P.K. Tripathy, J.@mdashPatricide is the crime alleged against the accused Appellant-Deepak Kumar Patro '' Dipu and he was charged u/s 302 IPC. Accused-Deepak together with other two accused persons were charged u/s 201/34 IPC for removing the dead body of late Suba Patro, the deceased by throwing it in the public road after removing the same from the place of occurrence. Admittedly, there was no eye-witness to the occurrence and prosecution case rested on circumstantial evidence, viz., homicidal death of the deceased, discovery of the incriminating articles u/s 27 of the Evidence Act and presence of blood of the same group on the wearing apparels of the accused-Deepak and the deceased so also on the mattresses like Kantha, Kambal (Blanket) and Chadar (Bed Sheet) and presence of blood stain on the walls and the windows of the occurrence room. Learned Sessions Judge, Ganjam-Gajapati, Berhampur in Sessions Case No. 268 of 2001 arising out of G.R. Case No. 66 of 2001 of the court of S.D.J.M., Berhampur held that evidence led by the prosecution proves the aforesaid circumstances so as to prove the charge u/s 302 and 201/34 IPC against accused-Deepak and all the accused persons respectively. Accordingly, he awarded the sentence of rigorous imprisonment for life for the offence u/s 302 IPC and rigorous imprisonment for three years u/s 201/34 IPC.
2. The case of the prosecution is that the deceased was a drunkard and rowdy man. In the night of 24.1.2001 in drunken condition he drove his wife, daughter and the accused out from the house, The accused escorted his mother and the sister and left them in the house of his maternal uncle, i.e., Brajabandhu Patra, P.W. 1. He returned to the house and pretended that because of paucity of space to sleep in the house of P.W. 1 he was to spend the night with the deceased. In the night when the deceased in intoxicated conditions was in slumber, accused suffering from disturbed mind and agitation because of the behaviour of the deceased took the opportunity and utilized the sword, i.e., M.O.I. of the deceased and went on inflicting injuries notwithstanding the effort of the deceased to escape from one room to other inside the house. After completing the act of murder, accused threw the blood stained sword into the well inside the house premises and rushed to P.W.1 and revealed the truth. He however, did not heed to the advice of P.W.1 to surrender before the police and confess. On the other hand, he returned to the house with the employees (in the tea stall) of P.W.1. They are the co-accused persons. With their help, he threw dead body near Kandra Sahi Chhak (Berhmapur town) on the following day morning, i.e. 25.1.2001. After noticing dead body of the deceased which was lying at the aforesaid spot, elder brother of the deceased, namely, Deebakar Patra lodged information report before the police. A routine investigation was undertaken. In course of that investigation, it could be known that accused-Deepak committed the murder and the remaining two co- accused persons assisted him to dispose of the dead body so as to screen the offender. In course of investigation, all possible incriminatory articles were seized, recovered or discovered and on the basis of a prima facie case charge sheet was submitted.
3. In the trial court, accused persons denied to the charge under Sections 302 and 201/34 IPC and claimed for trial.
4. To substantiate the charge, prosecution examined five witnesses. Amongst them, P.W. 1 was a witness to the extra-judicial confession of accused-Deepak. P.W. 3 is the informant being the younger brother of the deceased. P.W.4 was a witness to recovery of weapon of offence and the mattresses u/s 27 of the Evidence Act vide seizure list Ext.9/1 and Ext. 10/1 respectively. P.W.2 was the doctor who conducted autopsy on the dead body of the deceased examined the weapon of offence M.O.I. and proved the post-mortem report Ext.2 relating to the homicidal death of the deceased and the opinion report Ext.3 that injuries found on the dead body of the deceased is possible by such weapon. P.W.5 Ramakrushna Das was the O.I.C. of Badabazar Police Station. He investigated the case and submitted the charge sheet: Amongst the exhibited documents, besides the documents noted above, Ext.1 is the statement of P.W.1 recorded u/s 164 Code of Criminal Procedure. and Exts. 19, 22 and 22/1 are the three relevant documents. Amongst them, Ext. 19 is the report of the Scientific Officer, Ext.22 is the copy of the forwarding letter sending the articles to the R.F.S.L., Berhampur and Ext.22/1 is the report from the chemical analyst and the serologist of R.F.S.L., Berhampur. The wearing apparels of the deceased, the accused and the blanket, etc. were marked as M. Os.II to IX.
5. As against such evidence of the prosecution, accused persons did not adduce any defence evidence.
6. Mr. Sahoo, learned Counsel for the Appellants, argues that the numbers of cut and the stab injuries all over the body amounting to more than 25 described in 24 items are indeed sufficient to cause homicidal death of the deceased and the finding to that effect recorded by the trial court and the evidence of P.W.2 is not at all under challenge by the Appellants. In other words, he agrees that the deceased suffered, homicidal death. Learned Sessions Judge also made due deliberation in that respect to come to such a conclusion in paragraphs 2 and 3 of the judgment. We thus accept that the deceased suffered homicidal death due to ante-mortem injuries which were sufficient in ordinary course of nature to cause his death:
7. Mr. Sahoo then argues that amongst the circumstantial evidence, the statement u/s 164 Code of Criminal Procedure., Ext.1, has been accepted by the trial court as substantive evidence though the law is clear on this aspect that such statement can be utilized for corroboration or contradiction and not otherwise. In that respect, he relies on the ratio in the cases of
8. Mr. Sahoo then argues that so far as the left over circumstances are concerned, learned Sessions Judge was more guided by emotion and sentiment to accept the same instead of assessing the same on legal parameters prescribed for the purpose not only by the law but also the judicial precedent. He argues that the evidence u/s 27 of the Evidence Act vide seizure lists Ext.9/1, Ext.10/1 and Ext.17 have not at all been proved by adducing proper evidence notwithstanding the fact that in course of examination of P.W.4 as well as P.W.5 accused persons denied to the claim of the prosecution that they gave discovery of such articles. On perusal of Ext.9/1 and Ext 10/1, we find that besides P.W.4 one Indra Das was the witness to leading to discovery and seizure. Though P.W.4 did not support the prosecution in respect of such discovery and seizure, prosecution has not come forward with any explanation as to why the other witness, i.e., Indira Das was not examined by the prosecution. Similarly, in the case of the seizure list Ext.17, two witnesses, namely, Balmiki Behera and Pravakar Patra were said to be present at the time of discovery and seizure. Admittedly, both the witnesses were not examined by the prosecution and no explanation is forthcoming as to why they were not examined. Mr. Mishra learned Standing Counsel argues that when P.W.5 has deposed about the discovery and the seizure, that should be accepted inasmuch as he has no axe to grind against the accused persons and his evidence may be regarded as evidence of an independent person. The aforesaid submission does not hold good inasmuch as the prosecutor could not have placed himself in the position of adjudicator so as to suppress the evidence by non-examination'' of the witnesses who were present at the time of the seizure. Apart from that, P.W.5 cannot be said to be totally a disinterested witness since he is the Investigating Officer. The principle of his act in official capacity would have been duly considered if the independent witnesses would have unreasonably resiled from the prosecution or conducted in a manner to support the defence. Therefore, the objection to non-examination of the independent witnesses in the aforesaid three documents has beep well taken by the Appellants so as to challenge the credibility of the evidence in Exts.9/1, 10/1 and 17.
9. Learned Counsel for the Appellants argues that it is the evidence of P.W.5 (the I.O.) that after resorting to the service of the Fire Brigade to drain out the water from the well and failure thereof, the I.O. took assistance of one Parvakar Patra and Balmiki Behera to pick up the M.O.I. from 31 ft. of deep water (in the well) by using an iron catch which is also called ''iron cat'' (Billei). Those two witnesses were not examined by the prosecution and accused was deprived of the opportunity to cross-examine them about the manner of tracing out the M.O.I. from the well. He also argues that in his evidence P.W.5 does not say that after discovery of M.O.I. from the well the same was shown to the Appellant-Deepak to identify the same as the weapon of offence. He argues that if all such lacunae and lapses in the evidence could be properly assessed then the circumstances emerging from Ext. 17 does not in any way contribute to prove the charge against the accused for the offence u/s 302 IPC.
10. It may be pointed out that the prosecution does not come with any explanation whatsoever for non-examination of those witnesses either belonging to the Fire Brigade Department or the two private individuals who were utilized to collect the sword M.O.I. from the well. P.W.5 in the examination-in-chief in paragraph-4 stated that "the Fire Brigade failed to dry the water of the well. Thereafter, with the help of local people, namely, Balmiki Behera and Pinti Patro, the sword was brought out from the water of the well by means of an iron cat (Billei). M.O.I. is the said sword recovered from the well at the instance of accused-Deepak Kumar Patro. I seized the sword M.O.I. in presence of witnesses under seizure list Ext.17 and Ext. 17/1 is my signature thereon". The evidence, as above, indeed indicates that after bringing out the sword from the well it was not confirmed from the accused-Deepak if that was the weapon of offence used by him. Under such circumstance, the criticism of the Appellants on the aforesaid evidence appears to be correct.
11. At this juncture, Mr. Mishra, learned Standing Counsel argues that recovery of "O" group blood from the handle of the sword matches with the blood group of the deceased and therefore that gives a tale tell circumstance that M.O.I. is the weapon of offence. Even if that be so, the criticism on the evidence of the prosecution by the Appellants still holds good in the context of analyzing the evidentiary value of the evidence u/s 27 of the Evidence Act inasmuch as it is a matter giving discovery of the incriminating materials and the accused who is giving the discovery must identify the object at the time of seizure. That part of the circumstance is lacking in the evidence of P.W.5. Admittedly the other witnesses in that seizure have been withheld from the box. Under such circumstances, Ext.17 or the circumstances emerging there from cannot be taken in aid of the chain of circumstances in furtherance of proving the charge.
12. After the aforesaid evidence is eliminated, there remains the evidence u/s 27 of the Evidence Act relating to the wearing apparels of the accused and the deceased and the blanket (bed-sheet), etc. Though "O" group blood was found in such articles, from that circumstance alone it cannot be proved that accused-Deepak is the author of the murder. Prosecution has not alleged that the other accused persons or any of them had anything to do with the death of the deceased. Therefore, as rightly argued at the Bar, this circumstance alone is deficient to prove the charge under Sections 302 and Sections 201/34 IPC.
13. There is no quarrel between the prosecution and the defence on the settled principle of law that evidentiary value of each of the circumstantial evidence should be considered independently and also conjointly and in that process if the circumstances emerging from such evidence unfailingly points out to the guilt of the accused then such circumstantial evidence should be accepted as against the accused. On the other hand, if such circumstantial evidence has loopholes or missing links then by surmises or presumption the missing links should not be filled up. In this case, from the aforesaid discussions, we find that there are missing links and such void positions have not been filled up by any direct or circumstantial evidence. Therefore, we find that prosecution has not been able to prove the charges beyond all reasonable doubt. Thus, we grant the benefit of doubt to the accused persons and accordingly set aside the order of conviction and the sentence imposed thereunder.
14. It is stated at the Bar that accused-Mangala '' Mangulu Pradhan and Magadalu Srinivas Kumar are in court bail. In view of the aforesaid order of acquittal, the bail bonds are discharged. Accused-Deepak Kumar Patro '' Dipu is said to be in the jail custody. In view of the order of acquittal, he be set at liberty forthwith if his detention is not required in connection with any other criminal case.
The Criminal Appeal is accordingly allowed
