Such evidence can be relied upon only if the same was exhibited by any other witness and not otherwise.

The issue place before the bench was that the accused was alleged for having fired bullets upon police officers during an encounter punishable under Section 186, 353, and 307 of the Indian Penal Code and Section 25 and 27 of the Arms Act, 1959.

The Petitioner was accused of conducting an illegal business operation of dealing with arms and ammunition and opened fire upon being raided by the Police.

Though the encounter had taken place in a public area, no independent witnesses were recorded and the examination-in-chief of all the police officers appears identical and rehearsed.

The court observed that the bullets allegedly recovered as stated in the CSFL reports were not exhibited during the proceedings.

The report indicated that the bullets were recovered from the bulletproof jackets and that the said bullets were shot of the weapon recovered from the possession of the accused.

Section 293 of the Criminal Procedure Code states provides for using any report or analysis provided by a Governmental scientific expert as evidence during the course of the trial.

Even if the evidence given by the Police Officers is admissible, it is not substantive enough to adjudge the matter in that favor and following the principle of ‘innocent until proven guilty’, the court set aside the Petitioners conviction.

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Prakash Dehury v. State of Orissa

Facts:

The appellant- Prakash Dehury aggrieved by the judgment of the Trial Court dated 2^nd July 1999, convicting him for offence under sec-302 of the Indian Penal Code, has approached the Orissa High Court. One Bijaya Kumar Pradhan filed an FIR before the Handapa Police Station on 13^th March 1995, alleging that on 12/13 March 1995, at about 1:00 AM, the appellant had cut the throat of his own wife Saudamini (the deceased), and had requested him to provide a truck to carry her to a nearby hospital, the informant had seen the injury inflicted on the throat of the deceased and was involved in arranging the transport facilities to take the deceased to the hospital for treatment. The case was registered under sec-307 of the IPC, the prosecution examined 13 witnesses. On the night of the occurrence, the accused/appellant accompanied by his brother- Prahlad and some other villagers had gone to watch the danda nata (opera) in a nearby village. The appellant and others present at the venue were informed about the sharp cut injuries on the deceased neck inflicted by someone, they then took her to the hospital but unfortunately, she passed away. There was no eyewitness who could give evidence that the appellant tried to kill the deceased. The Trial Court held the accused guilty of slitting his own wife’s throat which lead to her death, and convicted him for offence u/s-307 of the IPC.

Issues:

• Whether the appellant committed the offence though he was not present at the spot of occurrence at the time of the incident.
• Whether the prosecution proved beyond reasonable doubt guilt of accused.
• Whether the Trial Court erred in convicting the appellant for offence u/s-307 of the IPC.

Legal Provisions:

• Indian Penal Code, 1860 Section 302 – Murder.
• Indian Penal Code, 1860 Section 307 – Attempt to murder.

Appellant’s Contention:

The appellant maintained his plea of innocence as he did not have any ill motive towards his deceased wife. The accused stated that the prosecution story is tainted and that the eye witnesses turned hostile, but this aspect was not rightly considered by the Trial Court. It was a submitted that since appellant along with his brothers and other villages had gone to see the danda nata, no motive can be ascribed to him. Independent witnesses did not support the prosecution’s case, they denied the prosecution story and turned hostile. They stated that the Additional Session Judge erred in relying on the evidence of PW8 to prove appellant’s motive, and evidence of PW11 to prove discovery of alleged weapon using the offence under section 27 of the Indian Evidence Act. They further stated that the Sessions Judge did not to consider the statement of PW9 in the Court, that they were informed about the incident in the venue of the opera and on return went to PW8’s house to request him to arrange a truck to take the victim to the hospital. It was unknown why the statement of the victim was neither recorded by the doctor or the police, though she was alive till she was treated at Angul Hospital.

The council for the appellant submitted that there was no eyewitness to the incident and the present case was based on circumstantial evidence, the Trial Court solely relied on circumstances namely- accused had motive to kill his wife, and secondly, the accused led to the recovery of the weapon of offence while in police custody. Both observations were said to be wrong and not supported by proper evidence, and so cannot be a strong piece of evidence to convict appealing. There was no evidence or proof of disagreement between the appellant and the deceased, the witnesses did not say anything relating to quarrels or disturbances in their relationship. The appellant referred to the case of Navaneetha Krishnan v. The State by the Inspector of Police (2013), whereby the Supreme Court laid down that section 27 of the Indian Evidence Act states that statements made in police custody can be admitted only to the extent that they can be proved by subsequent discovery of facts, and such link was missing in the present case. They also submitted that there is a complete absence of Mens Rea on part of the appellant for planning to kill his own wife and that there is still suspicion as to who caused the grievous injury to the deceased. Further it was found that PW 11 in his statement mentioned that the victim died before she was brought to PW8’s house, but as PW 8 stated that the victim was alive when she was brought to his house.

Respondent’s Contention:

The Investigation Officer (IO) examining the informant and other witnesses, also examined the appellant who confessed his guilt and provided information that he had concealed weapon of office i.e. an axe near a ‘dimri’ tree, at Rajabandha nala, the bloodstained axe was recovered from that spot, the IO also seized a bloodstained lungi, a blood stained napkin belonging to the accused/appellant, also one red color saree, some bangles and two steel rings were recovered and sent for examination. The Medical Officer was of the opinion that the sharp weapon like the axe produced by the appellant could have caused the injury on the deceased’s body. The chemical examination report showed the presence of human blood of ‘O’ group from the axe, napkin of the appellant and the deceased’s clothes, which point to the involvement of the appellant and establishes him as the author of the crime.

The counsel for the state said that there were no eyewitnesses present at the spot of occurrence and the present case is purely based on circumstantial evidence. They stated that considering the absence of Mens Rea and ill-motive on part of the accused for committing a heinous crime, how did the deceased get such a severe injury and who committed the murder, this was a large issue to be resolved and the Trial Court rightly resolved issue. The Trial Court in its judgement noted that it was unlikely that some unknown culprit committed the offense. The deposition of the deceased’s family members before the court did not mention anything about the real culprit. During investigation it was found that the appellant had love affair with another girl and tortured the deceased out of anger and committed the murder. They submitted that there was no doubt on the findings of the Trial Court of appellant being the offender and hence the High Court should not interfere with the justifiable findings of the Trial Court.

Observations of the court:

 The case was heard before the Orissa High Court Bench of S. Panda and S.K. Panigrahi, JJ. The court heard both the parties and went through the facts and circumstances of the case. It was noted that the appellant had consistently stated that he was he had no ill motive and was not even present at the spot of occurrence at the time of the incident. The court was curious how the IO was able to recover the weapon of offence used by the accused from his statement and the same was found to be doubtful and uncorroborated. PW9 was declared hostile during the course of examination and still the Sessions Judge relied on his evidence to come to the conclusion of the appellant’s motive to kill his wife was said to be unacceptable in the eyes of law, the court noted that the motive is absent in the present case. PW3 and PW7 (seizure witness and post-occurrence witness) did not mention about the seizure of weapon of offence in their cross-examination, so it cannot be concluded that the weapon of offence is recovered.

The court held that the Sessions Judge was prejudiced and that the prosecution failed to prove charges against appellant as there is no evidence to prove that the patient was even remotely connected with the about crime, and there was no discord between the appellant and the deceased and they had a normal relationship which cannot be attributed to such a heinous crime. The court held that Mens Rea is a legally essential ingredient in determining criminal liability and it is not visible in the present case. The court noted that the present case is based on circumstantial evidence not substantiated by strong evidence, it referred to the case of Sharad Bhirdi Chand Sarda v. State of Maharashtra (1984) whereby it was held that before concluding the guilt of the appellant, the circumstances should be established; fact should be consistent with the hypothesis of the guilt of the accused; conclusive circumstances; it should exclude every possible hypothesis except the one to be proved; complete chain of evidence; and there should not be any reasonable ground for proving accused’s innocence and it must be shown that in all probability the act was done by the accused.

The Trial Court’s finding that the circumstances are sufficient to instill reasonable doubt was found to be unacceptable. The court also noted that though the witnesses turned hostile, it is not necessary to reject their statements, as established in the case of Rabinder Kumar Dey v. State of Orissa (1997), whereby the court held that it may choose to rely on the credible parts of the testimony if it is consistent with other reliable evidence. The court noted that the investigation officer failed to corroborate the prosecution story, the circumstantial evidence failed to prove beyond reasonable doubt the involvement of the accused and to get sec-302 attracted, the accused was held entitled to the benefit of doubt. 

Judgment:

The High Court found reasonable ground to differ from the judgment of the Trial Court. The appeal was allowed, and the judgment of the Trial Court dated 2^nd July 1997, convicting the accused was set aside. The bail bond of appellant was discharged.

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