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2019 Supreme(Ori) 167
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. MISHRA, A.K. MISHRA, JJ.
Butu Munda and Another - Appellants
Versus
State of Odisha - Respondent
Criminal Appeal No. 304 of 1999
Decided On : 17-10-2019
B. Panda, Adv., S.R. Mohapatra, Adv., A. Das, Adv., G.P. Panda, Adv., H.K. Mishra, Adv., R.K. Lenka, Adv., B.R. Mohanty, Adv., M. Sahoo, Adv., Devashis Panda, Adv., B.P. Pradhan, Adv.
The judgment emphasizes the principle that a case can be said to be proved only when there is certain and explicit evidence and no pure moral conviction. It also highlights the limitations of using circumstantial evidence, such as the last seen theory and the leading to discovery of a dead body, to establish guilt beyond reasonable doubt.
Headnote:
MURDER - Indian Penal Code - Section 302, Section 201 - The judgment discusses the conviction of the appellants under Section 302 and Section 201 of the Indian Penal Code. The court analyzed the evidence, including the last seen theory and the leading to discovery of the dead body, and found that the circumstances were not sufficient to exclude every possible hypothesis except the one to be proved. The conviction of both appellants was set aside, and they were acquitted from the charges.
Fact of the Case:
The case involved the murder of a man who had love affairs with the daughter of one of the accused. The deceased went missing, and it was later discovered that the accused had killed him and buried the body. The prosecution relied on circumstantial evidence to establish the guilt of the accused.
Finding of the Court:
The court found that the evidence, including the last seen theory and the leading to discovery of the dead body, was not sufficient to establish the guilt of the accused beyond reasonable doubt. The conviction of both appellants was set aside, and they were acquitted from the charges.
Issues: The main issue was whether the circumstantial evidence, including the last seen theory and the leading to discovery of the dead body, was sufficient to establish the guilt of the accused beyond reasonable doubt.
Ratio Decidendi: The court held that the circumstances sought to be proved, i.e., last seen theory and the leading to discovery of a dead body, fell short to exclude every possible hypothesis except the one to be proved. The innocence of both the accused persons was not ruled out.
Final Decision: The conviction and sentence of both the accused-appellants were set aside, and they were acquitted from the charges. Both appellants were on bail upon appeal, and their bail bonds were to be cancelled. The Criminal Revision Application was allowed.
JUDGMENT :
A.K. Mishra, J.
In this appeal, the judgment dtd.10.09.1999 passed by learned Sessions Judge, Sundargarh in Sessions Trial No.63 of 1996 is assailed by both the appellants. By that judgment, the appellant Machu Munda has been convicted U/s.302 and 201 of the Indian Penal Code (in short the "I.P.C.") and sentenced to undergo imprisonment for life for offence U/s.302 I.P.C. and rigorous imprisonment for one year for offence U/s.201 I.P.C. The appellant Butu Munda has been convicted U/s.201 I.P.C. and sentenced to undergo rigorous imprisonment for one year.
2. Put briefly, the case of the prosecution is that deceased Dalka Munda had love affairs with the daughter of accused Machu Munda, namely, Mangala Munda (P.W.2). On 08.11.1995 at about 4 P.M. deceased left his house and did not return. His father - informant searched him. On 20.11.1995 while he was about to report the matter at police station, his son Saranga Munda (P.W.6) told him to have ascertained from accused Machu Munda that deceased had gone to their house on 09.11.1995 and left the house with one Gunju Munda. On 21.11.1995 he lodged missing report of his son which was entered vide Station Diary Entry No.473 at Lahunipada Police Station.
The father - informant confidentially learnt from one Khadia @ Naik Munda (P.W.10) that accused Machu Munda and his son Butu Munda had killed his son by throttling and after committing murder, buried the dead body. Thereafter on 24.11.1995 he orally reported the matter before Lahunipada police which was reduced into writing and registered as Lahunipada P.S. Case No.118 dtd.24.11.1995. Investigation was ensued. In course of investigation, accused Machu Munda gave confessional statement and led to give discovery of the dead body of deceased buried on the other side of the Nala of village Karadakudar. The investigating officer got the dead body disinterred from the said place. Thereafter post mortem examination was conducted by Dr. Jayakrushna Sahu (P.W.4). On the same day one lungi of deceased was seized on being produced by Mangala Munda, the daughter of accused Machu Munda. The death was stated to have due to throttling. After completion of investigation charge-sheet was submitted. The case was committed to the court of sessions. Both the accused persons, who are father and son, were tried for offence U/s.302 and 201 read with section 34 of I.P.C.
3. The plea of defence is denial simplicitor.
4. In order to bring home charge, prosecution examined 15 witnesses, out of whom P.W.1 is the wife of accused Machu Munda, P.W.2 is the daughter and P.W.3 is the son of accused Machu Munda, P.W.4 is the doctor who conducted post mortem examination over the dead body, P.W.5 is the father of deceased and informant of this case, P.W.6 and 8 are the sons of informant, P.W.7 is the wife of P.W.6, P.W.9 is an independent witness to leading to discovery and seizure of lungi of the deceased from the house of accused persons, P.W.10 is another independent witness before whom the wife of accused Machu Munda had confidentially disclosed the incident, P.W.11 is another independent witness while P.Ws.12 and 13 are witnesses to leading to discovery, P.W.14 is the police constable who had witnessed the seizure of Station Diary and P.W.15 is the Investigating Officer. Defence examined none. The post mortem examination report, seizure list, discovery statement, etc. are exhibited.
5. Learned trial court believed the evidence of doctor and held that the death of deceased was due to throttling and his dead body was identified by the father. He dis-believed the evidence of P.Ws.5 and 6, the brothers of the deceased as they prevaricated the statement materially and thereby found no eye witnesses to the occurrence. He relied upon the circumstances through P.W.6 that deceased was lastly seen in the house of the accused persons and accused persons gave discovery of the dead body and in absence of any explanation, he held the accused Machu Munda guilty for the offen
