Allowed

Dillip Pradhan v. State

Orissa HC4 Mar 2021JCRLA/84/2005

Case brief

AI extract

What is this about?

This appeal challenges a life imprisonment conviction for murder under Section 302 IPC. The High Court set aside the conviction, finding the prosecution failed to establish motive, the last-seen theory, and the admissibility of the discovery statement due to lack of specific details regarding the weapon's concealment, breaking the chain of circumstantial evidence.

What did the court decide?

The judgment of conviction and order of sentence passed by the trial court were set aside and the appellant was released.

Dillip Pradhan Vs State — Murder and Culpable Homicide | Orissa HC (2021)

¶1

HIGH COURT OF ORISSA ; CUTTACK

¶2

JCRLA NO.84 0F 2005

¶3

From the judgment and order of conviction dated 12.4.2005 passed by the learned Ad hoc Addl. Sessions Judge, Fast Track Court, Athagarh in S.T. Case No.332 of 2004.

¶4

----------Dillip Pradhan … Appellant Versus State of Orissa … Respondent ----------For Appellant : Mr. Sabyasachi Mishra and Mr. Sougat Dash (Amicus Curiae) For Respondent : Sk. Zafarulla, Addl. Standing Counsel

¶5

¶6

P R E S E N T:

¶7

MR. JUSTICE S.K.MISHRA AND MISS JUSTICE SAVITRI RATHO

¶8

Date of Hearing and Judgment:4th March, 2021

¶9

S.K.Mishra,J . The sole appellant-Dillip Pradhan assails his conviction under Section 302 of the Indian Penal Code (hereinafter referred to as the “Penal Code” for brevity) by

¶10

¶11

the learned Ad hoc Addl. Sessions Judge, Fast Track Court, Athagarh in S.T. Case No.332 of 2004 by virtue of the judgment dated 12^th April, 2005. He has been sentenced to undergo rigorous imprisonment for life. The appellant has been acquitted of the charges under Sections 25 and 27 of the Arms Act.

¶12

The prosecution case is that the deceased Ashok Biswal, on 17.1.2004 had gone to village Mandiapalli along with the appellant. Since he did not return, his brother Saroj went to Mandiapalli to enquire regarding his whereabouts. In the village Mandiapalli, Saroj was informed by Jhunu Pradhan that she had seen the deceased along with the company of the appellant-Dillip Pradhan as they were proceeding towards Mandap Mundia field side and the appellant was holding a gun. (Jhunu Pradhan has not been examined in this case). She further disclosed that after some time Dillip alone returned to his home. Subsequently, the mother of the deceased, P.W.2, got information from one Purushottam Rout that the deceased has been murdered and his dead body was lying at Mandap Mundia forest with gun shot wound. P.W.2-Gouri Biswal lodged an F.I.R. before the O.I.C., Baramba Police Station on 19.1.2004. A criminal case was registered for the offence under Section 302 of the Penal Code against the appellant and investigation of the case was taken up.

¶13

¶14

During course of investigation, the O.I.C., Baramba Police Station, P.W.12, examined the informant and other witnesses, recorded their statements, held inquest on the dead body of the deceased, dispatched the dead body for post mortem examination, arrested the appellant, recorded the statement of the appellant under Section 27 of the Indian Evidence Act and the appellant gave recovery of the weapon of offence, i.e, S.B.M.L. (country made gun) and after obtaining medical opinion as well as ballistic report submitted, charge sheet against the appellant under Section 302 of the Penal Code and Section 25 and 27 of the Arms Act.

¶15

The appellant took the plea of simple denial.

¶16

In order to prove its case, the prosecution has examined twelve witnesses and exhibited thirteen documents and two material objects. The defence, on the other hand, did not examine any witness. It also did not exhibit any document to prove its case.

¶17

At this stage, there is no dispute that the prosecution has not presented any eye witness to the occurrence. The entire prosecution case is based on circumstantial evidence. The circumstances relied upon by the prosecution as accepted by the learned Sessions Judge to have been brought home beyond reasonable doubt are as follows:

¶18

¶19

(i) Homicidal nature of the death of the deceased.

¶20

(ii) Death of the deceased was due to gun shot injury.

¶21

(iii) Last seen of the appellant with the deceased.

¶22

(iv) Discovery statement made under Section 27 of the Indian Evidence act.

¶23

(v) The Ballistic report and motive for committing the crime.

¶24

We have heard both Mr. Sabyaschi Mishra and Mr. Sougat Dash, learned Amicus appointed by this Court. Arguing on each of the circumstance, learned counsel appearing as Amicus in this case would argue that three important aspects of the circumstantial evidence are not established beyond reasonable doubt by the prosecution in this case.

¶25

The first circumstance which has been challenged by the learned counsel for the appellant is the motive to commit the crime. The prosecution has put forth the illicit relationship of the deceased with one Ranju Pradhan, a cousin sister of the appellant, to be the motive driving the appellant to commit the murder of the deceased. The second aspect is that the appellant was not being paid by the deceased against his work as a labourer in the house of the deceased.

¶26

¶27

However, after careful examination of the evidence on this score, we are of the opinion that all the statements made by the prosecution witnesses including P.W.4-Pramod Pradhan are hearsay evidence which are not admissible in evidence. The most important aspect is that Ranju Pradhan has not been examined in this case. No witness stated that they have direct knowledge regarding the illicit relationship of the deceased with Ranju Pradhan.

¶28

There is no direct material to show that the deceased failed to pay the wages of the appellant. All the materials available on record are hearsay. Though P.W.2 has stated that the accused was working in her house she does not state about the failure of the deceased to pay the wages of the appellant. So, in our considered opinion the prosecution has not proved the circumstance of nature beyond all reasonable doubt. In other words, it has not been established firmly by cogent evidence leaving no doubt in the mind of the Court.

¶29

The third circumstance which is relied upon by the learned Amicus is the ‘last seen’ of the deceased with the appellant. The very prosecution case presented before the learned trial Judge is that on 17.11.2004, Saturday, at about 11 A.M. the deceased was approached by the appellant and they went to village Mandiapalli, the deceased did not return. On the next date, Saroj Biswal, the

¶30

¶31

younger brother of the deceased, went to Mandiapalli, on enquiry one young girl namely Jhunu Pradhan stated that Ashok and Dillip (the deceased and appellant) went towards the field. As per the prosecution case, the last seen of the deceased was with the appellant in village Mandiapalli by one Jhunu Pradhan. However, during course of trial, the prosecution improved upon the case and tried to create a case of circumstantial evidence of the last seen theory of the deceased along with the appellant from the village of Benudharpur and presented a case that from Benudharpur they went to Mandap Mundai forest. Moreover, the evidences of P.Ws.2,4,7 and 9 reveal major contradictions regarding the appellant being ‘last seen’ with the deceased.

¶32

In the case of Hanumant Govind Nargundkar and another v. State of Madhya Pradesh ; reported in 1952 (2) SC 343, the Hon’ble Supreme Court has held that in dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always a 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:

¶33

"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need

¶34

¶35

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."

¶36

In the said reported case the Hon’ble Supreme Court further held that 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.

¶37

Applying these principles to the case in hand, we find evidence regarding ‘last seen’ of the deceased with the appellant from village Benudharpur is shrouded with contradictions and inconsistencies. It cannot be said that the prosecution has proved this circumstance conclusively.

¶38

The next circumstance challenged by learned Amicus in this case is the discovery of the weapon of offence i.e. S.B.M.L. (country made gun) on the discovery

¶39

¶40

statement given by the appellant under Section 27 of the Evidence Act. It is admitted at this stage by both the parties that no separate statement under Section 27 of the Evidence Act has been recorded by the Investigating Officer.

¶41

In this connection the reported case of Suresh Chandra Bahri v. State of Bihar ; AIR 1994 SUPREME COURT 2420 is relied upon by both the sides. In that reported case also no separate statement of the appellant was recorded. When the matter came before the Hon’ble Supreme Court, it was held by the Hon’ble Supreme Court that non-recording of the disclosure statement separately will not adversely effect the case of the prosecution. But the Hon’ble Supreme Court further held that the ingredients of Section 27 of the Indian Evidence Act were proved by the prosecution. The ingredients are that (1) the person giving information must be an accused of the offence and (2) he must be in police custody.

¶42

Applying the principles of the present case, we have examined the seizure list which purportedly the records, the discovery statement of the appellant while in police custody admissible under Section 27 of the Indian Evidence Act, which has been marked as Ext.1. At the bottom of the Ext.1 the circumstance of seizure has been reflected by the I.O. that the appellant while in police custody and confessed that he has murdered the deceased

¶43

¶44

by means of a gun and that he will show the spot of occurrence and produced the gun before the witness.

¶45

This statement does not confirm to the requirement of Section 27 of the Indian Evidence Act. Because in a discovery statement the person in custody must give the information about the place of concealment. In other words the information must be given by the appellant regarding the place of concealment of the weapon of offence. In this case, there is no such statement even in the seizure list prepared by the Investigating Officer. So, in our considered opinion that the ingredients necessary to attract Section 27 of the Indian Evidence Act are not available in this case, so it cannot be relied upon.

¶46

Keeping in view the fact that the prosecution has not been able to establish the three major circumstances out of the five relied upon by the learned Addl. Sessions Judge, we are of the opinion that in this case there is no complete chain of circumstances unerringly pointing towards the guilt of the appellant. Therefore, we are not inclined to confirm the judgment of conviction and order of sentence.

¶47

Hence the appeal is allowed. The judgment of conviction and order of sentence passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court, Athagarh in S.T. Case No.332/2004 for the offence under Section 302 of the Indian Penal Code are hereby set aside.

¶48

¶49

The appellant be set at liberty forthwith without any further delay, if his detention is not required in any other case.

¶50

T.C.Rs. be returned immediately.

¶51

.….………..…..

¶52

S.K.Mishra, J

¶53

Savitri Ratho,J.

¶54