Connection between ‘the fact discovered’ and offence should be established explicitly to charge the accused: Orissa High Court
In case there is no establishment of the connection between the weapon of offence and the death of the deceased then, the defence cannot be held guilty. Deciding on a Criminal Appeal against judgement given by the Session Court, KandhamalBoudh, Phulbani in Sessions Trial Case No.34 of 1998, the Divisional Bench of Justice S. K. Mishra and Justice Pramath Patnaik decided in the case of Ranjan Kumar Bisoi and Anr. V. State of Orissa [CRLA No.29 of 2002] that the decision taken by the session judge was erred and that the accused will not be held guilty
In the given case, the accused were sentenced under Sections 302 and 201/34 of the Indian Penal Code, 1860 by the Session Judge. However, on deciding upon the CRLA filed by the accused, the Orissa High Court held that in the instant case wherein, the accused was framed for murdering the deceased, the grounds for framing him with the offence however, by the prosecution were not established strongly enough to find the accused as guilty. In the case, the charge of murder was made on the two accused by the deceased mother. She also made a charge that Appellant 1 tried to rape her months before the missing and death of her son. However, there was no evidence supporting the same, the mother has not stated this fact in her statement recorded to the Investigating Officer. Moreover, a contradiction in the shape of major omission in the previous statement made by her has been stipulated by the defence. Also, no F.I.R. was lodged for such an incident and no investigation has been made in any direction. And only the statement made by the deceased mother was taken into count while charging the accused for the offence.
In addition to it, the discovery of the weapon of offence, i.e., ‘Wooden Medha’was made on the discovery statement by the accused, even though the accused changed their statement later on, to that was given before to the investigating officer, the same cannot be challenged as Section 26 of the Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Even though the weapon of offence was discovered by statement of the accused. Still, the efforts of the prosecution to establish connection between weapon of offence i.e., ‘the fact discovered’ and murder of the deceased has not been established in this case as the weapon of offence was not even sent for chemical examination. The Court thus, observed that, “In order to establish the fact discovered which is relevant for proving a charge of commission of offence, the prosecution, must connect by cogent evidence, the crime and the fact discovered. In this case, the weapon of offence. Then the prosecution must establish that it is the weapon that was used for the commission of the crime or also ‘fact discovered’ is related to the offence alleged to have been committed. Then, there is a presumption that the offence is connected to the accused. However, it is seen that there is no establishment of the connection between the weapon of offence and the death of the deceased.”
Therefore, the Court on analyzing the materials on record allowed the appeal and held that the conviction of both the accused will be set aside and the Appellants will not be charged guilty under Sections 302 and 201/34 of the Indian Penal Code, 1860.