Chandramohan Sahu Alias Chandramohan Saw Vs. State of Orissa - Court Judgment

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criminal - circumstantial evidence - sections 302,392, 397 and 468 of indian penal code 1860 (ipc) - appellant committed murder after committing robbery - session court convicted appellant under sections 302,392, 397 and 468 of ipc on basis of circumstantial evidence - whether session court rightly convicted appellant under sections 302,392, 397 and 468 of ipc on basis of circumstantial evidence or not? - held, it is clear that appellant was possession of truck with consigned tyres but appellant does not explain manner of acquiring possession - on other hand conduct-wise appellant wanted to tamper with truck in gait and colour and also forged driving licence, therefor, conclusion recorded by session court that appellant was instrumental in committing robbery so also murder of deceased persons and retaining possession of truck and consigned articles is right - chain of every circumstances proves guilt of appellant beyond shadow of doubt - therefore, appellant was rightly convicted under sections 302, 392 and 468 of ipc - so far as offence under section 397 of ipc is concerned, it provides for punishment for attempting to cause bodily injury or attempting to cause murder in course of committing robbery - here attempt was complete when bodily injury resulted in death of deceased persons - under such circumstance, provision under section 302 of ipc comes into picture and section 397 recedes back - appeal allowed in part in respect of acquittal under section 397 of ipc - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 8. learned standing counsel on the other hand argues that the evidence adduced by the prosecution and not challenged by the accused-appellant clearly establishes that he came to possess the truck with the consigned tyres and when he does not explain the manner of acquiring possession but on the other hand conduct-wise he wanted to tamper with the truck in gait and colour and also forged the driving licence, therefore, learned sessions judge was justified in finding all the circumstances to be completing the chain of circumstance to prove the charge under sections 302/392/468, i. circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. state of karnataka 2007crilj1792 .(paragraph 24 of the cited judgment) the reported case is distinctly different on facts from the facts and circumstances of the present case, inasmuch as, in that case there was no clear evidence about identity of the dead body so as to strengthen the circumstance of last seen theory. besides that the evidence of the star witnesses like p. justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. if a case is proved perfectly, it is argued that it is artificial; state of maharashtra 1973crilj1783 :the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. but when a case rests on circumstantial evidence, the court considering it should not be too much technical so as to fail in dispensing justice, be it to the accused or the prosecution, i. once that be so, then because of the other admitted facts (as already noted in a preceding paragraph) it becomes easier for the court to hold that the chain of circumstances is complete so as to prove the charge of murder as well as the act of robbery and the act of forgery.1. heard further argument from the parties, hearing is concluded and the judgment is as follows.2. appellant challenges the order of conviction under sections 302/392/397/468, i.p.c. and the respective sentences of imprisonment for life, rigorous imprisonment for 14 years, rigorous imprisonment for seven years and rigorous imprisonment for three years with a direction to serve such sentences consecutively, as per the impugned judgment delivered on 16-3-1998 by learned sessions judge, mayurbhanj at baripada in s.t. case no 113 of 1995.3. the following facts emerging from the trial court's record are mostly not in dispute.(i) a full-body truck bearing registration no. br 16-a-0795 was belonging to satwant singh (p.w. 14). under hire purchase agreement sudam singh (hereinafter referred to as deceased no. 1) had taken possession of that truck and was driving the same.(ii) deceased no. 1 (sudam singh), dharmadeo singh yadav (deceased no. 2) and bhikari pandit (deceased no. 3) had gone from bihar to ichhapur border (border between orissa and andhra pradesh) and returned with a consignment of 130 numbers of 'vikrant' tyres. amongst them deceased no. 2 was a co-driver with deceased no. 1 and deceased no. 3 was the helper of the truck.(iii) in the night between 7/8-1-1995 the truck went via jamsola check gate (border between orissa and bihar (presently in jharsuguda)). during the morning hours of 8-1-1995 the dead bodies of the aforesaid three deceased persons were found lying by the side of the national highway no. 5 at ward no. 24 of baripada town. khirod kumar das (p.w.i) lodged written report, ext. 1 (f.i.r.) in that respect and the i.i.c. of baripada town p.s. took up the case for investigation.(iv), since there were injuries on the dead bodies, after conducting inquest they were sent, for post-mortem examination and dr. anujram padhi (p.w. 11) conducted autopsy on the three dead bodies. he found multiple injuries, both lacerated and incised, on the dead bodies of the deceased persons including cutting of the neck of two of the deceased persons, as per the post-mortem reports, exts. 22, 21 and 23 and opined that each of them suffered homicidal death.(v) identity of deceased no. 2 could be traced from the driving licence available with the dead body and thereafter in course of further investigation it could be ascertained that the aforesaid three deceased persons with the consigned 'vikrant' tyres were returning to destination, i.e., jamshedpur. one of the brothers of deceased no. 1 so also the erstwhile owner rajesh singh (p.w.8) came and identified the dead bodies and took delivery of the dead bodies. p.w. 14 and the other brother of deceased no. 1 namely raj kishor singh (p.w. 13) also came and subscribed to the investigation for detection of further clues.(vi) on 9-1-1995 the very same truck with a changed gait up, viz., reduction of the size of the 'dala' from full-body to half-body together with change of colour of the vehicle was found moving, creating suspicion. when it was chased by police along with local people, the accused-appellant with the truck ran away with great speed, but about five to six kilometers thereafter the truck capsized. that resulted in further investigation to probe further documents and circumstances to the effect that the vehicle driven by deceased no. 1 was put in the garage of p.w. 17 chutu sharma by the appellant so as to make it half-body and p.w. 18 kailash prasad gupta was engaged as the painter to change the colour of the vehicle. not only some of the consigned tyres were seized from the truck but also a few of them kept concealed by the appellant were recovered and seized at the instance of the appellant.(vii) the written instruction given by the appellant for change of the gait of the truck including the registration no. br-14a-0786 and the resultant investigation seeking the opinion of the handwriting expert could strengthen the investigation about complicity of the appellant in the alleged crime. thus, on completion of the investigation, charge-sheet was submitted against the appellant and three others.(viii) in course of the trial, since no evidence could be adduced by the prosecution to connect the remaining accused persons with the crime, therefore, after closure of the prosecution case those accused persons were examined under section 313, cr.p.c. but acquitted under section 232, cr.p.c. though the accused was provided with opportunity to adduce defence evidence, but in furtherance of his plea of denial appellant did not adduce any defence evidence.4. keeping in view the nature of the allegation of committing robbery of the vehicle and the articles therein, after committing murder of the deceased persons and attempting and succeeding in forging the driving licence and changing the body and colour of the vehicle so also putting new registration number, all the accused persons were charged for the offence of committing murder punishable under section 302/34 and 120-b, i.p.c. however, appellant was individually charged under sections 302/392/397 and 468, i.p.c. as noted earlier, accused denied to the charge and claimed for trial.5. to substantiate the charge by circumstantial evidence, prosecution examined as many as 22 witnesses and relied on various documents marked exts. 1 to 121 and also the exhibited material objects, m.os. i to vi, i.e., the wearing apparels.6. on assessment of the evidence, learned sessions judge held that-(i) the report of the handwriting expert is sufficient to prove that the instruction, which was scribed in ext. 27, was that of the appellant with a direction to p. ws. 17 and 18 to change the gait of the truck.(ii) evidence of p.ws. 17 and 18 prove that accused came with the truck after the occurrence and delivered the same for the changes.(iii) while running the truck on 9-1 -1995 not only accused was found in possession of some of the stolen 'vikrant' tyres but also as per the seizure lists, ext. 6 and 7 he gave discovery of tyres from the place of concealment in the, village of his father-in-law.(iv) accused did not explain as to how he came into possession of the truck and tyres, but on the other hand the truck and the tyres were removed after the robbery and murder and, therefore, from such circumstances and in view of section 114, illustration (a) of the evidence act, either the accused committed robbery and possessed the property or else he is the receiver of the stolen properties. learned sessions judge thus drew presumption that accused acquired the properties by robbery. since robbery could not have been possible without committing murder, therefore, circumstantially the accused-appellant is responsible for the homicidal death of the deceased persons. recording such findings learned sessions judge convicted and sentenced the accused-appellant in the manner already indicated.7. learned counsel for the appellant argues that the golden principle in criminal jurisprudence to decide a case on circumstantial evidence was lost sight by the trial court, in as much as all the aforesaid circumstances put together do not prove that accused-appellant as the author of the injuries, which caused homicidal deaths of the deceased persons or that he looted the truck with properties (committed robbery) by application of force, and under such circumstance conviction for the offence under sections 302 and 392, i.p.c. should be set aside. he further argues that offence under section 397, i.p.c. is not at all made out when the attempt to commit murder was completed on the death of the deceased persons and, therefore, conviction under section 397, i.p.c. is illegal. learned counsel for the appellant further argues that in the absence of production of registers by p.ws. 17 and 18, their evidence remains uncorroborated about the appellant bringing the truck to the premises of p.w. 17 for change of the body and colour of the truck and, therefore, benefit arising thereof should have been given to the appellant in respect of the offence under section 468, i.p.c. in furtherance of that argument, relying on the case of hatti singh v. state of haryana : 2007crilj2726 , learned counsel for the appellant argues that the order of conviction be set aside and the appellant be acquitted of all the charges.8. learned standing counsel on the other hand argues that the evidence adduced by the prosecution and not challenged by the accused-appellant clearly establishes that he came to possess the truck with the consigned tyres and when he does not explain the manner of acquiring possession but on the other hand conduct-wise he wanted to tamper with the truck in gait and colour and also forged the driving licence, therefore, learned sessions judge was justified in finding all the circumstances to be completing the chain of circumstance to prove the charge under sections 302/392/468, i.p.c. however, he concedes to the argument of the appellant's conviction under section 397, i.p.c. as unwarranted. in course of submission, learned standing counsel refers to each item of evidence in furtherance of his contention that the chain of circumstances is complete to prove the charge of murder, robbery and forgery. he further argues that acquittal of the co-accused due to lack of evidence cannot be a ground to grant the same benefit to the appellant. in support of that contention he relies on the case of sucha singh and anr. v. state of punjab : 2003crilj3876 .9. in the case of hatti singh : 2007crilj2726 (supra) the apex court has propounded that-there cannot be any doubt that conviction can be based on circumstantial evidence, but therefore the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and is inconsistent with his innocence. circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. they have to be taken into consideration cumulatively. they must be able to conclude that within all human probability the accused committed the crime. see geejaganda somaiah v. state of karnataka : 2007crilj1792 . (paragraph 24 of the cited judgment)the reported case is distinctly different on facts from the facts and circumstances of the present case, inasmuch as, in that case there was no clear evidence about identity of the dead body so as to strengthen the circumstance of last seen theory. besides that the evidence of the star witnesses like p.ws. 10 and 11 were doubted in part by the trial court, as a result of which notwithstanding recoveries made from the co-accused persons, they were acquitted. such is not the position of evidence in the present case. the entire circumstantial evidence available on record has concentrated on the appellant and not the co-accused persons who were granted acquittal under section 232, cr.p.c.10. in the case of sucha singh : 2003crilj3876 (supra) the apex court observed that-exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. letting guilty escape is not doing justice according to law. see gurbachan singh v. satpal singh and ors. : 1990crilj562 . prosecution is not required to meet any and every hypothesis put forward by the accused. see state of u.p. v. ashok kumar srivastava : [1992]1scr37 . a reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. it must grow out of the evidence in the case. if a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. one wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. proof beyond reasonable doubt is a guideline, not a fetish. see inder singh and ann v. state (delhi admn.) : 1978crilj766 . vague hunches cannot take place of judicial evaluation. 'a judge does not preside over a criminal trial, merely to see that no innocent man is punished. a judge also presides to see that a guilty man does not escape. both are public duties.' (per viscount simon in stirland v. director of public prosecution 1944 ac (pc) 315 quoted in state of u.p. v. anil singh : 1989crilj88 . doubts would be called reasonable if they are free from a zest for abstract speculation. law cannot afford any favourite other than truth.in matters such as this, it is appropriate to recall the observations of this court in shivaji sahebrao bobade v. state of maharashtra : 1973crilj1783 :.the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. the judicial instrument has a public accountability. the cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.....the evil of acquitting a guilty person light-heartedly as a learned author clanville williams in 'proof of guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. if unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. thus two frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless.....a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....the position was again illuminatingly highlighted in state of u.p. v. krishan gopal : 1989crilj288 . similar view was also expressed in gangadhar behera and ors. v. state of orissa : 2003crilj41 .(paragraphs 20, 21 and 22 of the cited decision)11. it is the trite law that a case based on circumstantial evidence should be considered systematically and diligently to find out if the fact emerging from each of the circumstances conjointly read, whether that proves the guilt of the accused or leads to any other conclusion through a valid and legal presumption. on a conspectus of the facts involved, evidence available and the contentions advanced by the rival parties, we consider the evidence in detail and the circumstances emerging therefrom to satisfy ourselves if the chain of circumstance unfailingly proves the guilt of the accused by satisfying the ingredients thereof and ultimately we are in agreement with the conclusion recorded by the trial court that appellant was instrumental in committing the robbery so also the murder of the deceased persons and retaining possession of the truck and the consigned articles. the same has to be explained with due reference to the argument of both the parties.12. non-production of the registers by p.ws. 17 and 18 does not shake their credibility on the face of the volumes of documents proved in record relating to the factum that it is the appellant who carried the truck and got effected the changes of its body, fixing of new registration number and re-colouring it with different colour. in that respect evidences of p.ws. 17 and 18 have remained unshaken notwithstanding probing and lengthy cross-examination. that circumstance being proved by the prosecution, thereafter presumption under section 114(a) flows in favour of the prosecution, which was to be rebutted by the accused by direct or circumstantial evidence so that no adverse inference is taken against him. in course of the cross-examination of the witnesses accused did not bring any material evidence from the mouth of any of the witnesses so as to explain about the manner in which he came into possession of the truck and the tyres. in course of his examination under section 313, cr.p.c. he did not explain that aspect and, above all, once the truck was coming from his custody to the premises of p.w. 17, he did not adduce any defence evidence to disprove that circumstance or to explain the circumstance under which it came into his possession. the time proximity between the offence of murder committed and entry of the truck into the premises of p.w. 17 is very close, in as much as the occurrence took place in the night between 7th/8th january, 1995 and the truck entered into the premises of p.w. 17 on 8th january, 1995 and was already remodelled by 9-1 -1995. therefore, once the loaded truck came to the possession of the appellant, then, from the evidence on record two valid presumptions are available, viz., (i) that he killed the deceased persons, threw them on the side of the road and took away the truck with tyres loaded on it, or (ii) such crime was committed by some other miscreants, but appellant received the truck and tyres as the receiver of the stolen property. as noted earlier, in this case accused has neither adduced any evidence nor brought anything from the mouth of the witnesses to establish his conduct as the receiver of the stolen property. once that presumption is wiped out, the other presumption flowing under section 114 not only becomes prominent but also becomes absolute.13. if direct evidence is available in proof of a crime and that is not laid before the court and the circumstances are not satisfactory in that respect, then the court may draw adverse inference against the prosecution. but when a case rests on circumstantial evidence, the court considering it should not be too much technical so as to fail in dispensing justice, be it to the accused or the prosecution, i.e., to the victims of the crime. balance is to be maintained while considering the circumstantial evidence. at all such times the pole-star principle of completing the chain of circumstance pointing to the guilt or innocence of the accused has to be borne in mind and not to be departed from. while adopting such a course from various exhibited documents and oral evidence in detail considered by the trial court, we find that not only the accused acquired possession of the vehicle and delivered it to the garage of p.w. 17 on 8th of january, 1995 but also he moved with that truck with part of the consigned articles and could be caught while running away with the truck on 9-1-1995. that not only adds to the circumstances but also points towards the guilty conduct of the accused. once that be so, then because of the other admitted facts (as already noted in a preceding paragraph) it becomes easier for the court to hold that the chain of circumstances is complete so as to prove the charge of murder as well as the act of robbery and the act of forgery.14. so far as the offence under section 397, i.p.c. is concerned, it provides for punishment for attempting to cause bodily injury or attempting to cause murder in course of committing robbery. here the attempt was complete when the bodily injury resulted in death of the deceased persons. under such circumstance the penal provision under section 302, i.p.c. comes into picture and section 397 recedes back. learned sessions judge did not take note of this legal implication. therefore, we agree with the learned counsel for the appellant and set aside the order of conviction of the appellant for the offence under section 397, i.p.c.15. so far as other offences are concerned, as noted above, we find sufficient justification in the findings recorded and sentences imposed by the trial court. therefore, we do not disturb the order of convictions or the sentences for the offence under sections 302, 392 and 468, i.p.c. at the same time we find it not reasonable to direct to run the sentences consecutively, because the punishment of imprisonment for life covers the whole length of time. accordingly, we direct that the sentences imposed by trial court for the aforesaid three offences are to run concurrently.accordingly, the order of conviction lender sections 302/392/468, i.p.c. is maintained, but the conviction under section 397, i.p.c, is set aside and the jail criminal appeal is allowed in part.