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PETITIONER: KANSA BEHERA

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT12/04/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) KHALID, V. (J)

CITATION:  1987 AIR 1507            1987 SCR  (2)1096  1987 SCC  (3) 480        JT 1987 (2)   193  1987 SCALE  (1)1137  CITATOR INFO :  E          1991 SC1853  (10)

ACT:     Indian Penal Code-Section 302--Conviction on circumstan- tial  evidence--When  valid--Circumstance of  accused  being with  the  deceased on the  evening  of  occurrence--Whether sufficient to convict accused.     Indian  Evidence Act, 1872--Sections 3  and  14--Circum- stantial  evidence-Conviction based on--When  valid--Circum- stance  of  accused being with deceased on  the  evening  of occurrence--Whether sufficient when other accused from  whom instrument of offence recovered is acquitted.

HEADNOTE:     The prosecution alleged that the deceased had some  land dispute  with one of the accused and his two brothers,  that the  deceased was done away through the  instrumentality  of the  appellant  and that his body with the  throat  cut  was found  by the road-side. The brother-in-law of the  deceased identified  the  dead body and lodged information  with  the police.  After  investigation, the appellant and  the  other accused were arrested. The weapon of offence was produced by the  other accused. Both the accused were remanded to  judi- cial  custody  for the alleged murder of the  deceased.  The appellant  escaped and was declared as absconder. The  other accused was discharged for want of prima facie case  against him.     After a long lapse of time, the appellant was apprehend- ed  and was committed to sessions. On the basis  of  circum- stantial  evidence  that  the appellant was  seen  with  the deceased  on  the  evening preceding the day  on  which  the deceased  was  found dead, that a dhoti and  shirt,  stained with human blood, were recovered from his possession when he was arrested and that an extra-judicial confession was  made by  him when he was arrested after absconding, he  was  con- victed  under Section 302 of the Indian Penal Code and  sen- tenced  to  imprisonment  for life. The  High  Court  having confirmed  the  conviction and sentence, the  appellant  ap- pealed to this Court. Allowing the appeal by special leave, 1097

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   HELD: 1. It is a settled rule of circumstantial evidence that  each  one of the circumstances has to  be  established beyond  doubt  and all the circumstances put  together  must lead  to the only inference and that is of the guilt of  the accused. [1101E]     2.1(a) It is not in dispute that the appellant was  seen with  the deceased on the evening preceding the  night  when the  deceased is alleged to have been killed. This fact  has been  established by the evidence of P.Ws. 3 and 4  and  the appellant himself has admitted it, even though his caSe  Was that  the  throat of the deceased was cut by the  other  ac- cused.  Even the wife of the deceased has deposed  that  the appellant  had told her that her husband was lying dead.  It is  clear  that only on the basis of this  circumstance  the appellant could not have been convicted. [1099C-D]     2.1(b)  As  regards recovery of a shirt and  dhoti  with blood  stains,  there is no evidence in the  report  of  the Serologist  about the blood group and, therefore,  the  evi- dence  could not positively be connected with the  deceased. The  evidence of blood group is only conclusive  to  connect the  blood stains with the deceased. In the absence of  such evidence,  this could not be a circumstance on the basis  of which any inference could be drawn. [110lB-D]     2.1(c)  Regarding the extra-judicial confession  by  the appellant,  made  after a long lapse of  time,  no  reliance could  be  placed on it, especially in view of  the  circum- stances  in  which  the appellant was  apprehended  and  the statement made, and also because of the denial by one of the two  witnesses  that the appellant had made  by  confession. [1100F-1101A]     2.2  The only circumstances which could be said to  have been established is of the appellant being with the deceased in the evening and on that circumstance alone the  inference of guilt could not be drawn especially in the  circumstances of  the case where another accused person from whom  an  in- strument  of  offence  was recovered and who  had  a  grudge against the deceased, had been let off. [1101F]     3. The conviction and sentence passed against the appel- lant are set aside. [1101G]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 323 of 1978. 1098     From the Judgment and Order dated 9.3.1976 of the Orissa High Court in Criminal Appeal No. 1 of 1974. N.K. Agarwal for the Appellant. Ms. Mona Mehta and R.K. Mehta for the Respondent. The Judgment of the Court was delivered by     OZA, J. This appeal has been filed after obtaining leave from  this  Court by the appellant  against  his  conviction under  Section  302 and sentence of  imprisonment  for  life awarded by Sessions Judge, Mayurbharj, Kenjhar, Baripada  by his  order  dated 8th December 1973 and maintained  by  High Court of Orissa by its judgment dated 9th March, 1976.     The  prosecution  case in short was  that  the  deceased Bhatal Majhi had some land dispute with Jitrai Majhi and his brothers. It is alleged that Jitrai Majhi did away with  the deceased  through the instrumentality of the present  appel- lant. The incident is alleged to be at the night intervening between 13th and 14th December 1968. Bhatal Majhi was  found dead in the morning of 14th December, 1968 by the  road-side near a weekly market known as Joka Hata with his throat cut.

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Bishnu  Majhi  the  brother-in-law of the  deceased  P.W.  1 identified  the  dead  body and lodged  the  information  to Bangriposi Police Station the same day Ext. 3. The assailant was reported to be unknown.     P.W. 10, the Second Officer attached to the said  Police Station  investigated into the case, held an  inquest,  des- patched  the  dead-body for post-morten  examination  seized certain  incriminating  articles and  finally  arrested  the appellant  on  15.12.68  at 11 a.m The same day  3  a.m.  he arrested accused Jitrai Majhi. The weapon of offence a razor M.O.  IV  was  produced by accused Jitrai  Majhi  which  was seized under Ext. 5 Investigating Officer, P.W. 10 forwarded both  the  accused Jitrai Majhi and  Kansa  Behera,  present appellant, in custody to Court, the appellant escaped as the lock up was defective and he,could not be traced. Finally  a charge  sheet  was submitted against both Jitrai  and  Kansa indicating the appellant as absconder. Jitrai was discharged by  the Sub Divisional Magistrate, Baripada vide  his  order dated 27.2.1970 for want of prima facie case as against him. So  the case as against him needs no  consideration.  Later, after  the apprehension of the appellant on 22.8.72, he  was committed to the Court of Sessions on 28.6. 1973. 1099     The  prosecution  examined 10 witnesses and  nobody  was examined  in defence. There is no eye-witness of  the  inci- dent.  The learned courts below convicted the  appellant  on the  basis  of circumstantial  evidence.  The  circumstances established  against the appellant are: i) that he was  last seen with the deceased on the evening of 13th Dec. 1968 when it is alleged that he and deceased took liquor together; ii) that a dhoti and shirt were recovered from the possession of the  appellant  when he was arrested on 15.12.68  and  these articles were found to be stained with human blood; and iii) that  P.Ws 7 and 8 have deposed to about  an  extra-judicial confession  made  by this appellant when he  was  ultimately arrested after absconding in Bihar.     So far as the first circumstance that the appellant  was seen  with the deceased on the evening preceding  the  night when  the deceased is alleged to have been killed is not  in dispute.  This fact has been established by the evidence  of PWs 3 and 4 and the appellant himself in his statement  also admitted  that he was there although his case was  that  the deceased  throat  was cut by Jitrai Majhi who  also  was  an accused and was discharged on the basis of police papers  by the  Sub , Divisional Magistrate. It is clear that  only  on the basis of this circumstances the appellant could not have been  convicted and as this circumstance is not in  dispute, in  our opinion, it is not necessary to go into  this  ques- tion.     Learned  counsel appearing for the  appellant  contended that  the circumstances appearing in evidence indicate  that the  deceased and Jitrai Mejhi had some trouble about  land. It is alleged that the deceased land was pledged with Jitrai and  the possession of the land was given to him.  When  the deceased  offered him to repay the loan so that he  may  get back  his  land, it is alleged that Jitrai refused  to  give possession  on the plea that the land was purchased by  him. Ultimately  it  is alleged that the deceased  took  forcible possession of the land from Jitrai and therefore Jitrai bore a  grudge against the deceased. It was also  contended  that the  razor, the alleged instrument of offence was  recovered at the instance of Jitrai when he was arrested and that  was also  found stained with blood. It was contended by  learned counsel  that  in fact the appellant’s case is that  it  was Jitrai  who cut the throat of the deceased and this also  is

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born out from a circumstance that next morning the appellant went to the wife of the deceased and informed her that their husband was lying dead at the place of occurrence.     It  was also contended by learned counsel that  the  two witnesses who deposed about the dying declaration are P.Ws 7 and 8 but in fact 1100 P.W. 8 in cross-examination has gone back on that statement. It contended that even otherwise the dying declaration is  a weak piece of evidence.     As  regards the recovery of a shirt and dhoti which  are alleged  to  be stained with human blood, it  was  contended that there is no clear evidence to indicate that the  appel- lant  was  wearing  dhoti at the time of  the  incident.  As regards shirt it was Contended that although the  serologist report  indicate  that it is stained with  human  blood  but blood grouping is not there. In this view of the matter  the presence of some stains of human blood after sometime  could not  be a circumstance on the basis of which any  conclusive inference could be drawn. It was therefore contended that in view  of these circumstances it could not be held  that  the circumstances  point to the only conclusion of the guilt  of the appellant.     It is significant that the wife of the deceased who  has been  examined  as a witness deposed that next  morning  the appellant  went  to her and told her that  her  husband  was lying  dead,  but she did not believe him and  later  Phudan Majhi came and told her that her husband was ill and  wanted her to accompany him without taking food and she stated that she went alongwith him and found her husband lying dead with his throat cut. It is interesting that this Phudan Majhi who came and told her a false story has not been examined.     The three circumstances on the basis of which the appel- lant has been convicted have to be considered. The last  one i,e.  the extra judicial confession is proved by P.Ws 7  and 8.  A perusal of the evidence of P.W. 8 discloses that  this witness  in cross-examination went back and denied any  con- fession having been made by the appellant. The other witness is  P.W. 7 who no doubt has spoken about  an  extra-judicial confession made by the appellant. This is after a long lapse of  time  as admittedly this appellant absconded  after  his arrest  on  15.12.68 and was later arrested on  22.8.72  and this  extra-judicial  confession therefore appears  to  have been made after a long lapse of time. The circumstances  .in which  this appellant was apprehended and this statement  is alleged  to  have been made also is rather  interesting.  In Bihar  this appellant was apprehended for  having  committed theft  and  that he was produced before the Mukhiya  of  the Village  P.W. 7 and the Mukhia wanted him to be handed  over to  the police. That it is alleged that the  appellant  said that  I am wanted in connection with a murder case and I  am hiding  from  the police and therefore requested not  to  be handed  over  to  the police and in this  background  it  is alleged  that  he made a statement that he  has  killed  one Bhatal Majhi. 1101     Such an extra-judicial confession for proving which  two witnesses  were  produced. One of these witnesses  has  gone back on that statement and this statement is alleged to have been  made after a long lapse of time, in our opinion, is  a piece  of evidence on which no reliance could be placed  and under  these  circumstances, in our opinion, this  piece  of evidence has to be left out of consideration.     As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained

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with  human blood but there is no evidence in the report  of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In  the evidence  of the Investigating Officer or in the report,  it is  not clearly mentioned as to what were the dimensions  of the stains of blood. Few small blood stains on the cloths of a person may even be of his own blood especially if it is  a villager  putting on these clothes and living  in  villages. The  evidence  about the blood group is only  conclusive  to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion,  even this is not a circumstance on the basis of which any  infer- ence could be drawn.     So  far as the appellant being with the deceased in  the evening  is concerned, it is not in dispute. But it is  also significant that the instrument of the offence was recovered at the instance of one Jitrai Majhi who has been  discharged and  under these circumstances therefore the evidence  about the  appellant  having  been seen in the  evening  with  the deceased also is of no consequence. It is a settled rule  of circumstantial  evidence that each one of the  circumstances have  to  be established beyond doubt and  all  the  circum- stances put together must lead to the only one inference and that is-of the guilt of the accused. As discussed above  the only  circumstance which could be said to have  been  estab- lished is of his being with the deceased in the evening  and on that circumstance alone the inference of guilt could  not be  drawn especially in the circumstances of the case  where one  another accused person from whom an instrument  of  of- fence  was recovered, who had a grudge against the  deceased has been let off.     In the light of the discussions above therefore, in  our opinion,  the  courts  below were wrong  in  convicting  the appellant  on these facts. The appeal is therefore  allowed, the conviction and sentence passed against the appellant are set aside. It is reported that he is in custody. He shall be set at liberty forthwith. N.P.V.                                       Appeal allowed. 1102