ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No. 55 of 2001 From the judgment and order of sentence dated 25.06.2001 passed by Md. Abdul Majid, learned Addl. Sessions Judge, Sonepur in Sessions Case No. 20/11 of 2000, involving offence under Section 302, I.P.C. ---------- Ananda Kumar Das … Appellant Versus State of Orissa … Respondent For Appellant : Miss Deepali Mohapatra and R.P. Mohapatra. For Respondent : Addl. Government Advocate. ---------- P R E S E N T : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of Judgment : 21.09.2011 --------------------------------------------------------------------------------------------------- C.R. Dash, J. Learned Addl. Sessions Judge, Sonepur found the appellant guilty under Section 302, I.P.C. and sentenced him to suffer imprisonment for life. The judgment and order of sentence are impugned in this appeal. 2. The occurrence happened at about 4 A.M. in the night of 8/9.12.1999. Sambhu Bhusan Panda (P.W.1) is the owner of “PANDA HOTEL” situated at the old Bus-stand, Binka. On the relevant date, appellant Ananda Kumar Das, deceased Mahadev Bagarty and one Uma Sankar Chanda were working as Hotel Boys in the “PANDA HOTEL”. In the night of occurrence all the aforesaid three hotel boys were sleeping in the hotel. As usual, the owner of the hotel (P.W.1) after closing the hotel, left for his house. At about 4.30 A.M. the appellant Ananda Kumar Das appeared in Binka P.S. and reported that he has killed the deceased by an axe and a knife. The above fact was entered into the Station Diary, vide Entry No.155, dated 09.12.1999. The police officials rushed to the spot and found the deceased lying dead in a pool of blood. P.W.1 lodged F.I.R. at the spot on the same day at about 5 A.M. On completion of investigation, P.W.6 filed charge-sheet implicating the appellant in the offence under Section 302, I.P.C. 3. Prosecution examined six witnesses to prove the charge. P.W.1 is the owner of the hotel. P.W.2 is the witness to the inquest over the dead body of the deceased, vide Ext.2. P.Ws.3 and 4 are witnesses to the relevant seizures and recovery of the axe (M.O.-VI) at the instance of the appellant. P.W.5 is the Medical Officer, who conducted the post-mortem examination and P.W.6 is the Investigating Officer. 4. The defence plea is one of complete denial to the charge. 5. Learned Trial Court, on consideration of the evidence on record, found the appellant guilty and sentenced him to suffer imprisonment for life. 2 6. Learned counsel for the appellant submits that on thorough mis-appreciation of the evidence on record, learned Trial Court has reached the finding of guilt against the appellant. Learned Addl. Govt. Advocate, on the other hand, supports the impugned judgment. 7. The case is based on circumstantial evidence. The circumstances are :- (1) There was previous enmity between the appellant and the deceased and they used to quarrel over trivials; (2) In the night of occurrence, the appellant was sleeping with the deceased and he had the opportunity to kill the deceased; (3) The axe (M.O.-VI), was seized at the instance of the appellant on the basis of his statement purported to have been recorded under Section 27 of the Evidence Act and blood-stains tallying with the blood of the deceased was found present on the axe; and (4) the appellant on his own came to the Police Station and reported about the incident implicating him to be the author of the crime on the basis of which Station Diary Entry No.155, dated 09.12.1999 (Ext.8) was made. 8. We propose to address Circumstance Nos. (1), (2) and (4) above combinedly, as the facts constituting the circumstances are inter-linked. 3 P.W.1 is the owner of the Hotel. He has testified that prior to one month of the occurrence, appellant Ananda Kumar Das and deceased Mahadev Bagarty were engaged by him as Hotel Boys. He has further testified that prior to the occurrence, the appellant and the deceased often used to quarrel with each other even for petty matters. He in his evidence has further testified that in the night of occurrence, the appellant, the deceased and one Uma Sankar Chanda (not examined), who is another hotel-boy, as usual slept inside the hotel. P.W.1 had no personal knowledge about the occurrence, who, at about 5.00 A.M. on 09.12.1999, has lodged the F.I.R. implicating the appellant. The appellant at about 4.30 A.M., as testified by P.W.6, appeared in the Police Station and reported about his killing the deceased by a knife and an axe, pursuant to which Station Diary Entry No.155 dated 09.12.1999 (Ext.8) was made. The Inquest Report (Ext.2) shows that it was prepared in between 8 to 8.20 A.M. on 09.12.1999. Biswamitra Bagarty (P.W.2), Haribandhu Bagarty (not examined), Sambhu Bhusan Panda (P.W.1) and two others (not examined) are the witnesses to the inquest over the dead body of the deceased. Neither the aforesaid witnesses in Column-9 nor the I.O. in Column-10 of the inquest report have mentioned the name of the appellant as the assailant. Non-mentioning of the name of the appellant as the assailant in column-9 is understandable, as there is no eye-witness account and the witnesses namely Biswamitra Bagarty and Haribandhu Bagarty had no knowledge about the assailant. But the I.O. having come to know about the cause of death of the deceased prior to inquest on the basis of oral report of the appellant in the Police Station vide Ext.8 and 4 Sambhu Bhusan Panda (P.W.1) having lodged F.I.R. naming the appellant as the accused, could have mentioned in the inquest report about the appellant as the assailant. The appellant in his statement under Section 313, Cr.P.C. has taken the plea of denial and he is denied to have appeared before the Police Station. He is further denied to have made the statement pursuant to which Station Diary Entry vide Ext.8 was made and further he is asserted to have been falsely implicated. The needle of suspicion, as found from the F.I.R., points out to the appellant, as he was absent when the police reached at the spot at about 5.00 A.M. If the evidence of P.W.1 is closely scrutinized, it is to be found that even Uma Sankar Chanda (not examined), who is the another hotel-boy of “PANDA HOTEL”, had no knowledge about the murder of the deceased till he tried to awake him on being asked by P.W.1 when the front door could not be opened by P.W.1, who, on arrival of the police party, came to the hotel being called from his house and entered inside the hotel through the back door, but could not open the front gate. Learned counsel for the appellant submits that the appellant might have gone to attend call of nature at that time or might have gone elsewhere without being aware of the incident, as it is the habit of the people in urbanised rural area to finish the daily constitutionals early in the morning. We from the evidence of P.W.1 find that three persons including the deceased and the appellants were there in the hotel in the occurrence night. When three persons including the deceased were there in the hotel, opportunity was available to both the persons individually or collectively other than the deceased to cause murder of the deceased or any other persons might have entered inside the hotel in the manner 5 P.W.1 entered through the back door to cause the murder of the deceased. In such a situation the appellant cannot be held to have alone the opportunity to kill the deceased in the night of occurrence. Non-examination of Uma Sankar Chanda, another hotel-boy and non- mention of the name of the appellant as the assailant, in the inquest report, re-enforces our suspicion about the veracity of the prosecution case and we feel persuaded to accept the defence plea of denial so far as appearance of the appellant in the Police Station and his making report about his authorship of the murder is concerned. Even if we accept the evidence of the I.O. to the effect that the appellant appeared before him in the Police Station and made oral report about his authorship of the crime, yet the same is hit by Section 25 of the Evidence Act and there is nothing to prove any fact incriminatory against the appellant on his going to the Police Station. The deceased and the appellant were engaged by P.W.1 prior to one month of the occurrence. There used to be some quarrel between them over trivials. But there is nothing on record to show that the quarrel was so severe or the bickerings between the two were so intense so as to justify the motive on the part of the appellant to cause murder of the deceased. P.Ws.2, 3 and 4 are local inhabitants and out of them P.W.2 is a cousin of the deceased. None of them has stated about the quarrel between the appellant and the deceased. In view of such fact, we are constrained to hold that the prosecution has failed to prove Circumstance Nos. (1), (2) and (4) supra, as against the appellant. 6 9. The third circumstance is the seizure of the weapon of offence, i.e. the axe (M.O.-VI) on the basis of the statement of the appellant purported to have been recorded under Section 27 of the Evidence Act. The axe is proved to have been used in commission of the crime, in as much as blood of human origin of Group-A was found on the axe and blood of Group-A is also proved to be the blood group of the deceased. The evidence under Section 27 of the Evidence Act is only a corroborative piece of evidence, which only proves knowledge of the appellant regarding the place of concealment of the weapon of offence. It does not further prove the authorship of the crime by the appellant, who made the statement leading to discovery of the facts like weapon of offence. In view of such legal position, recovery of some facts at the instance or on the basis of the statement of an accused cannot be made the sole basis of conviction. Even otherwise we suspect the recovery proceeding, because when the accused himself as testified by the I.O.(P.W.6) appeared before the I.O. to confess his guilt and orally said about the authorship of the crime by him, it is not understood why the recording of statement and recovery of the axe (M.O.-VI) was deferred by some hours keeping the appellant in custody. Perusal of the evidence in its entirety shows that the I.O. and other police officials visited the spot at about 5.00 A.M. and they remained there for about four hours. The spot is a small hotel and in the coal heap inside the kitchen of the hotel, the axe was kept concealed, as testified by the I.O., which was recovered and seized at the instance of the appellant. When the police party stayed at the spot for about four hours and made all the relevant seizures, it is not 7 understood as to how the axe kept inside a small coal heap escaped their eyes especially when it is on record to show that the appellant had already told before the I.O. in his statement vide Ext.8 that he caused the murder by a knife and an axe. The entire discovery proceeding seems to be suspicious and stage-managed. In view of such fact also we are constrained to hold that Circumstance No.(3) has not been proved by the prosecution to the hilt, as the same is not free from suspicion. In view of our discussions supra, we are constrained to set aside the judgment of conviction and the consequential order of sentence. The Jail Criminal Appeal is accordingly allowed. The appellant, who is on bail, be discharged of the bail bond executed in the case. ……………………… L. Mohapatra, J. I agree. ……………………… Orissa High Court, Cuttack. The 21st day of September, 2011. /Parida. 8