.
D.Dash, J
1. The Appellant, by filing this Appeal, has assailed the judgment of conviction and the order of sentence dated 27.04.2017 passed by the learned Additional Sessions Judge, Rairangpur, Mayurbhanj in Sessions Trial No.52 of 2015 arising out of G.R. Case No.399 of 2015 corresponding to Badampahad P.S. Case No.39 of 2015 of the Court of learned Sub Divisional Judicial Magistrate (SDJM), Rairangpur.
The Appellant (accused) has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and he has been sentenced to undergo imprisonment for life for the offence under section 302 of the IPC and to pay a fine of Rs.5000/-in default of payment of fine he shall have to undergo R.I. for two months.
2. Prosecution case is that Arjun Chatar of village Bhandan (Godasahi) under Badampahad Police Station in the district of Mayurbhanaj was known in the village as a witch doctor (Gunia-performing jhada phunka). The son of the accused was ailing for sometime and was being treated in that way that such treatment by the witch doctor could give the relief. On 13.9.2015 night around 9 pm, the accused and his wife came to the house of Delga Chattar(P.W.3), their son had by then was undergoing treatment by a witch doctor for about 15 days. The accused and his wife arriving in the house of Delga Chatar (P.W.3) requested Arjun to accompany then to their house to treat their son. Arjun accepting the request went with the accused and his wife. But Arjun did not return during the night. On the next morning Delga (P.W.3) who happens to be the younger brother of Arjun with others searched for him. It was around 1 pm, the dead body of Arjun was found lying by the side by a straw heap near his threshing floor. It was then detected that Arjun had sustained bleeding injuries on his neck. It is alleged that Arjun (deceased) and the wide of the accused were having extra variety relationship. Therefore it was suspected that the accused bearing grudge and finding the opportunity might have caused his death.
Delga (P.W.3) then lodged a written report (Ext.6) with the Officer-in-Charge (OIC) of Badampahad Police Station. Having received such written report, the OIC treated the same as FIR and upon registration of the case, took up investigation.
3. In course of investigation, the Investigating Officer (I.O- P.W.13) examined the informant (P.W.3) and other witnesses. Proceeding to the village conducted inquest over the dead body of the deceased in presence of witnesses and prepared the report to that effect i.e. Ext.1/2. He then sent the deceased for post mortem examination by issuing necessary requisition. The accused was arrested on 15.09.2015. It is said that the accused while in the custody of the I.O (P.W.13) stated that he would give recovery of a knife from the place where he had kept it and thereafter the statement (Ext.3/2) of the accused was recorded by the I.O (P.W.13). It is further stated that the accused then having led the I.O (P.W.13) and others to his house gave recovery of the knife which was seized under seizure list (Ext.4/2). The wearing apparels of the deceased and accused were seized with other incriminating articles which were then sent for chemical examination at the behest of the I.O (P.W.13).
4. On completion of the investigation, the I.O (P.W.13) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC.
5. Learned SDJM, Rairangpur, receiving the Final Form as above, took cognizance of the offence and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge against the said offence against the accused.
6. In the Trial, the prosecution in total has examined thirteen (13) witnesses. As already stated the younger brother of the deceased, who is the informant and had lodged the FIR (Ext.6) has been examined as P.W.3 whereas the son of the deceased has come to the witness box as P.W.4. Other important witnesses are P.W.8 to P.W.10 who has tendered evidence with regard to the recovery of the knife at the instance of the accused pursuant to his statement before the I.O (P.W.113) after his arrest. The Doctor, who had conducted autopsy over the dead body of the deceased, has been examined as P.W.14; as already said the I.O is P.W.13.
7. The prosecution besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.11/1. Out of those, the important are the FIR, Ext.6, Spot Map, Ext.7, Inquest Report, Ext.1/2, Post Mortem Report, Ext.10, and the so called statement of the accused in giving recovery of the knife Ext.3/2 read with the concerned seizure list, Ext.4/2.
8. The accused has not led any evidence in support of his plea of denial and false implication.
9. The Trial Court on going through the evidence of P.W.14, the doctor, who had held autopsy over the dead body of the deceased and his report Ext.10 as well as the evidence of P.W.13 (I.O) and other witnesses has held that Arjun met homicidal death. In fact this aspect of the case was not under the challenge before the Trial Court and has also the situation before us.
The doctor during his post mortem examination had found two stab wounds on the front and left side of the neck of the deceased, besides one abrasion nearby and another abrasion on the left knee. He too had found the trachea to have been cut vertically having injury to the blood vessel carotid artery. His positive evidence is that all such injuries are ante mortem in nature and the death was caused due to haemorrhagic shock resulting from the injuries to the carotid artery trachea. He has further stated that the death was within 24-48 hours of his examination. This Doctor being requested by the I.O (P.W.13) to give opinion as to whether by means of that seized knife (Kati), the injuries which he noted on the dead body were possible, had opined in the affirmative and that he has reiterated during his cross-examination in the Trial. Besides the evidence of P.W.14, the I.O. (P.W.13) in his inquest report prepared in presence of witnesses had noted these injuries seen by him over the dead body while holding inquest in his report (Ext.1/2). Other witnesses have also stated to have seen those injuries upon the dead body after it was detected to be lying by the side of straw heap on the threshing floor. All these evidence having remained unquestioned, we find absolutely no difficulty in concurring with the finding of the trial court that Arjun’s death was homicidal in nature.
10. Learned counsel for the Appellant (accused) submitted that the case of the prosecution is based on circumstantial evidence and the Trial Court after having held in favour of establishment of two circumstances which according to it are incriminating, directed against the accused, has held the prosecution to have established the charge against the accused, beyond reasonable doubt having held before that those two complete the chain in every respect ruling out all the hypothesis other than the guilt of the accused. He further submitted that those two circumstances are that the deceased was last seen in the company of the accused and he had given recovery of the knife (Kati) while in police custody pursuant to his statement to that effect. According to him, the prosecution evidence to establish the first circumstance ought not to have been accepted by the Trial Court. He then submitted that on a bare reading on the evidence of P.W.3, his evidence that the deceased went with the accused cannot be relied upon as his conduct is highly suspicious. He further submitted that the prosecution has not been able to prove that it is the accused, who had given recovery of the knife pursuant to his statement when he was in police custody. He also submitted that when said knife was not been directly connected with the crime through other evidence simply with the help of the evidence of the doctor (P.W.14) that injuries upon the deceased was possible by knife, that would not stand as an incriminating circumstance.
11. Learned counsel for the State-Respondent while supporting the findings of the trial court submitted that when it has been proved through the evidence of P.W. 3, the younger brother of the deceased that the accused and his wife having come to their house and taken the deceased with them for treatment of their ailing son and thereafter, as on the next morning, the dead body has been recovered since no explanation is forthcoming from the side of the accused as to what happened with the deceased. During the period after he went with him, the Trial Court with the evidence as to the recovery of the knife at the instance of the accused did commit no mistake in recording the finding of guilt against the accused as to have intentionally causing the death of the deceased.
12. The term circumstantial evidence defined by Peter Murphy as evidence from which the desired conclusion may be drawn which requires the Tribunal of fact not only to accept the evidence presented but then to draw an inference from it. The term circumstantial evidence in India was used by Sir Jemes Stephen for the first time stating that these facts depend on other facts and exist if it is proved that the other fact existed. This means that the inference is drawn according to the reasonable prudent man based upon pre-existing fact that has already been proved. Thus the circumstantial evidence does not establish complete guilt until every evidence is negating the innocence of the accused. The whole chain of fact and circumstance of the case should be so complete that from the same the existence of principal fact can legitimately be inferred or presumed and no suspicion or conjecture comes in the minds of the Court regarding the guilt of the accused when he can be convicted on the basis of circumstantial evidence.
The term ‘circumstantial evidence’ has not been used directly in the Evidence Act. However, in Section-3 of the Act, the definition of the word ‘proved’ rfeads that if the existence of any fact is so probable which a prudent man will believe it to exist then that is considered to be proved. This implies that the admissibility of circumstantial evidence that is based on logical inferences that direct evidence and circumstantial evidence are at part if the whole chain of events which happened collectively point unerringly at the guilt of accused. But if there is doubt that the accused is innocent and the chain of event is not complete then the benefit of the doubt has to go in favour of the accused.
13. In case of Sudama Pandey–V-State of Bihar; (2002) 1 SCC 679, the following points have been stated to be kept in mind for holding the matter to have been proved with the aid of circumstantial evidence;
a) circumstances from which the inference had been drawn should be fully proved that they existed;
b) all the facts that they have been proved support the hypothesis of the guilt of accused;
c) the chain of circumstances should be well connected and thus be completed so that is conclusive; and
d) the circumstances should toss out every possibility of the accused of being innocent.
14. Coming to the last seen in the theory doctrine, it be noted that this theory is found upon the principle of probability, cause and connection as no fact exists of takes place in isolation. Basically, it means that if an event happens then other event also occurs which are the probable consequences of the major event or is related to it either retrospectively or perspectively. These inferences or presumptions are drawn logically; according to how a reasonably prudent man will connect the dots in the prevailing scenario. It has its root with section-7 of the Indian Evidence Act called the ‘Doctrine of Inductive Logic’. That states that if any fact related to the occasion cause or effect lead to the circumstances in which that thing occurred or it provided an opportunity in the occurrence of that thing then those facts will be relevant and in the last seen theory also a person who was last present with the victim would have a reasonable opportunity to commit the crime.
This presumption of fact is taken under section-114 of the Evidence Act under which the Court can presume that certain facts exist, if some other facts are proved to be in cases of natural events, human conduct and public and private business. As for example, if a person was the last person seen with another just before his murder, then it can be presumed that such a person murdered the other under this theory since that person had adequate scope and opportunity to commit the crime. Be that as it may, the presumption is not considered as conclusive proof of the guilt of the person and these are rebuttable. It only shifts the onus upon the person to prove that he is innocent which is an exception in the criminal law as the burden of the proving the guilt of the accused always lied upon the prosecution. Though the last seen theory relieves the prosecution of the onus of proving the guilt yet it is weak evidence and it needs to be corroborated with other factors like if there is motive with the person who was last seen with the deceased or he could have even inflicted the kind of injury that caused the death.
15. In case of Jaswant Gir-V-State of Punjab; (2005) 12 SCC 438 it has been held by the Apex Court that if other links are not present to corroborate the theory, then it is not safe to solely base the finding on this theory. The fact of last seen should also be supported by other facts in such a way that the circumstances are unerringly determinative in nature and conclusively prove the guilt of the person. The Court thus has to be on guard when deciding these kind of matters as even minute details can change the whole scenario of the case.
16. The settled law for a case to be held proved entirely based on circumstantial evidence, as has been detailed out in catena of decision are that:-
a) every circumstance that leads to the guilt of the accused should be proved beyond reasonable doubt by the prosecution; and
b) all the circumstances should cogently depict the guilt of the accused leaving no incongruities, suspicions so as to lead to the establishment of the guilt beyond reasonable ground and not in a half-backed situation.
17. In case of Digambar Vaishnab-V-State of Chhatisgarh; (2019) 4 SCC 522, it has been held that there should be reasonable proximity between the time of seeing the person and recovery of the body to point the needle towards the person last seen with the deceased. However, simply that they were last seen together cannot be the sole criteria to convict the accused. Last seen theory with other obtained circumstances negating the innocence of the accused can lead to base the conviction banking upon the doctrine of last seen. In some cases though there are huge time gap between the occurrence of the event and the time when last seen together still if the prosecution establishes the fact that no other person could have interfered or intervened and there was exclusive possession of the accused to the place where the incident occurred, then based on this, also the last seen theory can be established and presumption can be taken despite a huge time gap. (Ref:-Satpal Singh-V-State of Hatyana; (2010) 8 SCC 714.
18. Keeping in mind the above said legal position, in order to address the rival submission in judging the sustainability of the Trial Court’s finding holding the accused guilty of the charges; let us now have a look at the evidence to see that the same if pass through the tests as aforesaid.
The first two witnesses examined from the side of the prosecution as P.W.1 and P.W.2 though are the co-villagers of the deceased have stated nothing except to have seen the dead body lying by the side of a heap of straw near the house of the accused in further stating that inquest was held over the dead body by the I.O (P.W.13) in their presence that they are the signatories to the said reports (Ext.1/2).
19. The important witness for the prosecution in support of the last seen theory is P.W.3, who is the younger brother of the deceased Arjuna and the Informant who had lodged the FIR (Ext.6). It has been stated in the FIR that in the previous night, accused and his wife having called Arjun to their house for performing some puja concerning treatment of their son, Arjun had gone with them and it was around 9 pm. He states therein that thereafter Arjun did not return during the night and on the next day morning his dead body was found. When this P.W.3 states all these above, he does not state as to if in the morning, he had gone to the house of the accused to ask him regarding the whereabout of his brother Arjun. Such a conduct on the part of this P.W.3 leads a prudent man to view his evidence with suspicion. When it is said by the witness that the deceased immediately responding to the request of the accused went with them, it does not appeal to the mind for a moment that when even in the morning the deceased was not found in house, this P.W.3 who is his brother would not ask the accused by going to his house which is at a distance of 200 to 300 meters regarding the whereabouts of the deceased. In fact the normal reaction of P.W.3 would have been to ask the accused and his wife first as to what happened to his brother Arjun. When it is said by P.W.3 that the deceased had gone around 9 pm, he does not specifically stated as to at what time the dead body was found lying near the heap of straw on the threshing floor of the deceased. This P.W.3 does not state that the accused was bearing any grudge against the accused for any reason rather his evidence goes to show that the relationship was quite cordial as otherwise how could the deceased immediately responding to the request of the accused. He does not state that at any time during the late night, he had gone to the house of the accused which is 200 to 300 meter apart to see as to what was happening there which should have been normal reaction of P.W.3 having not seen Arjun returning home after lapse of reasonable time. P.W.4 who is the son of the deceased however, does not state anything as to any such happenings in the night. He has also not stated to have heard anything from P.W.3 either at night or in the morning. It is his evidence that he saw the dead body of the deceased on their threshing floor at a distance of 150 meters from their house and there were stab wounds on the neck of his father. But then during cross-examination he has stated that in the night of the occurrence, he was present in the house and the accused and his wife had called his father on the night of previous day of his death which really makes no sense and conveys no meaning. He again says to have not gone to the house of the accused to ascertain the whereabouts of his father. These two witnesses P.W.3 and P.W.4 have not taken any move to even meet the accused or his wife at any time in the morning and thereafter and even after the dead body was found or even thereafter at any time before or after arrival of the police.
20. In such state of affair in the evidence in support of the last seen theory when we turn to the evidence of the I.O (P.W.13) he states that having arrived at the spot he prepared the spot map (Ext.7) and thereafter held the inquest over the dead body, prepared the report and sent the same for post mortem examination. His further evidence is that on 15.09.2015 he arrested the accused. It is not stated as to wherefrom the accused was arrested, how and under what circumstances he met the accused, whose house admittedly is situated nearby. These omnibus push the evidence of P.W.13 under the carpet of suspicion. With the above evidence on record we find that the prosecution has failed to establish the fact that the deceased was last seen the company of the accused. When this circumstance projected by the prosecution fail; even if for a moment, it is accepted that the accused had led P.W.13 and others pursuant to his statement while in police custody in giving recovery of that knife (Kati) which has been seized; that in the absence of any other evidence to connect if with the crime would not by itself be enough to fasten the guilt upon the accused.
21. Be that as it may when we look into the evidence of the recovery of the knife (Kati), we find the evidence of P.W.13 to be not in the score as to where was the accused arrested and where he stated to give the statement and where such statement was recorded; that to in whose presence. This P.W.13 suddenly says that the accused led him and the witnesses to his house and brought out the chopper from a corner of the kitchen. Who were those witnesses is not stated by P.W.13. The prosecution has then examined P.W.9 and P.W.10 in support of said recovery. P.W.9 state that police had brought the accused to their village but he does not state as to wherefrom the accused was brought when the fact remains that the accused is a resident of that very village. His evidence is not on the score that where he met P.W.13 and the accused. P.W.10 states that two to three days after the occurrence, the accused was brought to their village which is not stated by P.W.9. With these evidence in our considered view, the prosecution cannot be said to have established the fact that this accused while in police custody had given his statement as to the keeping of said knife (Kati) in a particular place and saying that he would give recovery such knife (Kati) had taken led P.W.9, P.W.10 and P.W.13 to that place and gave recovery of the knife (Kati). That apart there is no evidence as to the exact place where that was lying and was brought out; whether it was not accessible to other family members and visitors. When above two circumstances which according to the prosecution are incriminating and point at the guilt of the accused are found to have not been proved beyond reasonable doubt by leading clear cogent and acceptable evidence, we hold that the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained.
22. In the result the Appeal stands allowed. The judgment of conviction and order of sentence dated 27.04.2017 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial Case No.52 of 2015 are hereby set aside.
The Appellant (Bada Mahali) being on bail, his bail bonds shall stand discharged.
………………………………
