1. Order of conviction under Section 302 IPC against the accused in S.T. Case No. 109-A/34 of 1999-2000 is under challenge by the Appellant.
2. Appellant Malia @ Abhimanyu Das together with his parents, accused Chandramani Das and Hemalata Das and his elder brother Arun Das were charged for the offence under Sections 364, 302, 404, 201/34 I.P.C. on allegation that on 01.01.1999 at about 7 P.M. Abhimanyu kidnapped the minor girl, Bindu Nahak aged about 14 years from the lawful custody of her mother Parbati Nahak (P.W.5) and that said Bindu Nahak suffered a homicidal death and her dead body was found on 10.01.1999 and her ornaments were misappropriated by the accused persons by sharing common intention.
3. According to the case of the prosecution, accused Malia @ Abhimanyu Das aged about 19 years had illicit relationship with Bindu, a girl aged about 14 years. Mother of the Bindu was running a shop and having business transaction as well as social Courtesy extended to the accused persons. On 01.01.1999 in the evening hours accused Abhimanyu came and intimated P.W.5 to go to their house to collect paddy and P.W.5 proceeded for that purpose. After returned to her shop-cum-residence, she found her daughter missing from the house. When she did not find the daughter, she tried to locate accused Abhimanyu Das and she found him missing. She intimated this fact to her husband, Lambodar Nahak (P.W.12). They were in search of the Bindu and Abhimanyu and on 10.01.1999 P.W. 5 got information about floating of a dead body on the other side of the river 'Brahamani'. She went to ascertain and found that to be her daughter. Thereafter, P.W. 12 together with others also went and confirmed about the identity of the dead body of the deceased. The dead body had been put on a gunny bag fixed with a stone. There were injuries on her neck and other parts of the body. P.W. 12, thus, lodged F.I.R. (Ext.2) before O.I.C. Kaniha Police Station and set the law into motion. P.W. 20, i.e., Dr. Santilata Mohanty, who conducted autopsy on the dead body of the deceased confirmed about homicidal death of the deceased due to cut injury on and around the neck. In course of the investigation, P.W.19, the Investigating Officer recovered missing ornaments of the deceased on being produced by accused Chandramani. He also recovered the weapon of offence being concealed by accused Chandramani and he also recorded the confessional statement of accused Chandramani and Arun that they had concealed the dead body of the deceased. The seizure of the incriminating articles, i.e., blood stained wearing apparels etc were seized and ultimately charge sheet was submitted. Accused persons denied to the allegation and claimed for trial.
4. In course of the trial, prosecution examined as many as 20 witnesses. Amongst them P.Ws. 1, 3, 4, 6, 7, 9, 10, 11, 13, 14, 15, 16 are the villagers, who did not support the prosecution on the matter of interrogation of the accused, regarding recovery of incriminating materials, ornaments, wearing apparels etc and also the extra-judicial confession. P.W.s. 5 and 12 deposed about missing of the girl and also absence of the accused Chandamani from his house at the corresponding time. In that respect P.W.2 only stated that in that evening he had seen Abhimanyu @ Malia and Parbati, being present in the shop. As noted above, P.W.20 proved the post-mortem report, Ext.18 and his opinion report, Ext.17 stating M.O.1. as weapon of offence.
5. On assessment of such evidence, Learned Addl. Sessions Judge recorded the finding that there is no sufficient evidence to connect the accused Chandramani, Hemalata and Arun with the alleged crime for the offence under Sections 404, 364 and 201 I.P.C. and accordingly acquitted them. While accepting the evidence of P.W.20 about the homicidal death of the deceased and taking note of missing of the accused from the house during the relevant time and recovery of ornaments from the house where he resides, Learned Addl. Sessions Judge found that circumstantially it has been proved on record that accused is the author of the crime and accordingly he convicted the Appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life. He acquitted the accused from the charge on the other offences.
6. Challenging the aforesaid finding and order of conviction, Mr. Behera, Learned Counsel for the Appellant states that in the absence of direct or circumstantial evidence the order of conviction under Section 302 IPC as against the Appellant is bad in law and it be set aside. Learned Standing Counsel, however, defends the impugned Judgment on the ground that missing of the girl and absence of the Appellant from the house cannot be regarded as a coincidence and because of the unchallenged evidence of P.W.S about the illicit relationship between them valid presumption can be drawn about kidnapping of the girl by the accused Abhimanyu and thereafter since she suffered a homicidal death while in custody of the Appellant he being guilty of that offence punishable under Section 302 IPC.
7. Before dealing with the aforesaid argument, we take note of the evidence of P.W.20 and the post-mortem report. Accordingly to P.W. 20, death occurred eight to ten days before the date of post-mortem examination and the dead body was highly decomposed. He however found incised wound extending from left auxiliary bone up to the occiput, incised wound below the left ear loam and cutting of the neck below the mandible to the extent that only skin (old was there. He also found groove on the thighs, knee joint and fore-arms. Such grooves were post-mortem in nature. Undoubtedly, the aforesaid evidence proves of homicidal death of the deceased.
8. Reverting to the contention of the parties, we find that prosecution has not tendered any evidence whatsoever that Appellant was last seen with the deceased outside the house of the deceased. The incriminating articles seized are not at all connected with the accused, be it relating to wearing apparels or otherwise. The recovery under Section 27 Cr.P.C. are also not connectable to him, because such recovery were given by the co-accused and they were honourably acquitted. Thus, there is absolutely no evidence on record and it is only on surmises that Learned Addl. Sessions Judge recorded conviction against the Appellant. For reasons best known, prosecution did not appeal against the order of acquittal of at least accused Chandramani, since according to the prosecution recovery under Section 27 was made at his instance. Under such circumstance, the Appellant is found not guilty of the offence under Section 302 I.P.C. Accordingly, the order of conviction is set aside and the Criminal Appeal is allowed.
9. Since the Appellant is in the jail custody, therefore, we direct that he be set at liberty forthwith, if his detention is not required in connection with any other criminal case.