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CASE NO.: Appeal (crl.) 638  of  1998

PETITIONER: BIBHACHHA

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT:       08/05/2001

BENCH: M.B. Shah & Shivaraj V. Patil

JUDGMENT:

Shivaraj V. Patil J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This appeal is directed against the judgment of the High Court  of  Orissa confirming the judgment of conviction  and order  sentencing the appellant to suffer life imprisonment. The appellant was the sole accused.

   Briefly   stated,  the  prosecution   case  is  that  on 16.11.1989  Damodar  Patel (PW-1) while had gone to  respond the  call  of nature found one dead body lying on the  sandy riverbed  of Hati River.  There was only chaddi on the  dead body.   The pant and shirt were lying at a distance from the dead  body  and one motorcycle was kept by the side  of  the pillar  of  the bridge.  PW-1 came to the village  and  told about  the  same  to one Madhu Naik.  Both of them  went  to police  station at Jaipatna and orally reported the incident in  the police station at Jaipatna.  The report was  reduced to  writing.   A U.D.  case No.  9/89 was  registered.   The investigating  Officer held inquest of the dead body and the same  was sent to post-mortem.  The dead body was identified to   be   of  the  deceased.    After  completion   of   the investigation,  charge-  sheet was laid.  The appellant  was tried  for an offence under Section 302 IPC in the  Sessions Court.   The  defence  of  the appellant was  one  of  total denial.

   The  prosecution in support of its case examined as many as   39   witnesses.    The   prosecution  case   rests   on circumstantial  evidence only.  PW-1 is the informant.  Siba Sankar  Padhi  (PW-2)  is  the father of  the  deceased  who identified the dead body of the deceased and found that gold chain,  which the deceased was usually wearing, was missing. Binayak  Behera (PW-8) deposed that the deceased and accused were moving together on 15.11.1989 on motor vehicle and that the deceased had told him that he was to purchase a revolver from the accused.  Udayanath Panigrahi (PW-9) also found the accused  and the deceased together taking tea in the shop of PW-8  on  15.11.1989.  Malaya Chandra Maher  (PW-13)  stated that  the  accused purchased a soap at about 9.15  P.M.   on 15.11.1989 and Pradumna Kumar Mehar (PW-14), who accompanied

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him,  found  the  accused washing his cloth.  PW-15  is  the hotel  keeper.  The accused and the deceased were last  seen by  him  on  15.11.1989.   He found that  the  deceased  was wearing  a  gold  chain.  PW-16 identified the pant  of  the accused.   PW-19  stated that one Rama Saraf offered him  to purchase  one gold chain for Rs.4,400/- on 16.11.1989.  Kusa alias  Sona  Mehar (PW-20) deposed that Chasiram meher  came with a gold chain and weighed it and received the gold chain on  payment  of  Rs.4,400/- on 17.11.1989;  the  gold  chain (M.O.I.) was given to Ramachandra Saraf after coming to know that  it was involved in a murder case.  The gold chain  was seized  in  the  presence  of PW-21.   PW-22  is  a  Medical Officer,  who held post-mortem of the deceased.  PW-23 is  a witness to the seizure of shawl, pant and shirt stained with blood.   PWs-25,  26 and 27 are the witnesses  for  seizure. PW-29 is a witness to the discovery of Kati (M.O.VII) seized from  inside the sandy waterbed of Hati River.  PW-31 is one of  the  I.Os.,  who recorded the F.I.R.  and PW-32  is  the I.O.,  who  sent  other articles for  chemical  examination. PW-33  is  a  witness who saw the deceased and  the  accused going  towards  Jaipatna at about 6.00 P.M.  on  15.11.1989. PW-34  is one of the I.Os., who seized Kati and gold  chain. The  learned Sessions Judge having appreciated the  evidence on record summed up in para 20 thus:  -

   The  evidence  of  PWs.  are cogent and  consistent  to bring  about a conviction on the evidence are  unimpeachable in  character  and  have shown unerringly the guilt  of  the accused.   The accused had intentionally committed murder of the  deceased which is found in the evidence of movements of the  accused on 15.11.1989 in and without the company of the deceased  and the deadbody of the deceased was found on  the next day of the occurrence with the injuries on the deceased and  missing  of  M.O.  I from the person of  the  deceased, recovery of M.O.  IV, V and VI and the blood stains found in M.O.  VI, IV and V and the blod stains found in M.O.  VI and recovery  of the M.O.  VII from inside water from river  bed and  the  recovery  of  M.O.  I of the  deceased  which  was disposed  of by sale after the occurrence have completed the chain of circumstances leading to a definite conclusion that the  accused intentionally committed murder of the deceased. There  are  some discrepancies in the evidence which do  not have any adverse impact on the charge of the prosecution.

   The  High  Court on re-appreciation and analysis of  the evidence  in  the light of the submissions made at the  Bar, concluded  that the prosecution has been able to prove, such of  the circumstances relied on by it to complete the  chain of  circumstances  against  the accused to  bring  home  the charge  beyond all reasonable doubt.  In this view,  finding no  illegality  or  infirmity  in the  order  of  conviction recorded  by  the trial judge, dismissed the appeal  by  the impugned judgment.

   The  learned  counsel for the appellant urged  that  the prosecution  has failed to establish its case to sustain the order  of  conviction;  the prosecution case depends on  the circumstantial  evidence only and the circumstances are  not established  so  as to point only to the accused that he  is guilty.   According to him the chain of circumstances is not complete  and there are several doubts and discrepancies  in the  prosecution case.  Per contra, the learned counsel  for the   respondent-State  made   submissions  supporting   the impugned  judgment.   He submitted that both the  courts  on proper and objective assessment and appreciation of evidence

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have found the appellant guilty of offence under Section 302 IPC and this Court under the circumstances may not upset the impugned judgment.

   It  is no doubt true that the prosecution case rests  on circumstantial evidence only.  The circumstances as unfolded during  the  trial and as reflected in the judgments of  the Sessions  Court as well as the High Court broadly stated are the following:  -

   1.  The accused and the deceased were last seen together on 15.11.1989 as spoken to by the prosecution witnesses.

   2.  Recovery of one yellow colour full shirt (M.O.  IV), Ash  colour full pant (M.O.  V) and one shawl (M.O.  VI)  at the instance of the accused under Section 27 of the Evidence Act on 18.11.1989 under Exbt.  13 in the presence of PWs 23, 25  and  30 and one Ishwar Panigrahi.  PWs-7 and  15  stated that  the  shirt (M.O.  IV) and pant (M.O.  V) were worn  by the  accused on 15.11.1989.  The apparels seized under Exbt. 13 contained blood stains.

   3.   Recovery of the gold chain by PW-34 from one Sardar Kar  Saraf  on 30.11.1989 under Exbt.  9 in the presence  of PWs-21 and 26.

   4.   PWs-4  and 15 stated that the gold chain (M.O.   I) was being worn by the deceased.

   5.   The  statements  of  PWs-19,  20  and  27  made  in connection  with the transaction, sale of the gold chain  at the request of the accused.

   6.   The  recovery of Kathury (Kati) (M.O.  VII) by  the I.O.   at the instance of the accused under Exbt.  15 in the presence of PW- 29.

   7.   The  opinion  of the doctor, PW-22,  who  conducted autopsy on the possibility of injuries of deceased by weapon like kati (M.O.  VII).

   8.  Presence of human blood on cloths seized.

   These  circumstances  are supported and  established  by acceptable  evidence as rightly held by the trial court  and confirmed by the High Court.

   Both  the courts on proper appreciation of evidence have concurrently  recorded  the  findings that  the  accused  is guilty.   We may add that as per the report of the  chemical examiner  of  State Forensic Science Laboratory,  one  white chaddi,  worn by the deceased, marked as E and sample sand marked  as  F, H and J were extensively  stained  with blood.   A  few  small  patches of blood  stains  were  also detected  on  shawl  marked as C.  Blood stains  were  not detected  on  iron kati.  It may be stated here itself  that the  same  was discovered from bed of flowing river.  It  is evident  from  the  report of Serologist  (Exbt.   19)  that portion  of  shawl and portion of chaddi were  stained  with human  blood,  so also sample of sand.  The High  court  has also noticed that the chemical examiner found that the blood stains  found on the shawl (M.O.  VII) was of group B  and that the blood group of the deceased was also of group B.

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   Thus  having  regard to all these aspects we are of  the view  that  the prosecution has proved that each one of  the circumstances  aforementioned  point  to the  guilt  of  the accused  and the cumulative effect of all the  circumstances too  undoubtedly indicate guilt of the accused excluding any other hypothesis.  More so, in this case when the defence of the  accused is one of total denial.  We have no good reason or valid ground to interfere with the impugned judgment.

   In  view  of  what is stated above, we do not  find  any merit in the appeal.  Hence it is dismissed.