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2023 DIGILAW 182 (ORI)

Dusashan Bag v. State of Orissa

2023-04-04

BISWANATH RATH, M.S.SAHOO

body2023
JUDGMENT Biswanath Rath, J. This Jail Criminal Appeal at the instance of one of the convicts involves a challenge to the judgment and order of conviction passed by the learned Sessions Judge, Phulbani in Sessions Trial No. 1 of 2001 thereby convicting the accused person i.e. the Appellant herein along with the other accused and sentencing both of them to undergo imprisonment for life. 2. Prosecution story as revealed from the case record is as follows:- Deceased, Uchhaba Majhi and his brothers Udhaba Majhi, P.W.8 and Purna Chandra Majhi, P.W.4 were residing separately in mess and properties. The servant of the deceased, Uchhaba Majhi prior to the incident involved herein kidnapped a girl, namely Moti, who appears to be the daughter of the sister of the deceased, Uchhaba Majhi. Deceased, Uchhaba Majhi lodged an F.I.R. against the Offender. In the investigation, accused Senapati Mahakud was arrested and detained in the jail custody. As the case story further reveals, deceased Uchhaba Majhi was also a witness against the accused, Senapati Mahakud in a criminal case started against the accused for unlawful possession of arms. One and half months prior to the occurrence, accused, Senapati Mahakud after coming out of jail threatened the deceased, Uchhaba Majhi to kill him. On 9/10th February, 2000 night, some unknown persons committed theft from the house of the deceased and killed the deceased, Uchhaba Majhi as well as his wife, Maharani Majhi and threw away both the dead bodies in river Rahul. In the morning of 10.02.2000, the wife of Purna Chandra Majhi and wife of Udhaba Majhi (P.W.8) while taking bath in the same river found the dead body of Maharani Majhi at the bathing Ghat. Both of them found a rope tied around the neck of the deceased, Maharani Majhi and the other end of the rope has been found to be tied against the tree. Both of them also found some injuries on the neck and back of the deceased, Maharani Majhi. Further, they also found an Axe lying near the spot. Both of them informed this matter to P.Ws.4 & 8, i.e., their husbands. P.W.8 rushed to the spot and identified the dead body to be that of Maharani Majhi and also noticed some incised, wounds on back and neck of the deceased. Further, they also found an Axe lying near the spot. Both of them informed this matter to P.Ws.4 & 8, i.e., their husbands. P.W.8 rushed to the spot and identified the dead body to be that of Maharani Majhi and also noticed some incised, wounds on back and neck of the deceased. On his returning back to the house of Uchhaba Majhi, he found, Uchhaba Majhi is absent in his home but found the house open and the articles in the house were lying here and there. Noticing this, he immediately rushed to Tumudibandha Police Station and in consultation with the Sarpanch of the Village (P.W.2) he lodged a written report. The O.I.C., Tumudibandha P.S. registered a case and took up investigation. 3. During investigation, the O.I.C examined the Informant, proceeded to the spot and examined further witnesses. Since it was night, the O.I.C engaged a Constable to keep watch on the dead body. The O.I.C also noticing the dead body of Uchhaba Majhi floating in the river rescued the dead body on the next date. Inquest was made and the dead body was sent to Madanpur Rampur Hospital for post-mortem. Accused persons were searched, but Senapati Mahakud could not be apprehended. Later on the S.D.P.O, Balliguda took up the investigation from the O.I.C. During the investigation he re-examined the witnesses and arrested the accused, Senapati Mahakud, who confessed to have killed both the deceased persons and gave recovery of the crow-bar and other articles. For further revelation in the investigation process, the S.D.P.O also implicated the other accused, Dusashan Bag, who is alleged to have assisted Senapati Mahakud in killing the deceased. In the process the other accused persons were also arrested. On completion of the investigation, the S.D.P.O. submitted the charge-sheet resulting in trial. 4. Defense plea was that one of complete denial. 5. To establish their case, prosecution examined P.Ws.1 to 12. Defendants examined none. Prosecution exhibited documents marked as Ext.1 to Ext.34. Defense exhibited no documents. Similarly prosecution also marked some material objects marked as M.O.-I to M.O.-XV. There is no material object marked by the Defense. 6. Undisputedly there is no direct evidence against the accused persons and prosecution case is based on circumstantial evidence. Defendants examined none. Prosecution exhibited documents marked as Ext.1 to Ext.34. Defense exhibited no documents. Similarly prosecution also marked some material objects marked as M.O.-I to M.O.-XV. There is no material object marked by the Defense. 6. Undisputedly there is no direct evidence against the accused persons and prosecution case is based on circumstantial evidence. The trial court has analysed the evidence relied on by the prosecution i.e. evidence of P.Ws.1, 4 & 8 who have all attempted to establish involvement and the motive behind such murder. Trial Court considered evidence of P.W.10 on his corroborating the fact of previous rivalry between the accused and the deceased. It is, in these premises prosecution was able to prove the motive against the accused person Senapati Mahakud. Also the prosecution proved the accused immediately after occurrence of such incident was found absent and he belongs to village of the deceased persons. Further on the basis the extra judicial confession of the accused to have killed both the deceased before P.W.10, in presence of P.W.7, gave recovery of weapon, leading to recover of an ornament (nose flower) stated to have taken from the body of the deceased Maharani Majhi. Accused led to his house to give recovery of nose flower and thus Sessions Court came to observe that there is no doubt that accused Senapati Mahakud was the assailant. Similarly examining the involvement, if any, of other accused Dusashan Bag, the learned Trial Court came to find material establishing the said accused to be on leave from his Office at Bhubaneswar from 3.02.2000 to 10.02.2000 vide Ext.4 & Ext.5 and the occurrence took place on 9/10.02.2000 night. The Sessions Court here also relied heavily on P.W.1, 4 & 8 regarding previous rivalry between co-accused with deceased Uchhaba Majhi, which lead to the death of the deceased being killed by the co-accused. The Sessions Court here took aid of evidence of P.W.7 to find material establishing accused-Dusashan was very much available in the same village on the date of occurrence. This witness is also claimed to have seen many occasions the deceased Uchhaba Majhi and accused Senapati Mahakud meeting each other on several dates. Further P.Ws.1, 4 & 8 have also claimed to have seen accused Dusashan Bag visiting the house of Uchhaba Majhi during this period. This witness is also claimed to have seen many occasions the deceased Uchhaba Majhi and accused Senapati Mahakud meeting each other on several dates. Further P.Ws.1, 4 & 8 have also claimed to have seen accused Dusashan Bag visiting the house of Uchhaba Majhi during this period. There is also material establishing identification of this accused by P.Ws.1, 4 & wife and sons of the accused Senapati Mahakud in the T.I. parade that had taken place. Further there is also identification of this accused by P.Ws.7 & 8 on 6.04.2000. It is only based on the above circumstantial evidence that the trial ended the matter in conviction of both the accused persons. 7. In challenge to the judgment and order of sentence only at the instance of one accused namely Dusashan Bag Mr. Pani, learned counsel for the appellant submitted that the judgment and order of sentence suffers infirmity on account that there is no examination of star witness that was available for the prosecution. Further, P.W.6 in the test identification parade identified somebody else and not this accused. Further there is also no completion of chain of incriminating sequence of events to lead to conviction of this accused. Further on the premises that conviction and order of sentence is based on circumstantial evidence, Mr. Pani, learned counsel contested the matter and submitted the conviction and order of sentence so far it relates to this accused must go. In further advancing his submission Mr. Pani, learned counsel for the Appellant also taking this Court to the relevant portions of the discussions on evidence by the Sessions Court as described in the written note of submission on behalf of the sole appellant contended that there has been wrong appreciation of evidence and failure in appreciating the lacunas in the evidence of the prosecution involved. Reading through the depositions of each of the prosecution witness, it is submitted that the order of conviction and sentence must go. 8. In his opposition Mr. Pradhan, learned AGA taking this Court to the case of the prosecution, corroboration of the claim of the prosecution with evidence of P.Ws.1, 4 & 8, further reading through the evidence of P.Ws the learned AGA attempted to justify the conviction and order of sentence granted by the trial court. In response to the contentions raised by the learned counsel for appellant Mr. In response to the contentions raised by the learned counsel for appellant Mr. Pradhan, learned AGA contended that for the strong corroboration of the incident through the above witnesses there is no sustainable ground to interfere in the order passed by the learned Sessions Judge. On the premises that there is availability of strong material with the trial court, Mr. Pradhan, learned AGA contended that the order of conviction and sentence remains justified and thus claimed that appeal should be dismissed for having no material. 9. It be stated here that this appeal is confined to the order of conviction and sentence in S.T. No.1 of 2001, but at the instance of Dusashan Bag the 2nd accused. P.Ws. 4 & 8 were husbands of two women who for the first time saw deceased Maharani Majhi near the river and found injuries on her neck. They informed P.Ws.4 & 8 their respective husbands who rushed to spot and identified the dead body. P.Ws.4 & 8 both have corroborated the versions of their wife and informed them to have seen the dead body of Maharani Majhi lying at the spot with injuries and informed both of them. The observation of P.Ws.4 & 8 have been corroborated in para 2 in their statements. Undisputedly, there are circumstantial evidence and witnesses. In his evidence P.W.4 stated that he suspects accused Senapati Mahakud to have committed the crime and he was involved in several cases including a rape case. On Dusashan Bag this witness submitted that the other man standing in the dock used to come to the house of his brother, the deceased, so he also suspected this man to have killed the deceased in connivance with accused Senapati Mahakud. In examination in chief in para 10 P.W. 4 also claimed to have heard about Senapati Mahakud openly declaring to kill Uchhaba Majhi. P.W.4 in cross admitted to be the bother of the deceased Uchhaba Majhi. 10. On going through the evidence of P.W.8 the other circumstantial witness strongly relied on by the prosecution as well as the Sessions Court, this Court finds, he is the 2nd man who proceeded to the spot to find-out the dead body being informed by his wife and another lady, both of whom had already seen the dead body of Maharani Majhi. In Para 2 he said to have seen Maharani Majhi lying dead. In Para 2 he said to have seen Maharani Majhi lying dead. He also visited Uchhaba Majhi's house to search him but did not find him there. He along with P.W.4 went to Tumudibandha Police Station and reported the matter, which was marked as Ext.22/1. Then both of them with Police moved to the spot where they also found dead body of Uchhaba Majhi floating in the river. 11. In his attempt to bring home the motive of the accused persons to kill the deceased the P.W.8 has stated that about one to one & half months prior to the occurrence accused Senapati Mahakud was released from jail. This accused had told him that he will definitely commit murder of Uchhaba Majhi as Uchhaba Majhi had filed a case against him and he, therefore, suspected, accused Senapati Mahakud has committed murder. So far it relates to accused Dusashan Bag, the witness has stated that Dusashan Bag was regularly coming to the house of the deceased. He came to learn that accused Dusashan Bag and deceased brother Uchhaba Majhi were jointly doing business involving husk and two days prior to death of Uchhaba Majhi and his wife the accused Dusashan Bag came to their village and stayed in the house of accused Senapati Mahakud. 12. This Court finds, the only other witness who has been heavily relied on by the prosecution as well as the trial court is the P.W.1 appearing to be Bhagyalaxmi Majhi, who appears to be the sister-in-law of Uchhaba Majhi one of the deceased and also one of the lady member who along with her sister-in-law Ichhabati for the first time saw the dead body of Maharani Majhi the other deceased near the river when both of them went to take bath. She appears to have after coming back from the spot informed her husband about dead body of Maharani Majhi lying at the spot and the husband of Bhagyalaxmi Majhi as well as Ichhabati moved to the spot, could recognize the dead body being the wife of Uchhaba Majhi. She appears to have after coming back from the spot informed her husband about dead body of Maharani Majhi lying at the spot and the husband of Bhagyalaxmi Majhi as well as Ichhabati moved to the spot, could recognize the dead body being the wife of Uchhaba Majhi. The witness has also stated that the eldest brother of her husband went to the Police Station to lodge F.I.R. To establish the motive behind the killing, this witness also stated that prior to the incident Deba a servant of the deceased Uchhaba Majhi along with accused Senapati kidnapped and raped Moti who happened to be the niece of Uchhaba Majhi being the daughter of Uchhaba's sister and that Deba is also an accused in the rape case as abettor. After being released he was threatening to Uchhaba Majhi that he will kill him. This statement of P.W.1 appears to be not towing with the evidence of P.Ws.4 & 8 in their attempt to establish the motive behind the killing and they have made the statement like a parrot stating that Senapati Mahakud has committed the crime because he was involved in several cases including a rape case and so far as the other accused is concerned, P.W.4 stated that he belongs to village-Jarasingha thus suspected to have committed murder along with accused Senapati Mahakud. This Court finds, the entire case of the prosecution is based on suspicion and in an attempt to somehow complete the chain of incidents that lead to death of the two deceased. 13. Apart from the above, on further scrutiny of the evidence this Court finds, all the vital witnesses i.e. P.Ws.1, 4 & 8 are not only relations of the deceased but they also are all circumstantial witnesses and post occurrence witnesses. There is undisputedly no eye witness. Reading the F.I.R. story and the statement of all these witnesses, this Court finds, there is no completion of chain establishing its case beyond all reasonable doubts implicating the accused persons. There is undisputedly no eye witness. Reading the F.I.R. story and the statement of all these witnesses, this Court finds, there is no completion of chain establishing its case beyond all reasonable doubts implicating the accused persons. There being no eye witness, only witness being circumstantial witnesses, each of such witness only suspected the accused persons to have killed the deceased persons and for there is no evidence presented by the prosecution to complete the chain in establishing the fatal incidents of death to have been caused by the accused appellant, this Court holds, there cannot be conviction based only on extra judicial confession by one of the accused and further an accused leading to give recovery of an ornament worn by one of the deceased. 14. This case appears to be based on last seen theory as each of the witness strongly relied on by the prosecution as well as the Sessions Court. In the opinion of this Court last seen theory in itself is not sufficient to bring home the guilt of accused. The onus of proving the guilt still needs to be satisfied by the prosecution and it needs to be corroborated with strong factors like; if there is motive with the persons who was last seen with the deceased or he could have even inflicted kind of injury that caused the death? This Court having gone through the evidence of vital witnesses like P.Ws.1, 4 & 8 finds, all these witnesses more particularly P.Ws.4 & 8 though stated to have seen the accused persons at some point of time even one of the accused person having business with one of the deceased but there is no further details as to what was the time gap of last seen together and the death of the deceased. This Court finds, the Sessions Judge miserably failed in appreciating this vital aspect of the matter. 15. This Court takes note of some of the decisions of the Hon'ble apex Court and finds, in the case of Jaswant Gir Vrs. State of Punjab : (2005) 12 SCC 438 (at para 7) in absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the last seen evidence, even if the version of the P.W. in this regard is believed. State of Punjab : (2005) 12 SCC 438 (at para 7) in absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the last seen evidence, even if the version of the P.W. in this regard is believed. The fact of last seen has to be supported by the other proved facts in such a way that the circumstances are unerringly determined and conclusively prove the guilt of the person. The Court thus has to be on guard when deciding these kinds of matters, as even minute detail can change the whole scenario of the case. Similarly in the case of Digamber Vaishnav and Anr. Vrs. State of Chhattisgarh : (2019) 4 SCC 522 the Hon'ble apex Court came to hold that there should be reasonable proximity between the time of seeing the person and recovery of the body to point the needle of suspicion towards the person last seen with the deceased. However, they were last seen together cannot be the sole criteria to convict the accused. The last seen theory with other obtaining circumstances negating the innocence of accused can lead to base the conviction banking upon the doctrine of last seen. If the prosecution establishes the fact that no other person could have interfered or intervened as there was exclusively possession of the accused to the place where the incident occurred, then based on this also last seen theory can be established and presumption can be taken despite huge time gap. 16. This Court finds, both the aforesaid judgments have clear application to the case at hand. Through a catena of decisions this Court finds, the settled principle of law so far it relates to conviction based on circumstantial evidence are as follows:- (a) Every circumstances that leads to guilt of the accused should be proved beyond reasonable doubt by the prosecution. (b) All the circumstances cogently depict the gilt of the accused leaving no incongruities, suspicions so to lead to establish the guilt beyond all reasonable doubt and not in a half-backed situation. 17. A reference may be made here to a judgment of Hon'ble apex Court in the case of Sharad Biridhichand Sarda Vrs. (b) All the circumstances cogently depict the gilt of the accused leaving no incongruities, suspicions so to lead to establish the guilt beyond all reasonable doubt and not in a half-backed situation. 17. A reference may be made here to a judgment of Hon'ble apex Court in the case of Sharad Biridhichand Sarda Vrs. State of Maharashtra : AIR 1984 SC 1622 , where the Hon'ble apex Court while dealing with the circumstantial evidence held, onus is always on the prosecution to prove that chain is completed and the infirmity or lacunas in prosecution cannot be cured by false defense or plea. In the case at hand even taking the statements of P.W.1, P.W.4 & P.W.8 taken together does not subscribe the view that the death of deceased is on account of involvement of Senapati since dead and or the surviving appellant herein. The prosecution witnesses have even brought two different stories in the alleged involvement of two different accused persons, both the stories can never meet at least to throw light on common intention with both the appellants to kill both the deceased herein. 18. In the above circumstance, this Court finds, prosecution failed to establish its allegation on motive. There is failure of establishing the charges against the appellants to the hilt conferring benefit of doubt on the appellant accused and further there is casual examination of the prosecution evidence available on record. In the final outcome We allow the appeals and set aside his conviction and sentences recorded by the impugned judgment and order dated 23.11.2004 passed by the learned Sessions Judge, Phulbani in S.T. Case No.1 of 2001 and We acquit the sole appellant named Dusashan Bag from all the charges framed against him. As the other appellant Senapati Mahakud having died in the meantime, the appeal by him has abated vide order no.3 dated 4.01.2011. This Court here records that the sole appellant herein has been enlarged on bail by order no.2 dated 24.12.2009. For foregoing reasons We are of the considered view that the impugned judgment of conviction and order of sentence cannot be sustained in the eye of law. In the result this appeal is allowed and the judgment of conviction and order of sentence dated 23.11.2004 passed in S.T. Case No.1 of 2001 respectively passed by the Sessions Judge, Phulbani in S.T. Case No.1 of 2001 are hereby set aside. In the result this appeal is allowed and the judgment of conviction and order of sentence dated 23.11.2004 passed in S.T. Case No.1 of 2001 respectively passed by the Sessions Judge, Phulbani in S.T. Case No.1 of 2001 are hereby set aside. Since the appellant Dusashan Bag is on bail, the bail bond stands discharged. 19. The Jail Criminal Appeal (JCRLA) succeeds. There is, however, no order as to costs.