Parama Mallick Vs State

sections 302 & 380 of the Indian Penal Code (hereinafter ‘I.P.C.’) on the accusation that in the intervening night of 3^rd /4^th January, 2011 inside the campus of Balaji Rice Mills situated at village Tabuda under Manamunda police station, he committed murder of one Siba Rana (hereinafter ‘the deceased’) and also committed theft of two mobile phones belonging to Kusaleswar Bhati (P.W.7) and Basudev Meher (P.W.5) from the aforesaid mill premises.

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The learned trial Court vide impugned judgment and order dated 18.12.2012/19.12.2012 though acquitted the appellant of the charge under section 380 of the I.P.C., but found him guilty under section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- (Rupees ten thousand), in default of payment of the fine, to undergo rigorous imprisonment for a further period of two years.

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Prosecution Case :

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The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) lodged by one Sanjeeb Kumar Agrawalla (P.W.10) before the I.I.C., Manamunda P.S. on 04.01.2011, in short, is that on 03.01.2011 night at about 10 p.m., the deceased and the appellant had come to work inside

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the Balaji Rice Mill premises as workers and thereafter, the gate of the premises was locked from inside. P.W.5 Basudev Meher was the supervisor in-charge of the mill premises. P.W.2 Prakash Panda @ Tuna Panda was also working inside the mill premises in that night in Boiler and Dryer Section. The informant (P.W.10) slept inside the office room of the plant and Adhikari Senapati (P.W.1), Sanjeet Mahalik (P.W.3) and Kusaleswar Bhati (P.W.7) slept in another room. At about 5.30 a.m. in the early morning, P.W.5 came to P.W.10 and informed him that the body of the deceased was lying inside the mill premises with profused bleeding injuries on his head. P.W.10 immediately rushed to the spot and found the deceased lying motionless. When the mill premises was searched, it was found that the appellant was not present there and two mobile phones were also found missing from inside the mill premises. P.W.10 made a telephonic call to Dr. Subrat Chandra Mishra (P.W.4), who arrived at the spot and examined the deceased and declared him dead. P.W.10 suspected that the appellant had killed the deceased by means of some weapon and also committed theft of two mobile phones.

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On receipt of the written report presented by P.W.10, the I.I.C., Manmunda P.S. namely Prafulla Kumar Padhi (P.W.15) registered Manmunda P.S. Case No.03 dated 04.01.2011 under

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sections 302/380 of the I.P.C. against the appellant and he himself took up investigation of the case and sent requisition to the Superintendent of Police, Boudh to depute a scientific team to the spot, examined witnesses at the spot and prepared the topography map. The scientific team arrived at the spot and took photographs of the scene from different angles, collected sample earth and blood stained earth etc. from the spot and handed over the same to the I.I.C. (P.W.15) which was seized as per seizure list (Ext.6). The appellant was not found either inside the mill premises or in the neighbourhood and from the rest-shed, the wearing apparels of the appellant were seized as per seizure list (Ext.1). Inquest was conducted over the dead body of the deceased and inquest report (Ext.9) was prepared and the dead body was sent to the District Headquarters Hospital, Boudh for post-mortem examination. The wearing apparels of the deceased were produced by Havildar Hajari Naik (P.W.13) who had escorted the dead body for autopsy and accordingly the same were seized by P.W.15. Subsequently, P.W.15 received information that the appellant had a telephonic conversation with P.W.5 and in such conversation, the appellant confessed his guilt

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to have assaulted the deceased with a crowbar and had concealed the crowbar on the heap of rice gunny bags stored

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inside the mill. A compact disc of the recorded telephonic conversion between the appellant and P.W.5 was produced by P.W.10 before P.W.15 on 07.01.2011, which was seized under seizure list Ext.2. P.W.15 subsequently traced out the crowbar from the mill premises and seized the same as per seizure list Ext.3. He received the post mortem report of the deceased and made a query to the doctor, who conducted post-mortem examination regarding possibility of the injuries noticed on the body of the deceased with such crowbar and accordingly received the reply. On 06.05.2011, the I.O. (P.W.15) received information from the I.I.C., Nimapara police station regarding apprehension of the appellant and his confession before police that he had committed murder of the deceased in the Balaji Rice Mill pemises. The I.I.C. took some of the employees of the mill to Nimapara P.S. for identification of the appellant and accordingly, the appellant was identified. In presence of the police and the employees of the mill, the appellant made confessional statement, which was videographed. Subsequently on 03.08.2011, P.W.15 handed over the charge of investigation to the I.I.C. Tapaswini Kanhar (P.W.16), who on completion of the formalities of investigation, submitted charge sheet on

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27.10.2011 against the appellant under sections 302/380 of the I.P.C.

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Framing of Charges :

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After submission of the charge sheet, the case was committed to the Court of Session after complying due committal procedure, where the learned trial Court framed charges as aforesaid, to which the appellant denied and claimed to be tried, and accordingly the sessions trial procedure was resorted to establish guilt of the appellant.

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Prosecution Witnesses, Exhibits & Material Objects :

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In order to prove its case, the prosecution has examined as many as seventeen witnesses.

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P.W.1 Adhikari Senapati was working as a truck driver in Balaji Rice mill, who stated that in the morning of 04.01.2011, he was informed by P.W.5 that the deceased was lying dead inside the plant amongst the heaps of paddy gunny bags. In the evening hours of 03.01.2011, P.W.10 told him that the deceased had not arrived at the mills and asked him to call the deceased from his house. He further stated that upon being called by him, the deceased came and entered into the premises of the mills along with the appellant and on the next day morning, his dead body was discovered.

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P.W.2 Prakash Panda @ Tuna Panda was working as

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a machine operator in Balaji Rice Mills. He stated that in the night of 03/04.01.2011, the deceased and the appellant joined their duties as usual and at that time, P.W.5 was also present inside the mill campus. He further stated that he so also the deceased proceeded to their respective sections and P.W.5 was supervising both the sections. In the following morning, around 05.00 to 05.30 a.m., he came to know that the deceased had been murdered and the appellant had fled away from the mill premises.

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P.W.3 Sanjeet Mahalik was working as the gate keeper of Balaji Rice Mills, who stated that in the evening hours of 03.01.2011, the deceased, the appellant, P.W.2 and P.W.5 entered into the mill campus and after their entry, he locked the entrance door and went to sleep. He further stated that P.W.1, P.W.5 and P.W.7 were present inside the campus and went to sleep in the office room of the mills. In the morning hours of 04.01.2011, P.W.5 informed him that the deceased was lying dead near the stacked gunny bags inside the campus of the mills and he was suspected to have been murdered. He also stated that the appellant was not present in the mill campus at that point of time.

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P.W.4 Dr. Subrat Chandra Mishra was working as the Ayurvedic Medical Officer at Palsaguda Govt. Ayurvedic Dispensary, Palsaguda, Boudh. He stated that in the early morning of 04.01.2011, he received a call from P.W.5 that one of his employees had been found senseless inside his plant and had sustained bleeding injury on his head. Upon getting such call, he proceeded to the plant, examined the deceased and found that the heart beat and pulse of the deceased had already stopped by then and the body was in a collapsed state. Accordingly, he declared the deceased to be dead.

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P.W.5 Basudev Meher was working as a Munsi/Manager at Balaji Rice Mills and was in-charge of supervision of the overall affairs of the industry. He stated that the appellant, the deceased and P.W.2 were working in their respective sections and he had supervised the work of the deceased till 02.30 a.m. in the night of 03.01.2011/04.01.2011. When he went on a round at about 04.30 a.m., he found that paddy was coming out of the outlet instead of rice. Upon noticing this, when he called inside the section to know if anyone was there and found no one was responding, he proceeded inside the said section and found the deceased lying on the ground with bleeding injuries on his head. He further stated that the

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appellant was not traceable inside the mills at that point of time. He also found the mobile handsets belonging to him and P.W.7 were missing. On 05.01.2011, he rang to his phone from the phone of P.W.6 and the appellant responded from the other side. He talked with the appellant and recorded the call and the appellant confessed to have committed murder of the deceased by means of a crowbar.

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P.W.6 Pravat Kumar Panda was working a labourer in Balaji Rice Mills. He stated that after finishing his first shift work, he left the section at 08.00 p.m. and by then the appellant had reached his section for the second-shift duties. In the morning hours of 04.01.2011, he got the information about the murder of the deceased. He further stated that P.W.5 took his phone on 05.01.2011 and rang to his (P.W.5’s) phone, which was found missing since the dead body of the deceased was discovered. The appellant stated to have responded the call and there was some conversation between the two and the call was recorded. He further stated that on 09.05.2011, the appellant was apprehended by the police and confessed to have committed murder of the deceased by dealing a blow on the head of the deceased by means of a crowbar.

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P.W.7 Kusaleswar Bhati was working in Balaji Rice

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Mills and was present inside the campus in the night of occurrence. He was informed by P.W.5 about the commission of murder of the deceased in the morning of 04.01.2011. He is also a witness to seizure of articles vide Exts.1, 3 & 4.

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P.W.8 Shankar Prasad Meher was the owner of Om Shanti Rice Mills, Majlipada. He stated to have employed the appellant in his rice mills, but the appellant remained in such employment only for a month and thereafter, he was removed from the work as his conduct and attitude were not congenial for the working atmosphere of the mill and for other co-workers. Later it came to his knowledge that the appellant was employed in Balaji Rice Mills where he committed murder of a co-worker and fled away from the spot.

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P.W.9 Sudhir Digal was posted as the Finger Print Sub-Inspector and was attached to the office of the Superintendent of Police, Boudh. He proceeded to Balaji Rice Mills on the requisition of the I.I.C., Manamunda police station. Upon reaching the spot of occurrence, he directed his team photographer to take snaps of the dead body from various angles. He collected some sample soil, blood stained soil and also sample of the blood of the deceased with a gauge cloth. He

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handed over the collected materials to the I.O., which was seized as per the seizure list Ext.6. He also submitted a written report to the effect of his performance at the spot to the I.O. vide Ext.7.

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P.W.10 Sanjeeb Kumar Agrawalla was the owner of Balaji Rice Mills and he is also the informant of the case. He narrated the incident as it unfolded in the night of the occurrence and also supported the prosecution case.

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P.W.11 Biren Mohanty was the owner of a photo studio who stated to have been asked by P.W.10 to convert a call-recording recorded on a mobile handset to a Compact Disc (C.D.). He prepared the C.D. and handed over the same to P.W.10. The same was seized by the police, on production by P.W.10, as per seizure list Ext.2.

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P.W.12 Sudama Sethi is a witness to the preparation

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of the inquest report vide Ext.9.

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P.W.13 Hajari Naik was posted as a Havildar at Manamunda police station. On the command of the I.I.C. of the police station, he proceeded to Balaji Rice Mills and guarded the dead body of the deceased. He subsequently took the dead body of the deceased to District Headquarters Hospital, Boudh for post

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mortem examination. After the post mortem examination, he

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was handed over the wearing apparels of the deceased by the hospital authority, which he produced before the I.O. and the same were seized as per seizure list Ext.11.

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P.W.14 Dr. Prasanna Kumar Mishra was working as the Assistant Surgeon at the District Headquarters Hospital, Boudh, who on police requisition, conducted post mortem examination over the dead body of the deceased and he proved his report vide Ext.13.

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P.W.15 Prafulla Kumar Padhi was working as the Inspector-in-Charge, Manamunda police station, Boudh. He is the initial Investigating Officer of the case.

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P.W.16 Tapaswini Kanhar was posted as the Inspector in-Charge of Manamunda police station. She took over the charge of investigation from P.W.15 on 03.08.2011. Upon completion of investigation, she submitted charge sheet against the appellant under the aforementioned charges on 27.10.2011.

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P.W.17 Bimal Kumar Naik was working as the Inspector-in-Charge, Nimapara police station, Puri. On 08.05.2011, he apprehended the appellant in connection with another murder case. After apprehension, the appellant confessed his guilt not only with regard to the Nimapara case but also with regard to this case as well as three other similar

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murder cases in the districts of Jajpur and Puri. After such confession, he informed P.W.15 about the same. He further stated that the appellant confessed his guilt even before P.W.15 and other witnesses.

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The prosecution also proved fourteen documents. Exts.1, 2, 3, 4, 6 and 11 are the seizure lists, Ext.5 is the zimanama, Ext.7 is the report of the Finger Print Inspector (P.W.9), Ext.8 is the F.I.R., Ext.9 is the inquest report, Ext.10 is the dead body challan, Ext.12 is the query made by the I.O. to P.W.14, Ext.12/1 is the query report furnished by P.W.14, Ext.13 is the post mortem report and Ext.14 is the topography map.

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It has also proved four material objects. M.O.I is one yellow colour half banian, M.O.II one black colour full pant, M.O.III is one cement colour half pant and M.O.IV is the CD cassette of alter-pro-high speed compact disc.

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Defence Plea :

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The defence plea of the appellant is one of complete denial. However, neither any witness was examined nor any document is proved on behalf of the defence to dislodge the prosecution case.

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Findings of the Trial Court :

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The learned trial Court, after assessing the oral as well as documentary evidence on record, came to hold that it is a case based on circumstantial evidence and from the evidence on record, it appears that in the intervening night of 3^rd /4^th January 2011, the appellant and the deceased being the employees of Balaji Rice Mill, joined in their respective duties for the nightshift and on the following morning, the deceased was found injured inside the mill having severe bleeding from his head and the appellant was untraceable inside the mill premises.

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Learned trial Court has relied upon the evidence of P.W.5 relating to the last seen of the appellant in the company of the deceased inside the mill premises. It was found from the evidence of P.Ws.5, 6 & 7 (the employees of the mill) that not only the appellant was absconding from the mill premises, but also two mobile handsets, one belonging to P.W.5 and another belonging to P.W.7 were found missing from their respective rooms inside the mill. The learned trial Court also relied upon the evidence of P.W.5 relating to the extra-judicial confession being made by the appellant when he was contacted from the mobile phone of P.W.6. The learned trial Court held that as the original recorded version of the conversation was not sent for scientific

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test to get the authenticity certificate about the identification of the conversation that took place between the appellant and P.W.5, which was recorded in the mobile phone, no reliance can be placed upon such recorded version of the call recording.

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Learned trial Court came to hold that it is a case of homicidal death. It perused the query report furnished by the doctor (P.W.14), who had examined the crowbar seized from the mill premises and opined that the injuries found on the body of the deceased could have been caused by such weapon. The learned trial Court further held that from the evidence of P.Ws.5, 6 and 17 coupled with the query report (Ext.12/1), it is apparent that the appellant was murdered. So far as the commission of theft of two mobile phones from the mill premises is concerned, it was held that except the version of P.Ws.5 & 6, there is no other evidence and it cannot be said that the appellant is the culprit for stealing the two mobile phones of P.Ws.5 & 7 and accordingly acquitted him of the charge under section 380 of the I.P.C.

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In the overall analysis, the learned trial Court held that by way of circumstantial evidence, the prosecution has been able to establish the charge under section 302 of the I.P.C. against the appellant beyond all reasonable doubt.

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Contentions of the Parties :

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Mr. Samvit Mohanty, learned Amicus Curiae appearing on behalf of the appellant, presented his written note of argument and submitted that there are mainly three circumstances available on record against the appellant i.e. (i) appellant was last seen with the deceased; (ii) extra judicial confession made by the appellant before P.W.5 over the mobile phone of P.W.6; and (iii) the appellant absconded from the mill premises. Mr. Mohanty argued that these circumstances carved out by the prosecution against the appellant are not clinching and they do not form a complete chain so as to unerringly point towards the guilt of the appellant. It is urged that there is absence of motive behind commission of the crime and the learned trial Court has committed illegality in placing reliance on the confessional statement of the appellant before the police. It is further argued by Mr. Mohanty that the seizure of the crowbar appears to be a stage-managed one and since the Call Detail Record (C.D.R.) has not been seized and the mobile phone of P.W.6 was not produced before the Court, in which the extra judicial confession is stated to have been recorded, in such a scenario, it would be too risky to convict the appellant and

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therefore, it is a fit case where the benefit of doubt should be extended in favour of the appellant.

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Mr. Priyabrata Tripathy, learned counsel for the

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State, on the other hand, supported the impugned judgment and argued that there are number of criminal antecedents against the appellant, which would be evident from his confessional statement made before P.W.17, the I.I.C. of Nimapara P.S. He further argued that since it was only the appellant who was working with the deceased in the mill at the relevant point of time in the night hours which was deposed to by P.W.5 and as the appellant was found absconding from the mill premises immediately after the occurrence, the learned trial Court has rightly placed reliance on the evidence of the prosecution witnesses in that respect. He further submitted that the extra judicial confession appears to be voluntary and therefore, it cannot be said that any illegality has been committed by the learned Court below in placing reliance on such circumstances and therefore, the impugned judgment and order of conviction should not be interfered with and the appeal should be dismissed.

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Principles governing appreciation of circumstantial

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evidence :

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There is no dispute that the case is based on circumstantial evidence. The principle relating to the appreciation of a case based on circumstantial evidence is well settled as per the landmark decision of the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda -Vrs.- State of Maharashtra reported in (1984) 4 Supreme Court Cases 116 , where the ‘panchsheel’ principles were delineated to examine the circumstances involved in a case and to ascertain whether those circumstances if viewed together form undeniable, incontrovertible and indelible chain of circumstances pointing towards the guilt of the accused and clearly ruling out every hypothesis in favour of his innocence. The Court must follow certain tests while adjudging the case based on circumstantial evidence. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; the circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused

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and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved. Keeping in mind the above ratio, we are to assess the evidence on record.

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Whether the ‘last seen circumstance’ is conclusive in nature to fasten the liability against the appellant? :

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The evidence of last seen, as deposed to by P.W.5, has been pressed into service by the learned counsel for the State.

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It reveals from the evidence of P.W.5 that the appellant was working in Balaji Rice Mill from December 2010 till the date of occurrence. Even though P.Ws.5, 6 and 10 have stated in that connection, but no record has been seized by the police with regard to the employment of the appellant in the mill. Needless to say that the appellant had taken a plea that he was not working in the mill premises at any point of time.

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P.W.5 has stated that in the night of occurrence, his duty was to supervise the overall affairs of the mill and he used

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to stay inside the mill premises. He further stated that in the fateful night around 10.30 p.m., the appellant and the deceased entered into the mill premises and joined in their respective duties and at that time, Prakash Panda @ Tuna Panda (P.W.2) was also working inside the mill premises. He further stated that during the course of supervision while he was moving around the mill, at about 2.30 a.m., he saw the deceased and the appellant were working inside the milling section and then he went to the dryer section where he found P.W.2 was engaged in his work. He further stated that at about 04.30 a.m., when he went for another round of inspection, he found that in the relevant outlet, paddy was coming out in the place of rice and noticing such irregularity and suspecting that the employees were not attentive in their work, he called them by their name but found no response, for which he entered inside the milling section and found that deceased was lying on the ground with bleeding injuries on his head and the appellant was untraceable. He further stated to have searched for the appellant inside the entire mill premises, but could not locate him. He then informed the matter to P.W.10, who was sleeping in a room of the mill. He also found that his mobile phone so also the mobile phone of Kusaleswar Bhati (P.W.7) was not available and both the mobile

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phones were missing. As per his intimation, the informant (P.W.10) came to the milling section and then informed Dr. Subrat Chandra Mishra (P.W.4), who visited the premises, examined the deceased and declared him dead.

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Learned counsel for the appellant placed reliance on the decision of the Hon’ble Supreme Court in the case of Chandrapal -Vrs.- State of Chhattisgarh (Earlier M.P.) reported in A.I.R. 2022 Supreme Court 2542 , wherein it is held as follows:

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“31. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible…”

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Reliance was further placed upon the case of

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Jaswant Gir -Vrs.- State of Punjab reported in (2005) 12

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Supreme Court Cases 438 , wherein the Hon’ble Supreme Court held that in the absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of last seen evidence, even if the version of the prosecution witness in this regard is believed. The learned

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counsel also referred to the case of Arjun Marik and Ors. -Vrs.- State of Bihar reported in 1994 Supp (2) Supreme Court Cases 372 , wherein it is held that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore, no conviction on that basis alone can be founded.

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The evidence on record indicates that inside the mill premises, all total seven persons were there in the night of occurrence, i.e. the appellant, the deceased, the informant (P.W.10), P.W.5, P.W.6, P.W.7 and one Sanjeeb Kumar Mallik. The milling section was also accessible to all who were there inside the mill premises. No one had seen as to when the appellant left the mill premises in that night. When so many persons were present inside the mill premises in the night of occurrence and the appellant and the deceased were seen by P.W.5 at about 2.30 a.m., possibility of other persons in that mill coming in contact with the deceased after the appellant left the premises cannot be totally ruled out and therefore, it cannot be said that the last seen in itself in the factual scenario is sufficient to hold the appellant guilty.

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Whether the evidence of P.W.5 regarding extra judicial confession made by the appellant is reliable and can be

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acted upon? :

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So far as the extra judicial confession is concerned, P.W.5 has stated that on 05.01.2011 at about 10.47 p.m., he borrowed the mobile handset of P.W.6 and dialled to his own mobile phone which was stolen away from the mill premises. To his utter surprise, the appellant responded from the other side of the call and upon hearing the voice of the appellant, he instantly switched on the recording mode of the mobile phone and the appellant told him that he had committed murder of the deceased and that he was then present at Bolangir Railway Station and further told to P.W.5 that henceforth there would be no meeting between them. P.W.5 further stated that he made the recorded version available to his employer (P.W.10) and made him hear the same. He further stated that since the appellant was working there for a continuous period of two months and he had often talked with him over mobile phone, therefore he was well acquainted with the voice of the appellant over mobile phone.

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However, the prosecution has not proved the C.D.R. (call detail record) to show that on 05.01.2011 at about 10.47

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p.m., there was any call from the mobile phone of P.W.6 to the mobile phone of P.W.5 and if so, what was the duration of such phone call. Even the mobile phone of P.W.6 was not produced before the learned trial Court during the trial, though it was seized by the I.O. during the investigation and handed over in the zima of P.W.6. If P.W.5 got the information regarding the extra judicial confession made by the appellant, it was natural on his part to disclose about the same before P.W.6, whose phone he had utilized so also before his employer, i.e. the informant (P.W.10), but the evidence of P.W.6 as well as P.W.10 is completely silent regarding any disclosure being made by P.W.5 relating to extra judicial confession of the appellant.

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Learned counsel for the appellant placed reliance on the case of Sahadevan and Anr. -Vrs.- State of Tamil Nadu reported in (2012) 6 Supreme Court Cases 403, wherein it is held as follows:

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“It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-

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judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession.”

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Reliance was also placed in the case of Pritinder

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Singh -Vrs.- State of Punjab reported in (2023) 7 Supreme

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Court Cases 727, wherein the Hon’ble Supreme Court held as follows:

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“Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it.”

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In the case in hand, there is absolutely no material on record as to why the appellant reposed so much confidence on P.W.5 and made disclosure over phone regarding the incident and his complicity in the crime when he was working in the mill for one month and few days prior to the occurrence and there is

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no evidence of any such closeness between the two and what benefit he was likely to get by making such confession. If it is the prosecution case that the appellant had committed the murder of the deceased in secrecy and escaped in the night committing theft of two mobile phones from the mill premises including that of P.W.5, he would not have attended the phone call rather he would have removed the SIM Card from the mobile phone before using it.

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In view of the foregoing discussions, when the learned trial Court had already discredited the C.D. version of the recorded conversation by assigning cogent reasons and the witnesses like P.Ws.6 and 10 are silent about the disclosure made by P.W.5 before them relating to the extra-judicial confession, when the call detail record was not seized and the mobile phone of P.W.6 was not produced before the learned trial Court for verifying any such recording facility available, we are of the humble view that it would be unsafe to place reliance on the evidence of extra-judicial confession adduced by P.W.5.

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Absconding of the appellant :

¶147

The only circumstance left out is the absconding of the appellant from the mill premises in the night of occurrence.

¶148

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¶150

Law is well settled that mere absconding from the scene of occurrence is not sufficient to hold a person guilty for commission of the crime.

¶151

The Hon’ble Supreme Court in the case of Matru -Vrs.- State of U.P. reported in (1971) 2 Supreme Court

¶152

Cases 75 has held as follows:

¶153

“19…Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of selfpreservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.”

¶154

The standard of proof required in the criminal law is

¶155

not balance of probabilities, rather much heavier than that, i.e.

¶156

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‘proof beyond all reasonable doubts’. To prove a case against an accused person beyond all reasonable doubts, it is required that each and every circumstance impleading the accused in the crime must be proved to the hilt and those circumstances must, in totality, form an unbreakable chain of evidence pointing towards the guilt of the accused. When there is hardly any evidence available on record against the appellant making him liable for the commission of the murder of the deceased, it is not at all safe to hold him guilty merely because he was not traceable at the scene of occurrence immediately after the occurrence.

¶159

Absence of motive :

¶160

In the case in hand, the prosecution has not attributed any motive on the part of the appellant to commit the alleged crime.

¶161

In a case based on circumstantial evidence, motive assumes significance. In the case of Udaipal Singh -Vrs.State of U.P. reported in (1972) 4 Supreme Court Cases 142 , the Hon’ble Supreme Court held as follows:

¶162

“11…In cases where only circumstantial evidence is available, at the outset one normally starts looking for the motive and the opportunity

¶163

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¶165

to commit the crime. If the evidence shows that the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation, if any of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused.”

¶166

In the case of Sukhram -Vrs.State of Maharashtra reported in (2007) 7 Supreme Court Cases 502 , the Hon’ble Supreme Court held that in the cases based on circumstantial evidence, motive assumes great significance and observed as follows:

¶167

“20…It is trite to say that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. Therefore, the evidence has to be carefully scrutinised and each

¶168

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¶170

circumstance should be dealt with carefully to find out whether the chain of the established circumstances is complete or not. (See Dhananjoy Chatterjee v. State of W.B. : (1994) 2 SCC 220 ). It also needs to be emphasised at this stage itself that in a case based on circumstantial evidence, motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning.”

¶171

(Emphasis supplied)

¶172

In the instant case, when it is undisputed that there is no direct evidence and the entire prosecution case is based on circumstantial evidence and the appellant and the deceased were co-workers in the mill and they were working together in the same milling section, failure on the part of the prosecution to prove motive on the part of the appellant to commit the crime plays a very significant role in titling the balance in favour of the appellant. Thus, non-proving motive for commission of the crime further weakens the prosecution case against the appellant.

¶173

Seizure of weapon of offence at the scene of occurrence :

¶174

Learned counsel for the appellant has rightly pointed out that there is every suspicion regarding plantation of the

¶175

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¶177

weapon of offence, i.e. crowbar, to create an incriminating circumstance against the appellant.

¶178

The occurrence in question stated to have taken place in the intervening night of 3^rd /4^th January, 2011 and after the matter was reported on 4^th January, 2011, the Investigating Officer (P.W.15) sent requisition to the Superintendent of Police, Boudh for deputation of scientific team to the spot of occurrence and accordingly, the scientific team visited the spot and took various photographs from different angles. At that point of time, the crowbar was not detected. However, it is the prosecution case that on 07.01.2011, when P.W.15 got information by way of extra-judicial confession being made to P.W.5 that the crowbar was lying on the heaps of rice gunny bags, the seizure was made. Most peculiarly, P.W.5 has not stated that any such statement was made by the appellant over mobile phone to him that he had thrown the crowbar on the heap of rice gunny bags inside the mill. There is no material on record that any finger print of the appellant was noticed or detected on the crowbar. Strikingly, no chemical examination report has been produced before the learned trial Court. Therefore, plantation of the weapon only to implicate the appellant in the crime cannot be ruled out.

¶179

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¶181

Conclusion :

¶182

In view of the available materials on record, we are of the view that it cannot be said that the circumstances, on which the prosecution is relying upon, have been clearly established and those circumstances cannot be explained under any other hypothesis other than the guilt of the appellant and therefore, the circumstances taken up together could not form the chain of circumstances so complete so as to unerringly point towards the guilt of the appellant and it cannot be said that by the circumstances adduced by the prosecution, it can be the only conclusion that it is the appellant and none else who was the author of the crime.

¶183

Therefore, we are of the view that the impugned judgment and order of conviction of the appellant under section 302 of the I.P.C. is not sustainable in the eye of law and the same is hereby set aside and the appellant is acquitted of the charge. Since the appellant is in judicial custody, he be set at liberty forthwith, if his detention is not required in any other case.

¶184

In the result, the JCRLA is allowed.

¶185

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¶187

The lower Court records with a copy of this judgment

¶188

be sent down to the learned trial Court forthwith for information and necessary compliance.

¶189

Before parting with the case, we would like to put on record our appreciation to Mr. Samvit Mohanty, learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. We are hastened to add that Mr. Mohanty has performed up to the expectation of this Court and answered the queries raised by this Court with promptitude. He has certainly raised the bar for Amicus Curiae and assistance rendered by him is commended by this Bench. The learned Amicus Curiae shall be entitled to his professional

¶190

fees which is fixed at Rs.10,000/- (rupees ten thousand only). This Court also appreciates the valuable help and assistance provided by Mr. Priyabrata Tripathy, learned Additional Standing Counsel for the State.

¶191

S.K. Sahoo, J.

¶192

….. ........................ Chittaranjan Dash, J.

¶193

Orissa High Court, Cuttack The 24^th July 2024 Signature Not Verified Digitally Signed S.K. Parida, ADR-cum-APS Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 30-Jul-2024 18:28:40

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Parama Mallick v. State

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Parama Mallick v. State

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