JUDGMENT
R.K. Patra, J.
1. This appeal is directed against the judgment and order dated 21.10.1992 of the learned Sessions Judge, Bolangir in Sessions Case No. 55 of 1992 by which the appellant has been convicted Under Section 302, I.P.C. and sentenced to imprisonment for life.
2. The core of the prosecution is that on 25.1.1992 at about 7 a.m. Draupadi (P. W. 1), her father Anurja Mahanandia (hereinafter referred to as ‘the deceased’) and P.W.2 Laxmi (widow of the deceased) started from their house with a trolley to collect seraps from Bolangir town. After some time the deceased came back to his house with a pig. Soon thereafter Draupadi (P.W. 1) was informed that the appellant committed the murder of the deceased at his (appellant) house. She immediately rushed to the house of the appellant and found that her father was laying dead with profuse bleeding injuries on his body.
On the basis of the F.I.R, lodged by Draupadi (P.W.I) investigation was taken up and the appellant was placed on trial which has ended in his conviction, as aforesaid.
3. The plea of the appellant was completed denial of his complicity in the case.
4. There is no eye-witness to the occurrence. In order to bring home the charge, prosecution examined nine witnesses. P.W.I is the daughter of the deceased, P.W.2 is his widow and P.W.3 is a rickshaw-puller who turned hostile. P.W.4 is a witness to the inquest of the dead body. P.W.5 is a municipal sweeper and P.W.6 is the doctor who examined the blood group of the appellant and one Petu. P.W.7 is a hotelier. P.W.8 is the Investigating Officer and P.W.9 is the doctor who conducted the post-mortem examination of the dead body of the deceased.
5. The doctor (P.W.9) who conducted autopsy on the dead body of the deceased found the following injuries :
(i) One incised wound 2″ in length on the right leg just below the knee;
(ii) One incised wound 21/2″ in length on the medial aspect of the right leg;
(iii) One incised wound 3″ in length just above the right ankle joint;
(iv) One incised wound of 8″ in length just below the knee joint (on the left leg);
(v) One incised wound 3″ in length just above the left ankle joint with fracture of tibia and fibula;
(vi) One incised wound 5″ in length on the back of the neck extending to angle of the mendible (left side);
(vii) One incised wound 5″ in length on the front of the neck on the left side in a horizontal direction;
Both injury Nos. vi and vii the major blood vessels underneath the injuries were severed. Injury No. vii further caused fracture of the cervical spine.
(viii) One stab wound with 2″ opening and 3″ depth was found on the left gluteal region (buttock). It was bone deep.
According to the doctor, death of the deceased was due to severance of the spinal cord in the upper cervical region and all the injuries taken together were sufficient to cause death in the ordinary course of nature. In view of the nature of injuries sustained by the deceased, we have no hesitation to hold that he died a homicidal death.
6. In absence of any direct evidence, the learned Sessions Judge on the basis of the following circumstantial evidence held the appellant guilty Under Section 302, I.P.C. Those circumstances are :
(a) Motive;
(b) The appellant and the deceased were last seen together;
(c) Dead body of the deceased was found in the backyard of the appellant’s house;
(d) nearing clothes of the appellant contained bloodstains which tallied with the blood group of the deceased; and
(e) Recovery of the weapon of offence (axe-M.O.I.) on the information furnished by the appellant while in custody.
7. Shri Panda, the learned counsel for the appellant, contended that the learned Sessions Judge merely on the basis of suspicion has convicted the appellant inasmuch as none of the circumstances mentioned above has been proved beyond reasonable doubt. The learned Additional Government Advocate, on the other hand, supported the impugned judgment.
8. It may be stated that where there is no direct evidence and the case is based solely on circumstantial evidence, the prosecution must prove each circumstances beyond reasonable doubt and the circumstances proved must form a complete chain without giving scope to any other hypothesis and should be consistent only with the guilt of the accused. In other words, all the circumstance so must form an unbroken chain leading to the only conclusion of the guilt of the accused. Due care must be taken in evaluating circumstantial evidence and while doing so, the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof.
As back as in 1938 Baron Anderson in his charge to the Jury in R. v. Modge (1838) 2 Law C.C. 227 so aptly and eloquently said :
The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual the more’ likely was it, considering such matter, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.”
Keeping the aforesaid in view, let us examine if the prosecution has been able to prove its case. We may now proceed to consider each of the circumstances referred to above.
9.(a) Motive
The prosecution alleged that the appellant had the motive to commit the murder because he was at the relevant time facing trial for having committed rape on the daughter-in-law of the deceased and prior to the date of occurrence evidence was tendered in the Court by the daughter-in-law. P.W.I (daughter of the deceased) has not stated anything about the pendency of any rape case against the appellant. On the other hand, she deposed that on the date of occurrence she found her deceased father and the appellant were having friendly talk in front of the Tea-stall of Jhulu Panda. P.W.2 (widow of the deceased) stated that in the rape case her daughter-in-law deposed in the Court in which the appellant was the accused. In cross-examination, she admitted that even after the rape case, the appellant and her family members had normal social visit. From the aforesaid evidence, it cannot be conclusively held that because of the rape case the appellant had the intention or motive to do away with the life of the deceased.
(b) The appellant and the deceased were last seen together.
P. W. 1 is the only witness to say that on the date of occurrence she saw her deceased father and the appellant who were having friendly talk in front of the Tea-stall of one Jhulu Panda. Before discussing the credibility of P.W. 1, it is appropriate to note that she was aged about 1 3 years by the time she deposed in Court. She was thus a child witness. When a child appears in a Court as a witness the first step for the trial Judge is to satisfy himself if the child is a competent witness. It is his duty to ascertain whether he/she possesses the intellectual capacity and understanding and would be able to give rational account of what he she had seen, heard or done at the particular occasion. Competency of such witness can be ascertained by putting a few questions to him/her. Surprisingly the learned Sessions Judge in the present case did not hold any preliminary enquiry and straightaway examined her as a witness and thus has failed in his performance of judicial duty. He may, however, note that such omission does not make the evidence of P.W. 1 inadmissible in law.
P.W.I being a teenager her evidence has to be scrutinised with care and caution. She deposed that after she returned home one Prahallad Mahaling informed her that her father had been killed. On hearing such news, she rushed to the spot with her sister Duti (not examined) and saw her father lying dead at the washing place of the appellant’s house. His neck was covered and his legs wore cut into pieces. It may be noted that Jhulu Panda in front of whose Tea-stall the appellant and the deceased are said to have been talking was not examined. One Harihar Panda was examined to prove that he had a Tea-stall near the place of occurrence. Strangely he turned hostile and denied his knowledge about the cause of the death of the deceased. Prahallad Mahaling who informed P.W.I that her father was killed was also not examined. The evidence of P.W. 1 is not free from doubt inasmuch as she in her cross-examination stated that the dead body of her father was lying on the backside of one Meher’s house whereas in her examination-in-chief she stated that her father was lying dead at the washing place of the appellant’s house. On a close reading of her evidence, we find nothing to implicate the appellant with the crime. From her evidence, it cannot be conclusively held that the appellant and the deceased were the only persons last seen together immediately before the occurrence. Theory of ‘last seen’ has its own limitations and in absence of any other material, we are inclined to hold that the link of circumstance of ‘last see’ has not been proved by the prosecution beyond reasonable doubt.
(c) Discovery of the dead-body from the back-yard of the house of the appellant.
P.W.I although in her examination-in-chief stated that she found her father lying dead at the washing place of the appellant’s house, in cross-examination she stated that the dead body was lying in the backside of one Meher’s house and to the north of the spot was an open space having lands and drain. P.W.2 (widow of the deceased) also admitted in the cross-examination that the dead body was lying in an open space in the backside of the house of one Meher. The Investigating Officer P.W.8 stated that the dead body was lying in the backside of the houses of Debraj Meher and Chhabi Meher and that place was the courtyard of the appellant. In view of such inconsistent evidence, it cannot be definitely held that the dead body of the deceased was found lying in the backyard of the house of the appellant.
(d) Presence of human blood tallying with the blood-group of the deceased in the wearing apparel of the appellant.
The Investigating Officer (P.W.8) deposed that he seized the wearing clothes of the appellant (shirt M.O.II and pant M.O.III) on 25.1.1992 while he was in police station as per the seizure list (Ext.9). No other witness was examined in support of such seizure. From the report of the Serologist (Ext. 16) it appears that pant (M.O. III) was stained with human blood, but no opinion could be given about its grouping. The shirt (M.O.II) contained stains of human blood of Group ‘A’ which was said to be the blood group of the deceased. It is submitted on behalf of the appellant that along with the aforesaid M.Os. II and III, Chadar, Gamuchha, Dhoti and Banian belonging to the deceased were sent in one bundle for chemical examination and the blood from the clothings of the deceased might have percolated to the shirt (M.O.II). We have considered this submission and are of the view that such possibility cannot be completely ruled out. Be that as it may, mere presence of human blood of Group-‘A’ in the shirt of the appellant cannot form the basis of conviction when there is missing of the other links in the chain of circumstance.
(a) Discovery of the weapon of offence :
The Investigating Officer (P.W.8) stated that during police custody, the appellant gave information that he concealed the axe in the tank called ‘Ranibandha’. On the basis of such statement, he got the axe (M.O.I) searched in the water and recovered the same on 30.1.1992 which was seized as per Ext.5. P.W.5 stated that on being instructed by the police he entered inside the tank and recovered the axe (M.O.I). Recovery of the axe no way furthers the case of the prosecution in absence of any evidence that the appellant assaulted the deceased with it (M.O.I).
10. From the analysis of evidence as above, we have no hesitation to hold that none of the circumstances pressed into service by the prosecution has been established. As there is no evidence on record to implicate the appellant with the commission of the murder of the deceased, he is entitled to get the benefit of doubt. We order accordingly.
11. In the result, the conviction and sentence imposed on the appellant Under Section 302, I.P.C. are hereby set aside and he is acquitted of the charge. He may be set at liberty forthwith if his detention is not required in connection with any other case.
The appeal is accordingly allowed.
Ch. P.K. Mishra, J.
12. I agree