KAMPAL MISRA AND OTHERS vs STATE OF ORISSA

S. K. SAHOO, J.

The appellants Kampal Misra, Purusottam Mallik, Jagadish Mallik along with co-accused Bisikesan Dehury faced trial in the Court of Sessions

Judge, Bolangir in Sessions Case No.50 of 1990 for offences punishable under section 302 read with section 34 of the Indian Penal Code on the

accusation of commission of murder of Ramesh Mistry in between 14.12.89 and 15.12.89 at village Kadodar under Birmaharajpur police station in the

district of Bolangir in furtherance of their common intention. They were also charged under sections 364/34 and 201/34 of the Indian Penal Code on

the accusation that on 14.12.1989 at about 4.00 p.m. they kidnapped Ramesh Mistry for committing his murder and caused disappearance of the

evidence.

The learned trial Court though acquitted the accused persons of the charge under sections 364 and 201 of the Indian Penal Code and also under

section 302 of the Indian Penal Code, however the appellants as well as Bisikesan Dehuri were found guilty under section 323 of the Indian Penal

Code and accordingly convicted thereunder and sentenced to undergo rigorous imprisonment for one year each. The co-accused Bisikesan Dehury

has not preferred any appeal. The appellant no.3 Jagdish Mallik is dead as per the instruction taken by the learned counsel for the State on the memo

submitted by the learned counsel for the appellants and accordingly, this appeal so far as appellant no.3 is concerned, stands abetted.

The prosecution case, as per the first information report lodged by Srimati Mistry (P.W.1) before the officer in charge of Birmaharajpur police

station is that on 14.12.1989 at about 4.00 p.m. the son of the informant namely Ramesh Mistry who was aged about 23 years was watching the co-

villagers playing cards near Umadei Maheswar Temple and at that time the appellants and co-accused Bisikesan Dehury and others were also sitting

there. The informant had been to the grocery shop of one Prahallad and she returned back home after purchasing grocery. While the informant was at

home, she heard hullah and at that time, the co-villagers Sashi Beheramali and Krushna Dehuri told her that her son Ramesh Mistry was being

assaulted by the appellants as well as co-accused Bisikesan Dehury and was being dragged towards Dolamandap Sahi. The informant was also

informed by one of his relatives namely Rukumini about such assault. Hearing about such incident, the informant rushed to the spot but could not find

her son there. She was intimated by some of the co-villagers that her son was being dragged towards jungle by the accused persons and he was found

in a bleeding condition. The informant called other co-villagers to accompany her to search for the deceased but they did not agree for which the

informant returned back home. After the eldest son of the informant namely Khageswar returned back from the weekly market, she disclosed about

the occurrence before him. Khageswar and one of the nephews of the informant namely Hrushi went towards the jungle for searching Ramesh

Mistry but they could not trace him out and returned back home. The informant suspected that the accused persons might have killed her son and

accordingly she presented the report. The oral report of the informant received at Hariharajora outpost by A.S.I. of police was reduced into writing

and it was sent to the officer in charge of Biramaharajpur police station for registration of the F.I.R. On receipt of the F.I.R., Biramaharajpur P.S.

Case No.66 of 1989 was registered under sections 364/323/34 of the Indian Penal Code on 14.12.1989 against the appellants and co-accused

Bisikesan Dehury.

P.W.16 Rajgopal Kar, the officer in charge of Biramaharajpur police station, after registration of the F.I.R., took up investigation of the case, visited

the spot, examined the witnesses, searched for son of the deceased but could not get it. He sent requisition to the Superintendent of Police of Bolangir

by V.H.F. for utilization of police dog and Scientific Officers for investigation of the case. He tried to search for the accused persons but was not

successful. Then P.W.16 sent message to all the police stations of Bolangir district describing the physical features and appearance of Ramesh Mistry

for tracing him out. On 24.12.1989 P.W.16 received information that one unidentified dead body was recovered from a tank within the jurisdiction of

Ramachandrapur police station for which P.S. Case Nos.82 of 1989 under sections 302/201 of the Indian Penal Code has been registered. P.W.16

also received information from S.P., Bolangir that the D.Rs of the son of the informant tallied with the D.Rs of the dead body recovered from the tank

within the Ramachandrapur police station. On 31.12.1989 P.W.16 consulted with the officer in charge of Ramachandrapur police station in connection

with the case and brought the photographs of the dead body recovered from the tank for ascertaining the identity of the dead body with the son of the

informant as the D.Rs of both tallied. Since no photograph of the deceased was available during investigation, he proceeded to village Kadodar on

02.01.1990, examined some persons and showed the photographs of the dead body which were taken in connection with the aforesaid

Ramachandrapur P.S. Case and the witnesses identified the dead body to be the son of the informant. The photographs were also shown to the

informant, sister-in-law and other relatives of the deceased and they identified it to be that of Ramesh Mistry. Thereafter, intimation was given to the

J.M.F.C., Biramaharajpur that the case tuned to a murder case. As per the direction of the S.P., Keonjhar, all the connected papers were sent to him.

The accused persons surrendered before the learned J.M.F.C., Biramaharajpur on 08.03.1990 and on 19.03.1990. P.W.16 handed over the charge of

the investigation of the case to Sri S.C. Pradhan (P.W.17), the officer in charge of Biramaharajpur police station.

P.W.17 after taking over the charge of the investigation, took steps for recording the statements of the witnesses under section 164 Cr.P.C. He also

sent the seized articles to F.S.L., Rasulgarh for chemical examination through S.D.J.M., Biramaharajpur and obtained the chemical examination as

well as serologist report and after completion of investigation, he submitted charge sheet.

In order to prove its case, the prosecution examined eighteen witnesses. P.W.1 Srimati Mistry is the mother of the Ramesh Mistry and she is the

informant in the case. She stated to have heard from Sashi Beheramali that four accused persons had assaulted his son. She also heard that the

accused persons forcibly took her son towards the forest and subsequently she learnt that the accused persons had killed her son inside the forest.

P.W.2 Nityananda Beheramali, P.W.3 Niranjan Dehury and P.W.4 Ramesh Badmali are the co-villagers of the informant who stated about the

assault on Ramesh Mistry by the appellants and co-accused Bisikesan Dehury. P.W.5 Ghasi Kumbhar is a co-viilager of the informant who stated to

have seen the accused persons forcibly taking Ramesh Mistry towards Dolamandap of the village. P.W.6 Baman Charan Panda was the S.I. in

charge of Sainkul outpost under Ramchandrapur police station who stated that on the written report of Grama Rakhi that he found a dead body of an

unidentified person tied inside a gunny bag was floating in the water of a tank, he registered U.D. Case No.10 of 89 and conducted enquiry. He

further stated to have received message from S.P., Bolangir about the missing of Ramesh Mistry being kidnapped from his village by four accused

persons. P.W.7 Bidyadhar Barik was the constable attached to Sainkul Outpost who escorted the dead body found in a tank of village Madanpur for

post mortem examination and produced the wearing apparel of the deceased and other articles before the S.I. of Sainkul Outpost. P.W.8 Bilas Patra

stated to have seen a dead body of an unknown person floating in the water reservoir and accordingly he reported the matter to the S.I. of Sainkul Out

post. P.W.9 Udaya Bhaskar Panda was the Asst. Surgeon in Sub-Divisional Hospital, Anandpur who conducted post mortem examination over the

dead body of an unidentified male person and submitted his report vide Ext.19 wherein he indicated that the cause of death was due to ligature mark

around the neck. P.W.10 Braja Kishore Mishra is a seizure witness. P.W.11 Sukadev Jena is a witness to the inquest over the dead body and he is

also a witness to the seizure of the some boulders.

P.W.12 Khetramohan Sethi is a witness to the seizure of a napkin from the house of appellant no.1 as per seizure list Ext.20, another napkin from the

house of appellant no.3 as per seizure list Ext.21 and a napkin from the house of appellant no.2 as per seizure list Ext.22. He is also a witness to the

seizure of wearing apparels, a lathi and blood stained earth from the house of co-accused Bisikesan Dehury. He identified the photographs of Ramesh

Mistry as per Exts.1, 2 and 3.

P.W.13 Pitambar Beheramali was a co-villager of the informant who stated about the seizure of wearing apparels and other articles from the houses

of the accused persons. P.W.14 Rukmini Mistry is the wife of elder brother of Ramesh Mistry and she stated about assault on Ramesh Mistry on the

date of occurrence. P.W.15 Mangal Das was the A.S.I. of Hariharjore Outpost who on receipt of the oral report from the informant, reduced it into

writing and sent it to the officer in charge of Biramaharajpur police station for registration and he took up investigation of the case and effected some

seizures from the houses of the accused persons. P.W.16 Rajgopal Kar was the O.I.C. of Biramaharajpur Police Station who registered the F.I.R.

and conducted investigation till he handed over the charge of investigation to P.W.17. P.W.17 Suresh Chandra Pradhan was the O.I.C. of

Birmaharajpur Police Station who took over charge of investigation from P.W.16 and on completion of investigation, he submitted charge sheet.

 P.W.18 Amiya Kumar Chakra was the photographer who took photographs of the dead body lying in the tank of village Madanpur. The prosecution

exhibited thirty one documents. Exts.1 to 3 are the photographs of the deceased Ramesh Mistry, Ext.4 is the 164 Cr.P.C. statement of P.W.2, Ext.5 is

the 164 Cr.P.C. statement of P.W.3, Ext.6 is the 164 Cr.P.C. statement of P.W.4, Ext.7 is the 164 Cr.P.C. statement of P.W.5. Ext.8 is the

command certificate, Ext.9 is the photograph of the deceased Ramesh Mistry along with money bag, Ext.10 is the inquest report, Ext.11 is the seizure

list of boulders, Ext.12 is the dead body challan, Ext.13 is the report of P.W.6 dated 20.12.1989, Exts.14, 15, 20, 21, 22, 23, 24, 24/2, 26 are the seizure

lists, Exts.16, 17 are the query report made by P.W.6, Ext.18 is the requisition to photographer by P.W.6, Ext.19 is the post mortem report, Ext.25 is

the F.I.R., Ext.27 is the forwarding letter of M.Os. to the chemical examiner, Ext.28 is the chemical examination report, Ext.29 is the serologist’s

report, Ext.30 is the negative photograph of dead body and Ext.31 is the positive photograph of dead body. The prosecution also proved ten materials

objects. M.O.I is the lathi, M.O.II is the chapal, M.O.III is the gunny bag, M.O.IV is the rope, M.Os.V to VIII are the boulders, M.O.IX is the Chadi

and M.O.X is the lathi.

The defence plea is one of denial and it is pleaded that a false case has been foisted against them. The defence exhibited the photograph and the

negative of the deceased which were marked as Ext.A and Ext.A/1.

The learned trial Court after assessing the evidence on record came to hold that on comparing the photographs marked as Exts.1, 2 and 3 with that

of Ext.A in naked eye, it is clear that the two sets of photographs did not tally. It was further held that the evidence of P.W.1 and P.W.14 for the first

time in the Court identifying the photographs Exts.1, 2 and 3 as the photographs of Ramesh Mistry, cannot be fully relied upon for want of previous

test identification parade. It is further held that the failure of the prosecution to hold any prior test identification is a great lacuna in the case and it

creates doubt over identification evidence. The learned trial Court further held that a doubt is created whether the dead body found floating in a tank

under Ramachandrapur police station of Keonjhar district was the dead body of Ramesh Mistry and there is absence of corpus delicti and therefore,

he was unable to hold that in fact Ramesh Mishry was dead and therefore, the accused persons were given benefit of doubt of the charge of murder.

Learned trial Court further held that the evidence of P.Ws.2, 3 and 4 regarding assault to the deceased by the accused persons cannot be discarded as

the witnesses are disinterested persons. It was further held that non-mention of the names of the witnesses in the F.I.R. does not in any way discredit

their evidence particularly when they were proved to be disinterested persons and there is absence of any infirmity in their evidence. It was further

held that it might not be reasonable to infer that the accused persons dragged Ramesh Mistry into the forest in order to kill him and accordingly, the

learned trial Court acquitted the accused persons of the charges under sections 364 and 201 of the Indian Penal Code.

Since the counsels for the appellants were not present when the appeal was repeatedly called for hearing, Mr. Samarendra Mohanty, learned

counsel was engaged as amicus curiae to assist the Court as it was an appeal of the year 1992. He was supplied with the copy of the paper book and

time to prepare the case. After going through the paper book, the learned counsel placed the impugned judgment and the evidence. It is contended that

since the learned trial Court has held that the body which was recovered from the tank under the Ramchandrapur police station was not that of

Ramesh Mistry and accordingly, acquitted the accused persons of the charge of murder and other charges and there is no corroborative medical

evidence to the evidence of assault on Ramesh Mistry, the conviction of the appellants under section 323 of the Indian Penal Code is not justified and

proper. Mr. Priyabrata Tripathy, learned Additional Standing Counsel on the other hand submitted that even though corpus delicti was not found but

since there is reliable evidence adduced by the eye witnesses i.e. P.Ws.2, 3, 4 and P.W.14 to have seen the assault on Ramesh Mistry and P.W.5 has

also seen the accused persons dragging Ramesh Mistry forcibly by holding his hands and legs, no fault can be found with the learned trial Court in

convicting the appellants under section 323 of the Indian Penal Code.

Law is well settled that a conviction for an offence does not necessarily depend upon the corpus delicti being found. In the absence of the corpus

delicti, there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the

persons who had committed the murder. If the prosecution is successful in providing clinching evidence and cogent and satisfactory proof of the victim

having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. Failure of the prosecution to assemble such

evidence will, however, result in failure of the most essential requirement in a case involving a charge of murder. Where a homicidal death is sought to

be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the conclusion

that the victim had met with a homicidal death. When the body of the person said to have been murdered is not forthcoming, the prosecution is

required to adduce strongest possible evidence as to the fact of the murder. If it is established clearly that a particular person was intentionally killed,

in absence of discovery or production of the body of the murdered person, a conviction can be sustained. Therefore, before convicting a person of the

charge of murder, the Court must be satisfied that the person alleged to have been murdered is actually dead. In Mani Kumar Thapa -Vrs.- State of

Sikkim reported in A.I.R. 2002 S.C. 2920, the Hon’ble Supreme Court held that in a trial for murder, it is neither an absolute necessity nor an

essential ingredient to establish corpus delicti.

The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or

recovered. There are a number of possibilities where a dead body could be disposed of without any trace, therefore, if the recovery of the dead body

is to be held to be mandatory to convict an accused, in many a case, the accused would manage to see that the dead body is destroyed to such an

extent which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore, required in law to base a

conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death

was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. In case of Prithipal Singh -Vrs.-

State of Punjab reported in (2012) 1 Supreme Court Cases 10, it is held as follows:-

“28. Therefore, in a murder case, it is not necessary that the dead body of the victim should be found and identified, i.e. conviction for offence of

murder does not necessarily depend upon corpus delicti being found. The corpus delicti in a murder case has two components - death as result, and

criminal agency of another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidence.â€​

The learned trial Court has assessed the evidence of the family members of the deceased. P.W.1 was the mother of the deceased who identified the

photographs Exts.1, 2 and 3 as the photographs of her deceased son Ramesh Mistry. Similarly, P.W.14 who was the sister-in-law of the deceased

identified the photographs to be that of the deceased. The defence produced the photographs of the deceased and it was marked as Ext.A. The

learned trial Court after comparing the photographs as per Exts.1, 2 and 3 with that of Ext.A in naked eye came to hold that the two sets of

photographs did not tally. P.W.1 and P.W.14 did not see the dead body. Since no T.I. parade was conducted in respect of the photographs marked as

Exts.1, 2 and 3 which were shown to P.W.1 and P.W.14 during their evidence, the learned trial Court was pleased to hold that the failure of the

prosecution to hold any prior test identification was a great lacuna in the case and it created doubt over the identification evidence. The learned trial

Court also found that even though it is the prosecution case that the deceased was severely wounded but the doctor conducting autopsy did not find

any mark of external injury on the dead body except ligature mark around the neck and hands and the cause of death was opined to be due to

asphyxia and accordingly, the learned trial Court came to hold that doubt is created if the dead body found in a tank under Ramchandrapur police

station of Keonjhar district was the dead body of Ramesh Mistry. Since corpus delicti was absent and there was no material before the Court that

Ramesh Mistry was dead, the learned trial Court gave benefit of doubt to the accused persons of the charge of murder. The State of Orissa has not

preferred any appeal challenging the order of acquittal passed by the learned trial Court of the charges under sections 302, 364 and 201 of the Indian

Penal Code. After assessing the evidence, I am of the humble view that that there is no infirmity in the finding of the learned trial Court in giving

benefit of doubt to the accused persons of the charge of the murder so also of the charges under sections 364 and 201 of the Indian Penal Code.

Coming to the offence under section 323 of the Indian Penal Code, the five eye witnesses who have stated about the assault on Ramesh Mistry are

P.W.2, P.W.3, P.W.4, P.W.5 and P.W.14. The learned Trial Court after analysing the evidence of those witnesses found no infirmity in their

testimony.

P.W. 2 has stated that accused Bisi Dehury pounced over Ramesh Mistry from his backside and thereafter the appellants joined him and all caught

hold of Ramesh Mistry and they forcibly dragged Ramesh Mistry towards the house of the accused Bisikesan Dehury. He has further stated that

when Ramesh Mistry caught hold of a pole which was put on the way, the accused persons were not able to take him to the house of Bisikesan

Dehury. The appellant no.2 Purusottam Mallik brought a lathi from his house and dealt blows on Ramesh Mistry from his waist upto legs as a result of

which Ramesh Mistry fell down with face upwards after receiving lathi blows on his person and then accused Bisikesan Dehury snatched away the

lathi from the hands of appellant no.2 and dealt lathi blows on the face of Ramesh Mistry as a result of which there was severe bleeding injuries on his

face. P.W.2 was cross examined at length but nothing substantial elicited in his cross examination to discard his evidence.

P.W.3 Niranjan Dehury has also stated that about the dragging of Ramesh Mistry by the accused persons and assault on him by means of lathi by the

appellant no.2 Purusottam Mallick and accused Bisikeshan Dehury on the face and forehead. P.W.3 was cross examined at length but his evidence

has practically remained unchallenged. P.W.4 Ramesh Badmali has stated that the accused persons dragged Ramesh Mistry and they also assaulted

him. The assault by the appellant no.1 Kampal Misra as stated by P.W.4 in an omnibus manner cannot be accepted particularly when the evidence of

P.Ws.2 and 3 indicate that the appellant no.1 only participated in the dragging of the deceased.

P.W.5 Ghasi Kumbhar has stated that all the accused persons were dragging Ramesh Mistry holding his hands and legs towards Harijanpada forcibly.

This evidence has not been shaken at all in the cross examination. P.W.14 Rukmini Mistry has stated to have seen the accused persons taking

Ramesh Mistry towards the house of accused Bisi. He further stated about the assault on Ramesh Mistry by means of lathi by appellant Purusottam

Mallik and accused Bisi. Nothing has been brought out in the cross examination to discard his evidence. Therefore, the cumulative effect of the

evidence of the five eye witnesses i.e. P.W.2 to 5 and P.W.14 is that the accused persons dragged the deceased and then the deceased was

assaulted by means of lathi by two persons i.e. appellant no.2 Purusottam Mallik and accused Bishikesan Dehury. Since it is held that the corpus

delicti of Ramesh Mistry was not found, therefore, it can be said that there is no medical evidence to support the oral evidence of any assault on

Ramesh Mistry. However, in view of the unshaken testimony of the aforesaid witnesses and specific overt act attributed to the appellant no.2 that he

assaulted Ramesh Mistry by lathi, I find no infirmity or illegality in the impugned judgment and order of conviction of appellant no.2 under section 323

of Indian Penal Code. The sentence imposed on appellant no.2 is also quite reasonable. Therefore, the impugned judgment and order of conviction of

appellant no.2 Purusottam Mallik under section 323 of the Indian Penal Code and the sentence awarded by the learned trial Court is hereby

confirmed.

So far as the appellant no.1 Kampal Misra is concerned, the evidence is omnibus in nature that he along with the other accused persons dragged the

deceased and therefore, it would not be proper to sustain his conviction under section 323 of the Indian Penal Code. Accordingly, the appellant no.1

Kampal Misra is given benefit of doubt and he is acquitted of the charge under section 323 of the Indian Penal Code. He is on bail and therefore, he is

discharged from the liability of the bail bond. His personal bonds and the surety bonds, if any, stand cancelled. Before parting with the case, I would

like to put on record my appreciation to Mr. Samarendra Mohanty, the learned counsel for rendering his valuable help and assistance towards arriving

at the decision above mentioned. The learned counsel shall be entitled to the professional fees which is fixed at Rs.5,000/- (five thousand only). In the

result, the Criminal Appeal is partly allowed.