Rabindra Nayak vs State of Orissa

P.K. Tripathy, J.—Heard.

Appellant as the principal accused faced the prosecution in Sessions Trial No. 200/33 of 1994 in the Court of Addl. Sessions Judge, Bargarh. He (appellant) along with his father Pandab Nayak were prosecuted on the charge framed for the offences under Sections 302, 201/34 I.P.C. While acquitting the co-accused Pandab Nayak, trial Court convicted the appellant and sentenced him to undergo imprisonment for life for the offence u/s 302 I.P.C. However, the appellant was acquitted for the offence u/s 201/34 I.P.C.

Bansidhar Bhoi, the deceased (hereinafter described as such) while working as forest guard in Pahadasirgida Beat was discovered dead due to ante mortem injuries caused by sharp cutting weapon like axe. On the basis of information lodged by the Forest Ranger, the O.I.C., Attabira Police Station took up investigation and after completion of investigation submitted charge sheet against the petitioner and his father. Prosecution cases against the accused is that during previous posting of the deceased at Dudurkusuma Beat accused picked up enmity with him (deceased) and in furtherance of that enmity he was in search of an opportunity to cause harm to the deceased and even to do away with the life of the deceased. It also reveals from Ext. 13., the report lodged by the deceased in the year 1993 about that motive of the accused-appellant. According to the prosecution, in the morning hours of 14.4.1994 appellant came to the hamlet where the deceased was staying, he found him absent and gave the declaration before the resident of the hamlet that had the deceased been available he would have done away with his life. The deceased returned back to his place of stay (house) in the evening at 6 p.m. and around 9 p.m. in the night the nearby neighbours heard some sound and commotion coming from the house of the deceased and thereafter they saw the accused leaving the house being armed with an axe. The father of the accused also gave recovery of the axe (M.O.I) which according to the Opinion Report (Ext.4) of the Medical Officer is the weapon of offence in this case. According to the post mortem report (Ext.3), the ante mortem injury were homicidal in nature and sufficient to cause death of the deceased in ordinary course of nature.

In course of trial, prosecution examined two witnesses (P.Ws. 1 and 2) in proof of its case that the accused had arrived at the house of the deceased on 14.4.1994 twice and they had seen him leaving the house in the occurrence night. They also examined four witnesses (P.Ws 3, 4, 7 and 10) in proof of seizure of the wearing apparels and the axe u/s 27 of the Evidence Act. In course of cross-examination of P.Ws. 1 and 2 omission in their statement was confronted to them that they did not make any statement before the I.O. that accused had given threatening on the date of occurrence and that they had seen the accused leaving the house of the deceased in the night of occurrence and that he was then being armed with an axe. Such statements were confronted to the Investigating Officer (P.W.9) and the I.O. stated no such statements were made by those two witnesses. While disbelieving the evidence of P.Ws.1 and 2 on the aforesaid aspect, learned Addl. Sessions Judge accepted prosecution case against the accused only on the basis of the strong presumption that since he had enmity and the motive to kill the deceased, therefore he is the author of the crime inasmuch as the axe was recovered from his father.

After going through the evidence available on record we subscribe our agreement to the view expressed by the learned counsel for the appellant that learned Addl. Sessions Judge departed from the settled principle of criminal jurisprudence that a conviction cannot be based on preponderance of probabilities alone. So far as the evidence on record is concerned, as noted above, evidence of P.Ws.1 and 2 are vital so as to connect the accused with the alleged crime. When the trial Court on the ground of material omission rightly rejected that part of the evidence of P.Ws 1 and 2 learned Addl. Government Advocate argues before us that such omission is not vital to the case of the prosecution. We find no substance in that argument of learned Addl. Government Advocate inasmuch as the aforesaid omission in the statement u/s 161 Cr.P.C. amounts to a material omission and minus that statement there is no worth in the evidence of said two witnesses so as to connect the accused with the crime.

Evidence of P.Ws. 1 and 2 being discarded on the above ground the evidence which is available to the prosecution is seizure of the weapon of offence u/s 27 of the Evidence Act. In that respect witnesses to the seizure have resiled from the prosecution as they have not supported regarding giving discovery of the incriminating evidence by the father of the appellant who was a co-accused. Trial Court while considering that aspect, however accepted the evidence of I.O. u/s 27 of the Evidence Act relating to seizure of the axe. For the sake of discussion even if that evidence is accepted then it amounts to mere seizure of the axe on the basis of a statement of the co-accused who made statement exculpating himself. Apart from that trial Court taking account of such evidence did not find it acceptable to warrant a conviction u/s 201/34 I.P.C. against the said co-accused. Thus such evidence could not have been utilised against the appellant. Apart from that it reveals from the evidence on record that such seizure does not connect the accused with the crime either directly or substantially. When there is no evidence worth the name that the accused had carried that weapon, he committed the offence by use of that weapon and handed over the same to his father. Learned Addl. Sessions Judge could not have read the evidence on record regarding proof of recovery u/s 27 of the Evidence Act. In that respect when the father of the accused (co-accused) made statement exculpating himself, therefore independent corroboration is necessary to accept such evidence and that is deficient in this case. If the said evidence is not usable against the appellant then there remains no evidence to connect the accused with the crime either directly or circumstantially inasmuch as the report of the Forensic Science Laboratory does not indicate that the weapon of offence or the wearing apparels of the accused or his nail clippings had blood matching with the blood group of the deceased.

Therefore, we find that there is lack of circumstantial evidence to complete the chain to prove the case of homicide against the appellant. We have already stated at the outset that Ext.13 and the narration of events by the prosecution raise strong motive for the accused and strong suspicion against him relating to the crime but suspicion however strong that cannot substitute proof. Since the Investigating Agency has not brought on record such materials and the prosecution at the time of trial has even not brought on record relevant evidence to prove different circumstances to complete the chain of circumstances against the appellant, therefore, there is no sufficient evidence to prove the accusation of murder against the appellant.

Under such circumstance, we set aside the order of conviction and acquit the accused by granting him benefit of doubt.

B.P. Das, J.

I agree.