PRADIP MOHANTY, J & S.K.MISHRA, J. JCRA. NO.91 OF 2001 (Decided on 16.11.2010) SANJIB BHOI ……….. Appellant. .Vrs. STATE OF ORISSA ………. Respondent. EVIDENCE ACT, 1872 (ACT NO. 34 OF 1872 ) – SEC.8. For the Appellant - Miss Deepali Mohapatra For the Respondent - Addl. Government Advocate S.K.MISHRA, J. The appellant in this Jail Criminal Appeal assails his conviction and sentence under Section 302 of the Indian Penal Code, 1860, hereinafter referred as “I.P.C.” for brevity, in Sessions Case No. 49/31 of 2000 of the court of Addl. Sessions Judge, Sonepur. 2. In short, the case of the prosecution is that one Sura Bharasagar (deceased) was working as a labour Sardar (labour contractor). In order to contact labourers, he had come to Ufla, where the present appellant and the co-accused were residing. On 09.01.2000, he stayed in the house of the accused persons and he was also seen moving with the appellant, the co-accused Ranjit Bhoi (since acquitted) and their brother Ajit Bhoi (absconder) for contacting labourers for the purpose of working in brick kilns. In the night of 9/10.01.2000, the deceased died in mysterious circumstances. Suman Kumar Jagdala, Gramarakhi lodged a report before the concerned Police Station. In course of investigation, the present appellant along with one of his brother was arrested. Ultimately, charge-sheet was submitted against the present appellant and his brothers Ranjit Bhoi and Ajit Bhoi, showing co-accused Ajit Bhoi as absconder. The charge-sheet was laid under section 302/34, I.P.C. 3. In course of trial, the prosecution had relied only upon circumstantial evidence as direct evidence was not forthcoming. Taking into consideration the evidence led, learned Addl. Sessions Judge, Sonepur has come to the conclusion that the prosecution has proved its case beyond all reasonable doubt against the present appellant and he proceeded to convict the present appellant and acquit his brother Ranjit Bhoi of the charges under sections 302/34 of the I.P.C. The present appellant is sentenced to imprisonment for life. 4. Learned counsel for the appellant argued that the learned trial Judge has committed grave error on record by pressing into service the principles of “last seen theory” when the prosecution has not successfully proved the same. Secondly, it was contended that the proof of motive is also not forthcoming and the learned trial has presumed such a motive in absence of any cogent evidence. Thus, the learned counsel for the appellant submits that the impugned judgment is erroneous and is liable to be set aside. The learned Addl. Standing Counsel, on the other hand, supports the findings recorded by the trial court and prays to dismiss the appeal. 5. On examination of the evidence on record and the impugned judgment, it reveals that the trial court has come to the conclusion that the prosecution has proved its case beyond all reasonable doubt taking three circumstances into consideration in addition to homicidal nature of death of the deceased. As far as homicidal nature of death is concerned, the appellant does not dispute the same either at the stage of trial or at the appellate stage. Therefore, the other question remains whether three other circumstances have been properly established in this case or not. The three circumstances, on which the prosecution relies in this case are as follows: (i) The appellant was last seen with the deceased before the dead body of the deceased was found; (ii) The appellant was prompted to commit the crime upon lure of money the deceased was carrying for the purpose of contacting labourers; and (iii) There were blood-stains in the wearing apparels of the present appellant. 6. In a case based entirely on circumstantial evidence, the prosecution shall be held to have proved its case beyond reasonable doubt, if the following conditions are satisfied regarding the circumstances, on which it relies; (i) Each of the circumstances on which the prosecution relies must be credibly and cogently established by the unimpeachable evidence; (ii) It should not be consistent with any hypothesis of innocence of the accused or in other words, such circumstance must be consistent with the theory of guilt of the accused; (iii) Each of the circumstances taken by itself may not be enough to prove the guilt of the accused but taken together, it must be forming a complete chain of circumstances unerringly pointing towards the guilt of the accused. Only when the circumstances are established on the touch-stone of the above three conditions, prosecution based entirely on circumstantial evidence, shall succeed otherwise not. Keeping in view such principle of law, it is to be seen whether the prosecution in this case, has proved its case beyond all reasonable doubt. 7. The deceased was killed in the night of 9/10.01.2000. His dead body was found in the deserted house of Narasingh Jagadala. The trial court has come to the conclusion that the prosecution has proved that the accused was last seen with the deceased. However, examination of the evidence of the witnesses leads to a different conclusion. For example, P.W. 3, the informant Suman Kumar Jagadala has stated that on the previous day of occurrence he did not see the accused persons moving with the deceased. In cross-examination, he has also stated that prior to the occurrence he did not know the accused persons. P.W. 1 Anjali Haripal is a witness to the inquest on the dead body of the deceased. P.W. 2 Chandala Haripal has stated that he learnt from Narendra Bhoi that both the accused had come to his village for contacting labourers. In cross-examination, he has denied the suggestion that he stated before the Investigating Officer that Narendra told him that the deceased was moving with Ajit for contact labourers. Thus, P.W. 2 has not seen the deceased moving with the appellant before the occurrence took place. If at all Narayan Bhoi told him, it shall not be admissible in evidence being hearsay. It is important to note that Narayan Bhoi has not been examined in this case. P.W. 4 Sudam Bhoi is a witness to the inquest. Similarly, P.W. 5 2 Khetra Bhoi is a witness to the seizure. P.W. 6 Karunakar Majhi has deposed that Narayan told him that the deceased was moving prior to death with Ajit Bhoi. P.W. 9 Ajatna Bhoi and P.W. 10 Chakradhara Khura have been treated as hostile witnesses by the prosecution. P.W. 9 has admitted that he stated before the police that on 9.1.2000 in the evening at 4.00 P.M., Sura and co-accused Ajit came to him. This witness therefore does not implicate the present appellant Sanjib to be in the company of the deceased. Similarly, Chandrasekhar Khura has stated in cross-examination by the prosecution that he had stated before the Investigating Officer that on 09.01.2000 evening labour Sardar and accused Ranjit Bhoi had come to him and requested to take advance for going to Bhubaneswar for preparation of brick. The evidence of these witnesses also does not conclusively implicate the appellant to be moving in the company of the deceased just prior to his death. Evidence of P.W. 11 is also not helpful to the prosecution and is only a seizure witness. Rest of the witnesses are official witnesses. 8. The principle of last seen theory in appreciation of evidence, in a murder case, can be resorted to only if the person accused of crime and the deceased were last seen alive together and within a short period thereafter, the deceased was found dead. The time gap between the last seen alive and the discovery of the dead body of the deceased should be of such short durations as would exclude any reasonable chance of any other person coming to the company of the deceased. In this case, neither there is evidence that the accused and the deceased were last seen together nor there is any material to show that immediately thereafter, within a short span of time, the deceased was found dead. Thus, the principle of last seen theory cannot be resorted to in this case. 9. The trial court has given much emphasis on the circumstance of existence of a motive in this case. However, as found out, there is no evidence regarding such a motive. The trial court has inferred that since the deceased was in possession of a lot of money, which he was carrying for contacting labourers and the said fact was known to the accused persons that might have motivated the accused persons of killing the deceased for the lust of money. The trial court has overlooked the first principle guiding circumstantial evidence that each circumstance must be established firmly by credible evidence. There is no scope of making a presumption in such cases. There is no evidence on record regarding the fact that the deceased was carrying a large sum of money with him nor there is evidence that the appellant was aware of the fact that the deceased has such quantity of money, nor there is evidence that the appellant had declared before anybody that he wanted to grab that money from the deceased. The learned trial court has proceeded purely on conjectures and surmises and has come to the conclusion that the appellant was driven by a greed to grab the money of the deceased. 10. The third circumstance is that on chemical examination blood patches were found from the full pant of the accused-appellant. A scrutiny of the forwarding report and the chemical examination report reveals that full pant of the appellant Sanjib Bhoi has been marked as C-I, while forwarding the material objects for chemical examination. The chemical examination report Ext.11 reveals that full pant marked as C-I was stained with few small patches of blood, the original of which could not be determined nor there can be any grouping because of deterioration. The trial court has come to the conclusion that 3 since there is no suggestion by the defence that this blood was not human blood, the prosecution has proved its case by clear, cogent and convincing evidence. The simple fact of finding few patches of blood which is not determined to be human blood or belonging to the same group as that of the deceased, will not enhance the case of the prosecution. So this circumstance is not incriminating and, therefore, such circumstance also has to be ignored by this Court. 11. Thus, on a conspectus of the evidence on record and the impugned judgment in the light of the argument advanced by the learned counsel for the appellant as well as the learned counsel for the State, this Court comes to the conclusion that the order of conviction recorded by the learned trial court is completely erroneous. The prosecution has failed to prove its case that the present appellant has committed murder of the deceased. Accordingly, we allow the appeal, set aside the judgment of conviction and order of sentence. The appellant be set at liberty forthwith, if his detention is not required in any other criminal proceeding. Appeal allowed. 4