In cases based on circumstantial evidence, the circumstances must point unerringly to the guilt of the accused.

JUDGMENT

Dr. S. Muralidhar, CJ. - The present appeal is directed against a judgment dated 15th November, 2006 passed by the learned Adhoc Additional Sessions Judge (FTC), Malkangiri in Criminal Trial No.13 of 2005 convicting the Appellants for the offence punishable under Sections 302/34 IPC and sentencing them each to undergo rigorous imprisonment (RI) for life and to pay a fine of Rs.5000/- and in default to undergo RI for six months. The trial Court also convicted each of the Appellants for the offence under Section 201/34 IPC and sentenced them to undergo RI for seven years and to pay a fine of Rs.2,000/- each and in default to undergo RI for two months.

2. During pendency of the present appeal, Appellant No.3 (Guru Bhumia) expired, thus leaving Appellant Nos. 1 and 2 in the fray. By an order dated 12th December, 2018 noting that the Appellants had spent more than 13 years in custody, they were directed by this Court to be enlarged on bail.

3. This Court has heard the submissions of Mr. B.C. Parija, learned counsel appearing for the Appellants and Mrs. Saswata Patnaik, learned Additional Government Advocate for the State (Respondent).

4. The case of the prosecution is that around four years prior to the incident, the deceased Mangala Bhumia had picked up a quarrel with his elder brother Guru Bhumia (now dead) and Sukalu Bhumia, Accused No.2 (A2) regarding sharing of Mohula, Mango and tamarind trees situated on their landed property. On 4th March, 2005MinariBhumia (PW 9) the wife of late Mangala Bhumia along with the deceased and their children went to see a Jatraat village Temurupalli. Then they returned at 8 pm in the night. They heard from one Bhagirathi, the younger brother of PW 9 that Guru Bhumia had set fire to her hay-stack kept in the thatch of his house. On the next date i.e. on 5th March, 2005 at about 6 am in the morning, the deceased along with his son Hari (PW 8) went to pluck Mohula in the jungle. After sometime, PW 8 came running to the house crying and reported that when the deceased asked Sukalu Bhumia the reason for setting fire to the hay-stack, Sukalu and Guru Bhumia jointly assaulted the deceased with kicks and fist blows. The deceased started shouting and on hearing his shouting, Chandra Bhumia (A1) arrived at the spot. Chandra and Sukalu then caught hold of the deceased. Guru tied the hands of the deceased by means of arope and thereafter pulled him.

5. When the Panchayat of the village searched for the three accused,they could not be traced. Ultimately, they could find Sukalu and Chandra, who were interrogated in the Panchayat by Trinath Majhi (PW 5) and Hari Naik (PW 6) before whom both the said accused confessed that they along with Guru Bhumia had tied the hands of the deceased; had taken him to the Masanibhatta Dangar and assaulted him by means of a stone on his head, chest, back and neck thereby killing him;and had hidden the dead body in Temurghatnala. The dead body was then fished out of the nala.

6. Thereafter, PWs 5 and 6 accompanied PW 9 to the police station (PS). The FIR was registered and sent to the Maithili PS as PS Case No.17 dated 6th March, 2005. The case was investigated by Debendra Narayan Das (PW 10), who was the Officer-in- Charge (OIC) of Maithili PS who conducted the inquest over the dead body on visiting the spot. He found the dead body of the deceased lying in Kalighat in the village Sarathiguda. The hands and legs of the deceased had been tied separately and one wooden plankwas also tiedwith a rope to the body. The OIC seized the ropes, the wooden lathi and sent the dead body for postmortem examination. The OIC examined witnesses and seized the wearing apparels of the deceased. On 8th March, 2005 the OIC apprehended Sukalu and Chandra Bhumia and recorded their statements under Section 27 of the Indian Evidence Act. On the basis of thedisclosure statement of Chandra Bhumia, he recovered a stone from the place of concealment in the Masanighat jungle. On 9th March, 2005 he arrested