Judgment:
B.K. Behera, J.
1. On a perusal of the record and upon hearing the learned Counsel for both the sides, we find, for the reasons to follow, that the order of conviction recorded against the appellant under Section 302 of the Penal Code sentencing him to undergo imprisonment for life for having committed the murder of the Juedhar Bagarthi (to be referred to hereinafter as the 'deceased') at village Deng in the district of Bolangir based on some items of circumstantial evidence which, taken by themselves, would not lead to a conclusion of guilt and taken together, would not manacle the appellant inescapably, cannot be allowed to stand.
2. It is clear from the evidence of the doctor (P.W. 8), who had conducted the autopsy over the dead body of the deceased, that his death was homicidal in nature. There is no direct evidence of the actual assault on the deceased by the appellant. The case of the prosecution rests solely on circumstantial evidence which, in order to be made the basis of conviction, must unerringly lead to but one conclusion, viz, the guilt of the accused. The five principles relating to the appreciation of circumstantial evidence enunciated in : 1984CriLJ1738 Sharad Birdhichand Sarda v. State of Maharashtra may be borne in mind in a case depending on circumstantial evidence.
3. The prosecution has not established any motive on the part of the appellant to commit the murder of the deceased. Absence of proof of motive would put the Court on its guard to critically examine the evidence bearing on the guilt of the accused.
4. There is evidence from the side of the prosecution that on the date of occurrence, both the appellant and the deceased went to the house of P.W. 1 to perform Home where after both of them went to the village tank to take their bath in the afternoon. There is evidence to show that the deceased had then carried M.Os. I and II and a bag with htm. No one has, however, slated in categorical terms that after going to the tank, both of them took bath together. There is no evidence that the appellant and the deceased were only present at the tank before the dead body of the deceased was recovered with injuries on his person. The aforesaid circumstances that both the appellant and the deceased went to the house of P.W. 1 and then both went to the village tank to take their bath would not lead the Court to a conclusion of the appellant's guilt.
5. The prosecution has relied on another circumstances that sometime after the appellant and the deceased went to the tank, the appellant had been seen moving away from the tank hurriedly with the articles of the deceased. P.Ws. 2 to 4 and 7 are the witnesses in this regard. As has been submitted by the learned Counsel for both the sides, their evidence is highly discrepant. These witnesses have condemned themselves by making prevaricating statements at the stage of investigation and at the trial and thus their evidence in this regard is not worthy of credence.
6. P.W. 5 has not identified M.Os. I and II in the Court as the articles belonging to his father although he has testified that he had identified M. Os. I and II at a test identification parade which could not be construed as substantive evidence and could only corroborate the evidence of identification in the court.
7. For the foregoing reasons, it would not be reasonable and proper to hold that the appellant had been seen moving away from the tank with M.Os. I to III in his possession.
8. No incriminating article has recovered I from the person or possession of the appellant. No statement had led to the discovery of M.Os. I to III which had been recovered from an accessible place and in the absence of the evidence that the appellant was the author of concealment of these articles, this could not be a guilt-pointing circumstance against him.
9. We thus find that the order of conviction passed against the appellant cannot be sustained.
10. In the result, the appeal succeeds and is allowed. The order of conviction and sentence passed against the appellant is set aside. The appellant be set at liberty forthwith.
P.C. Misra, J.
11. I agree.