Dusasan Panda and 3 ors. Vs. State of Orissa - Court Judgment

A.S. Naidu, J.

1. The Appellants seek to assail the Judgment & order of conviction dated 1st March, 1996 passed by Learned Addl. Sessions Judge, Balasore in S.T. Case No. 19/52 of 1994 convicting them for commission of offences under. Sections 302, 201/34, IPC & sentencing each of them to undergo rigorous imprisonment for life under Section 302/34, IPC & further imprisonment of two years for the offence under Section 201/34, IPC. The sentences were directed to run concurrently.

2. Sajani Naik (P.W.15) lodged an F I.R. at Simulia Police Station on 5th August, 1993 alleging that on 3rd August, 1993 her son Rajendra was assaulted by the accused Bhaskar Naik in a meeting convened in the village on the ground that he had assaulted the mother of Dasarathi Naik. It is alleged that on account of previous enmity arising out of land disputes, accused Bhaskar assaulted her son, making false allegations against him, though he was innocent. In the meeting he had also threatened to kill Rajendra. On the night of 5th August, 1993 there was a festival near deity Mangala. Her son Rajendra went to the 'Mela' along with the accused Bhaskar in spite of the protest made by the informant. Thereafter, he did not return home. She searched for her son, but in vain. In the morning, the dead body of her son was found floating in Khajuria tank. After coming to know about the sa.id fact, she came to the police station & lodged the F.I.R.

3. The O.I.C., Simulia Police Station registered a case & took up investigation. In course of investigation he visited the spot, examined the witnesses, caused inquest over the dead body & sent the same for post-mortem examination. As the accused Dhaneswar & Dusasan were absconding, they were arrested at a later date. After completing all paraphernalia, charge-sheet was submitted against the accused persons. Learned S.D.J.M. on being satisfied that a prima facie case was made out, took cognizance of the offence & committed the case for trial to the Sessions Court.

4. The plea of the defence was of complete denial. It is alleged that in view of previous enmity, they have been falsely implicated.

5. To substantiate their case, prosecution got examined 21 witnesses. No witness was examined on behalf of the defence.

6. Admittedly, there was no eye witness to the occurrence & the entire prosecution case hinges on circumstantial evidence. Learned Sessions Judge after discussing the evidence of all the witnesses, came to the conclusion that the prosecution was able to establish the charges against the accused persons beyond all reasonable doubt & convicted them for commission of offence Under Sections 302, 201/34, IPC.

7. Mr. B. Panda, Learned Counsel appearing for the Appellants strenuously placed all the evidence before this Court & submitted that in absence of convincing legal evidence, Learned Sessions Judge erroneously convicted the Appellants & the conclusions arrived at are only on the basis of surmises & conjectures. According to Mr.Panda, in absence of any direct evidence to connect the Appellants with the crime, the Court below should have disbelieved the prosecution case. The circumstantial evidence upon which the prosecution relies upon, according to Mr. Panda, are neither reliable nor capable of supporting exclusive hypothesis that the accused persons are only responsible, & as such the conclusions arrived at by the Learned Addt. Sessions Judge cannot be sustained According to Mr.Panda, there is neither any convincing & cogent evidence nor the evidence produced is reliable, inasmuch as the material witnesses have not supported the prosecution case & most of them have turned hostile, as such, in absence of reliable corroboration, the Court below should not have convicted the Appellants relying upon the sole testimony of the informant, P.W.15.

8. Repudiating the aforesaid submissions of the Learned Counsel appearing for the Appellants, Mr.Patnaik, Learned Counsel appearing for the State submitted that the evidence of the doctor clearly reveals that anti-mortem injuries were noticed on the dead body, which was found floating in the tank. That apart, the deceased was last seen with the accused persons. Reliable independent evidence is also available in support of the fact that the deceased was with the accused persons till late night. Learned Addl. Sessions Judge has vividly discussed evidence & analysed the same with all pros & cons. The conclusions arrived at are just & proper & it is a fit case where the order of conviction may not be interfered with.

9. To appreciate the inter se submissions, this Court once again meticulously went through the evidence both oral & documentary. As stated earlier, there is no eye witness to the occurrence. The circumstances reveal that enmity existed between the families of the accused persons with Rajendra, but then Rajendra is an young boy & as it appears, was little mischievous & in the habit of playing pranks which caused inconvenience & embarrassment to others. The body of Rajendra was found floating in the rank in the morning of 5th August, 1993. The evidence of the doctor (P.W.14) coupled with the post mortem report reveals that the death was by shock & coma due to intracranial haemorrhage. The doctor did not notice any feature of drowning. The injuries found on the body were opined to be anti-mortem in nature. P.W.14 has been cross-examined at length, but nothing could be elicited from him to disbelieve his statement. Thus, it is clear that the death of Rajendra was not due to drowning, but the same was a homicidal one.

P.W.15. is the mother of Rajendra & the informant. She has clearly stated about the previous enmity between the accused persons & Rajendra due to certain stray incidents, which took place few days prior to the incident. She also stated that land disputes are existing between the two families & as such the accused persons bore grudge against her son Rajendra. She had also stated that the accused Dasarathi in the past had threatened to kill Rajendra at all cost. According to her on the night of occurrence, her son went along with the accused Bhaskar to the temple of the deity Mangala in spite of her protest & thereafter, he did not return & on the next day morning, his dead body was found floating on the pond.

P.W.5 is an independent witness. According to him, on the night of occurrence at about 12 mid night, he heard the shouts of accused Dusasan Panda from the side of 'Khajuria pokhari' (pond). He along with a boy went near 'Khajuria pokhari' & asked the said accused person why he was shouting. In reply, he told them to verify the sound inside the tank, but then he could not notice anything & returned back. P.W.17 is an independent witness. According to him, he saw Rajendra near the temple of the deity Mangala Thakurani on the night of the occurrence. In the night of the occurrence at about 11 P.M., he escorted the wife of Bairagi Naik to her house. After leaving her he was returning back at about 12 mid night. On the way he saw Rajendra (deceased) & the accused near a tube-well. Dusasan was holding 'Bhoga Mathia' & Rajendra (deceased) was holding a gas light. He could identify them in the moon light. Apart from the aforesaid witnesses, there is no other evidence connecting the accused persons with the alleged crime. It appears, all other witnesses were villagers, who did not support the prosecution case & were declared hostile.

10. To establish the case on the basis of circumstantial evidence, the prosecution has to satisfy the following tests.

(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently & firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards guilt of the deceased.

(iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused & none else, &

(iv) The circumstantial evidence in order to sustain conviction must be completed & incapable explanation of any other hypothesis than that of the guilt of the accused & such evidence should only be consistent with the guilt of the accused but should be inconsistent with his innocence.

11. In the case Sharad Birrdhichand Sarad v. State of Maharasthra : AIR 1984 SC 1622, while dealing with circumstantial evidence, the Supreme Court held that onus was on the prosecution to prove that chain is complete.

12. Examining the facts of the present case in the touchstone of the aforesaid principle, it appears that the prosecution could establish prior enmity between the accused & the informant & her son. It appears that on earlier occasion, the accused had threatened to kill Rajendra, who was punished in the village meeting. On the date of occurrence, it is evident from the evidence of P.W.15 that in spite of her protest, her son Rajendra left with the accused to see 'Mela' of 'Mangala Thakurani'. He returned to the house & again went back in the late night. Deceased Rajendra was seen with Bhaskar as would be evident from the evidence of P.W.17. According to P.W.5, he along with another boy heard some cries & went near the tank, where he found that accused Dusasan was standing in the ridge of the tank & was shouting. On being questioned as to why he was shouting, he told him to hear the sound coming from underneath the water. On the next day morning the dead body of Rajendra was found floating. Added to the aforesaid facts, accused was last seen with Dusasan as would be evident from the evidence of P.Ws.17 & 5. The last seen theory always comes into play where the time gap between the point of time when the accused & deceased were seen last alive & when the deceased was found dead is so small that probability of any person other than the accused being the author of the crime becomes impossible. In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P. : 2006 (10) SCC 172, the Supreme Court observed:

The last seen theory, furthermore, comes into play where the gap between the point of time when the accused & the deceased were last seen alive & the deceased found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.

13. In the case in hand, as stated earlier, from the evidence of P.W.15. coupled with the evidence of P.Ws.5 & 17, it unerringly appears reveal that Rajendra was last seen with the accused Dhusasan. In fact, P.W.17 has seen him much after the mid-night.

14. In addition to the discussions made above, perusal of the evidence leads to the following conclusions:

(a) Motive of the accused Dhusasana is apparent from the previous dispute pending between the parties & the incident which took place in the village meeting.

(b) The deceased was last seen with Dhusasana as would be evident from the evidence of P.Ws.15, 17 & 5.

(c) Admittedly injuries were found on the body of the deceased by the doctor, P.W.14, who conducted autopsy. It was opined that the same were anti mortem in nature.

(d) The accused Dusasan was found near the tank from where the dead body was recovered at late night of the date of occurrence.

(e) The accused Dhaneswar & Dusasan were found absconding from the village after the occurrence.

15. This Court is therefore satisfied that enough materials are available to point finger at Appellant No. 1 Dusasan Panda, but then no reliable evidence has been adduced to establish the involvement of other three accused persons. Considering the said facts, after a threadbare scrutiny of the evidence, this Court finds that the conclusions arrived at by the Learned Addl. Sessions Judge convicting the Appellant Nos. 2, 3 & 4 cannot be sustained in the eye of law & as their involvement is shrouded with cloud of suspicion & they are entitled to the benefit of doubt. Accordingly, we set aside their conviction under Section 302/34, IPC & under Section 201/34, IPC & acquit accused Dasarathi, Bhaskar & Dhaneswar under Section 235(1), Cr.P.C.

16. So far as Appellant No. 1 - Dusasan Panda is concerned, we are satisfied that sufficient evidence is available against him to connect with the alleged crime. But then, it appears that there was previous enmity inter se between the parties. It further appears that on the date of occurrence, the said accused did not have any pre- meditated intention to murder Rajendra. There is no eye witness to the occurrence to establish as to why & how the assault was made. Considering all these facts & circumstances, this Court feels that this is a fit case where the Appellant, who is not a hardened criminal, should be convicted under Section 304, Part-II, IPC. Accordingly, we also set aside the order of conviction passed by Learned Sessions Judge so far as accused Dusasan is concerned & convict him under Section 304, Part-II, IPC & sentence him to undergo rigorous imprisonment for a period of seven years & impose a fine of Rs. 2,000 (two thousand), in default to undergo further imprisonment for a period of two months. It is needless to say that the period of imprisonment already undergone by accused Dusasan shall be treated as set off. His conviction under Section 201/34, IPC is also set aside.

17. With the aforesaid modification of sentence, the appeal is allowed in part.

S.C. Parija, J.

I agree.