J.C.A. No. 88 of 1988

31st March, 1992.

Petitioner Counsel: A.Routray,
Respondent Counsel: H. K. Jena, Addl. Govt. Advocate, .

Cases Cited:
1986 Cri LJ 513,60 Cut LT 346 [Para 7]
(1985) 59 Cut LT 488,(1985) 1 Orissa LR 281 [Para 7]
1984 Cri LJ 1738,AIR 1984 SC 1622 [Para 8]

JUDGMENT

J.M.MAHAPATRA, J.:-The appeal is directed against the judgment and order of the learned Sessions Judge, Sundargarh convicting the appellant under S. 302, IPC and sentencing him to imprisonment for life.

2. The deceased is the son of the appellant through his first wife, on whose death the appellant married a second wife through whom two sons and one daughter were born and they are living in the same compound. It is alleged that there was some dissension between the appellant and the deceased, as the appellant did not pay the Pana money to the father of the wife of the deceased, promised to be given at the time of the marriage, which system was customary in the community to which the parties belonged. The occurrence took place on the night of 2-4-87 inside the residential compound of the parties. it is alleged that the appellant assaulted the deceased by means of a Falsia causing severe injury on his neck resulting in his death. Information was lodged by P.W. 1, the younger brother of the deceased as also the son of the appellant at Koida P.S. in Sundargarh district. P.W. 6, the Officer-in-charge, Koida P.S. recorded the FIR Ext. 7 registered a case against the appellant and took up investigation. In course of investigation he held inquest over the dead body of the deceased, sent the dead body for post-mortem examination, made seizure of the weapon of offence, M.O.I. and wearing apparel of the appellant and the deceased, took steps for dispatch of the incriminating articles for scientific test and on completion of investigation submitted charge-sheet against the appellant. The appellant being committed to the Court of session stood his trial for the offence of murder of the deceased and was eventually found guilty of the offence of murder and convicted and sentenced thereunder.

3. The plea of the appellant at the trial was one of total denial of his complicity in the crime.

4. In support of its case prosecution has examined as many as six witnesses, of whom P.W. 1 is the Assistant Surgeon, Bonei subdivisional Hospital who had conducted post mortem examination on the dead body of the deceased; P.Ws. 2, 3 and 5 have been examined as eye-witnesses to the incident; P.W. 4 is a witness to the seizure and P.W. 6 is the I.O. Prosecution case rests on the ocular testimony of the three eye-witnesses referred to above, seizure of the Falsia, M.O.I. at the instance of the appellant and the matching of the blood group in the Dhoti, M.O. II seized from the appellant and the wearing apparel of the deceased, M.Os. III to V. The learned trial Judge though did not rely on the ocular testimony of the three witnesses, P.Ws. 2, 3 and 5 who had turned hostile at the trial and had disowned any knowledge about the incident and as to how the deceased died or who assaulted him, has based the conviction of the appellant on the circumstantial evidence, namely, seizure of Falsia, M.O. 1 at the instance of the appellant and the matching of the blood group in the wearing apparel of the appellant and the deceased as revealed from the report of the Serologist and the Chemical examiner.

5. There is no controversy that the death of the deceased was homicidal and as such we need not go into the medical evidence. Suffice it to say that the Medical Officer, P.W. 1 found two incised injuries on the left side of the neck which, according to him, were fatal in nature and which caused his death. As the learned trial Judge has not relied on the ocular testimony of P.Ws. 2, 3 and 5, and rightly in our opinion, for their having turned hostile and not disclosing anything at the trial about the authorship of the crime, we need not dilate on the evidence of these three witnesses. It is, however, elicited from P.Ws. 2 and 4 in cross-examination that the appellant and the deceased were pulling on well at the material time we are now left to consider whether the learned trial Judge was justified in basing the conviction of the appellant solely on the circumstantial evidence referred to earlier.

6. The first item of circumstantial evidence is seizure of Falsia, M.O.I at the instance of the appellant. The evidence in this regard is furnished by P.W. 6, the I.O. and the seizure witness, P.W. 4. The learned trial Judge has accepted the testimony of these witnesses to hold that it is an important item of evidence to fasten the appellant with criminal liability. Mr. Routray appearing for the appellant has strongly urged that there is discrepancy in the evidence of P.Ws. 4 and 6 inter se as to the place of discovery of the weapon of offence, and since the parties and their families were all joint and living in one compound, the recovery of M.O.I at the instance of the appellant cannot conclusively go to prove that it was used by the appellant for the offence. In view of the contentions raised it is necessary to refer to the testimony of P. Ws. 4 and 6. P.W. 4 has deposed that the appellant on his arrest gave out of having kept M.O.I. and that M.O.I. was kept on a Bhadi in his house, and further that the appellant brought out the Falsia, M.O.I. from that Bhadi and produced it before the police, who seized the same. In cross-examination, it is elicited that the appellant himself brought out the Falsia from the Bhadi. He has also stated that he cannot say about the contents of the seizure list prepared by the I.O. on which he signed. The I.O. P.W. 6 has deposed that the appellant while in custody gave information that he had concealed the Falsia in his bedroom and led him to the bedroom and brought out the Falsia, M.O.I. from behind the 'Puala Bhadi' and produced before him. According to him, the M.O.I. had contained stains of blood, although P.W. 4 does not whisper a word about it. From the foregoing discussions, it would be dear that although according to P.W. 4, the M.O.I. was kept on the 'Bhadi' of his house, according to P.W. 6, it was kept behind the 'Puala Bhadi'. The presence of blood on M.O.I. was also not deposed to by P.W. 4. Apart from what is discussed above, the prosecution evidence coming through the mouths of P.Ws. 2, 3 and 5 would go to show that the appellant, his second wife, the children through his second wife, the deceased, P.W. 2, the brother of the deceased and other members of the family were all staying in one compound in the same house. In such state of affairs, we are not inclined to accept the evidence of P.Ws.4 and 6 to conclude that the appellant brought out the M.O.I. from inside the room of the house under his exclusive occupation. May be that he knew about the place where M.O.I. was kept but it cannot be conclusively held that the appellant had himself kept the weapon of offence in the room under his exclusive possession. For the foregoing reasons, we are not inclined to accept the finding of the learned trial Judge that the seizure of M.O.I. is a piece of incriminating evidence against the appellant. The Serological report that M.O.I. does not contain blood group 'A' which was found in other items is a circumstance which goes in favour of the appellant.

7. The next item of evidence relied upon by the learned trial Judge is matching of blood group in the wearing apparel of the appellant, namely, Dhoti M.O. II and the wearing apparel of the deceased like Lungi, underwear and banian, M.Os. III to V. Apart from the fact that matching of the blood group by itself cannot be a conclusive proof to

fasten the appellant with culpability, it would be noticed, as contended on behalf of the appellant, relying on two Bench decisions of this Court in the case of Nimai Murmu v. The State,(1985) 59 Cut LT 488, and in the case of Lakshmi Jani v. State, (1986) 60 Cut LT 346 : (1986 Cri LJ 513) that the I.O. did not keep, the individual material objects in sealed packets while sending these items for chemical examination. No doubt the forwarding letter Ext. 14 would go to show that the entire parcel containing the items was sealed, but there is nothing to show that the individual seven items contained inside the parcel was each contained in a separate packet and was sealed. It is held in (1985) 60 Cut LT 346 : (1986 Cri LJ 513 at p. 517)(supra) as follows

".....It is necessary and desirable that the police officer recovering articles with suspected stains of blood should immediately take steps to seal them and evidences should be produced that the seals were not tampered with till the articles were sent to the Chemical Examiner for analysis. If such precautions are not taken, the Court may not place the same reliance on the discovery of blood-stains, on the seized articles as it would have done if necessary precautions had been taken".

In both the decisions aforecited such infirmity is being noticed and the conviction of the appellant was set aside.

8. Doubtless, this is a case resting entirely on circumstantial evidence. The guidelines as to when the circumstantial evidence would sustain a criminal charge have been set out in the case of sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738) wherein five golden principles termed as "Panchashil" by the Apex Court have been enumerated as under (para 152):-

(i) Circumstances from which the conclusion of guilt is to be drawn should be fully established,

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that the accused is guilty,

(iii) the circumstances should be of a conclusive nature and tendency,

(iv) they should exclude every possible hypothesis except the one to be proved and

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the 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.

Judged in the light of these principles the circumstantial evidence on which reliance was placed by the prosecution was far short of the mark. The evidence on the basis of which conviction has been based in this case is, therefore, not acceptable.

9. In the light of the foregoing discussions, we would hold that the learned trial Judge has not properly appreciated the legal perspective for judging the facts elicited in evidence to find the appellant guilty of the offence of murder. We would in conclusion hold that prosecution has utterly failed to prove its case against the appellant beyond all reasonable doubt. The appellant is, therefore, entitled to acquittal.

10. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellant is set aside. The appellant be set at liberty forth with.

11. B. N. DASH, J. :-I agree.

Appeal Allowed