JUDGMENT
1. Heard argument from both the parties, hearing is concluded and the Judgment is as follows.
2. Appellants were accused persons in S.T. No. 147/36 of 1996 of the Court of Addl. Sessions Judge, Sambalpur. They were prosecuted for the offence of murder and accordingly charged under Section 302/34, I.P.C. The impugned Judgment was delivered on 31.03.1997. Trial Court found the Appellants guilty of the offence under Section 302/34, I.P.C. and for that conviction, sentenced each of them to imprisonment for life. That Judgment is under challenge in this appeal.
3. Prosecution case, which reveals from the F.I.R., evidence of the family members of the deceased and the impugned Judgment, is that Jenamani Bhoi, the deceased (hereinafter referred to as ‘deceased’) faced a criminal case at the behest of the family of the accused persons and was acquitted in that case in the previous year of the date of occurrence, i.e., 16.07.1995. About a few days before the aforesaid date of occurrence, Jagamati Bhoi (P.W.2), mother of the deceased, had to drive out the cattle of accused Jogendra which had trespassed to their land. The act of assault by accused Jogendra in that occurrence was reported by the deceased together with P.W. 2. On the date of occurrence, i.e., on 16.07.1995 at about 5 a.m. the deceased left his house and proceeded to the village pond to ease himself. As alleged by the prosecution, the accused persons extended overt act on the spot by the side of the way to pond and by use of weapons like axe and knife inflicted as many as 25 injuries, as a result of which the deceased sustaining about 25 bleeding injuries all over the body, died at the spot. Janakram Bhoi (P.W. 5), an uncle of the deceased could see the occurrence at the time of assault and decamping of the accused persons. On hearing the shout of the deceased, Chaituram Bhoi (P.W. 4) and Pramila Bhoi (P.W. 3) went to see the state of affairs and they were informed by P.W. 5 about the assault on the deceased by the accused persons. They went and saw the dead body of the deceased. P.W. 3 is the widow of the deceased and P.W. 1 is the father of the deceased. In the early morning on that day he had come to his cultivable land and hearing the commotion in the village he returned and discovered the death of his son and thereafter he went and lodged the report (F.I.R. – Ext. 1) in Brajaraj Nagar Police Station. After receipt of the F.I.R – investigation was undertaken in a routine manner. In course of that investigation accused persons were arrested, the knife (M.O. V) and the axe (M.O. VI) together with the wearing apparels of the accused persons suspected to be stained with blood were seized under Section 27 of the Evidence Act besides making seizure of the blood-stained sample earth and the bloodstained wearing apparels of the deceased collected after the postmortem examination.
4. Accused persons took the plea of complete denial but adduced no defence evidence.
5. To establish the charge against the accused persons, prosecution relied on the evidence of 11 witnesses and series of documents marked Exts. 1 to 19 and the Material Objects marked M.Os. I to X. As noted earlier, P.W. 5 was projected as the solitary eye-witness to the occurrence, whereas P.Ws. 1 to 3 as the witnesses to the prior dispute establishing the motive for the, crime. P.Ws. 6 and 7, the two co-villagers were examined to prove seizure of the incriminating evidence under Section 27 of the Evidence Act. The doctor, who conducted the post-mortem examination and proved the post-mortem report (Ext. 15) and the opinion report (Ext. 16), has been examined as P.W. 10. A Police Constable, who carried the dead body and the Investigating Officer who conducted investigation, were respectively examined as P.Ws. 9 and 11.
6. In course of the Trial, P.W. 5 declined to be an eye-witness to the occurrence and, therefore, prosecution was permitted to put leading questions to him. In that process, statement of P.W. 5 recorded under Section 164, Cr.P.C. was proved as Ext. 3.
7. Learned Addl. Sessions Judge, on appreciation of the evidence of P.W. 10. and Exts. 15 and 16, held that deceased suffered homicidal death. On assessment of the evidence of P.Ws. 1 to 8, he held that notwithstanding the conduct of P.W. 5 turning hostile to the prosecution in Court, his statement under Section 164, Cr.P.C. (Ext. 3) together with the seizure list under Section 27 of the Evidence Act marked Exts 4 to 8 besides the statement of the accused persons in course of the investigation marked Exts. 9 and 10 are sufficient to prove that accused persons are the author of the injuries which led to the homicidal death of the deceased. Accordingly Learned Addl. Sessions Judge found them guilty of the offence of murder and imposed penalty of imprisonment for life.
8. Learned Counsel for the Appellants argues that the Trial Court has bypassed all the legal norms in respect of determining evidence which is legally acceptable by discarding the evidence which is not legally acceptable and on the basis of surmises and presumption he enforced a finding of guilt against the accused persons. Learned Counsel for the Appellants further argues that barring the motive part stated by the P.Ws. 1 to 3, there is no other evidence on record to show or suggest that accused persons are the author of the homicide and under such circumstance, if not a clean-cut acquittal, at least benefit of doubt should have been granted in favour of the Appellant. After placing the evidence on record and criticizing the finding of the Trial Court in the above indicated manner, Learned Counsel for the Appellants argues to acquit the accused persons.
9. Learned Counsel for the State has no reply to the contention on legal issues regarding non-acceptability of the evidence under Section 27 of the Evidence Act and particularly the statements of the accused recorded and proved by the Investigating Officer. He is also unable to subscribe to the finding of the Trial Court on the guilt of the accused persons on the face of weak evidence under Section 27 of the Evidence Act together with no evidence from the circumstances of seizure of the wearing apparels of the accused and the deceased together with the weapon of offence. We have taken care to go through the evidence in detail, both oral and documentary, and find that the criticism labeled against the impugned Judgment by the Appellants has substantial merit. The principle of law is well settled, both statutorily so also by judicial pronouncement, that a charge framed for a crime shall sustain on proof of the occurrence beyond all reasonable doubts. Such proof can be rendered by direct or circumstantial evidence. If there is no direct evidence, then the chain of circumstance must be complete to unfailingly point the accusing finger at the accused persons and leaving no doubt to be filled up by speculation or conjecture.
10. In this case, P.W. 5, an uncle of the deceased, has declined to be an eye-witness to the occurrence. That is his clear statement in Court. So far as the statement under Section 164, Cr.P.C. is concerned, he explained that he was tutored in the Police Station and was tutored to make statement implicating the accused persons. We would not have given any importance to the explanation of P.W. 5, but P.W. 4 in his evidence stated that,
In the said morning I was sleeping in my house and hearing the shout of Janakram, I came out and saw Janakram was standing in front of his entrance door. When I came to him and asked him why he is shouting, he said that assault has taken place. He also said that the body is lying by the side of the road. When myself and Janakram came to the spot where dead body was lying, the wife of Jenamani came and identified the deceased to be her husband. We sent the villagers to the P.S. to lodge report and I returned to my house and later on being called by the police I had gone to the spot. I had asked Janakram as to who committed murder of Jenamani, but he said that he had not seen who committed the murder….
This part of the evidence of P.W. 4 has not been proved to be false or wrong. That part of his evidence corroborates with the evidence of P.W. 5 in his examination-in-chief. Apart from that, in the 164, Cr.P.C. statement (Ext. 3) P.W. 5 did not state that he saw any of the accused persons assaulting the deceased. There only a statement was made that accused persons were running away and three of the accused persons were armed with weapons. The statement under Section 164, Cr.P.C. having been disowned by P.W. 5, prosecution did not take care to examine the Magistrate who recorded that statement so as to eliminate possible doubt about the influence exercised. There is no denial to the fact that P.W. 5 was produced before the Court by the Police. Be that as it may, the aforesaid statement cannot be read as substantive evidence under the given facts and circumstances.
11. The report from the Regional Forensic Science & Laboratory, Sambalpur indicates that except the ‘Chadar’ of accused Murali under Seizure List (Ext. 6) and ‘Lungi’ of the deceased containing human blood group B, no other article seized and sent for chemical analysis and serological test were found to be containing human blood. This remote circumstantial evidence alone is not sufficient to presume that all the accused persons committed the murder of the deceased or even that accused Murali committed murder of the deceased.
12. Peculiarly enough the Trial Court ignored to read Section 25 of the Evidence Act when took into consideration the confession of the accused before the police, marked Exts. 9 and 10 and even Exts. 4 to 8. Since the knife and the axe were not found with human blood and there being no evidence on record from any source that such knife and axe belongs to the accused persons, mere seizure of the same and the opinion of the doctor (Ext. 16) that injuries found on the dead body of the deceased are possible by such type of weapons is alone not sufficient to connect the accused persons with the crime. Even, putting together the report of the serologist and the seizure list, the chain of circumstance is not completed to prove the charge against the accused persons. As already indicated earlier, there is no other evidence on record to connect the accused persons with the alleged crime.
13. Before parting with the discussion, we may observe that if the prosecution would have been conducted in a more sincere way and evidence would have been tendered systematically, keeping in mind the facts involved and the charge framed against the accused persons, then the prosecution would have been in a better position so as to place its point before the Court. The casual manner in which the prosecution was conducted and the whimsical manner in which the evidence was introduced, has left the trial with inadequate materials to substantiate the charge.
14. the forgoing discussion, we find that the Judgment of conviction is not sustainable and the accused persons are entitled to benefit of doubt. Accordingly, the order of conviction under Section 302/34, I.P.C. is set aside and the Appellants/accused persons are acquitted from the charges by granting benefit of doubt. Since they were not granted bail during pendency of the Appeal, if they are detained in jail custody in connection with S.T. Case No. 47/36 of 1996 of the Court of Addl. Sessions Judge, Sambalpur and if their detention is not required in connection with any other criminal case, then they be set at liberty forthwith.