The Orissa High Court has ruled that a disclosure statement leading to the recovery of a weapon of offence cannot be relied upon in the absence of corroboration from independent sources.

It was observed that when recovery witnesses turn hostile, the police custody disclosure lacks credibility unless backed by independent testimony.

Setting aside a life imprisonment conviction, the Court emphasized that medical evidence alone cannot establish the authorship of a crime when vital gaps exist in the ocular evidence and the "last seen theory" fails due to material contradictions between the prosecution witnesses.

The Division Bench of Justice Sashikanta Mishra and Justice Manash Ranjan Pathak observed, "Firstly, in the absence of any corroboration from independent sources, the so-called disclosure statement relating to recovery of the seized weapon cannot be relied upon. Secondly, the last seen theory pressed into service by the prosecution also falls to the ground in view of the apparent contradiction in the versions of PW-11 and PW-12 as regards the presence of the deceased and the accused at the spot when both of them arrived there."

Advocate B.R Mohanty appeared for the Appellant, whereas Addl. Standing Counsel Suvalaxmi Devi appeared for the Respondent.

Brief Facts

The appellant was put on trial for allegedly committing the murder of the deceased. According to the prosecution, a prosecution witness accompanied the deceased on a bicycle after the latter performed some traditional healing rituals. On their way back, the appellant intercepted them, and suspecting that the deceased had practiced witchcraft against him and his brother, began assaulting him with a wooden stick (lathi).

Out of fear, the accompanying witness fled and informed the son of the deceased. Upon receiving this information, the son rushed to the spot and allegedly saw the appellant dragging and assaulting his father. The deceased later succumbed to his injuries near the backyard of a resident's house.

Following the lodgment of the First Information Report (FIR), investigation commenced, during which the appellant was arrested, and a disclosure statement led to the recovery of the weapon of offence. The trial court convicted the appellant for the offence of murder, sentencing him to life imprisonment.

Contentions of the Parties

It was contended by the Appellant that out of fifteen prosecution witnesses, eleven witnesses, including the vital eyewitness who accompanied the deceased, turned hostile and resiled from their previous statements. It was submitted that the conviction rested entirely on the solitary and uncorroborated testimony of the son of the deceased, who was an interested and related witness.

The defence argued that the recovery of the weapon of offence was highly doubtful as the seizure witnesses did not support the prosecution's case, and the chemical examination report failed to detect the blood of the deceased on the seized lathi. It was further urged that the non-examination of the scribe of the FIR and the owner of the house near whose backyard the dead body was found created vital gaps in the prosecution's case.

The State submitted that the evidence of the son of the deceased was duly corroborated by the medical evidence, which established that the injuries were caused by a hard and blunt object. It was further contended that the recovery of the weapon at the instance of the appellant was fully proved through the testimony of the Investigating Officer, and the non-detection of blood on the weapon was not fatal to the case.

Observations of the Court

The High Court observed that as many as eleven out of fifteen prosecution witnesses turned hostile, and the witness who initially accompanied the deceased gave a completely contradictory version before the court, making him entirely unreliable.

The Court noted a material contradiction between the testimonies of the accompanying witness and the son of the deceased; while the former stated that the deceased was missing when they reached the spot together, the latter claimed he saw the appellant dragging and assaulting his father at that exact time.

It was held that the medical evidence alone could not establish the authorship of the crime when the ocular evidence itself failed to inspire confidence and point the needle of guilt at the appellant.

The Court observed that the "last seen theory" fell to the ground due to apparent gaps in the evidence, and in the absence of independent corroboration, the disclosure statement and recovery could not be safely relied upon.

"From the above narration we find that the prosecution case is not free from reasonable doubts. Perusal of the impugned judgment reveals that the trial Court has not taken note of the aforementioned vital aspects and the apparent gaps in evidence. On the other hand, the trial Court has shifted the burden at times to the defence, which cannot be countenanced in law", the Court said.

The Court concluded that the trial court erroneously shifted the burden of proof onto the defence. Holding that the prosecution failed to prove its case beyond all reasonable doubts, the Court extended the benefit of doubt to the appellant, allowed the appeal, and set aside the conviction and sentence.

Cause Title: Babu Das v. State of Orissa [CRLA No. 316 of 2003]

Appearances:

Appellant: Advocate B.R Mohanty

Respondent: Addl. Standing Counsel Suvalaxmi Devi

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