Judgment:
A, Pasayat, J.
1. The appellants (hereinafter referred to as the accused) stood charged Under Section 302/34 of the Indian Penal Code, 1860 (in short, the 'IPC') allegedly for having committed murder o1 a ten year' old girl namely, Chehalata (hereinafter referred to as the 'deceased'). They have been convicted and sentenced to imprisonment for life by the learned First Additional Sessions Judge, Ganjam, Berhampur.
2. The accusation which led to the trial of the accused are to the following effect :
On 20-8-1985 between 1 PM to 2 PM the accused were found in the companion of the deceased who had gone out of the school premises during the recess. Her deadbody was found inside the abandoned kitchen room of Laxminarayan temple in village Ankoli situated within Berhampur town. The deadbody was detected around at 4.30 P.M. When the father of the deceased learnt about the incident, he went to his house along with others and enquired from his wife as to whether the deceased had returned home. On being told that she had not returned, he went to the temple and found the deadbody. It was noticed that a pair of ear-rings which were worn by the deceased were missing. Acting on the report submitted by the father of the deceased, investigation was taken up and after completion of investigation, charge-sheet was submitted against the accused Under Section 302/34, IPC since they were last seen with the deceased.
3. Two factors weighed with the learned First Additional Sessions Judge for coming to a conclusion that the accused were guilty. They are as follows :
(a) Three witnesses namely PWs 2, 3 and 6 had seen the accused with the deceased at a time contemporaneous to the probable time of death,
(b) Accused Radha Mohan furnished information for recovery of Rs. 110/- which represented sale-proceeds of the ear-rings which were snatched away from the ears of the deceased
On these two circumstances, learned First Addl. Sessions Judge came to hold that the prosecution has been able to establish its case beyond a shadow of doubt. Accordingly the conviction was made and sentence was levied.
4. Learned counsel for accused-appellants has urged that allegations against the appellants even if accepted at their face value, do not lead to the irresistible conclusion about the guilt of the appellants. Further, admittedly when PW 3 stated to have made recovery of money. in the presence of a Constable, evidentiary value of the so-called information loses its legal base. It is also highlighted that two of the so- called eye-witnesses are child witnesses and no credence can b.e put on Their evidence. Learned counsel for State, on the other hand, contends that elaborate analysis of evidence, conclusion of guilt of the applleants has been arrived at and therefore, there is no scope for interferences on this appeal.
5. Though there is no substance in the argument of learned counsel for appellants that no credence can be put on the evidence of PWs 3 and 6 because they were child-witnesses, their evidence is of little assistance to the prosecution. PW 3 had not seen the deceased with the accused. He had only seen the accused near the temple around mid-day. So far as PW 6 is concerned, he had not stated before the Investigating Officer (PW 10) that the deceased and accused were going inside the temple. He also had not stated the names of the deceased girl and accused Radhamohan before him. He had not stated before him that she knew the deceased. The, hypothesis of 'last seen together' is pressed into service as a circumstance for fastening culpability on the accused. This circumstance is a link in the. chain. It is well-settled that merely because two persons are found together at a particular time and sometimes thereafter one of them is found unnaturally dead, the inevitable conclusion is not that the other is the author of the crime. Circumstantial evidence should be of such nature as to rule out the innocence of the accused and must unerringly prove that the accused was guilty and that no other inference is permissible. In the instant case, probable time of death has been indicated between .1 PM to 4.30 PM. In the absence of any positive evidence about the probable time of death, It would be difficult for positively establishing the theory of the deceased being last seen with the accused, as there might have been long gap and many more persons might have come in between. In the absence of any further positive evidence as to the accused and the deceased being last seen together cannot lead to a conclusion of guilt. We do not propose to proliferate our judgment with large number of decisions rendered by the Apex Court and this Court. Suffice it to refer to a Division Bench decision of this Court in the death reference and State of Orissa v. Sk. Addam Uddin, 1987 (I) OLR 381, (1987) (Supp) CLT 120. Requirement of the prosecution to establish that there was no missing link in the chain of evidence was highlighted by the apex Court in Kansa Behera v. State of Orissa, 1991 (I) OLR (SC) 465, AIR 1987 SC 1507 and Jaharlal Das v. State of Orissa, AIR 1991 SC 1388 and in Sk. Addam Uddin's case (supra). The circumstantial evidence must be proved to be complete and conclusive nature. Such evidence must forge a chain at to support the sole hypothesis that the accused alone was guilty of the crime. True it is when two persons are seen together at a point of time and immediately thereafter it is found that one of them has suffered unnatural death, it would be a material piece of evidence in the process of finding out as to who is the guilty person. But as indicated above, that evidence alone would not be sufficient.
6. In a case where various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation which if accused though not proved would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. In the case at hand as discussed above, there is dearth of material as regards complicity of the accused, it has also been rightly urged by learned counsel for appellants that the so-called information given about the money has no legal base since information was stated to have been given in the presence of a Police Constable.
7. In the circumstances therefore, we are of the considered opinion that prosecution has failed to establish its case beyond a reasonable doubt, and the appellants are entitled to an order of acquittal. We accordingly, set aside the judgment of conviction and sentence passed by learned First Addl. Sessions Judge, Ganjam, Berhampur.
The Criminal Appeal is allowed.
D.M. Patnaik, J.
I agree.