1. The appellant Janga @ Anukaran Toppo faced trial in the Court of learned 2nd Adhoc Additional Sessions Judge, Sundargarh for offences punishable under sections 302 and 201 of the Indian Penal Code on the accusation that on 26.10.2004 at about 8.00 p.m. he committed murder of one Sukru Bada (hereinafter ''the deceased'') by assaulting him by means of a lathi and concealed the dead body inside a well in order to cause disappearance of evidence. The learned Trial Court found the appellant guilty under sections 302 as well as 201 of the Indian Penal Code and convicted him of such offences and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- (rupees ten thousand only), in default, to undergo R.I. for a further period of one year under section 302 of Indian Penal Code and further sentenced him to undergo R.I. for a term of five years and to pay a fine of Rs.5,000/- (rupees five thousand only), in default, to undergo R.I. for a further period of six months under section 201 of the Indian Penal Code and both the substantive sentences were directed to run concurrently.
2. The prosecution case, as per the first information report lodged by Dilip Bada (P.W.1) before the Inspector in charge of Rajgangpur Police Station on 28.10.2004 is that on 26.10.2004 at about 3.00 p.m. a meeting was convened in the house of the informant relating to marriage of the maid servant of the informant, namely, Sanju Minz and in that meeting, the appellant, the deceased and others were present and a quarrel ensued between the appellant and the deceased for which the appellant threatened the deceased to commit his murder and then the appellant left the place. After the meeting was over, at about 4.00 p.m. the deceased went to his friend''s house but he did not return back home on that day. The informant went in search of the deceased to the house of Sukru Toppo (P.W.6), friend of the deceased who told him that the deceased had left his house since long. The deceased did not return back home either on 26.10.2004 or on the next day and on 28.10.2004 at about 6.00 a.m. while one lady, namely Juspin Bada had been to fetch water from the well, she found a dead body was floating in the well and accordingly she shouted which attracted the attention of others and the informant went there and found that the dead body was that of the deceased and the hands and neck of the deceased were tied with plastic rope and there was mud all over the body of the deceased. The informant also found there was some marks of violence in the land of one Johan Minz which situates in front of the house of the appellant and there was also blood stains. He also ascertained that on 26.10.2004 night at about 8.00 p.m. near the house of the appellant, some co-villagers heard beating sound and accordingly, the informant suspected that the appellant had killed the deceased while he was returning home from the house of his friend and thereafter his dead body was thrown inside the well.
The report was presented before the A.S.I. of
Lanjiberna outpost who made the station diary entry and sent it
to the Inspector in charge, Rajgangpur police station for
registration of the case and accordingly on receipt of the F.I.R.,
Rajgangpur P.S. case No.158 of 2004 was registered under
sections 302 and 201 of the Indian Penal Code.
P.W.9 Daitari Mallik, A.S.I. of Lanjiberna outpost,
after sending the report to the I.I.C. of Rajgangpur police station
took up investigation and visited the spot, prepared the spot
map, recovered the dead body from the well and examined the
witnesses, held inquest over the dead body in presence of the
witnesses, prepared the inquest report (Ext.2) and then
dispatched the dead body for post mortem examination. He also
seized the blood stained earth and sample earth from the spot as
per seizure list Ext.6 and conducted raid in the house of the
appellant and found him absent. On the next day, he also
examined some of the witnesses and handed over charge of the
investigation to P.W.10 Rabinarayan Barik, I.I.C. of Rajgangpur
police station.
P.W.10 took up investigation of the case and during
course of investigation, he examined the witnesses, searched for
the appellant who was found absconding and on 29.10.2004 he
seized the wearing apparels of the deceased along with
command certificate and the rope tied on the neck of the
deceased on production of the escorting constable. On
30.10.2004 the appellant was arrested and during interrogation,
the appellant confessed his guilt in presence of the witnesses
and on the basis of his statement recorded U/s.27 of the Indian
Evidence Act, P.W.10 recovered one Ukhuni as well as blood
stained lungi and shirt from the house of the appellant being led
by the appellant under seizure list Ext.4. The appellant was sent
to the Medical Officer, Government Hospital, Rajgangpur for
collection of his blood sample, nail clippings and then he was
forwarded to the Court. The sample blood, nail clippings were
seized under seizure list Ext.8. P.W.10 received the post mortem
report and he made a query to the doctor relating to the
possibility of the injuries noticed on the person of the deceased
by the seized Ukhuni and the autopsy surgeon opined in
affirmative as per her report Ext.9. On 21.01.2005 the seized
materials were sent to R.F.S.L., Sambalpur for chemical
examination through J.M.F.C., Rajgangpur and the chemical
examination report (Ext.11) was received. The investigating
officer verified the character and antecedent of the appellant and
found that he was involved in one case in the year 1984 in which
he was found guilty and was in custody. After completion of
investigation, P.W.10 submitted charge sheet on 17.02.2005
under sections 302 and 201 of the Indian Penal Code against the
appellant.
3. After submission of charge sheet, the case was
committed to the Court of Session for trial after observing due
committal procedure where the learned trial Court charged the
appellant under sections 302 and 201 of the Indian Penal Code
on 06.07.2005 and since the appellant refuted the charge,
pleaded not guilty and claimed to be tried, the sessions trial
procedure was resorted to prosecute him and establish his guilt.
4. During course of trial, the prosecution examined as many as eleven witnesses.
P.W.1 Dilip Bada is the informant in the case and he
is the elder brother of the deceased Sukru Bada. He has stated
about the quarrel between the appellant and the deceased in the
meeting and the threat given by the appellant to the deceased.
He has further stated about non-returning of the deceased to the
house on that date as well as on the next day and noticing the
dead body of the deceased inside the well. He further stated to
have noticed the blood in the agricultural land of one Johan Minz.
He is also a witness to the inquest and stated about the criminal
antecedent of the appellant.
P.W.2 Nuas Bada is the uncle of the deceased by
village courtesy and is the scribe of the F.I.R. and he stated
about criminal antecedent of the appellant. He is a witness to the
inquest and also stated about leading to discovery of the weapon
''Ukhuni'' and bloodstained lungi and bloodstained shirt at the
instance of the appellant by police on the basis of the statement
of the appellant. He was declared hostile by the prosecution.
P.W.3 Bibiyana Bada stated to have seen the
deceased coming from Halupada singing through the pathway
running behind his house and then the singing of the appellant
suddenly stopped when he reached near the agricultural land of
Johan Minz and then he heard sound of assault. He also stated
about the criminal background of the appellant.
P.W.4 Sarita Lakra has also stated to have seen the
deceased coming back from Halupada singing and subsequently
heard the sound of assault near the land of Johan Minz after his
singing was suddenly stopped. She also stated about the criminal
antecedent of the appellant.
P.W.5 Patras Bada stated about the quarrel between
the appellant and the deceased in the meeting which was
convened in the house of P.W.1 and further stated about the
criminal background of the appellant.
P.W.6 Sukru Toppo is the friend of the deceased and
he stated regarding the visit of the appellant to his house and
disclosure made by the appellant before him that he was
frightened as there was quarrel with the appellant during the
meeting in his house. He also stated about the criminal
background of the appellant.
P.W.7 Phul Kumar Bada also stated about the quarrel
between the appellant and the deceased in the meeting and the
threat given by the appellant to the deceased. He further stated
about the leading to discovery of the weapon of offence and
wearing apparels by the appellant before the police as per the
statement recorded by police. He further stated about the
criminal background of the appellant.
P.W.8 Sebastian Bada stated about the disclosure
statement of the appellant and leading to discovery of one
Ukhuni, one lungi and one shirt which were seized as per seizure
list Ext.4. He further stated about the criminal background of the
appellant.
P.W.9 Daitary Mallik was the A.S.I. of police of
Lanjiberna out post who received the written report of P.W.1 and
made station diary entry and then sent it to the I.I.C.,
Rajgangpur police station for registration of formal F.I.R. and
also conducted a part of investigation.
P.W.10 Rabinarayan Barik was the I.I.C. of
Rajgangpur police station who is the investigating officer of the
case.
P.W.11 Dr. Arati Satpathy was the O & G Specialist
attached to Govt. Hospital, Rajgangpur who on police requisition,
conducted post mortem examination over the dead body of the
deceased on 28.10.2004 and proved her report as Ext.12 and
also examined the ''Ukhuni'' and opined that the injuries found on
the person of the deceased were possible by the said weapon as
per her report Ext.9/2.
The prosecution also exhibited twelve documents,
Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3 is the
statement of the appellant recorded under section 27 of the
Evidence Act, Exts.4, 6, 7 and 8 are the seizure lists, Ext.5 is the
spot map, Ext.9 is the query made by the investigating officer,
Ext.10 is the forwarding report for chemical examination, Ext.11
is the chemical examination report and Ext.12 is the post
mortem report.
The prosecution also proved five material objects,
M.O.I is the Ukhuni, M.O.II is the rope, M.O.III is the red nicker
M.O.IV is the check Lungi and M.O.V is the green colour shirt.
5. The defence plea is one of complete denial and it is
stated that out of suspicion, the police has foisted the case
against him.
6. The learned trial Court after assessing the evidence on record came to hold that nobody had seen the appellant assaulting the deceased or throwing the dead body in the well. The learned trial Court formulated the circumstances appearing on record against the appellant which are as follows:-
(i) During the meeting held in the house of the
informant, the accused had quarreled with the
deceased and had threatened to kill him and
sometimes after the meeting, the deceased had gone
to the house of his friend and while leaving the
house of the friend, the deceased had told him that
he was frightened as there was a quarrel with the
accused during the meeting.
(ii) Some of the villagers had seen the deceased
coming back from the house of his friend while
singing a song and when the deceased reached a
place near the house of the accused, the singing
suddenly stopped and those villagers heard the
sound of assault and on the next day, they noticed
blood as well as marks of struggle on the land of one
Johan Minz where the singing had stopped.
(iii) The dead body of the deceased was found lying
in a well situated at a little distance from the land of
Johan Minz with marks of injury on the body of the
deceased and the neck of the deceased tied with a
rope.
(iv) The accused was absconding from the village
and about 4 days after the occurrence, he was
arrested and while in custody of the police, accused
disclosed that he had concealed the weapon of
offence as well as his blood stained wearing apparels
in his house and his statement was recorded by the
I.O. and thereafter the accused led the police and
the witnesses to his house, opened the lock and gave
recovery of the Ukhuni as well as a blood stained
lungi and shirt which were seized by the I.O.
(v) The accused before his arrest, had also
confessed before one of his co-villagers that he had
committed murder of the deceased by assaulting him
by means of an Ukhuni on the land of Johan Minz
and had thrown the dead body into the well and after
keeping the Ukhuni in his house, he had fled away
from the village out of fear.
(vi) Antemortem injuries were found on the person
of the deceased, which were sufficient to cause death
in ordinary course and the autopsy surgeon opined
after examining the Ukhuni that such injuries were
possible by the said weapon.
(vii) The Chemical Examiner also detected human
blood on the Ukhuni which was recovered from the
house of the accused on the basis of his disclosure
statement.
(viii) The accused is a known hooligan of the locality
and he was in jail earlier in connection with a case of
murder and attempt to murder as well.
After assessing the evidence on record, the learned
trial Court came to hold that the prosecution has been able to
establish that there was quarrel between the appellant and the
deceased in the meeting held in the house of the P.W.1 on the
date of occurrence and the appellant had threatened to kill the
deceased on that day itself. It was further held that from the
evidence of P.W.1, P.W.3, P.W.4 and P.W.6, it transpires that
there is a pathway running near the house of the appellant which
led towards Halupada and the agricultural land of Johan Minz is
at the side of that road and the deceased was passing through
that path towards his house by singing a song and the singing
stopped near the house of the accused and sound of assault was
heard and on the next day, blood as well as mark of struggle
were noticed on the land of Johan Minz adjoining the path way
near the house of the accused and one day thereafter the dead
body of the deceased was found in a well situated at a little
distance from the aforesaid land of Johan Minz.
Learned trial Court, while dealing with the extra
judicial confession, has been pleased to hold that there is no
scope to disbelieve the version of P.W.2 regarding extra judicial
confession merely because P.W.3 did not support the prosecution
case on that score. The prosecution has been able to establish
that the appellant had made an extra judicial confession
regarding his guilt before P.W.2.
Learned trial Court, while dealing with recovery of
the weapon of offence and the wearing apparels of the appellant
on the basis of disclosure made by him, has been pleased to hold
that the version of the independent witnesses regarding the
disclosure statement of the appellant and recovery of the
weapon of offence as well as his wearing apparels appears to be
aboveboard and the same can be safely relied upon, more so,
when the chemical examiner has found human blood on the
Ukhuni recovered at the instance of the appellant which is
indicative of the fact that the same was used as the weapon of
offence.
Learned trial Court, after discussing the cause of
death, has been pleased to hold that it can be safely concluded
that the deceased met with a homicidal death caused due to
assault by the Ukhuni (M.O.I) as well as the rope (M.O.II) and
further held that the presence of human blood on the recovered
Ukhuni gave rise to the presumption that the same was used as
the weapon of offence. It was further held by the learned trial
Court that all the circumstances such as the quarrel between the
appellant and the deceased a few hours before the occurrence,
passing of the deceased through the road running near the
house of the appellant and the sound of assault heard from that
place, presence of blood and marks of struggle on the land near
the house of the appellant, detection of the dead body in a well
near the house of the appellant, extra judicial confession of the
appellant that he had committed murder and had thrown the
dead body into the well, recovery of the weapon of offence and
the wearing apparels worn by the appellant at the time of
occurrence on the basis of the disclosure statement made by
him, presence of antemortem injuries possible by the seized
weapon of offence on the person of the deceased which were
sufficient to cause death in ordinary course, as well as the
presence of human blood on the weapon of offence recovered at
the instance of the appellant are held to have been proved. It
was further held by the learned trial Court that all the
circumstances taken together give rise to the only conclusion
that the appellant had a motive to do away with the life of the
deceased and that he had assaulted the deceased by means of
an Ukhuni when the deceased was returning from his friend''s
house through the path way running near his house and the
appellant had thrown the dead body into an well by tying a rope
around the neck of the deceased.
Learned trial Court further held that from the
attending circumstances, it can be inferred that the appellant
had intention to cause death of the deceased and he assaulted
the deceased with an intention to cause his death and the
injuries found on the person of the deceased were sufficient to
cause death in ordinary course of nature.
7. During call of the appeal for hearing, the engaged
counsel was not present and therefore, we engaged Mr. Biswajit
Nayak as the counsel for the appellant who was handed over the
paper book and given time to prepare the case. After going
through the paper book and case records, he placed the
impugned judgment and evidence of the witnesses and
contended that the impugned judgment and order of conviction
is not sustainable in the eye of law in absence of any clinching
circumstantial evidence and it cannot be said that the
circumstances taken together forms a complete chain so as to
unerringly point towards the guilt of the appellant.
Mr. Janmejaya Katikia, learned Additional
Government Advocate on the other hand supported the
impugned judgment and order of conviction.
8. Admittedly in the case in hand, there is no direct evidence as to who committed the murder of the deceased and how it was committed and when. The case totally rests upon circumstantial evidence. Law is well settled that in order to base a conviction on the basis of circumstantial evidence, the prosecution is required to establish each circumstance firmly beyond all reasonable doubt. It is also required to be established that the circumstance cannot be explained under any other hypothesis and the circumstances taken together should form a complete chain unerringly pointing towards the guilt of the accused that it is the accused and the accused alone and none else who has committed the crime.
9. The first circumstance which has been enumerated under the list of circumstances by the learned trial Court is regarding the quarrel between the appellant and the deceased which took place in the house of P.W.1 and the threat which was given to the deceased by the appellant. On this score, the relevant witnesses are P.W.1, P.W.5 and P.W.7. They have stated that in the meeting, there was a quarrel between the appellant and the deceased and the appellant threatened the deceased to kill him. Nothing has been elicited in the cross-examination of these witnesses to disbelieve such quarrel and threat aspect and therefore, this part of the prosecution evidence which has been adduced by the witnesses can be said to have been proved and there is no infirmity in the observation of the learned trial Court relating to such aspect.
10. The second circumstance which has been enumerated by the learned trial Court regarding coming back of the deceased from the house of his friend singing a song and the singing suddenly stopped and then the villagers heard the sound of assault, the relevant witnesses are P.W.3 and P.W.4. P.W.3 and P.W.4 though stated about such aspect but it cannot be lost sight of the fact that other houses are situated nearer to the place where the singing of the deceased stated to have been stopped. Therefore, merely because the house of the appellant is nearer to the place where the singing of the deceased stopped, it cannot be treated as a clinching circumstance against the appellant.
11. The third circumstance that the dead body of the deceased was found lying in a well situated at a little distance from the land of Johan Minz with marks of injury on the body of the deceased and the neck of the deceased was tied with a rope. Number of witnesses have stated in that respect which has not been disputed by the defence. Therefore, it can be said that the prosecution has proved this circumstance beyond all reasonable doubt.
12. Coming to the next circumstance regarding absconding of the appellant from the village for about 4 days, law is well settled that mere abscondance of an accused after commission of crime and remaining untraceable for a period itself cannot establish his guilt and absconding by itself is not conclusive proof of either of guilt or of a guilty conscience.
(Ref:- Paramjit Singh @ Pamma v. State of
Uttarakhand reported in (2010) 47 Orissa Criminal
Reports (SC) 403).
P.W.2 has stated that on 28.10.2004 he came from
Rourkela after getting information about the murder of the
deceased and though he ascertained from P.W.1 that the
appellant was absent from the village since the date of
occurrence but he found the appellant in his house after his
arrival.
Therefore, in spite of the evidence of P.W.2, even if
we hold that the appellant was not found in the village for a few
days after the occurrence, such circumstance itself is not a factor
which can raise accusing finger towards his guilt. Most of the
witnesses have stated that the appellant was a known hooligan
of the locality and therefore, in view of his ill reputation, the
appellant had every reason to fear that he would be falsely
implicated in the crime and arrested by the police. In such a
scenario, the absconding is a normal phenomenon and it cannot
be treated as an incriminating circumstance.
13. The next circumstance which has been enumerated by the learned trial Court is that the appellant disclosed before the investigating officer to have kept the weapon of offence as well as blood stained wearing apparels in his house and accordingly, his statement was recorded under section 27 of the Evidence Act and thereafter, he led the police and the witnesses to his house and gave recovery of one Ukhuni as well as lungi and shirt which were found to be stained with blood. The Investigating Officer stated to have seized the weapon of offence as well as the wearing apparels as per seizure list Ext.4 on 30.10.2004. The Ukhuni as well as the wearing apparels were dispatched for chemical analysis only on 20.1.2005, i.e. after about 80 days after the seizure. Nothing has been stated by the investigating officer that after the seizure, the articles were kept in sealed condition in safe custody. In fact, the weapon was sent to the doctor who conducted post mortem examination for her opinion on 06.12.2004. The chemical examination report indicates that no blood was found in the lungi as well as full shirt of the appellant which were seized by the investigating officer but the Ukhuni which was seized at the instance of the appellant was found to have contained human blood but no opinion relating to the blood group was given. Since there is no evidence that the weapon was kept in sealed condition and there is inordinate delay in dispatch of the Ukhuni seized for chemical examination, the finding of the chemical analyst cannot be used as an incriminating factor against the appellant in as much as chance of tampering with the same cannot be ruled out.
14. The next circumstance which has been relied upon by the learned trial Court is the extra judicial confession before P.W.2 and P.W.3. P.W.3 has not supported the extra judicial confession part. So far as P.W.2 is concerned, after he was declared hostile by the prosecution, he stated that he had disclosed before the investigating officer that the appellant confessed before him to have committed the murder of the deceased. This statement of P.W.2 which is an admission of the previous statement given before police is not a substantive piece of evidence. Nothing has been brought out on record by the prosecution as to why the appellant would repose confidence upon P.W.2 and disclose before him to have committed the murder. P.w.2 has stated that they are unable to live peacefully in the village after release of the appellant from jail. Thus P.W.2 had every reason to implicate the appellant in the crime. Therefore, the finding of the learned trial Court that the appellant confessed his guilt before P.W.2 cannot be accepted.
15. The other circumstances like noticing of antemortem injuries on the deceased and that the death is homicidal is not disputed. So far as the criminal background of the appellant is concerned, the learned trial Court himself has held that there is no material to show that the appellant was involved in similar offence during the intervening period of almost two decades and therefore, the prior conviction of the appellant cannot be treated as a circumstance against him.
16. Thus in absence of any direct evidence and clinching circumstantial evidence, even if the prosecution has proved that there was a meeting in the house of P.W.1 in which there was quarrel between the appellant and the deceased and threat was given by the appellant to the deceased to kill him and that from the house of the appellant one Ukhuni, his lungi and shirt were seized at his instance by police and the appellant was found not present in the village for few days, we are of the view that the circumstances which have been established by the prosecution do not form a complete chain and there are gaps in the prosecution case and it is difficult to come to an irresistible conclusion that the act must have been done by the appellant. Suspicion howsoever strong cannot take the place of legal proof. The reasonings assigned by the learned trial Court in convicting the appellant seems to be based on conjectures which have no place in a criminal trial and we are of the view that the impugned verdict is nothing but a sheer moral conviction. Thus on a very careful, cautious and meticulous scrutinization of the evidence, we are of the view that the impugned judgment and order of conviction passed by the learned trial Court is not sustainable in the eye of law. Accordingly, the appeal is allowed. The impugned judgment and order of conviction of the appellant under sections 302 and 201 of the Indian Penal Code and the sentences passed thereunder is set aside. The appellant who is in custody shall be released forthwith if he is not required in any other case. Before parting with the case, I would like to put on record my appreciation to Mr. Biswajit Nayak, the learned counsel engaged for the appellant for his effort in arguing the matter and he shall be entitled to his professional fees which is fixed at Rs.2,500/-. Lower Court''s record with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action.
