IMPORTANT POINTS
(1) Last seen theory – Lapse of time between point when accused and deceased were seen together and when deceased is found dead, ought to be minimal so as to exclude possibility of any intervening event involving death at hands of some other person.
(2) Where presence of independent witnesses is on record and prosecution relies upon it and evidence of witness receives importance, absence of examination of such witnesses raises strong eye brow to prosecution case.

JUDGMENT

Chittaranjan Dash, J.—Heard learned counsels for the parties.

2. This appeal is directed against the judgment and order dated 24th February, 2005 passed by learned Adhoc Additional Sessions Judge, FTC, Champua in S.T. Case No.91/54 of 2004 arising out of G.R. Case No.229 of 2003 corresponding to Joda P.S. Case No.90 of 2003 wherein the four accused persons having faced trial in the charge under Section 396 of the Indian Penal Code (hereinafter called “the IPC”) found guilty, convicted thereunder and sentenced to undergo rigorous imprisonment for life.

3. While all the four accused persons being Appellants preferred the present JCRLA, Appellant No.1, namely, Jatindra @ Bui Patra and Appellant No.4, namely Dukhabandhu Patra expired in the meantime. The appeal, therefore, is in respect of Appellant Nos.2 and 3, namely, Kuni Das @ Patra and Kapila Patra respectively. During course of trial, for the absence of Appellant Kuni Das @ Patra, her case was split up and S.T. Case No.96/88 of 2004 was numbered against split up record. All the four Appellants, however, faced the charge on 29th September, 2004. While Appellants Jatindra @ Bui Patra, Kapila Patra and Dukhabandhu Patra faced the charge in S.T. Case No.91/54 of 2004, Appellant Kuni Das faced the charge on the same day in S.T. Case No.96/88 of 2004. Both the above referred sessions trial cases having tried together, disposed of by the common judgment as referred to above in S.T. Case No.91/54 of 2004 as impugned herein.

4. The prosecution case, in short, is that a report was lodged by the Ward Member of village Patuapodar (P.W.1) under Joda Police Station in the district of Keonjhar to the effect that on 24th June, 2003, Tuesday at about 7.00 a.m. while the villagers of Patuapodar, namely, Smt. Rahas Naik and Smt. Hiramani Naik had been to the jungle for collection of “Tula” the seed of mahua flower detected an unknown dead body lying by the side of the road leading from Malda to Kasia. On such information, she called the gentlemen of the village as well as the Grama Rakhi, namely, Bhramar Dhibar and visited the spot where the dead body was detected. Having seen the dead body, she lodged the report before the Bameri Outpost whereupon the UD Case No.8 of 2003 was registered and enquiry was taken up.

5. In course of enquiry in the UD case, the Police detected one pocket diary from the dead body of the deceased with address Krushna Chandra Mohanta son of late Trilochan Mohanta of Pabitra, Keonjhar Town so also some phone numbers noted in the diary. The police gave information to the family members of said Krushna Chandra Mohanta, pursuant whereof the younger brother of Krushna Chandra Mohanta namely Umesh Chandra Mohanta along with Somanath Deo, Pabitra Kumar Rout and 4 to 5 persons arrived at the spot and identified the dead body of the deceased to be that of Chhotu @ Krushna Chandra Mohanta son of late Trilochan Mohanta of village Pabitra in the district of Keonjhar. It was also ascertained that on 22.06.2003 in the afternoon at about 4.30 p.m. one female with thin built, tall and fair complexion lady and two male persons with black complexion, oval shape, height 5.3” strong built and another 5.6” medium built contacted Krushna Chandra Mohanta, the deceased driver –cum- owner of Jeep bearing Regn. No.ORJ-5823 to go to Dubuna mines via Fhuljhar, Dudhpusi and Anra village. Krushna Chandra Mohanta proceeded with the above three persons in his Jeep bearing Regn. No.ORJ-5823 on hire and since then did not return with jeep to his home. During course of enquiry, the Police held inquest over the dead body of the deceased in presence of the witnesses, found the comb, two numbers of cassettes and other incriminating materials from the spot sent the dead body to government hospital, Barbil for post mortem. Received the post mortem report in which the medical officer opined the cause of death of the deceased might be due to head injury causing concussion/laceration of brain and intr