Allowed

Dillip @ Sambhu v. State

Orissa HC14 Dec 2020CRA/47/2001

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction for murder. It held that the chain of circumstances was incomplete due to failure to separately seal articles for chemical examination and the prosecution's failure to explain injuries sustained by the accused, thereby benefiting the defence.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bond cancelled; L.C.R. returned.

Dillip @ Sambhu Vs State — Murder and Culpable Homicide | Orissa HC (2020)

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HIGH COURT OF ORISSA: CUTTACK.

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CRA No.47 of 2001

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From the judgment of conviction and order of sentence dated 05.02.2001 passed by Shri Himadri Mohapatra, learned Sessions Judge, Koraput, at Jeypore in Sessions Case No.144 of 1997.

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--------Dillip @ Sambhu Patnaik …… Appellant. - VersusState of Orissa …… Respondent. For Appellant : Mr. Debasis Sarangi For Respondent : Mr. A.K. Nanda, Additional Government Advocate. ---------

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P R E S E N T :

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THE HONOURABLE SHRI JUSTICE S. K. MISHRA AND THE HONOURABLE MISS JUSTICE SAVITRI RATHO

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____________________________________________________________________ Date of Hearing and Judgment- 14.12.2020

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S. K. MISHRA, J. The sole appellant-Dillip @ Sambhu Patnaik has

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challenged his conviction and sentence to undergo imprisonment

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for life for commission of offence punishable under Section 302 of

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the Indian Penal Code, 1860 (hereinafter referred to as “the Penal Code” for brevity) recorded by the learned Sessions Judge, Koraput, at Jeypore in Sessions Case No.144 of 1997, vide the judgment of conviction and order of sentence dated 05.02.2001.

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02 . The case of the prosecution in brief is as follows:

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In this case, the occurrence took place on 15.03.1997

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between 5.30 P.M. and 6.00 P.M. The accused with a view to settling scores with deceased Sushanta on account of a previous quarrel had called him and the deceased had gone in that connection to ‘L’ zone, Sunabeda. In pursuance of his plan, the accused was armed with a knife. In course of discussion, it is alleged that the accused took the deceased to a lonely place and stabbed him several times with the knife causing multiple injuries and instantaneous death of the deceased. It is alleged that on a previous occasion the deceased had assaulted the accused and the accused was in search of an opportunity to wreak vengeance. After the occurrence, the accused fled away from the village, but five days after the occurrence he was arrested on 20.03.1997 in village Dasamantapur. After his arrest while in custody, the accused gave a disclosure statement relating to concealment of the knife, the weapon of offence and the Investigating Officer acting upon the information furnished by the accused recovered the weapon of

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offence. Blood stains pertaining to the deceased were found in the knife seized by the police. Accused was found to have received injuries in his fingers cotemporaneous with the alleged

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occurrence. On completion of investigation, charge-sheet was submitted against the accused. Upon commitment, the accused faced the trial for the offence alleged.

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03 . The accused pleaded not guilty to the charge. The defence plea is one of denial.

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04 . The prosecution, in support of its case, examined thirteen witnesses in all of whom P.W.5 is the brother of the deceased, who, on the date of occurrence got information about the murderous assault of his brother, verified the incident and reported about the homicidal death of the deceased to the police. P.W.12 is a friend of the deceased, who, according to the prosecution, had brought the deceased at the latter’s instance to the ‘L’ zone in his motor cycle and had left him there. As P.W.12 returned to give the deceased a lift back after some time, he found the deceased missing and while he was waiting, he was informed that the deceased was lying near the College Square with multiple injuries. He went to the spot where he met P.W.5, the informant. The deceased was lying there dead. P.W.2 is the father of the accused, who deposed

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that the accused having delivered the flour after grinding wheat on

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the date of occurrence was found missing. P.Ws.1 and 4 are formal witnesses to the inquest over the dead body of the deceased before it was sent to Koraput Hospital for post-mortem examination. P.W.4 also witnessed the seizure of blood stained and sample earth and blood stained Chappal at the spot as per the seizure lists Exts.2 and 3 respectively. P.W.7 is the Pharmacist of Podagada Government Hospital, Podagada who on the day following the alleged occurrence had the occasion of treating the accused as an outdoor patient for cut injuries on his right little and ring fingers and entering his name in the Register of Out Patients which was seized by police as per Ext.5. The relevant entry is marked as Ext.7. P.Ws.8 and 11 are the witnesses to the seizure of the knifeM.O.V, the weapon of offence, and the wearing apparels of the accused. P.W.10 is the Medical Officer, who held the autopsy on the dead body of the deceased and found five incised injuries and two stab wounds. He confirmed his opinion that the knife M.O.V could produce the injuries found in the deceased. P.W.9 is the Assistant Surgeon, who after apprehension of the accused on 21.03.1997 examined him and noticed two skin deep cut injuries on the tips of right little and ring fingers. He proved the injury report of the accused as Ext.11 and in response to a query

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made by the police, he gave his affirmative opinion that the knife could produce the superficial injuries on the person of the accused. P.Ws.3 and 6 did not support the prosecution version and turned hostile. P.W.13 is the Investigating Officer, who registered the case and made investigation and after completion of investigation submitted charge-sheet.

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05 . Learned Sessions Judge, Koraput, at the outset, recognized the fact that there was no direct evidence implicating the accused in the alleged crime. However, he relied upon the following circumstances to come to the conclusion that prosecution has proved its case beyond reasonable doubt. The circumstances are enumerated below:

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(i) the death of the deceased Sushanta was established by the prosecution to be homicidal in nature;

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(ii) the weapon of offence-M.O.V, a knife, was recovered on the disclosure statement made by the accused/ appellant under Section 27 of the Indian Evidence Act, 1872;

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(iii) the blood stain determined to be belonging to human blood of ‘A’ group was found on the same which was the same blood group found in the wearing apparels of the deceased;

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(iv) the accused did not explain the injuries he has

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sustained on his right little and ring fingers;

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(v) small patch of blood of human origin of group ‘A’

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found on the pant of the accused seized from him at the time of his arrest; and

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(vi) the accused was absconding for five days after committing the crime.

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06 . Mr. Sarangi, learned counsel for the appellant argues that so far as homicidal nature of death of the deceased is concerned, the appellant does not dispute the fact or the factual findings recorded by the learned Sessions Judge, Koraput. He disputes the leading to discovery of the weapon of offence. He further disputes the reliance by the learned Sessions Judge, Koraput on the incriminating circumstance of finding of human blood of group ‘A’ on the weapon of offence. Mr. Sarangi, learned counsel for the appellant further argues that injuries found on the person of the accused has to be explained by the prosecution. Therefore, he assailed the presumption drawn by the learned Sessions Judge, Koraput against the accused for his nonexplanation on the injuries that were found on the right little and ring fingers of the appellant and termed it as a circumstance, not explained by the prosecution, will not favour the prosecution,

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rather, it will favour the accused. Finally, learned counsel for the appellant argues that finding of a small patch of blood on the pant of the accused which is determined to be human origin of group ‘A’ is of no consequence, as it is the case of the prosecution that the accused has sustained injuries on right little and ring fingers and finding of blood in the wearing apparels is natural. In a situation where the blood group of the accused has not been determined by the prosecution, conclusively, the finding of a small patch of blood on the pant of the accused, admittedly, when he had an injury on his right little and ring finger will not in any manner help the prosecution. Therefore, learned counsel for the appellant argues to set aside the conviction and acquit the appellant of the offence in which he has been convicted.

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07 . Mr. A.K. Nanda, learned Additional Government Advocate argues that findings recorded by the learned Sessions Judge, Koraput are supported by materials available on record. Therefore, he argues that the appeal should be dismissed.

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08 . So far as homicidal death of the deceased is concerned, there appears to be no doubt. Hence, we are not inclined to disturb such findings of the learned trial judge. However, the most import aspect to be considered by this Court at present is whether the

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prosecution has established its own case that it is the accused/ appellant only who has done the deceased to death and no other person. In this connection, we take note of the reported judgment passed in the case of Hanumant Govind Nargundkar and another -vrs.- State of Madhya Pradesh : reported in 1952 (2) SC 343, wherein the Hon’ble Supreme Court has held as follows:

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“xx xx xx xx xx In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge, (1838) 2 Lewin 227) where he said :

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"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 matters, 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."

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It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent

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with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. Xx xx xx xx xx xx ”

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08.1. So far as the discovery of the weapon of offence M.O.V and finding of blood of human origin of group ‘A’ are concerned, it is seen from the evidence of P.W.13, the Investigating Officer who happens to be the Officer-In-Charge of Sunabeda Police Station that after seizure of the same, he sent the knife to the Doctor of Sunabeda Hospital to opine whether the injury can be possible by M.O.V. This was done on 20.03.1997. Then again on 22.03.1997 he sent the M.O.V to the Doctor who had conducted post-mortem examination with a query to give his opinion whether the injuries on the deceased can be possible by it.

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08.2 . On 27.03.1997 on his prayer, learned S.D.J.M., Koraput sent the seized articles including M.Os.I to V to S.F.S.L., Bhubaneswar for chemical examination. Ext.22 is the office copy of the forwarding letter of the learned S.D.J.M., Koraput.

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08.3 . Examination of the forwarding letter reveals that during the course of investigation, the Investigating Officer seized the blood stained pitch pieces, sample pitch piece, blood stained earth, sample earth, the wearing apparels of the deceased, blood stained

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cement pieces, blood stained earth, sample cement piece from the boundary wall of the Utkal Cinema Hall, Sunabeda. The weapon of offence i.e. knife has been seized on the leading to discovery by the accused under Section 27 of the Indian Evidence Act, 1872. The wearing apparels of the accused and blood sample of the accused were collected and seized. All the seized articles have been kept in custody of the Investigating Officer after seizure. Nowhere in the forwarding report Ext.22 it has been mentioned that the different Material Objects sent for chemical examination were sealed separately. In this connection, we rely upon the observations made by the Division Bench of this Court in the case of Binder Munda –vrs.- State , reported in (1992) 5 OCR 370 and find it apposite to quote the paragraph 7 of the judgment as follows:

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“The next item of evidence relied upon by the learned trial Judge is matching of blood group in the wearing apparel of the appellant, namely, Dhoti, M.O. II and the wearing apparel of the deceased like Lungi, underwear and banian, M.Os. Ill to V. Apart from the fact that matching of the blood group by itself cannot be a conclusive proof to fasten the appellant with culpability, it would be noticed, as contended on behalf of the appellant, relying on two Bench decisions of this Court in the case of Nimai Murmu v. The State, 59 (1985) CLT 488 and in the case of Lakshmi Jani v. State 60 (1986) CLT 346 that the I. O. did not keep the individual material objects in sealed packets while sending these items for chemical examination. No doubt the forwarding letter Ext. 14 would go to show that the entire parcel containing the items was sealed, but there is nothing to show that the individual seven items

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contained inside the parcel was each contained in a separate packet and was sealed. It is held in 60 (1985) CLT 346 (supra) as follows :

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".........It is necessary and desirable that the police officer recovering articles with suspected stains of blood should immediately take steps to seal them and evidence should be produced that the seals were not tampered with till the articles were sent to the Chemical Examiner for analysis. If such precautions are not taken, the Court may not place the same reliance on the discovery of blood stains, on the seized articles as it would have done if necessary precautions had been taken."

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In both the decisions aforecited such infirmity is being noticed and the conviction of the appellant was set aside.”

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Thus, a plain reading of this judgment relied upon by the learned counsel for the appellant leads us to come to the conclusion that if all the Material Objects were not kept separately in different sealed packets and kept together then there is danger having misleading report of chemical and serological examination. So, this circumstance cannot be relied upon by us to come to the conclusion that the prosecution has established beyond reasonable doubt that the M.O.V, the knife, recovered by the police on the discovery statement made by the accused/ appellant under Section 27 of the Indian Evidence Act, 1872, is an incriminating circumstance against the appellant.

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09 . As regards the presumption drawn by the learned Sessions Judge, Koraput regarding the injuries found on the little and ring fingers of the right hand of the accused, we are of the opinion that the arguments advanced by the learned counsel for the appellant require serious consideration. Learned Sessions Judge, Koraput at page 9 containing the contents of paragraph 8 of the impugned judgment has given a specific finding. We consider it apposite to quote below:

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“xx xx xx The presence of injuries on the person of the accused is a circumstance against him and devoid of explanation is an admissible piece of evidence against him. In this connection, reliance is placed on a decision of the Supreme Court in Laxmi Singh & others v. State of Bihar reported in A.I.R. 1976 SC. 2263. The same is the view in the decision in Smt. Rukma and others v. Jala and others reported in A.I.R. 1997 S.C. 3907 wherein it is held that presence of bleeding injuries with the accused is a circumstance implicating him in the alleged occurrence. The nature and location of injuries only further the prosecution case that the accused accidentally received such injuries while dealing stab-blows with the knife on the deceased. The presence of such injuries serve as a mute testimony of the complicity of the accused in the murder of the deceased in the manner it was caused. xx xx xx.”

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10. To examine the acceptability of the contentions made by

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the learned counsel for the appellant, we have carefully read the judgment of the Hon’ble Supreme Court passed in the case of Lakshmi Singh and others etc. –vrs.- State of Bihar : reported in

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AIR 1976 SC 2263. We have examined the judgment rendered by the Hon’ble Supreme Court in the aforesaid case and do not find any observation of the Hon’ble Supreme Court that presence of bleeding injuries on the person of the accused is a circumstance implicating him in the alleged occurrence. Rather, on the contrary, the Hon’ble Supreme Court has held in the said case that non-explanation of the injuries on the person of the accused by the prosecution should be considered as facts and circumstances against the prosecution. At paragraph 11 of the said judgment, S. Murtaza Fazl Ali, J, as His Lordship was then, has very pithily summarized the law governing the field. It is appropriate to quote the same. It reads as follow:

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“P.W. 8 Dr. S. P. Jaiswal who had examined Brahmdeo deceased and had conducted the postmortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the Court, on April 22, 1966 and found the following injuries on his person:

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“1. Bruise 3" x 1/2" on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle.

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Incised wound 1" x 2 m.m. x skin subcutaneous deep on the lateral part of the left upper arm, near the shoulder joint.

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Punctured wound 1/2" x 2 m.m., x 4 m.m. on the lateral side of the left thigh about 5 inches below the hip joint.”

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According to the Doctor, injury No. 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious

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injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar (1968) 3 SCR 525 = (AIR 1968 SC 1281) tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows:

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“The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries

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and Bharath Rai 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.”

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This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab, Criminal Appeal No. 266 of 1971 decided on April 25, 1975 = (reported in AIR 1975 SC 1674) which was also a murder case, this Court, while following an earlier case, observed as follows:

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“In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975= (reported in AIR 1975 SC 1478) one of us (Untwalia, J.), speaking for the Court, observed as follows:

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“In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:

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(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

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(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

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(3) It does not affect the prosecution case at all.”

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The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

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(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

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(2) that the witnesses who have denied the presence of the injuries on the person of the accused relying on a most material point and therefore their evidence is unreliable;

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(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. Xx xx xx xx. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 = (reported in AIR 1975 SC 1478) there may be cases where the non-explanation of

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the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.”

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11. A careful examination of the reported judgment passed in the case of Smt. Rukma and others –vrs.- Jala and others : AIR 1997 SC 3907 also shows that there is no observation by the Hon’ble Supreme Court that the presence of bleeding injuries on the person of the accused is a circumstance implicating him with the alleged occurrence. So, this circumstance of finding injuries on the little and ring fingers of the right hand of the accused is not a circumstance which can be accepted as an incriminating one against the accused/ appellant.

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12. The next circumstance is the finding of a small patch of blood of human origin of group ‘A’ on the pant of the accused. It is not disputed at this stage that the blood group of the accused/ appellant has not been determined in this case. Coupled with the fact that the prosecution case is that the accused has sustained injuries on his right little and ring fingers, in the absence of

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determination of blood group of the convict/ appellant belongs to a group other then group ‘A’, such finding of small patch of blood

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human origin of group ‘A’ on his pant will not be an incriminating circumstance against the accused. So, this

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circumstance fails in this case.

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13. The last circumstance taken into consideration by the learned Sessions Judge, Koraput is the alleged absconding by the accused/appellant after commission of the crime. In this connection, the prosecution heavily relied upon the evidence of P.W.2 who happens to be the father of the accused/appellant. He stated in his examination-in-chief that on 15.03.1997 the police came to his quarters in search of his son. On that day, the accused had gone for grinding wheat at about 5.30 P.M. After keeping the Atta in the house as usual he left the house. Two days thereafter, he got information from the police that his son returned. His son did not return to the house till the information he received from the police. This fact cannot be taken into consideration as an incriminating circumstance of abscondance of the accused/ appellant after commission of crime. We have carefully examined the evidence of P.W.13, the Investigating Officer in this case. He has not stated in his examination-in-chief while being examined before the learned Sessions Judge on oath that the appellant was

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absconding. There is absolutely no material on record to show that the appellant was absconding from the police immediately after the occurrence.

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14. Thus, on a conspectus of the materials available on record, we are of the opinion that the prosecution, in this case, has not established all the circumstances which have been relied upon by the learned Sessions Judge, Koraput to record the conviction against the appellant. We are also of the opinion that chain of circumstances is not complete, unerringly pointing towards the guilt of the accused. Thus, keeping in view the aforesaid conclusion, we are of the opinion that the conviction of the appellant under Section 302 of the Penal Code recorded by the learned Sessions Judge, Koraput is erroneous and is liable to be set aside.

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15. Accordingly, we allow the appeal and set aside the impugned judgment convicting and sentencing the appellant under Section 302 of the Penal Code passed by the learned Sessions Judge, Koraput, at Jeypore in Sessions Case No.144 of 1997. The appellant is acquitted of the said charge.

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Since the appellant, namely, Dillip @ Sambhu Patnaik, is on bail, the bail bond be cancelled in the aforesaid case.

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The L.C.R. be returned back forthwith.

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COVID-19 pandemic, learned counsel for the parties may utilize the soft copy of this order available in the High Court’s official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587, dated 25.03.2020.

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Savitri Ratho, J. I agree.

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...... . ………………… Savitri Ratho, J.

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Orissa High Court, Cuttack, Dated the 14^th December, 2020/B. Jhankar

Dillip @ Sambhu v. State

Case brief

What is this about?

What did the court decide?

Dillip @ Sambhu v. State

Case brief

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What did the court decide?

What the court decided

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