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2016 Supreme(Ori) 331
IN THE HIGH COURT OF ORISSA, CUTTACK
I. MAHANTY, S.K. SAHOO, JJ.
Gedu @ Parameswar Patra - Appellant
Versus
State of Orissa - Respondent
JCRLA No. 13 of 2004
Decided On : 13-07-2016
For the Appellant : Miss. Bijaya Laxmi Tripathy, Miss. Nandini Tripathy, Miss. Binapani Tripathy
For the Respondent: Mr. Arun Kumar Mohanty
Headnote:1. CIRCUMSTANTIAL EVIDENCE - While assessing a case based on circumstantial evidence, the Court has a duty to see that the circumstances on which the prosecution relies must be proved beyond all reasonable doubt and such circumstances must be capable to giving rise to an inference which is inconsistent with any other hypothesis except the guilt of the accused - It is only in such an event that the conviction of the accused, on the basis of the circumstantial evidence brought by the prosecution, would be permissible in law.
2. CRIMINAL TRIAL - In a case based on circumstantial evidence motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case - Absence of motive, however, puts the Court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjectures do not take place of legal proof.
3. CRIMINAL TRIAL - Last seen theory - The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased was found dead was so small that possibility of any person other than the accused being the author of the crime becomes impossible.
4. CRIMINAL PROCEDURE CODE, 1973 - Sec. 313 - When the attention of the accused is not drawn to the incriminating circumstances during his examination under the Section, such circumstances cannot be used against him - Examination of an accused is not a mere formality - It has practical utility for criminal Courts in affording opportunity to the accused to explain the incriminating circumstances.
5. CRIMINAL TRIAL - Suspicion, howsoever strong or emotional consideration cannot take the place of proof - Fouler the crime, the higher should be the proof - In the absence of legal proof of a crime, there can be no legal criminality - Moral conviction regarding the involvement of the appellant in the commission of crime cannot be a substitute for a legal verdict based upon facts and law.
6. PENAL CODE, 1860 - Sec. 302 - Conviction under - Appeal - Appreciation of evidence - Nature of death of the deceased was homicidal in nature - Entire prosecution case hinges on circumstantial evidence - Prosecution has failed to establish any motive on the part of the appellant to commit the crime - Last seen theory as advanced by the prosecution miserably fails - In absence of any other cogent materials, in view of the flimsy evidence of the I.O. the absconding of the appellant cannot be said to be sufficient to establish the guilt of the appellant - Assessment of evidence has not been done in accordance with law by the learned Trial Court and basing mainly conjecture and suspicion, the appellant was found guilt - Held, case against the appellant has not been established by the prosecution beyond all reasonable doubt - Appellant acquitted of the charge under the Section.
JUDGMENT :
S.K. Sahoo, J.
The appellant Gedu @ Parameswar Patra was charged under section 302 of the Indian Penal Code by the learned Sessions Judge, Sundargarh in S.T. Case No. 215 of 1999 for committing murder of Smt. Saradha Singh (hereafter ‘the deceased’) on 27.11.1998 in village Birtola under Banki Police Station in the district of Sundargarh.
The learned Trial Court found the appellant guilty under section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo further rigorous imprisonment for one year.
2. The prosecution case, as per the First information report (Ext.3) presented by Lalbahadur Singh (P.W.1), the husband of the deceased on 28.11.1998 before the officer in charge, Banki Police Station is that he was running a tea stall at Birotola village Square where he was also residing with the deceased. On 27.11.1998 at about 8 p.m. the informant and the deceased took their supper and the deceased went to sleep inside the thatched house -cum-tea stall. The informant and co-villager Suguna Munda (P.W.3) were warming themselves in front of the tea stall by sitting by the side of the fire. At about 10 p.m. the appellant arrived there and sat with them. Sometimes thereafter, the informant and P.W.3 left the spot to join their duties as watchmen. At that time the appellant was sitting near the house of the informant. On the next day morning at about 6 a.m. when the informant returned from his duty, he found that the deceased was not present in the house and the bed was lying as such. At that point of time, Bhagirathi Nayak (P.W.4) who was a neighbour of the informant came there and informed him that the dead body of a woman was lying in the front courtyard of his house. The informant went there and found the deceased lying dead with bleeding injuries on different parts of her body. He also found dragging mark from his house to the place of occurrence and the saree of the deceased was lying at a separate place. The informant suspected that after his departure in the night, the appellant might have committed murder of the deceased and dragged her from the house and threw the dead body in the front courtyard of the house of P.W.4 and absconding. It is also indicated in the First Information Report that the appellant was involved in a murder case and was acquitted just a month back.
On the basis of the First Information Report, Purna Chandra Moharana (P.W.11), who was attached to Banki Police Station as officer-in-charge registered Banki P.S. Case No. 29 dated 28.11.1998 under section 302 of the Indian Penal Code against the appellant and himself took up investigation of the case.
3. During course of investigation, P.W.11 visited the spot and prepared spot map Ext.8. He also conducted inquest over the dead body and prepared inquest report Ext.2. He seized three pieces of broken glass bangles, one kantha (bed cushion) and one mat from the spot and prepared seizure list Ext.1. He examined the witnesses and sent the dead body to C.H.C., Lahunipada for post-mortem examination. P.W.6 Dr. Jagdish Dehury who was attached to the said hospital as Medical Officer conducted post-mortem examination and opined the cause of death was asphyxia due to strangulation.
The Investigating Officer (P.W.11) seized the station diary of Chandiposh outpost and prepared seizure list Ext.9 and left the same in the zima of the A.S.I. of Police of Chandiposh outpost vide zimanama Ext.10. He seized the wearing apparels of the deceased being produced by the constable after the post mortem examination under seizure list Ext.5. He received the post mortem examination report. On 14.06.1999 P.W.11 submitted charge sheet under section 302 of the Indian Penal Code showing the appellant as absconder. Subsequently on 06.10.1999 the appellant was produced in Court after being arrested on 05.10.1999 and remanded to jail custody.
4. After submission of charge sheet, the case was committed to the
