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2021 DIGILAW 51 (ORI)

Bharat Sahu v. State of Orissa

2021-02-09

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT : S.K. Mishra, J. 1. The sole appellant calls in question his conviction under Section 302 of the Indian Penal Code (hereinafter referred to as the "Penal Code" for brevity) and sentence of imprisonment for life recorded by the learned Ist Addl. Sessions Judge, Cuttack in SIT. Case No. 494 of 1996 as per judgment dated 07.9.2000. 2. The prosecution case in short is that on 08.12.1995 night the deceased Chhabi and the accused Bharat stayed in one room, i.e. the machine house or the huller house. On the next morning when Basanta Rana came to the huller house to perform Puja and knocked on the door, hone opened the door as the same was locked from outside. Therefore, he intimated the informant, who opened the door and found the dead body of the deceased lying inside the room being covered with a blanket and an iron was kept besides his body. The Appellant-accused, who had also slept there, had absconded. He submitted the report before the O.I.C., Baramba Police Station. The O.I.C., Baramba Police Station registered P.S. Case No. 221/95 for the offence under Section 302 of the Penal Code and took up the investigation. After completion of investigation, he submitted charge sheet against the Appellant for the offence under Section 302 of the Penal Code. 3. The defence took the plea of simple denial. 4. In order to prove its case, the prosecution examined seven witnesses. P.W. 2-Madhaba Sahu is the informant. P.W. 4-Dhruba Barik, P.W. 5-Basanta Kumar Choudhury and P.W. 6-Udayanath Choudhury are the witnesses deposing about the quarrel between the Appellant and the deceased prior to the occurrence. P.W. 3-Basanta Kumar Rana went to the hullar, house in the morning and found it to be locked from outside. P.W. 1- Dr. Narayan Ch. Das has conducted the post mortem examination on the dead body of the deceased. P.W. 7-Basanta Kumar Panda is the investigating Officer in this case. Two witnesses were examined on behalf of the defence. 5. At paragraph-13 of the impugned judgment, the learned 1st Addl. Sessions Judge came to the conclusion that the prosecution has established that the appellant-accused and Chhabi, the deceased, were working in the huller house of P.W. 2 and in the night of occurrence both the accused and the deceased were in the huller house. 5. At paragraph-13 of the impugned judgment, the learned 1st Addl. Sessions Judge came to the conclusion that the prosecution has established that the appellant-accused and Chhabi, the deceased, were working in the huller house of P.W. 2 and in the night of occurrence both the accused and the deceased were in the huller house. On the next morning, P.W. 3 went and knocked on the door, none responded and thereafter P.W. 3 went to P.W. 2, informed him, who came along with his brother and nephew and opened the door and he found the dead body of the deceased lying there. 6. P.W. 4-Dhruba Barik stated that he at times saw the accused and Chhabi were quarrelling. Chhabi died four years back. The witness saw the accused at 4 A.M. on the date of occurrence while he was in his threshing floor. The appellant on being asked told that he was going to his village. Thereafter, he heard Chhabi is dead. The evidence of this witness does not reveal that he spoke about any incriminating circumstance against the appellant. 7. P.W. 5 has stated that both the accused and Rajib Lochan Sahu were taking their meal in the house of the witnesses. In the relevant night also they had taken meal in their house. While they were taking their meal both the deceased Rajib and accused Bharat quarreled. They were pacified and they were left in the house where they were staying. After leaving the accused and Rajib in their house, he went to see Laxmi Puja at Balijhari. Next day morning he heard that Rajib has died. The evidence of this witness is also of no assistance as he does not state that he and his father left the appellant and deceased in the huller room or the machine house of P.W. 2. He stated that he left the deceased and appellant in their house. In cross-examination, he has admitted that he has no personal knowledge regarding the dispute of Chhabi alias Rajib with the accused. He has also admitted that he has not disclosed before anybody that in the night of occurrence there was quarrel between Chhabi and accused and they had taken them to their house. 8. P.W. 6-Udaynath Choudhury stated that at times, the appellant and deceased were quarrelling. He has also admitted that he has not disclosed before anybody that in the night of occurrence there was quarrel between Chhabi and accused and they had taken them to their house. 8. P.W. 6-Udaynath Choudhury stated that at times, the appellant and deceased were quarrelling. In the night of occurrence both the appellant and Chhabi had been to the house of Mahadeb Sahoo to take their meal. At the time of taking dinner, both of them quarreled Mahadev pacified them and took them to the huller house and left them. In cross-examination he has stated that he has no personal knowledge regarding the quarrel between the appellant Bharat and Chhabi, but denied the suggestion that the deceased and the appellant were not staying in the huller house. He has further admitted that he cannot say when Chhabi and appellant went to take their dinner in the house of Mahadeb Sahoo. He could not say when they returned from their house. He could not also say when Chhabi and appellant quarreled amongst themselves and when Mahadeb pacified the accused and Chhabi and took them to the huller house and left them. So, this being the sum and substance of the evidence regarding the last seen theory in the sense that the appellant and deceased were projected to have been residing in one room during the relevant night and on the next day morning the accused was absent and deceased was found dead, the learned counsel for the appellant submitted that this cannot be termed as a case in which the prosecution has proved its case beyond all reasonable doubt. 9. There is no doubt or dispute regarding the proposition of law that in a case based on circumstantial evidence, each circumstance must be cogently and firmly established and all the circumstances taken together must form complete a chain of events, unerringly point to the guilt of the appellant. 10. However, in our considered view, the materials available on record in the shape of evidence of P.Ws. 2 to 6 does not establish the circumstances on which the prosecution relies upon and it cannot be held that the prosecution has proved its case beyond reasonable doubt. 11. Learned 1st Addl. Sessions Judge has also relied upon the statement of the Investigating Officer, P.W. 7, that the accused was absconding after commission of the crime. 2 to 6 does not establish the circumstances on which the prosecution relies upon and it cannot be held that the prosecution has proved its case beyond reasonable doubt. 11. Learned 1st Addl. Sessions Judge has also relied upon the statement of the Investigating Officer, P.W. 7, that the accused was absconding after commission of the crime. Such a bald statement in absence of particulars of investigation or efforts to locate the appellant and failure of the investigating agency to locate him or to apprehend him will not amount to a circumstance of the appellant absconding from justice. So, such a circumstance cannot be held to be proved in this case. 12. The learned Additional Standing Counsel, Mr. G.N. Rout, placed in such reliance upon Exts. 10 and 11. Exts. 10 and 11 are statement of two persons, namely, A.K. Sahu and Makar Sahu recorded under Section 164 of the Code. Such statements should not have been marked as exhibits. It is the settled principle of law that even the statement made by a witness before the Magistrate authorized to tender oath is not a substantive place of evidence and it has to be taken only as a previous statement. It can be used both for corroboration and contradiction. It can corroborate the maker or the deponent if he is examined as a witness. Similarly, such statement is used for contradicting a prosecution witness or a defence witness, who is examined in Court. Such statements are not admissible unless the deponent is examined and on the basis of such statement, conviction cannot be upheld. 13. Thus, on a discussions of evidence of this case, we are of the opinion that the convictions of the appellant for the offence of murder requires to be interfered with. 14. In the result, the appeal is allowed. The judgment of conviction and order of sentence passed by the learned Sessions Judge Keonjhar in ST. No. 494/1996 are hereby set aside. The appellant is held not guilty of the offence and is acquitted thereof. He is on bail. He be set at liberty forthwith by canceling the bail bonds executed by him. T.C. Rs. be returned to the lower court immediately.