HIGH COURT OF ORISSA: CUTTACK CRIMINAL APPEAL No.225 of 1997 From the judgment and order dated 24.9.1997 passed by Sri N.N.Praharaj, Additional Sessions Judge, Jajpur in S.T. Case No. 294-21 of 1996. ---------- Pitabas Dalei ………… Appellant -versus- State of Orissa ………… Respondent For Appellant : Mr.Debasis Panda & associates For Respondent : Addl. Govt. Advocate P R E S E N T: THE HON’BLE MR. JUSTICE L.MOHAPATRA AND THE HON’BLE MR. JUSTICE B.K.MISRA ---------------------------------------------------------------------------------------------- Date of Judgment: 11.08.2011 ------------------------------------------------------------------------------------------------------- B.K. Misra, J. This appeal has been preferred against the judgment and order dated 24.09.1997 in S.T. Case No.294-21 of 1996 passed by Sri N.N.Praharaj, Additional Sessions Judge, Jajpur. The learned Additional Sessions Judge, Jajpur while convicting the appellant under Section 302 of the Indian Penal Code (for short, “I.P.C.”) sentenced him to undergo rigorous imprisonment for life. A.F.R. 2 2. The case of the prosecution is that one Kartika Das (P.W.11) who happens to be the paternal uncle of the deceased Gunamani reported at Jenapur Out Post on 29.01.1996 at 7.30 P.M. about the death of his nephew Gunamani. Since the cause of death was not known, Jenapur Out Post U.D. Case No.1 of 1996 was registered and enquiry was taken up. During enquiry, the A.S.I. of Police attached to Jenapur Out Post Sri J.N. Pattasani (P.W.14) visited the spot on 30.01.1996 morning. During spot visit and on holding the inquest over the dead body of the deceased, he detected swelling on the face, bleeding from mouth and nostril etc. and he also found pesticides (DANADAR) weighing about 400 grams, glass pieces of one broken liquor bottle, one love letter purportedly written by the deceased addressed to her beloved Banyarani Dalai lying near the dead body. The dead body of the deceased was found lying near a hillock locally known as ‘BADAPAHAD’ near ‘Suhagi Math’ which situate to the south of the village street of Baulamala. During enquiry it was ascertained that the deceased was prosecuting his studies in Pingua College, Dhenkanal and was putting up in a mess and had developed love intimacy with Banyarani, who was aged about 15 years then. The said Banyarani happens to be the daughter of the present appellant. The deceased and Banyarani were corresponding with each other by addressing love letters at intervals. During 3 enquiry eight love letters written by Banyarani addressed to the deceased were recovered. Similarly, four numbers of love letters addressed to Banyarani by the deceased were also recovered from Banyarani which were indicative of the fact that since their love intimacy was not to the liking of their parent and relations they had expressed their desire to part with each other. It also came to light that the present appellant who is father of the Banyarani had cautioned the father of the deceased to prevail upon the deceased from having any intimacy with his daughter. It is further revealed that the deceased along with his friend Suresh Kumar Behera (P.W.7) had come to village Boulamala from Pingua around 4.00 P.M. on 27.01.1996 and the deceased left his house around 6.30 P.M. leaving information with his cousin Dinabandhu Das (P.W.3) that he was going to the house of the appellant. When the father of the deceased Chaitanya Das (P.W.1) arrived in his house that day around 7.00 P.M. could come to know about the arrival of his son and also further on coming to know that his son had not returned to the house, he proceeded to the house of the appellant in search of his son and met the appellant around 7.30 to 8.00 P.M. and enquired about Gunamani and the appellant informed P.W.1 that Gunamani had already left for Pingua. During enquiry it also came to light that the deceased was seen going to the house of the appellant by one 4 Narayan Dehury and the villagers namely, Malati Samal, Sakhi Dei, Basanti Das and they had seen Gunamani near the house of Pitabas while watching T.V. programme. On 28.1.1996 afternoon, cow heard boys reported about a person lying near the hillock whom they thought to be a drunkard. On 29.1.1996 morning Kailash Samal informed the local Gramarakhi, Baghuti Malik about the lying of a person near the hillock and thereafter the dead body of the deceased was identified to that of Gunamani. The dead body was sent for postmortem examination and the postmortem report showed existence of different antemortem injuries on the person of the deceased and the doctor opined that the death of the deceased was a homicidal one and could have been caused by mugging and pressure on the chest and forcible closure of mouth and nostril after overpowering the deceased by two or more persons. Thus, when all such materials could be collected during enquiry of the U.D. Case and prima-facie it appeared to be a case of murder pointing to the involvement of the appellant, the case was turned to that of a murder and accordingly Dharmasala P.S. Case No. 38 of 1996 under Section 302 of the I.P.C. was registered and investigation was taken up. On completion of the investigation, charge sheet was placed against the appellant to stand his trial. 5 3. The plea of the appellant was of complete denial of his alleged role in commission of the murder of the deceased and it is his further plea that out of political vengeance, he has been falsely entangled in the case. It was also his further plea that the injuries on his person i.e. eight abrasions detected by the doctor P.W.8 on 11.02.1996 were caused by the locket which he had worn. 4. To substantiate its case the prosecution had examined 15 witnesses in all and of them, P.W.4 was the Gramarakhi who had first reported the matter at Jenapur Police Out Post and he was also one witness to the inquest which was held over the dead body of the deceased. P.W.11 is the uncle of the deceased who had lodged report about the discovery of the dead body of Gunamani near the hillock. P.W.1 is the father of the deceased, P.Ws. 2, 3, 5, 9 and 12 are the independent witnesses for the prosecution to speak that the deceased had gone to the house of the appellant on the evening of 27.1.1996 and about the recovery of the dead body of the deceased from near a hillock on 29.1.1996. P.W.6 is a witness to the inquest which was held over the dead body of the deceased by the police. P.W.8 is the doctor attached to Danagadi U.P.H.C., who conducted postmortem over the dead body of the deceased on 30.1.1996 and he was also the doctor, who on Police requisition had examined the person of the present appellant on 11.2.1996 and could detect 8 abrasions on 6 different parts of his body. P.W.9 is a witness who speaks about the arrival of the deceased Gunamani along with his friend Suresh Chandra Behera in the house of P.W.1. P.Ws.10, 14 and 15 are the three I.Os. The appellant examined one witness in his defence. 5. The learned Addl. Sessions Judge in para-6 of the impugned judgment observed that in absence of ocular evidence when the case of the prosecution rests on circumstantial evidence it is incumbent upon the prosecution to establish that whether all the circumstances establish the motive of the accused to kill the deceased and whether the circumstances available in the evidence clinchingly and unerringly point to the guilt of the accused and thereby there could be no inference other than the guilt of the accused. 6. Learned counsel appearing for the appellant very strenuously urged that the evidence on record do not at all justify the conviction of the appellant and the theory of the deceased being last seen with the appellant could not have been applied in the absence of credible and clinching evidence in that regard. Besides that it was urged that the prosecution also failed to establish the motive factor for murdering the deceased and the chain of circumstances are incomplete and the evidence on those points can not be said to have 7 unerringly pointed to the guilt of the appellant. It was also contended by the learned counsel for the appellant that the findings of the learned trial Court about the motive part as well as situation of the 8 injuries on the person of the appellant taken as strong circumstances to fasten the culpability of the appellant in commission of the grue- some murder of a young boy who was in love with his (appellant) daughter as the same was not to his liking are based upon surmises and conjecture and not on credible evidence on record. 7. Learned Addl. Govt. Advocate appearing for the State on the other hand supported the order of conviction of the appellant and contended that such order of conviction and sentence should not be interfered with as the learned Addl. Sessions Judge on elaborate discussion of the evidence and circumstances on record had arrived at the correct conclusions. 8. We have considered the rival submissions made by the learned counsel for the parties and perused the evidence and materials on record in minute detail. 9. It is a settled position of law that conviction of a person in an offence is generally based solely on evidence either oral or documentary and there are cases also where conviction can be based solely on circumstantial evidence. The onerous duty of the prosecution is to establish its case beyond all reasonable doubts and 8 the prosecution cannot derive its strength from the weakness or infirmity put up by the defence. However, it is also the settled position of law that a false defence may be called into aid only to lend assurance to the Court where various links in the chain of circumstantial evidence are in themselves complete. 10. Undoubtedly, conviction can be based solely on circumstantial evidence. However, the Court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explained on any other hypothesis. The circumstances should be of a conclusive nature and exclude all possible hypothesis except the one to be proved. The chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide Sharad Birdhichand Sarada V. State of Maharashtra, AIR 1984 S.C. 1622, Wakkar and another V. State of Uttar Pradesh (2011) 3 SCC 306, Sk. Yusuf V. State of West Bengal (2011) 49 OCR 9 (Supreme Court) 712, Kulvinder Singh and another V. State of Haryana (2011) 5 S.C.C. 258). 11. Thus, keeping in mind the five golden principles laid down regarding appreciation of circumstantial evidence, now, let us proceed to examine the evidence on record as to how far the prosecution has been able to complete the chain of circumstances against the appellant which unerringly point to his guilt of murdering Gunamani the deceased. 12. P.W.8 is the doctor who held autopsy over the dead body of the deceased Gunamani at Danagadi Upgraded Primary Health Center on 30.1.1996. It is the evidence of P.W.8 that there were multiple injuries on various parts of the body i.e. on the face and other parts which have been reflected in his postmortem report Ext.7. Ext.7 the postmortem shows that muscles of front side of chest above nipples, muscles of front side of neck, floor of mouth and right temporal region bruised. In detail the external injuries have been described in Ext.7, namely :- i. Face swollen and congested and bluish. Bleeding from nose and mouth present (dried up). ii. Bruise 6” x 4” up to bone deep over right side of head in right temporal fossa extending upwards (antemortem). 10 iii. Antemortem bruise of front side of entire neck extending deep up to spine. iv. Fracture of larynx and trachea (antemortem). v. Bruise 3” x 2” on floor of mouth. Mouth closed and tongue bitten. vi. Bruise 6” (longitudinal) x 4” (horizontal) over front side of upper chest extending from root of neck around mid line (ante mortem). vii. Both lips and nostrils bruised. viii. Larynx, trachea also congested containing froth. ix. Both lungs deeply congested with haemorrhagic patches (ante mortem). Dark liquid blood exudating on cut section, dilated. Blood clots present in right side and left side was empty. P.W.8 also found all four limbs of the deceased were in a state of cadaveric spasm. Both the hands clenched having no foreign body. All most all viscera were congested with pin point bleeding over the surface. The body was decomposed with Postmortem blisters, foul smelling gas. P.W.8 further deposed that the cause of death of the deceased was asphyxia which might have been brought about by mugging and by pressure on chest and forcibly closure of mouth and nostrils after 11 overpowering the deceased by two or more persons. P.W.8 also further opined that the injuries which he detected on the persons of the deceased were suggestive of a homicidal death which was probably caused within 18 to 48 hours since the time of his conducting the postmortem examination which was done at 3.30 P.M. on 30.1.1996. 13. In the instant case there is absolutely no direct evidence as to the death of the deceased and the case of the prosecution purely hinges on circumstantial evidence. The circumstances which the prosecution heavily relied upon are as follows:- i) that the deceased was in love with Banyarani the daughter of the appellant which was not to the liking of the appellant and that the appellant had warned P.W.1 the father of the deceased that unless the deceased keeps away from his daughter he would be put to trouble. ii) the recovery of love letters of Banyarani from the box of the deceased and so also the letters of the deceased written to Banyarani which were seized by police during investigation. iii) the last seen theory i.e. the deceased was seen in the house of the appellant on 27.1.1996 evening and thereafter the deceased did not return back to his house and ultimately his dead body was recovered from near a hillock on 29.1.1996. iv) the injuries on the person of the appellant. 12 14. The most important circumstance which has been pressed into service by the prosecution is the last seen theory. According to the case of the prosecution the F.I.R. was lodged in this case first by Kartika Das (P.W.11) who happens to be the paternal uncle of the deceased. P.W.11 deposed that nine months back on a Monday morning Gramarakhi reported to him that Gunamani was lying dead on the hillock and hearing that he along with others proceeded to the spot and found Gunamani lying dead near the temple of a deity and some “Danadar” sweets were found near the dead body. P.W.11 deposed that he then reported the matter at Jenapur Police Out Post. It is seen from the evidence of P.W.11 that Gunamani then was reading in Pingua College and he had come to his house on the preceding Saturday. Thus, the evidence of P.W.11, a very vital witness for the prosecution, is silent on the point if the deceased had gone to the house of the appellant on 27.1.1996 evening and was viewing T.V. there along with others, but thereafter, his whereabouts were unknown. The evidence of P.W.11 also do not show that the deceased for the last time was seen together with the appellant. P.W.1 is the father of the deceased who deposed that his son Gunamani was a student of Pingua College. It is also his evidence that on 27.1.1996 evening when he returned to his house found his son absent and he learnt from Dinabandhu his nephew 13 that the deceased had gone to the house of accused Pitabas and when he proceeded to the house of the accused he met the accused and when enquired about the deceased, the accused replied that the deceased had already left for Pingua. It is also the further evidence of P.W.1 that on 29.1.1996 while he was working in his field, Gramarakhi Bahuda Malik came and told him that the deceased was lying dead near “Beda Pahada”. It is also seen from the evidence of P.W.1 that when he went near the dead body on 30.1.1996, he found 10 to 12 injuries on the body of his son and besides that a broken liquor bottle, glass tumbler and a pair of sandal were lying near the dead body. It is also seen from the evidence of P.W.1 that the dead body of his son was lying 200 cubits away from Suhagi Math where a monk was living. It is also seen from the evidence of P.W.1 that the dead body was lying in an open field accessible to all and there was a road also at a distance of 700 ft. away i.e. from Chareidhara to Antia. Dinabandhu Das, the nephew of P.W.1, who has been examined as P.W.3 deposed that on 27.1.1996, Guna, who is his first cousin and was reading in Pingua College had come to their house. P.W.3 also deposed that on the evening of 27.1.1996 seeing the deceased going out of the house, to his query the deceased replied to be going to the house of the accused and when P.W.1 returned to the house, he reported the matter to him and thereafter on the morning of 14 29.1.1996 they got the information that Guna was lying dead. Save and except this there is nothing in the evidence of P.W.3 to show that he had seen Guna the deceased in the house of the accused and that he had seen the deceased in the company of the accused on 27.1.1996 night. P.W.2 deposed that eight months back in an evening by 7 P.M., he had gone to the house of the accused for viewing television and there he found the family members of the accused, the deceased Guna and all were watching T.V. P.W.2 deposed that he returned back to the house around 8 P.M. It is also seen from the evidence of P.W.2 that five outsiders including Malati, Basanti and some children were viewing the television. It is also seen from the evidence of P.W.2 that he does not know the persons of that village as he was staying at Kujanga and at times he comes and stay in village Chadeidhara. Thus, P.W.2’s evidence is also in no way helpful to the case of the prosecution and it cannot be said that the deceased was in the company of the appellant only. It is also seen from the evidence of P.W.2 that in the house of the appellant there were five outsiders including one Malati, Basanti and some children and besides the family members of the appellant. P.W.4 is the Gramarakhi who deposed that on 29.1.1996 around 12 noon one Kailash Samal informed him that a person was lying near the ‘Math’ since the previous day and on hearing that he proceeded to the spot 15 and found a person lying with his face downwards and when he turned that dead body could recognize him as Guna the son of P.W.1 and thereafter he came to the village and reported the matter. Thereafter, he called Gramarakhi Rasananda Malik and asked him to guard the dead body and thereafter proceeded to Jenapur Police Out Post and informed the concerned Police Officer. Thus, the evidence of P.W.4 is of no help to the case of the prosecution. P.W.5 deposed that on 27.1.1996 by 7 P.M., he found the deceased Guna near the house of the accused and on being asked the deceased told him that he was going to the house of the accused. P.W.5 deposed that he informed P.W.1 that Guna had gone to the house of the accused. It is also seen from the evidence of P.W.5 that on 29th January, 1996 being informed, he went to the spot and found Guna lying dead with multiple injuries on his body. The evidence of P.W.5 thus only shows that he found the deceased near the house of the accused and it was the deceased who on being asked told that he was going to the house of the accused. Thus, P.W.5 has never breathed a word that the deceased was in the house of the appellant on the night of 27.1.1996 and the deceased was in the company of the appellant and with nobody else. P.W.6 simply deposed that on hearing that the dead body was lying near the hillock he went there on 29.1.1996 at 2 P.M. and found Guna lying dead there with injuries. P.W.6 does not say 16 any other things save and except the inquest which was held over the dead body of the deceased by Police in his presence. Thus, the evidence of P.W.6 is of no help to the case of the prosecution. P.W.7 is a classmate of the deceased in Pingua College and he deposed that Guna and Banyarani were in love. It is the evidence of P.W.7 that on 29.1.1996 the dead body of Guna was found lying near a hillock. Besides that P.W.7 deposed about the recovery of eight letters purported to have been written by Banyarani to Guna which P.W.1 the father of Guna who had come to their mess recovered after breaking open the suitcase of the deceased and took them with him. P.W.7 also deposed that he had heard from the deceased that Banyarani was writing letters to him and had shown him those letters and of those letters he identified M.Os. III and IV which were shown to him by the deceased. Save and except this, P.W.7 did not breathe a word if the deceased had gone to his house on 27.1.1996 where from he had gone to the house of the appellant on that very evening. Thus, the evidence of P.W.7 is of no help to the prosecution. P.W.9 is another witness to the prosecution who deposed that about seven months back on a Saturday around 2.30 P.M., he had been to the house of P.W.1 for purchasing “Panmasala” and while weighment was going on the deceased Guna came with Suresh and thereafter the deceased proceeded to leave Suresh and after sometime he 17 returned back and on the request of his mother he left him at a nearby place. This evidence of P.W.9 is not consistent with the case of the prosecution and P.W.9 has introduced a new story that the deceased left him in an nearby place on the request of his mother. Though P.W.9 deposed that the deceased had come with Suresh to his house but Suresh who has been examined as P.W.7 did not breathe a word in that regard and P.W.9 has never breathed a word if he had seen the deceased in the company of the appellant on the night of 27.1.1996 and if the deceased had gone to the house of the appellant and thereafter did not return back to his house. P.W.12 deposed that he had been to the house of the accused for watching television programmes, where many youngsters, children were there, besides the wife and daughter of the accused. P.W.12 also deposed that he was there till 7 P.M. and he marked the accused moving in a disturbed state of mind. This evidence of P.W.12 is of no help to the case of the prosecution. P.W.12 has not breathed a word if he had seen the deceased in the house of the appellant who was also watching T.V. programmes. The evidence of P.W.12 that he found the appellant in a disturbed