A.S. Naidu, J.
1. The Judgment dated 13th June, 1997 passed by Learned Addl. Sessions Judge, Khurda, acquitting the accused from the charges under Sections 457 & 302 of the Indian Penal Code in S.T. Case No. 31/191 of 1996 is assailed by the State of Orissa in this Government Appeal.
2. The prosecution case in short is that one Bhagyadhar Sahu (P.W.1) had a rice Mill in village Kuhudi. Kailash Bhujabala (the deceased) was working as an operator in the said rice Mill. He used to sleep in the rice Mill every night. His brother received information that the Respondent had assaulted Kailash Bhujabala (the deceased) on his head on the night of 22nd/23rd November, 1995 thereby causing bleeding injuries. Hearing the said news Golakha Bhujabal (the informant) went to the Mill premises & found his brother lying in a pool of blood with a head injury. On enquiry Kailash Bhujabala told the informant that the Respondent had caused the injuries. Thereafter, Kailash Bhujabala was shifted to Tangi Hospital in an unconscious stage & as his condition deteriorated he was shifted to Unit-VI, Capital Hospital, Bhubaneswar
3. With the aforesaid allegation the F.I.R. (Ext.16) was filed by Golakha Bhujabal (P.W.10) at Tangi P.S. It was further alleged in the F.I.R. that the wife of Manguli Khandaitaray, who happened to be the grand mother of the Respondent, was to pay some money to Kailash in connection with the rice business. Being enraged by the fact that Kailash Bhujabala (the deceased) had demanded the money, the Respondent assaulted him thereby causing grievous injuries on vital parts of the body.
4. On the basis of the F.I.R. the O.I.C. of Tangi Police Station registered Tangi P.S. Case No. 169/1995 & commenced investigation. In course of investigation Kailash Bhujabala succumbed to the injuries at Capital Hospital, Bhubaneswar. Thereafter the offence was converted to be one under Section 302 of the Indian Penal Code.
5. After receiving information about the death, the O.I.C. took steps to conduct the inquest & sent the dead body for post mortem. After completion of the investigation & other paraphernalia charge sheet was submitted in G.R. Case No. 840/1995 of the Court of S.D.J.M., Khurda. Learned S.D.J.M. after perusing the police papers & on being satisfied that prima facie case was made out, took cognizance of the offences & committed the case to the Court of Session for trial.
6. The plea of the defence was one of complete denial. It was further contended that the deceased had gone to the house of Premalata Khandaitaray, the wife of Manguli Khandaitaray to demand money, which she was to pay. In course of discussions, an altercation took place between them & Kailash Bhujabala (the deceased) assaulted Premalata Khandaitaray, thereby causing injury. In retaliation Premalata Khandaitaray also assaulted Kailash Bhujabala on his head by means of a fire wood thereby causing the fatal injury. Later Kailash Bhujabala was shifted from the house of Premalata Khandaitaray to the premises of the rice Mil & from there he was taken to the hospital.
7. In order to substantiate their case, the prosecution got examined sixteen witnesses. Out of them, P.W.10, Golakha Bhujabala, was the informant. P.W.1 was the person who informed about the incident to the informant. P.W.2 was the father of the deceased. P.Ws.3 & 4 were the post occurrence witnesses. P.W.5 was the photographer, who took snaps of the dead body & was also a witness to the inquest (Ext.7). P.W.6 was the doctor, who conducted the post mortem examination. P.W.7 was a seizure witness to the wearing apparels. P.W.8 was an employee of the rice Mill. P.W.9 was the Asst. Surgeon of Tangi P.H.C., who had given first aid to Kailash Bhujabala (the deceased), P.W.10 was the brother of the deceased & the informant. P.W.11 claims to have seen the accused peeping into the Mill house through the window. P.Ws.12, 13 & 14 were after occurrence witnesses. P.W.15 was the constable, who escorted the accused to Tangi P.H.C for nail clipping & P.W.6 was the O.I.C & Investigation Officer of the case.
8. The defence in order to substantiate their plea got examined one witness. According to D.W.1 he went to the house of Premalata Khandaitaray at about 10.30 P.M. on 22nd November, 1995 & she told him that she had assaulted Kailash by means of a fire wood.
9. The Addl. Sessions Judge after vivid discussion of the evidence arrived at a conclusion that the prosecution had totally failed to prove its case against the accused & acquitted him.
The said Judgment as stated earlier is assailed by the State Government mainly on the ground that the Sessions Judge had wrongly discarded the statement made under Section 27 of the Evidence Act leading to discovery of weapon of offence & that the Sessions Judge should not have disbelieved the oral dyeing declaration said to have been made before P.Ws.10, 12, 13 & 14. It is further submitted by Learned Addl. Government Advocate that the Sessions Judge should have ignored the minor discrepancies in the evidence of trust-worthy witnesses & the order of acquittal suffers from the vice of non-consideration of material evidence.
10. All these submissions are strongly repudiated by Mr. J.M. Mohanty, Learned Counsel appearing for the Respondent. According to him the Sessions Judge had taken pain to discuss the evidence threadbare & the conclusions arrived at are not only just & proper but also cogent & do not suffer from any infirmity whatsoever the reasons assigned & the findings arrived at according to Mr. Mohanty are just & proper & the same not being absurd, this Court may not interfere with the order of acquittal.
11. Heard Learned Counsel for the parties at length. Admittedly the occurrence took place way back in the year 1995. Fourteen years have elapsed in the meanwhile. In the case of Bahal Singh v. State of Haryana reported in : 1976 SC 2032, the Supreme Court has clearly held that while dealing with an order of acquittal the Appellate Court should be slow in reversing the order of acquittal & unless there are good & strong grounds the acquittal should not be interfered with.
As a rule of prudence, it is observed by the Supreme Court that it is desirable that the High Court should give proper weight & consideration to the view taken by the Trial Court with regard to the credibility of the witnesses, the presumption of innocence in favour of the accused & the right of the accused to the benefit of any doubt. It should always be kept in mind that if the main ground on which the lower Court has based its order acquitting the accused is reasonable & plausible, the same should not demolished see Ram Kumar v. State of Haryana : 1995 SC 280.
It is also well settled that where the view taken by the Trial Court in acquitting the accused is extremely perverse & is not reasonably sustainable on the evidence on record, then the Appellate Court can interfere with such an order of acquittal & set at naught the injustice done to the parties: see Sham Kant v. State of Maharashtra : 1992 Cri.LJ 3243 (SC)
12. In the touch stone of the aforesaid principles of law, this Court once again meticulously went through the evidence. This is a case where no eye witness to the occurrence were available & the entire case depends on circumstantial evidence. In order to substantiate their case, the prosecution relied upon:
(a) the oral dyeing declaration of Kailash naming the accused as his assailants,
(b) discovery of the weapon of offence marked as M.O.IX at the instance of the accused form inside the Rice Huller &
(c) Kailash alleged to have been last seen in the company of the accused.
Perusal of the evidence of P.W.6, who had conducted the autopsy & the report (Ext.8) vis-a-vis the injury report Ext.13 & the evidence of P.W 9 the doctor who initially treated Kailash leads to an irresistible conclusion that the death of Kailash was due to massive haemorrhage caused to the brain tissues because of the assault. Thus, there is no doubt that the death was homicidal in nature.
13. The next point which needs to be considered is who was the author of such crime. In order to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established & the chain of evidence furnished by those circumstances, must be so far complete as not to leave any reasonable ground for a conclusion with the innocence of the accused. In other words, a conviction on circumstantial evidence cannot be based unless & until all the inferences to be drawn from the whole history of the case, point so strongly to the commission of the crime by the accused, that the defence theory appears on the fact of it, impossible or highly improbable.
14. Now coming to the case at hand, it appears that Kailash, before his death, had stated before P.Ws.10, 12, 13 & 14 that the Respondent has assaulted him. Surprisingly, all the aforesaid four witnesses are close relatives of the deceased. That apart, in the F.I.R. (Ext. 16) there was no whisper with regard to the fact that Kailash had stated the name of the accused before the aforesaid witness. In the absence of such fact, the Sessions Judge has rightly disbelieved the statement of P.Ws.12, 13 & 14. On perusal of the evidence of aforesaid witnesses, which is made in a parrot life fashion, this Court also feels that there was subsequent exaggeration with regard to the statement said to have been made by Kailash. P.W.15, the Investigation Officer, after referring to the statement made under Section 161 Cr.P.C. by P.W.10 deposed that the fact of disclosing the name of the accused by Kailash (deceased) was not stated by P.W.10 before him nor P.Ws.10, 12, 13 & 14 had disclosed about the said fact. Thus, it appears that the same had been super imposed at a later stage. It is no more res integra that a trust worthy dyeing declaration corroborated by surrounding circumstances is sufficient to support a conviction for murder. But then, when four witnesses out of five have been disbelieved on a particular aspect, it would not be prudent to rely upon or fall back upon the testimony of the fifth, more particularly when the statement is said to be made in presence of all of them. Therefore, the plea that the deceased made an oral dyeing declaration before P.Ws.10, 12, 13 & 14 naming the accused to be the assailant has been rightly discarded by the Sessions Judge.
15. According to the prosecution, the accused while in police custody made a statement (Ext. 17) & gave discovery of the weapon of offence before P.W.16, the I.O., in presence of the witnesses like Gobinda Ch. Subuidhi, Bichitra Kumar Sahbu & Bhagyadhar Sahu. Ext. 17 reveals that the accused has not signed the same. Absence of the signature or thumb impression of an accused on the discovery statement recorded under Section 27 of the Evidence Act throws a cloud of suspicion with regard to the authenticity & reliability of the disclosure statement, see Jackaran Singh v. State of Punjab : 1995 Cr.LJ. 3992. That apart, the person before whom the statement said to have been made have also not been examined.
16. So far as the 'last seen theory' is concerned, it appears that P.W.11 is the only the solitary witness to the said circumstantial evidence. According to P.W.11 while he was returning to his house at about 10.30 P.M. on 22nd November, 1995 he saw the accused peeping into the Mill house through the northern window. It is stated that thereafter he saw the accused going to the back side of the Mill house. Reading of the evidence of P.W.11 as a whole does not reveal that the accused & deceased were seen together at any time. On the other hand, he had only seen the accused peeping into the window of the premises where the accused use to reside. In such circumstances, the evidence of P.W.11 do not satisfy the basics of last seen theory.
17. Apart from the aforesaid discussion, the evidence of D.W.1 reveals that the defence has taken a plea that Kailash had gone to the house of Premalata Khandaitaray, the wife of Manguli Khandaitaray to demand money. In course of discussions, an altercation took place between them & Kailash Bhujabala (the deceased) assaulted Premalata Khandaitaray, who sustained injury. In retaliation Premalata Khandaitaray also assaulted Kailash Bhujabala on his head thereby causing fatal injury. The evidence of Premalata revealed that she had sustained some injuries on her person which corroborates the defence story.
18. Consideration of all these facts lead to an irresistible conclusion that the prosecution had left many gaps in between & was not able to establish the guilt of the accused to the hilt by adducing cogent evidence.
19. In view of the aforesaid discussions, this Court is not inclined to interfere with the order of acquittal passed by the Learned Sessions Judge that too after lapse of fourteen years.
Accordingly, the Government Appeal stands dismissed.
S.C. Parija, J.
I agree.