P.K. Mohanty, J.
1. This is an appeal by the convict in a case under Section 302 IPC sentencing him to undergo life imprisonment.
2. Prosecution case, bereft of unnecessary details is that on 16-11-1989 at about 8 P.M. while Damodar Patel, P.W. 1 had gone to attend the call of nature near river Hati, he found one dead body lying on the sandy bed of the river. The dead body was without any wearing apparel except one chadi. Pant and Shirt were lying at a distance from the dead body. One motor cycle bearing Regn. No. (sic) 2488 was kept by the side of the pillar of the bridge. Damodar Patel, P.W. 1 came to village Katpadi and told the incident to Madhu Naik, Ward Member of the village. P.W. 1 along with Madhu Naik, came to the police station at Jaipatna and orally reported the incident in the Police Station. P.W. 21, the Investigating Officer on the report registered M.D. Case No. 9 of 1989 in absence of the Officer-In-Charge of the Police Station. The Investigating Officer while conducting the enquiry found bleading injury on the right side of the neck of the deceased lying in the river bed of Hati river. The Investigating Officer suspected it to be a homicidal death. He held inquest over the dead body on 16-11 -89 at 4 P.M. at the spot and drew up a plain paper FIR Ext. 17. The dead body was sent to postmortem examination. The dead body was identified to be of Pramod Kumar Padhi. On completion of the investigation, charge-sheet was submitted against the accused-appellant.
3. The plea of the defence was complete denial. It was the stand of the accused that he was staying at a place called Mukhiguda along with one Dinabandhu Barik in quarter No. F/89 in Sector 2 and was taking up contract work with the licence of one Sarat Chandra Das.
4. Prosecution has examined as many as 34 witnesses to establish its case. P.W. 1 Damodar Patel is the informant who reported the matter at Jaipatna Police Station on which M.D. Case was started, P.W. 2 Siba Sankar Padhi is the father of the deceased, who identified the dead body of the deceased but found the gold chain which is usually worn by the deceased was missing. P.W. 3 is Istaque Ahammad who deposed that the deceased wanted to purchase a revolver about a month prior to the date of occurrence. P. W. 4 is a witness to the inquest and seizure of Bullet Motor cycle, blood-stained sand and identified the dead body. P.W. 5 is Pabitra Kumar Padhi who took zima of the motor cycle belonging to the deceased. P.W. 6 is the constable who removed the dead body for postmortem and produced the wearing Chadi of the deceased after postmortem. P.W. 7, Madhusudan Pillai is a witness who found the accused standing on the Char-choak in front of the shop of one Rao, P.W. 8 is Binayak Behera, who found the deceased and accused moving together in a motor-cycle at Mukhiguda and the deceased told him that he was to purchase a revolver from the accused. P.W. 9 is Udayanath Panigrahi, who also found the accused and deceased together taking tea in the shop of one Rao at Char-chouk on 15-11-89 and further found the accused going to purchase one Rin soap on credit. P.W. 10, Chaitanya Majhi has stated that he saw the accused taking pan at about 11 A.M. of 15-11-89 and proceeded with the driver of a tripper. P.W. 11, Madhaba Durga who found the deceased and driver of the tripper Dinabandhu Barik going towards the river bed to attend the call of nature after loading sand in the tripper. He also found the driver of the tripper Dinabandhu Barik sitting on the motor cycle at the time of loading of the sand and came to know at about 2 P.M. that a man was murdered on the river bed. P.W. 12 is Pramil Kumar Panda, who has stated that on 15-11-89 the accused enquired from him about the deceased. P.W. 13, Malaya Chandra Meher has stated about the fact that the accused purchased a soap at about 9.15 P.M. on 15-11-89 and P.W. 14 Pradumna Kumar Meher who accompanied him found the accused was washing his cloth and asked for payment of his money from the accused. P.W. 15 is a Hotel Keeper of Mukhiguda who saw the accused taking his meals in his hotel at about 9 P.M. on 15-11-89 and also saw the deceased in the evening of 1'5-11-89 at the crossing and found at that time the deceased was wearing a gold chain. P.W. 16 identified a pant of the accused. P.W. 17 is a pan and tea shop keeper who deposed that the accused was enquiring about the deceased at 4 P.M. P.W. 18 Gunadhar Panigrahi is a witness who heard somebody shouting 'IA MAA-GO MARIGALI' . on the river bed of Hati river while he was in his brinjal field. P.W. 19 has stated about one Rama Saraf who was offering him to purchase one gold chain for Rs. 4,400/- on 16-11-89. P.W. 20, Kusa alias Sona Meher has deposed that Chasiram Meher came with a gold chain and weighed the chain and received the gold chain on payment of Rs. 4,400/- on 17-11-89 and that gold chain, M.O.I., was given to Ramachandra Saraf by the witness after knowing that it was involved in a murder case. P.W. 21 is a witness in whose presence the chain was weighed and police seized the same. P.W. 22 is a medical officer, who held postmortem of the deceased. P.W. 23 is a witness to the seizure of a shawl, pant and shirt, stained with blood. P.W. 24 stated about the sale of the gold chain by Rama Chandra Saraf saying that the gold chain belongs to the accused who had a case in the court on 17-11-89. P.Ws. 25, 26 and 27' are the seizure witnesses. P.W. 28 is a Goldsmith who had stated that he had made the gold chain (M.O.I.) for the deceased in the year 1988 and the gold chain Was weighed in his presence in the year 1989 in the police station at Jaipatna. P.W. 29 is a witness to the discovery of Kati, the weapon of offence and a witness to the seizure of Kati (M.O. VII) from inside the sandy water bed of Hati river. P.W. 30 is also a witness who was present in the police station when the police took statement from the witness, Ext. 13. P.W. 31 is one of the I.Os. who recorded the FIR, P.W. 32 is the I.O. who sent other articles for chemical examination and submitted the chargesheet. P.W. 33, one Santosh Kumar Panda is a witness who saw the deceased and accused going towards Jaipatna at about 6 P.M. on 15-11-89. P.W. 34 is one of the I.Os. who seized the Kati and gold chain (M.O.I.).
5. The defence, has, examined one witness, D. W. 1, Bhubaneswar Baitharu. The prosecution case is based on circumstantial evidence since there is no occurrence witness
6. The prosecution relied on the following circumstantial evidence against the accused and the recovery of incriminating materials for returning the verdict of conviction :-
1. The accused and the deceased were together in the hotel 'Binapani' at 9 P.M. of 15-11-89 as deposed to by P.W. 15, owner of the hotel. The deceased was wearing a gold chain in his neck, M.O.I., the accused was wearing a yellow shirt, one pant of ash colour when he came to take his meal in hotel at 12 noon of 15-11-89. At about 7 P.M. on 15-11-89 two persons went to the hotel and enquired about the accused. The accused came at about 9 p.m. to hotel while those two persons were enquiring about the accused and were taking their meals and the accused paid the meal charges.
2. Recovery of one yellow colour full shirt (M.O. IV) ash colour full pant (M.O.V), one shawl (M.O.VI) from accused by I.O. (P.W. 34) at the instance of the accused Under Section 27 of the Evidence Act on 18-11-89 at night under Ext. 13 in presence of P.Ws. 23, 25, 30 and one Iswar Panigrahi, who has not been examined.
3. The shirt (M.O.IV) and the pant (M.O.V) was worn by the accused-appellant on 15-11-89 as stated by P.Ws. 7 and 15. The wearing apparels seized under Ext. 13 contain blood-stains.
4. Recovery of the gold chain by the I.O. (P.W. 34) from one Saradakar Saraf on 30-11 -89 at the instance of the accused Under Section 27 of the Evidence Act, under Ext. 9 in presence of P.Ws. 21 and 26.
5. M.O.I was being worn by the deceased as per the evidence of the father of the deceased (P.W. 4) and P.W. 15.
6. The statement of P.Ws. 19, 20 and 27 in connection with the transaction of the gold chain (M.O.I.) having been sold at the request of the accused.
7. The recovery of Katuri (Kati) (M.O.VII) by the I.O. at instance of the accused on 30-11-89 at 4 P.M., under Ext. 15 in presence of P.W. 29, one Ashok Panda.
8. The statement of the accused before the I.O. in presence of P.W. 29 pursuant to which the recovery of M.O.VII, the Kati, was given from inside the water of the river bed.
9. The opinion of the doctor P.W. 22, who conducted autopsy on possibility of injuries on deceased by weapon like M.O.VII.
7. Shri A. B. Mishra, the learned senior Advocate appearing for the appellant has strenuously contended that the trial court has relied on the circumstances of recovery of full pant (M.O.V), full shirt (M.O.IV) and shawl (M.O.VI) from the accused without appreciating the circumstances of the recovery, inasmuch as, the appellant having not been arrested by the police as on 18-11-89 and not in the custody of the police, the recovery under Section 27 of the Evidence Act is of no avail. He further contended that the recovery was made during the night after the sun set, while it was more convenient during the day time and therefore, the recovery would lead to suspicion. Shri Mishra further contended that P.W. 13 was an authorized occupant of the quarters No.- F/23 and according to him, the accused was in forcible occupation of the quarters, but, the appellant having denied the fact of his possession or occupation, in absence of any evidence of the neighbor of the house in question, from where the seizure was made, the prosecution case has to be suspected.
It is well settled that 'custody' as contemplated under Section 27 of the Evidence Act does mean formal custody, but include such state of affairs in which the accused can be said to be in the hands of the police officer, even under some surveillance. The word 'custody' as contemplated would mean surveillance or restriction on the movement of the person concerned which can be completed in the event of arrest of the person. The concept of being in custody, therefore, cannot be equated with the concept of formal arrest. It may be noted that arrest is contemplated under Section 46 of the Code of the Criminal Procedure.
8. With regard to the submission of the learned counsel on the question of non-examination of any neighbour of the quarters in question, a reference has been made by the learned counsel to a decision of the Apex Court in Narain v. State of Punjab AIR 1959 SC 484 : 1959 Cri LJ 537. That the Hon'ble Supreme Court has held in that case is, a witness is material for the purpose where he gives evidence in support of the prosecution, but not where he would give evidence in support of defence. The test is whether he is a witness essential to the unfolding of the narrative on which the prosecution is based. Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led, disclosed that he was so situated that he would have been able to give evidence of the fact on which the prosecution relied. It has also been held therein that the prosecution is not bound to call all witnesses who may have seen the occurrence and not to duplicate the evidence.
In the case at hand, the prosecution has examined P.W. 13 in whose favour the quarters in question has been allotted and he was stated that the appellant was in forcible occupation of the quarters since last 3 to 4 months. Apart from the evidence of P.W. 13, the appellant himself led the police to the quarters and has given recovery of shirt, pant and shawl (M.Os. IV, V, VI). In that view of the matter, it cannot be said that non-examination of any other neighbour in this case, will throw doubt on the prosecution version.
9. The learned counsel has also submitted that in view of the evidence of P.W. 23 that P.W. 13 was not staying in the house, since he was ill and the accused was staying therein alone for about 3 to 4 months and at the same time having further stated that Dina Bandhu Panchare was staying in that quarter, occupation of the accused ought to have been disbelieved being contradictory. It may be stated at the outset that what the witness meant was that Dina Bandhu Panchara was in fact staying in that quarter, but due to his illness since last 3 to 4 months, the accused was in forcible occupation of the said quarter during that period. No exception can be taken to the evidence as contended.
10. The learned counsel for the appellant further submitted that the alleged confessional statement said to have been made by the appellant before the I.O. (P.W. 34) in presence of P.W. 29 on 30-11-89 admitting the commission of the offence and subsequent recovery of 'Kauri' (Kati) by the I.O. are mala fide and surrounded clouds of suspicion and therefore, not reliable. It is further submitted that the police has not recorded confessional statement in violation of the mandatory requirements of law. It is submitted that the information and confession of the appellant were mandatory required to be recorded in writing in verbatim, absence of which should be viewed with suspicion. It is his further submission that the prolonged custody immediately preceding the confession is sufficient to stamp the confession as involuntary, unless it is properly explained. The I.O. (P.W. 34) in para 5 of his evidence has stated that on 30-11-89 at 2 P.M. he arrested the accused. While the accused was in custody he stated to have committed murder on 15-11-89 of the deceased in the Hati river bed by a Kati, which he did kept concealed under his armpit. After the commission of the murder the accused concealed the kati inside water of the river and saying so, the accussed led him and other witnesses towards the bank of the river where the accused abrogate out the Kati from inside the water and accordingly the I.O. seized the same vide seizure list Ext. 15. It is not the requirement of law that the information given by the accused leading to its discovery must be in the first person. It is sufficient, if the exact statement is reproduced in the recovery memo or the case diary. Ext. 15 is the recovery list (Jabat Talikha) at Sl. 15 thereof under the heading reasons for seizure. It is clearly mentioned that the accused while in custody having confessed his guilt made the following statements :-
On 15-11-89 (Wednesday) at about 8 P.M. in the night persuaded my friend Pramod Padhi to go to the river bed to offer Puja for his revolver and at that time I killed him by means of a Kati and after killing him, I had concealed the Kati inside the river.
In saying, he led the police and the witnesses to the place of concealment and gave recovery of the Kati from inside the water of the river bed. In view of this statement in the seizure memo read with the statement of the I.O. quoted above, there can be no doubt that the statement of the accused was duly recorded in terms of the requirements of Section 27 of the Evidence Act. A reference may be made to the decision reported in Manhari Rajan v. State of Kerala, 1987 Cri LJ 563 (568) wherein it has been held that it is not necessary that the information must be produced from the Case Diary and produced as a separate document.
11. The next submission of the learned counsel is with regard to recovery of M.O.I, (the gold chain), it is submitted that the recovery having not been made in accordance with Section 27 of the Evidence Act, it ought not to have been relied on by the learned trial court. The learned counsel has referred to the evidence of P.Ws. 19, 20, 24 and 27 to say that the transaction of gold chain is a fabricated story and the witnesses were pressurized to depose a concocted prosecution story. The learned counsel submitted that the prosecution has seriously failed to establish the alleged transaction of chain with the Appellant. P.W. 19 Ghasiram Mehera came to P.W. 20 on 17-11-89 at 4 P.M. with a gold chain (M.O.I.) which was weighed in his presence. On weighment it came to one tola and six annas. P.W.20 paid Rs. 4400/- keeping that gold chain. On 29-11-89 P.W. 19 again came to P.W. 20 and requested him to return M.O.I, since it was involved in a murder case and M.O.I, was returned to P.W. 19. P.W. 20 and P.W. 19 along with Pataleswar Saraf P.W. 24 came to village Pilikia with M.O.I, was returned to Rama Chandra Saraf and he asked Rama Saraf ' s return the price. Rama Chandra assured to return the price within 4 to 5 days. P.W. 24 Pataleswar Saraf in his statement has said that on 16-11-89 Ramachandra Saraf and Ghasiram Mehera came to his house at 4 P.M. and Rama Chandra Saraf told him that the gold chain belongs to the accused and the accused had one case in the court on the next day i.e. 17-11-89 and for that reason the accused wants to sell that chain through Rama Chandra Saraf. Rama Chandra handed over the chain to Ghasiram Mehera and on weigh ment, it came to one tola and six annas. The sale price was settled at Rs: 4400/-. However, Ghasiram said that he had no money on that day, but he will make payment on the next day at 5 A.M. On the next day i.e. 17-11-89 at about 5.30 A.M., Rama Chandra Saraf came to his house with Ghasiram. Ghasiram requested Rama Chandra to take back the chain since he had no money. Rama Chandra requested him to make payment at any cost. Therefore, Ghasiram sold the chain and brought Rs. 4,400/- and paid it to Rama Chandra Saraf. Ramachandra Saraf after taking money went to Bhawanipet keeping his bi-cycle in his house. Nothing has been brought out in the cross-examination of this witness. The evidence of P.Ws. 19,20 and 24 are not shaken by cross-examination and as such, we see no reason to discard their evidence. True it is, that P.W. 19 has been declared hostile and cross-examined by prosecution, but his evidence in chief can be relied upon to corroborate the evidence of P.Ws. 20 and 24. It may be noted that the gold chain M.O.I was worn by the deceased prior to his death and in the dead-body the chain was missing. The gold chain M.O.I, has been recovered at the instance of the accused-appellant. The Medical Officer, P.W. 22 has stated that all the injuries are ante mortem in nature and can be caused by heavy cutting weapon such as axe/Kati.
12. The learned counsel for the appellant has laid much emphasis in his submission that non-examination of blood group of the appellant is fatal to the prosecution case. It is submitted that the blood group B have been found by the chemical examiner on the shawl M.O.VII and the blood group of the deceased was of blood group-B, but the blood group of the accused-appellant having not been examined, the possibility of the accused-appellant having of the same blood group, cannot be excluded inasmuch as if the accused is of the same blood group, then finding 'B' group blood in M.O.VII is not a circumstance against the accused.
It may be pointed out that it is not the defence case at all that the accused had sustained any injury at the time of occurrence or any other relevant time nor it is the case that the accused is of the same blood group. In absence of any such plea, the recovery of the shawl of the accused stained with human blood group B, which is the blood group of the deceased is a circumstance to connect the appellant in the crime. In Purna Padhi v. State of Orissa, 1990 (ii) OLR 243 : 1993 Cri LJ 687 a division Bench of this Court have taken a similar view, in that view of the matter, the contention of the Learned counsel is to be rejected.
13. The next submission of the learned counsel is that the motive of the crime having not been proved, the prosecution story has to be viewed with suspicion. Needless to say that motive need not be proved in all cases. However, motive can be presumed from the attending circumstances. In the present case, from the attending circumstances, the motive apparently is the theft of the gold chain, M.O.I. which has been recovered at the instance of the accused and the witnesses already discussed above have deposed that the accused had given the chain for being sold and in fact it was sold for Rs. 4,400/-, but subsequently was taken back, this being involved in the crime after the dead body was found. The contention of the learned counsel that the cash of Rs. 89.50 paisa, motor-cycle of the deceased and the wrist watch having been found from near the dead body, the accused-appellant, had he been the author of the crime would have also appropriated the same. It is to be noted that the bullet motorcycle in question is registered one and the registered owner was the deceased and in normal circumstances, no culprit would like to take such an article which would inculpate him in the crime, so also the wrist watch. If any other cash was there with the deceased or not, is not in evidence and may be the accused-appellant, who was moving with the deceased prior to the occurrence as a precautionary measure, might have left this small cash etc. to give a different picture.
14. In that view of the matter and in view of the analysis of evidence made in the foregoing paragraphs in the light of the submissions made at the bar, we are of the considered opinion that the prosecution has been able to prove each of the circumstances, relied on by it to complete the chain of circumstances against the accused to bring home the charge against the accused beyond all reasonable doubt. We therefore find no illegality or infirmity in the order of conviction recorded by the trial judge and therefore, we confirm the conviction and sentence passed by the learned Sessions Judge.
P.C. Naik, J.
15. I agree.