Full Judgment
ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No.38 of 2003 Arising out of the judgment and order of sentence dated 21.12.2001 passed by Shri S.K. Nayak, learned Addl. Sessions Judge, Angul in Sessions Trial No.111-A of 1997 (64 of 1997), under Sections 302/201, I.P.C. ----------------- Nada Penthoi and five others … Appellants … Respondent Versus State of Orissa For Appellants : Mr. B.B. Routray and Mr. Subrat Kumar Mahapatra-1. For Respondent : Mr. Sangram Das, Addl. Standing Counsel. ----------------- PRESENT: THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH ------------------------------------------------------------------------------------------------------------------------ Date of Argument :
19. 06.2012 Date of Judgment :
19. 06.2012 ------------------------------------------------------------------------------------------------------------------------ C.R. Dash, J.This appeal is directed against the judgment and order of sentence dated 21.12.2001 passed by learned Addl. Sessions Judge, Angul in Sessions Trial No.111-A of 1997 / 64 of 1997, convicting the appellants under Sections 302/201, I.P.C. and sentencing each of them to suffer imprisonment for life thereunder”
2. The occurrence happened on 05.06.1997 on the day of “Savitri Amavasya”. at village Kathapal under Chhendipada P.S. in the district of Angul. Two innocent children namely Bapi and Muni are alleged to have suffered death in the hands of the present appellants. Informant Basant Kumar Panigrahi (P.W.3) is the paternal uncle of the deceased children. The prosecution case, as found from record, is that on the date of occurrence the bodies of deceased Bapi and Muni were recovered from a well situated at a distance of about 150 meters from their house. The Medical Officer of the Additional Primary Health Centre, Bagedia declared them brought dead. In the afternoon before dusk, the deceased children were found watching the appellants catching squirrels. One of the appellants namely Birabar Nayak (appellant no.6) being known to the informant (P.W.3), he (informant) did not object the children to be present near the appellants. When the children did not return home, the family members searched for them. Mother of the informant (P.W.3) asked the appellants regarding the whereabouts of the children in course of such search, and the appellants gave out that the children had already returned home since long. When the children were not found, their family members asked the appellants to search for them in the nearby well suspecting that they might have fallen into the well. None of the appellants however agreed to search for the children inside the well. One Panchanan Majhi (P.W.15) ultimately entered into the well and brought out the bodies of the deceased children. Some injuries on the bodies of both the children were found. The well was full with 10 feets’ deep water. The bodies of the children were immediately rushed to Bagedia A.P.H.C., where the Medical Officer declared them brought dead. On the basis of the information lodged by P.W.3, investigation was taken up by the Police and on completion of investigation, the I.O. (P.W.19) submitted charge-sheet against all the 3 appellants implicating them in the offence punishable under Sections 302/201/34, I.P.C.
3. Altogether 19 witnesses were examined by the prosecution to prove the charge, out of whom P.Ws.3 to 5, P.Ws.9, 12 and 13 are the witnesses, who have testified about the fact that the deceased children had gone with the appellants while they (appellants) were hunting squirrels and further they are asserted to have proved the fact that the appellants were found near the well wherefrom the dead bodies of the deceased children were recovered. The aforesaid witnesses have further testified that when the appellants were questioned regarding the whereabouts of the missing children, they told that they have already gone to their house and the appellants also refused to search for the children by entering into the well. P.Ws.7 and 8 are the witnesses to the confessional statement of appellant Nada Penthoi and recovery of a knife (M.O.-I) at his instance. P.W.14 is a witness, who has testified the fact that he saw the children going near the appellants and sometimes thereafter he (P.W.14) heard about missing of the children. P.W.15 is the person, who entered inside the well to bring out the deceased children. P.W.17 is the witness to the seizure of Lungi (M.O.-II) of appellant Nada Penthoi, which was found to be stained with blood. P.W.11 is the Medical Officer, who conducted post-mortem over the dead bodies of the deceased children and P.W.19 is the I.O. Defence has examined none on its behalf, though the defence plea is one of complete denial”
4. The case is based entirely on circumstantial evidence. Learned Trial Court taking into consideration the materials on record, found the appellants guilty of the charges and sentenced them accordingly.
5. Learned counsel for the appellants submits that the prosecution has failed to prove the circumstances incriminatory against the appellants and learned Trial Court has failed to apply judicial mind in drawing inference of guilt of the appellants from the circumstances alleged to have been proved. Learned Additional Standing Counsel on the other hand supports the impugned judgment and order of sentence.
6. The circumstances, on which reliance is placed, are - (i) The deceased children were seen last together in the company of the appellants; (ii) both the children were playing near the well where the appellants were hunting for squirrels; (iii) none of the appellants agreed to enter inside the well for search of the missing children, though requested; (iv) recovery of the knife (M.O.I) at the instance of appellant Nada Penthoi and presence of human blood on that knife as found from chemical and serological examination report; and (v) presence of blood also on appellant Nada Penthoi’s ‘Check Lungi’ (M.O.-II), which was seized by the police on production by him.
7. From the chemical and serological examination report, we find that though human blood was found on the ‘Lungi’ (M.O.-II) seized on production by appellant Nada Penthoi, but no opinion could be given about its group. Similarly, no opinion on the blood present on the knife (M.O.-I) could be given regarding its origin or group. In view of such fact, no conclusive opinion could be given by the Analysts regarding presence of human blood of group ‘O’ or ‘B’ (which are blood groups of the deceased children) either on 5 the ‘Lungi’ (M.O.-II) or the knife (M.O.I). In view of such inconclusive evidence, it cannot be said that presence of blood on the ‘Lungi’ (M.O.II) of appellant Nada Penthoi is incriminatory in any way or the knife (M.O.-I) was used in causing injuries to the deceased children. Presence of blood on a person’s wearing apparels may be for various causes, especially when such a person earns his livelihood by engaging himself as a labourer and he is rustic. We therefore loathe to concur with the findings of the learned Trial Court to the effect that presence of human blood on the ‘Lungi’ (M.O.-II) seized on production by appellant Nada Penthoi and presence of blood on the knife (M.O.I) is one of the circumstances incriminatory against all the appellants.
8. The evidence regarding seizure of knife (M.O.-I) from beneath a heap of ‘Kendu’ leaves, at the instance of appellant Nada Penthoi on the basis of his disclosure statement, is contradicted by P.W.7, who, in his examination-in-chief has testified that the knife and chapals were seized by the police from the spot. Contradicting such statement, again he (P.W.7) has testified that while in custody, appellant Nada Penthoi told that the ‘Chaku’ (knife - M.O.-I) by which he killed the deceased children was concealed under a heap of ‘Kendu’ leaves and he led the police party to give recovery of that ‘Chaku’. In view of such prevaricating statements of the witness, who was examined to prove the confessional statement and consequent recovery of the weapon of offence, we do not feel persuaded to place reliance on the evidence of recovery of the knife (M.O.-I) at the instance of appellant Nada Penthoi.
9. The next circumstance is to the effect that the appellants were seen last in the company of the deceased children and they refused to enter 6 inside the well for search of the missing children, though requested. The cause of death of deceased Bapi is opined to be smothering and the cause of death of deceased Muni is opined to be throttling. There are some injuries on both the dead bodies. Admittedly, both the deceased children were playing near the well. The prosecution has designedly not proved the spot map and the defence counsel has not cross-examined the I.O. regarding the situation of the spot well. On verification of the record, it is fairly submitted by learned Additional Standing Counsel that the I.O., on his spot visit, has prepared the spot map and in the spot visit report he has specifically mentioned that there was no raised platform around the well. As the deceased were small children, it was not unnatural for them to fall into the well while immersed in playing. Further the appellants having stated to be engaged in hunting squirrels, might not have marked the children falling into the well and they on being questioned, have answered that the children had left the place since long. Anybody, who is not accustomed to enter inside a well may not agree to enter inside it, even if requested, as such an act may be at his peril. In view of such fact, we do not feel persuaded to accept refusal by the appellants to enter inside the well on request and their answer to the effect that the children have already left for their home since long as circumstances incriminatory against them. In absence of diatom test, it cannot be definitely said whether the death was due to drowning or not. Admittedly, the dead bodies of the deceased children were recovered from the well and the only circumstance against the appellants is to the effect that they were seen last in the company of the deceased children. In absence of any other circumstances, it is difficult to arrive at a definite conclusion that it was the appellants, who have killed the deceased children”
10. In view of the above, we set aside the impugned judgment of conviction and order of sentence passed by the learned Trial Court. The appellants are acquitted of the charges. The appellants, who are stated to be on bail, be discharged of the bail bonds. The Jail Criminal Appeal is accordingly allowed. …………………… C.R. Dash, J.…………………… L. Mohapatra, J.Orissa High Court, Cuttack. The 19th day of June, 2012. /Parida.