Circumstantial evidence must establish foundational facts beyond reasonable doubt for a conviction; the prosecution failed to prove the last seen theory and weapon recovery.

Judgment :

G. Satapathy, J.

1. This appeal is directed against the judgment passed on 19.09.2019 by the learned Sessions Judge, Puri in ST Case No.541 of 2013 convicting the appellant for offences punishable U/Ss.458/302 of Indian Penal Code, 1860 (in short “the IPC ”) and sentencing him to undergo imprisonment for life and pay a fine of Rs.10,000/- in default whereof, to undergo Rigorous Imprisonment (RI) for a further period of six months for offence U/S.302 of and to undergo RI for a period of three years and to pay a fine of Rs.1,000/- in default whereof, to undergo RI for a further period of two months for offence U/S.458 of with direction of running of the sentences concurrently.

2. The background facts of the prosecution case are that one Ashok Nayak @ Banku (hereinafter referred to as the “appellant”) was residing with his wife (PW9) and children in the house adjacent to the house of one Kalia @ Narasingha Nayak (hereinafter referred to as the “deceased”) and the appellant was regularly assaulting his wife under the influence of liquor and on the afternoon of 15.07.2013, there was a quarrel between the appellant and his wife, as a result, the wife of the appellant went outside, but when she returned back in the evening, she finding her house to be locked, went to the house of the deceased and stayed there along with his son (PW12), but in the night, the appellant returned and knocked the door of the house of the deceased and when the deceased opened the door of his house, there was a quarrel between the appellant and the deceased. In said quarrel, the deceased dealt a blow by means of an iron rod to the appellant, whereas the appellant dealt a blow by means of a beer bottle to his wife causing injury on her head when the later tried to separate both of them. The wife of the appellant left the house along with her son and sometimes thereafter, she returned to the spot house with police only to find the deceased lying dead with a pull of blood.

The land owner of the house of the deceased lodged an FIR against the appellant at about 1 PM on 16.07.2013 before the IIC, Sadar Police Station, Puri paving the way for registration of Puri Sadar PS Case No.163 of 2013 and, accordingly, in absence of the regular IIC, the ASI PW20 Sarbeswar Bhuyan after registering the case, took up the investigation of this case, but later on, PW18 took charge of the investigation. In the course of investigation, PW18 examined the witnesses, seized the incriminating articles, obtained the injury report of PW9, arrested the appellant, recovered the weapon of offence i.e. a small stone (MOI) and the shirt of the appellant in presence of the witnesses pursuant to the disclosure statement of the appellant. PW18 also obtained the post mortem examination report of the deceased and sent the incriminating materials to the SFSL, Rasulgarh, Bhubaneswar for chemical examination. Finally, on conclusion of investigation, PW18 submitted charge-sheet against the appellant for offences punishable U/Ss.302/460/307 of IPC , but finding prima facie material and evidence, the learned trial Court framed charge against the appellant for commission of offences punishable U/Ss.458/302 of resulting in trial in the present case.

3. In support of the charge, the prosecution examined PWs.1 to 20, proved certain documents under Exts.1 to 17 and identified material objects under MOI-XII as against no evidence whatsoever by the defence. Of the witnesses examined in this case, PWs.1 and 5 are the son and son-in-law of the deceased, PWs.2 and 6 are the witnesses to the seizure, whereas PWs.14 and 15 are the witnesses to the sei