Sadar Police Station, Bhawanipatna examined the witnesses, held inquest on the dead body of the deceased, made seizures, dispatched the dead body of the deceased for post-mortem examination, arrested the accused persons, recorded the statement of the sole appellant under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Evidence Act" for brevity) and sent the material objects for chemical examination and upon completion of the investigation, submitted charge-sheet under Sections 302 and 201 read with Section 34 of the I.P.C. against six persons including the present appellant treating him to be the main accused. 3. 3. In this case, the defence took a plea of simple denial and false accusation. Only the appellant was convicted and rest of the accused persons were acquitted. 4. In order to prove its case, the prosecution has examined as many as 12 witnesses and the defence has examined none. The prosecution has also led a number of documents as exhibits but the same has not led into evidence any material object in this case. 5. P.W. 1-Kalakanhu Dhangada Majhi, happens to be the father of the deceased Bibachha Dhangada Majhi. P.W. 4 Nira Dhangada Majhi happens to be the mother of the deceased and is an important witness so far the prosecution is concerned. P.W. 2-Aswmi Kumar Bemal has scribed the F.I.R. P.W. 3- Drona Nag and P.W. 6- Nabe Dhangada Majhi have witnessed the seizure of torch light and Pudapitha thenga on the discovery statement of the accused/appellant. P.W. 5 has witnessed to the alleged discovery statement made by the accused/appellant while in the custody of the police. P.W. 7- Sadhu Bhoi has stated about the illicit relationship between the accused Lochana Bag who is acquitted in this case and the deceased Bibachha Dhangada Majhi. P.W. 8-Jaya Dhangada Majhi attended the inquest over the dead body of the deceased and stated about the relationship between the accused Lochana Bag and the deceased Bibachha Dhangada Majhi. P.W. 9- Surendranath Dhangada Majhi, the Havildar of Fire Brigade, has brought out the torch light from the well after draining of water from the said well. P.W. 10-Bhaskara Chandra Patra, Assistant Fire Officer in whose presence, torch light was seized. P.W. 11-Dr. Malaya Kumar Behera has conducted post-mortem examination on the dead body of the deceased. P.W. 12- Kishore Kumar Panda is the Officer-in-Charge of Sadar Police Station. Bhawanipatna who has completed the investigation and submitted charge-sheet against the appellant and other accused persons. 6. Taking into consideration the evidence of P. W. 11, learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna came to the conclusion that the death of the deceased, as stated by him which is also reflected in the post-mortem examination report, was homicidal in nature and he died due to the injury to the brain which can be caused by a hard and blunt weapon. 7. Learned counsel for the appellant does not dispute this finding of the learned Sessions Judge, Kalahandi- Nuapada, Bhawanipatna. 7. Learned counsel for the appellant does not dispute this finding of the learned Sessions Judge, Kalahandi- Nuapada, Bhawanipatna. But, he seriously contends that the circumstances appearing in this case do not for a complete chain of circumstances unerringly pinpointing to the guilty of the appellant. So, as this aspect is not challenged, we need not further examine the evidence of P.W. 11 and the post-mortem report as it is not in dispute. 8. Admittedly, the case is entirely based upon the circumstantial evidence and the circumstances which are appearing in this case have been described by the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna in paragraph-24 of the of the aforesaid judgment. The circumstances are as follows: (i) the deceased Bibachha Dhangada Majhi had illicit relationship with accused Lochana Bag and has lavishly spent on Lochana Bag from the amount which he brought from Bombay; (ii) on the date of occurrence, deceased Bibachha Dhangada Majhi had entered into the house of the appellant Nakula Bag and thereafter he could not be seen by anybody; (iii) while in police custody, the accused-appellant Nakula Bag led to seizure of the torch light from the well and also the Pudapitha thenga on his information; (iv) the cement floor of the house of the appellant Nakula Bag stained with blood and the appellant Nakula Bag had brought the Pudapitha thenga from the Mancha which he had concealed in the Mancha and gave to the police officer for seizure. 9. From the evidence of P.Ws. 2, 3 and 4 the mother of the deceased it is proved that deceased Bibachha Dhangada Majhi had illicit relationship with the accused Lochana Bag the wife of the present appellant and he has spent his money lavishly on accused Lochana Bag from the amount which he earned from Bombay The second circumstance is that on the date of occurrence the deceased Bibachha Dhangada Majhi entered into the house of the appellant Nakula Bag and thereafter could not be seen by anybody for which P.W. 4 and her husband searched for the deceased. Third circumstance is that the other witnesses have told about the leading to discovery of the torch light and the Pudapitha thenga on the information given by the appellant Nakula Bag while in police custody. Third circumstance is that the other witnesses have told about the leading to discovery of the torch light and the Pudapitha thenga on the information given by the appellant Nakula Bag while in police custody. Fourth circumstance is that the cement floor of the house of the appellant Nakula Bag stained with blood which was found in chemical examination. 10. This being the circumstances, the learned counsel for the appellant argues that the said circumstances have not been established cogently and clearly. In this regard, he relies upon the off-quoted judgment passed in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra. reported in AIR 1984 SC 1622 , wherein the Hon'ble Supreme Court has held that: "the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established; (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; XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX (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.'-' These five golden principles constitute the Panchsheel of the proof of a case based on circumstantial evidence. Any case which is based on circumstantial evidence has to be judged in the light of these particular five golden principles. 11. The first circumstance is that the deceased Bibachha Dhangada Majhi had illicit relationship with the wife of the appellant, namely, Lochana Bag. That aspect is not disputed by the learned counsel for the appellant. But, he seriously disputes the second circumstance i.e. the deceased Bibachha Dhangada Majhi had entered into the house of the appellant Nakula Bag in the night of occurrence. It is seen that P.Ws. That aspect is not disputed by the learned counsel for the appellant. But, he seriously disputes the second circumstance i.e. the deceased Bibachha Dhangada Majhi had entered into the house of the appellant Nakula Bag in the night of occurrence. It is seen that P.Ws. 2, 3 and 4 have been relied upon by the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna to come to the conclusion that the deceased Bibachha Dhangada Majhi had entered into the house of the appellant Nakula Bag in that fateful night. For that it is needed to examine the evidence of these three witnesses. P.W. 2- Aswini Kumar Bemal has stated that he knew P.W. 1- Kalakanhu Dhangada Majhi. As per his instructions, he (P.W. 2) scribed the F.I.R. which he read over to him (P.W. 1) and he has not been cross-examined. This witness (P.W. 2) has not stated regarding the entry of the deceased Bibachha Dhangada Majhi in the house of the appellant Nakula Bag in that fateful night. P.W. 3-Drona Nag has been examined as a witness to the seizure of one torch light and he has signed the seizure list. He has also witnessed to the recording of statement of the appellant Nakula Bag under Section 27 of the Evidence Act. From the evidence of this witness, it is also seen that he has not stated anything regarding the entry of the deceased Bibachha Dhangada Majhi into the house of the appellant Nakula Bag in that fateful night. P.W. 4-Nira Dhangada Majhi who has allegedly stated about the occurrence. She has stated that near their house, a shop situates. The deceased Bibachha Dhanga Majhi came from Bombay with Rs. 20,000/-. He gave the same to her. She and her husband wanted to get him married. But deceased Bibachha Dhangada Majhi told them that first the house should be constructed. Regarding the fateful night at paragraph-3 of her examination-in-chief she has stated that about one and half year back on a Thursday in the night, she served food to the deceased Bibachha Dhangada Majhi. Then he took his meal. Thereafter, the deceased Bibachha Dhangada Majhi wore pant, shift and took with him one torch light. The colour of the shift was red and the pant was black and blue. He also took with him one towel (Gamchha). Then he went and sat in the shop of Sadhu Bhoi (P.W. 7). Then he took his meal. Thereafter, the deceased Bibachha Dhangada Majhi wore pant, shift and took with him one torch light. The colour of the shift was red and the pant was black and blue. He also took with him one towel (Gamchha). Then he went and sat in the shop of Sadhu Bhoi (P.W. 7). This witness had seen the deceased while he was sitting in the shop of Sadhu and thereafter he focused the torch light and then Lochana made a sound of "Khan Khan" and came to him. They talked in low voice. Then this witness needed to go to answer the call of nature and told her husband to accompany her. When she again came back, she did not find her son there. So, it is clear that this witness has stated nothing regarding entry of the deceased into the house of the appellant Nakula Bag. Even the evidence of Sadhu Bhoi (P.W. 7) does not help to the prosecution, as P.W. 7 has not stated about the occurrence that the deceased met Lochana and entered into the house of the appellant Nakula Bag. So, this circumstance is not established by the prosecution. 12. The next circumstance is leading to discovery of the torch light and the weapon of offence. In this connection, learned counsel for the appellant relies upon the reported judgment passed in the case of Sk. Yusuf Vs. State of West Bengal, AIR 2011 SC 2283 wherein the Hon'ble Supreme Court has held that the nature of admissibility of the fact discovered pursuant to the statement of the accused under Section 27 of the Indian Evidence Act, 1872 is very limited. It has been further held that if an accused deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, and as a result of such disclosure, recovery of the weapon is made, no inference can be drawn against the accused, if there is no evidence connecting the weapon with the crime alleged to have been committed by the accused. In this case, firstly, the torch light has been recovered basing on the discovery statement made by the accused/appellant. But, none of the witnesses identified the same in the Test Identification Parade and deposed that torch light discovered from the well belonged to the deceased. In this case, firstly, the torch light has been recovered basing on the discovery statement made by the accused/appellant. But, none of the witnesses identified the same in the Test Identification Parade and deposed that torch light discovered from the well belonged to the deceased. So, there is no connection between the offence and the object discovered in this case so far as the torch light is concerned. 13. The second object Pudapitha thenga was sent for chemical examination. The chemical examination report is marked as Ext. 15. Ext. 15 reveals that the wooden thenga has been marked as Ext. 'F' and it was not detected with any blood stain. So, there is no connection between the object discovered i.e. the Pudapitha thenga and the crime in this case and the case cited by the learned counsel for the appellant squarely applies to this case. 14. Since, in this case, the chain has broken and it is not forming a chain of circumstances 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, we are of the opinion that the judgment of conviction and order of sentence rendered by the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna in Sessions Case No. 75 of 1999 is liable to be interfered with. 15. Accordingly, we allow this CRA and set aside the conviction and sentence of the appellant under Sections 302 and 201 of the I.P.C. recorded by the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna in the aforesaid case. The appellant is, therefore, acquitted of the charges in the aforesaid case. 16. Learned counsel for the appellant submits that the appellant is on bail. Hence, the learned Sessions Judge, Kalahandi Nuapada, Bhawanipatna shall cancel the bail bond in the aforesaid case. The L.C.R. be returned back forthwith.