Abhiram Rohidas And Others v. State Of Orissa

VINOD PRASAD, J.

This appeal by the three appellants, namely, Abhiram Rohidas(A1), Bhabani Shankar Kumra (A2) and Dara Seth(A3), is directed against the impugned judgement of conviction and order of sentence dated 26.2.96, passed by Additional Sessions Judge, district Sambalpur, in S.T No. 180/39 of 1994, State v. Abhiram Rohidas, relating to crime no. 36 of 94, U/Ss 449/302/382/34 I.P.C police station Katarbaga district Sambalpur, by which learned trial Judge has convicted all the three appellants herein for offence U/S 302/34 I.P.C and has sentenced them to life imprisonment while conferring the benefit of set off for the period of imprisonment already undergone by them as under trials.

2. Entire edifice of prosecution case against the appellants since depends upon circumstantial evidences, therefore, for accurate understanding and appreciation of various circumstances put forth, essential facts are reproduced below in the chronological order of their happenings, as was stated during investigation and subsequently divulged in the Sessions Trial and counting on that it is revealed that one Nirmal Kumar Naik/PW4 and Smt. Arti Naik/PW6 are the son and daughter-in-law of both the deceased Jayanarayan Naik(D1) and Smt. Narmada(D2), both residents of village Laida, P.S Katarbaga district Sambalpur. Laxminarayan Naik/PW3 is the maternal younger cousin brother of (D1) and brother-in-law of (D2). Jala Munda/PW1 a labourer and Dashrathi Khichidi/PW5, a milkman also worked with the deceased as domestic help and milkman. Since a month prior to the present incident, both son and daughter-in-law, PW4 & 6, were residing in village Purna in district Jharsuguda, where they had a tractor hiring business. Rest of the two sons of the deceased were in services and they did not reside with the deceased in village Laida.

3. Accused appellants are the co-villagers of the informant, deceased and witnesses and to be specific Dara Seth(A3) used to iron the deceaseds' clothes and appellant Bhawani Shankar(A2) was a labourer in the Khala(thrashing floor) of one Rama Patel, a neighbour, whose Khala was adjoining the Khala of the deceased and hence was very well known to the son and daughter-in-law, PW4 & 6. So much is the relationships and acquaintance between both the factions involved in the incident.

4. It is further alleged that on 15.4.94 Jala Munda/PW1 domestic help of the two deceased, a hostile witness, after quenching thirst of deceaseds' buffalo in a tank left it at thrashing floor at 5 p.m and then gave a call to (D2) to ask her if some more work was to be done but was unable to receive any reply from inside the house. Curiously he opened the front door and peeped inside and found (D2) lying dead supinely on the veranda. Being terrified PW1 clasped the door, came out and tramped towards his house. En-route he informed the incident to Khatu Patel, Patu Mistri and Munu Gond. (Since PW1 turned hostile and denied his interrogatory statements u/s 161 Cr.P.C and rest of the three aforesaid persons have not been examined in the trial therefore further development concerning this disclosure remains unknown).Further prosecution story is that Dashrath Khichidi/PW5, milk man of the deceased as usual went to the house of the deceased on 16.4.94 at 6 a.m to milck their cow but on entering into the gate he found the cattle roaming and untied. Being surprised he vainly called (D2) without any response and curiously he stepped inside the house through eastern entrance only to discover corpse of (D1) inside his bed room near his cot with spilling of blood on the ground.PW5 further spotted cadaver of (D2) on the veranda. Being perturbed, PW5 came out and informed the murder to Manoj, Markanda, etc., and then left for his other duties. Manoj intimated the double murder to Laxminarayan/PW3 who came to the incident house, located both the dead bodies and called village watchman (gram rakhi) and instructed him to watch over the place and thereafter scribed FIR Ext.2, measured a distance of 20 Kms. to P.S Katarbaga where he lodged his FIR on the same day at 8.20 a.m which was registered by O.I.C Pramod Kumar Patel, I.O/PW14 as case no. 36 of 94, U/Ss 457/302 I.P.C

5. O.I.C/PW14, immediately triggered off the investigation into the crime, examined informant/PW3, came to the incident spot and performed inquest on both the cadavers after appointing inquest witnesses, inked inquest memos Exts.3 & 4 and then dispatched both the dead bodies to S.D Hospital for autopsy purposes through Constable L.N Naik and Havaldar Gokul Chandra Das/PW13 with Challans Ext.20 and 21. Witnesses Jala Munda/PW1, Laxminarayan Naik/PW3, Nirmal Kumar Naik/PW4, Dashrathi Khichidi/PW5 and other witnesses were interrogated and their statements were recorded. I.O seized one spade (rapha), M.O.I, with blood stained handle, collected blood stained earth from the spot vide seizure memo Ext. 12 in the presence of Manoj Kumar Naik/PW9. Other seizures made by the I.O/PW14 were one iron almirah, two black and coffee coloured brief cases, one tin trunk, etc., vide seizure memo Ext. 13/1.Employing services of scientific officer finger prints were collected. Visiting report of scientific officer is Ext. 22. I.O also received list of stolen articles from PW4 & 6, interrogated some other witnesses and thereafter arrested accused/appellant Dara Seth(A3) on 24.4.94 at about 9.30 a.m, who made a confessional statement about his involvement in the crime with other two appellants Abhiram Rohidas (A1) and Bhabani Shankar Kumra(A2) and consequently two other co-accused, appellants (A1) & (A2), were also arrested at 11.30 a.m same day. All the three arrested accused while in police custody made disclosure statements u/s 27 of the Evidence Act, in the presence of Mukutdhari Sahu/PW12 and Binod Tiwari concerning concealments of weapons of the crime, which statement were penned down on separate sheets with thumb impressions of the accused and signatures of the witnesses and have been proved as Exts. 23, 24 and 25.Subsequently only (A1) made a disclosure statement before police, PW10 and PW11 regarding concealment of looted ornaments and after that led the police party and the witnesses to Marwadi Bandh in Laida itself and from a “mouse like hole covered with soil” brought out a small cloth packet containing gold necklace, four gold bangles, one imitation necklace in the presence of witnesses Sajan Kumar Agarwal/PW10 and Agam Kishore Panda/PW11. Seizure list, Ext. 15 was prepared making note of confessional disclosure, and the recovered ornaments, after being weighed by PW11, were sealed at the spot. T.I parade of the seized jewellery was got conducted on 5.5.94 by Tara Prasad Rath, J.M.F.C Sambalpur/PW16, in which both, PW4 & 6, correctly identified them and thereafter the ornaments were handed over in the custody of PW6 vide custody memo(Zimanama) Ext.6 All the three arrested accused thereafter led the police party to the spot house and informed that they had plunged Bhujali(M.O.II), Bhujali cover(M.O.IV) and spring knife(M.O.III) inside the well existed there. With the help of two electric pumps, 8′ water was drained out from the well and then one Chandra Shekhar Kalo was lowered downed inside the well who brought out those weapons, M.Os II, III, & IV, which were seized vide Ext.19 with L.T.Is of the accused and signature of recovery witness Mukutdhari Sahu/PW12. Attires of the accused were also seized suspecting that it may contain blood vide Exts. 16, 17 and 18. As a step in investigation specimen signatures of accused were taken by the I.O/PW14, who also dispatched accused to medical officer vide Ext. 26 for collecting their nail clippings for chemical examination. On 25.4.94 accused were forwarded to the Magistrate and the I.O applied for scientific examination of the finger prints of the accused from D.F.S.L Sambalpur. Seized weapons were sent to Director, R.F.S.L Ainthapali, Sambalpur for examination vide forwarding letter Ext. 27 and report of the expert is Ext. 28. I.O has also obtained the expert opinion of the doctor regarding crime weapons vide Ext. 10/2 and report of the doctor is Ext.10 Further investigation into the offence was conducted by Gopal Chandra Tripathy, C.I Sadar/PW15, who after recording statement of some witnesses found prima facie case being disclosed against the accused and resultantly charge sheet them for aforementioned offences.

6. Post mortem examination on both the cadavers was conducted by Doctor Jagdish Prasad Agarwal/PW7 on 15.4.94 at 4.30 of (Jaynarayan Naik/D1) and 4.45 p.m.of (Smt. Narmada Naik/D2). Both the corpses were brought to the doctor by PW13 and CP L.N Naik. Doctor had noted that (D2) had deformity in hands in the form of contracture and rigor mortis was present. Her body was soiled with dust and cow dung and red ants were scrawling over her body. Following ante mortem injuries were detected by the doctor on her cadaver:-

“(i) One oval bruise over right chest wall over the breast size 5cm × 4cm dark colour

(ii) Scratch mark on the lateral side of right eye

(iii) Mark of compression right side of neck and scratch mark on the left side of neck

(iv) Face and neck congested. Leaves cyanosed. mouth half open tongue under the teeth.”

7. On internal dissection doctor found bleeding under the breeze of interior chest wall. Pleura, larynx, lungs and trachea congested with dark coloured secretion. All the chambers of the heart and mouth were filled with dark coloured blood and semi digested food was present in the stomach. Cause of death was throttling and twenty four to twenty eight hours had lapsed since her death. Autopsy examination report of D2 is Ext.8

Likewise, post mortem examination report of Jaynarain Naik/D1 is Ext.9 who was inflicted with following ante mortem knife injuries:-

(i) Incised wound middle of neck passing from the middle to right side neck 6cm × 2cm × 3cm deep cutting the muscle of neck, fosse, trachea, all were cut.

(ii) Incised wound over chin 3cm × 2cm × 3cm.

(iii) Incised wound below right eye measuring ½ cm × ½ cm × 3cm damaging the molar bone.

(iv) Incised wound over forehead 3cm × ½ cm × 5 cm.

(v) Penetrating wound in-front and below right ear 2cm × ½ cm × 5 cm.

(vi) Penetrating wound lateral side of f orehead.

(vii) Penetrating wound interior chest wall 1cm × ½ cm × 2cm.

(viii) Penetrating wound right side of the scalp.”

On internal examination, doctor noted trachea cut and secretion present. Blood clot seen in the mouth cavity. Semi digested food found in the stomach. Right molar bone, occipital bone and parietal bone fractured. Cause of death was shock and haemorrhage due to ante mortem wound over neck and 24 to 28 hours had lapsed since death had occasioned. The sustained injuries were possible by knife.

8. Sought for further opinion of the doctor through Ext.10 is that injury No. 1 of (D1) could be possible by spade/rapha, M.O.I, and other incised wounds on chin, right eye, and forehead were possible by spring knife, M.O.III and Bhujali, M.O.II Injuries found on the corpse of both the deceased were sufficient in ordinary course of nature to cause their deaths.

9. After summoning, accused case was committed for trial to the Court of Session, where the same was registered as S.T No. 180/39 of 1994, State v. Abhiram Rohidas. Learned trial Judge/Additional Sessions Judge, Sambalpur charged all the accused appellants with offences U/S 302/34 I.P.C which charge after being read over and explained was denied and all the accused pleaded not guilty and claimed to be tried. We note here that albeit charge sheet was also submitted u/s 384 I.P.C, but no charge under that section was framed by the learned trial Judge.

10. To bring home the charge and establish accused guilt, prosecution, during the trial, examined sixteen witnesses out of whome, PW4 & 6 are the son and daughter-in-law of the two deceased, PW3 is the maternal younger brother of the decease and is the informant of the crime, PW1 & 5 are the servant and milkman of the deceased, PW7 is the autopsy doctor, PWs 14 and 15 are the two I.Os, PW16 is the Magistrate who conducted T.I parade of seized gold ornaments, PW2 is the police constable, who had brought the cloths of the deceased after autopsy to the I.O, PW8 is a witness to discovery of silver ornaments, PW9 is the seizure witness of blood stained spade and blood from the spot, PW10 & 11 are the recovery and seizure witnesses of gold ornaments at the behest of A1, PW12 is the recovery and seizure witness of weapons of crime, M.O.I to M.O.III, and PW13 is the Havildar who had guarded the dead body and had carried them to the hospital for post mortem examination and had identified them to the doctor. Besides oral evidences of above witnesses, prosecution also tendered twenty eight documentary evidence Exts. 1 to 28, and four material objects, M.O.I to M.O.IV

11. The plea of the accused in their statements under section 313 Cr.P.C is of total denial. They have not tendered any defence witness nor have filed any documentary evidence.

12. Learned trial Judge after appreciating the evidences, both oral and documentary, concluded that prosecution has established its charge beyond all reasonable doubts and has anointed appellants, guilt to the hilt and consequently returned a verdict of conviction for the charge of murder and sentence of life imprisonment there for by the impugned judgement and order, which decision has now been challenged in the instant appeal by the convicted accused.

13. In the aforementioned background, we have heard learned senior counsel Sri. H.S Misra and Sri. B.K Ragada for all the appellants and Sri. S.K Zafarullah, learned Additional Public Prosecutor for the respondent-State.

14. Assailing the impugned judgement it is vehemently argued by appellants counsel that present is not a case of direct eye witness account and prosecution has rested its version on indirect circumstantial evidence and whatever circumstances it has produced during the trial, are not sufficient to establish appellants' guilt. Three main circumstances relied upon by the prosecution are confessional statements of the accused, their disclosure statements u/s 27 Indian Evidence Act leading to the discovery of robbed off gold and silver jewelleries and crime weapons and motive to commit the crime, which was to rob both the deceased who lived all alone in the house. But neither any circumstance has been proved convincingly nor woven together they form a complete chain of events indicating the appellants only as the sole perpetrators of the crime. Learned trial court did not deem it proper to prosecute the appellants for the charge of robbery and therefore very genesis of the incident lies in mystery. There is no direct evidence against the appellants and their alleged confessional statements vide Exts. 23 to 25 are fabricated and manufactured. Chain of circumstances remains incomplete and incongruous so as to hold appellants guilty of crime. No grouping of blood could be done on the crime weapons which, for that reason, could not be connected with the double murder. Recovered ornaments were not produced before the trial court and resultantly their identification is of no value as trial court had no opportunity to form any opinion on that basis and the trial court was denied of that essential evidence. T.I parades of the ornaments were therefore an eye wash. Attour, according to son PW4 he was shown the ornaments prior to the T.I parade at the police station making his test identification valueless. Investigation into the crime was shoddy, inept and lackadaisical which does not inspire any confidence. Much desired has been left untouched and un-investigated. Chandra Shekhar Kalo, who had brought out the weapons from the well was withheld by the prosecution who had not examined him in the trial with the result that recovery of weapons has not been proved satisfactorily. Thus overall contentions for the appellants are that there is no evidence at all against them, what to talk of incriminating evidence, and therefore their appeal be allowed by setting aside their conviction and sentence and they be acquitted of the charge and be set at liberty.

15. Per contra, learned Additional standing counsel submits that prosecution by knitting each and every circumstance into a conglomerated whole has established appellants guilt to the hilt free of all reasonable doubts and considering those circumstances there remains no scope but to hold the appellants as perpetrators of the crime and their appeals sans merits and be dismissed. Finger prints of the appellant Dara Seth(A3) found on the spot, blood stains on their attires, recovery of looted gold ornaments at the behest of (A1), and recovery of crime weapons at the disclosure statements of all the accused and their special knowledge regarding place of concealment of the jewellery and the weapons, access of (A3) into the house, expert reports, confessional statements, all taken together are more than enough to nail-in the appellants as real miscreants and there is no reason to exonerate them of the crime. Concluding, learned standing counsel urged that the impugned judgement be affirmed and appeal of all the Appellants be dismissed in full.

16. We have bestowed our thoughtful considerations over rival submissions and have vetted through the entire trial court record searchingly and cautiously.

17. In the present appeal, prosecution has sought to establish appellants' guilt by relying upon circumstantial evidence as there was no direct eye witness account of the incident. Law relating to cases based on circumstantial evidence remains no more res-integra and has been subjected to catena of decisions both by the apex court and by various High Courts. Residue of all those decisions culminated in trite law that in a case of circumstantial evidence, (i) prosecution is required to establish with precision each and every incriminating circumstance against the accused, (ii) the established circumstances must form a whole chain and each link must be cohesive of other, (iii) chain so formed must point out conclusively and without ambiguity that it was the charged accused and nobody else who was the perpetrator of the crime without admitting any other hypothesis or exception. (iv) no other reasonable prognosis should be consistent with the innocence of the accused, (v) accused is entitle to all reasonable benefits of doubts. In this respect without aggrandising, as exemplars, we cite some of the apex court decisions. In R. Shaji v. State Of Kerala: AIR 2013 SC 651 it has been observed by the apex court as under:-

“23. It is a settled legal proposition that the conviction of a person accused of committing an offence, is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances, such conviction may also be based solely on circumstantial evidence. For this to happen, the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice, only to lend assurance to the Court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability the said offence must have been committed by the accused”.

In Paramjeet Singh @ pamma v. State of Uttaranchal: AIR 2011 SC 200 it has been held as under:-

“14. Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, this Court observed that it is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully establ ished;

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) The circumstances should be of a conclusive nature and tendency;

(4) They should exclude every possible hypothesis except the one to be proved; and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

18. Further, surrounding and attending circumstances are of utmost importance in resolving guilt of the accused as every clandestine crime is committed in a peculiar surrounding. They are significant in examining and analysing pivotal issues determinative of final outcome.

19. In the aforementioned backdrop, when facts of the appeal at hand are critically revisited within the scope of the above propounded law, the summation thereof makes it more than evident that some of the unquestionable surroundings and attending circumstances remain unchallenged by the accused having serious intrinsic effect in judging accuseds' guilt. Taking stock of those circumstantial links cumulatively, without separately appreciating them individually for the sake of brevity, it is discernible from the testimonies of PWs 3, 4, 5 and 6, that all of them have divulged these circumstances or at least from their depositions these are clearly perceivable, but very surprisingly none of these witnesses have been cross examined on these aspects to negate their versions. Starting the count, the first circumstance against the accused appellants is that they were in the knowledge of the fact that the two deceased were living all alone in their house in village Laida as their two sons were in services outside and PW4 & 6 were residing at Jharsuguda in connection with their tractor hiring business. Appellant Dara Seth (A3) was the washer man with the deceased and used to iron their cloths and hence was very well known to them and had an easy access inside their house. So also (A1) was a labourer in the adjoining Khala and therefore must be very well known to the two deceased. In the natural course of happenings, the fact of both the deceased living alone must be known to them. Secondly, they must be having sufficient knowledge about the topography of the house of the deceased, as in normal course of day to day life in villages we can presume that (A3) must be having access inside deceaseds' house. Thirdly, that the deceased being moneyed persons and having jewellery must be known to them as (D2) must be wearing them at least on special festive or social occasions. Next is that appellants belonged to the poor and weaker sections of society and greed for money being one of the universally accepted vices, therefore, it is not at all difficult to assess that covetousness for the jewellery/wealth must have imbibed them which must have tainted their saner thoughts for which they must have hatched up a conspiracy with each other to rob both the deceased and decamp with the bounty. This provided them with sufficient motive to commit the crime. Added factor is that the incident is alleged to have occurred during day time without anybody noticing it and therefore whoso ever the culprits were, they had an easy access of egress and ingress and their presence inside the house could not have been viewed with suspicion by anybody and on this aspect all the appellants fit in well. Another factor of importance is that (D1) was murdered inside his bed room with sharp edged weapons, whereas (D2) was strangulated to death on veranda. There were little or scanty signs of any scuffle or resistance on any of the two cadavers and hence, in all probability, the culprits must be known to them and the two departed souls must not be expecting their annihilation at their hands which seems to be sudden and to their utter dismay. Site plan further provides an insight into the happenings as (D1) was lying dead inside his bed room opposite bed room of PW4 segregated by veranda and (D2) was murdered in the back near outer veranda and kitchen garden. Back side door was open and the well was situated in the back side kitchen garden. The house/place of the incident was surrounded by roads from two sides, north and south, and cow shed was towards east of the house. Thus the lonely surroundings must have facilitated commission of crime. These facts have effective bearing in judging guilt of the accused.

20. Now, we slightly digress to record that no worthwhile argument was advanced concerning contents of the FIR/Ext.2, prompt lodging of it by PW3, and on the two post mortem examination reports and ante mortem injuries sustained by the two deceased and therefore we take it that appellants have no arguments to offer concerning these aspects. Snipping of the FIR, during course of the argument was for its omission to mention that it was Manoj who had informed informant/PW3 regarding the murders, but we find such snipping valueless and trivial as prosecution does not gain anything out of it nor does such an insignificant omission fade away prosecution case in its main substratum. After all FIR is only an intimation to the law enforcing agencies/police regarding happening of some crimes, for it to set out investigation for unearthing the accused and bringing the culprits to book. It is neither an encyclopaedia nor an epic. Any omission in it, unless it affects core issues involved in the crime and creates dents in the prosecution version, cannot be attached with undue importance to discard the entire prosecution edifice. Though of much significance, being the earliest prosecution version, but nevertheless, it is only a corroborative piece of evidence to contradict the maker of it. Any omission, exaggeration, embellishment, concoction, etc., in it has to be weighed in peculiar circumstances of each case and no formula of universal application can be laid down in this respect. Prompt lodging of FIR without wasting time at 8.20 a.m at P.S Katarbaga, just two hours after receiving the information, at a distance of 20 KMs., same day by PW3, on the facts at hand not only attaches authenticity to the prosecution allegations but also rules out possibility of fabrication, false implication and concoction. Both the learned counsel for the appellants also failed to harp much on this aspect and therefore on this score we find the prosecution case well founded.

21. Regarding medical evidence, no fruitful submissions worth cogitating castigating doctor's opinion were advanced regarding both the deceased meeting homicidal deaths by strangulations and physical assault by sharp edged weapons. Genuineness of both the post mortem examination reports is not doubted. Testimonies of Jala Munda/PW1, Laxminarayan/PW3, Dashrath Khichiri/PW5, who all had seen both the cadavers, two inquest reports, collection of blood from the spot where husband/father was done to death, all these aspects remaining unchallenged leave no room for slightest doubt that both the deceased were murdered. In his cross examination autopsy doctor/PW7 unambiguously opined vide Ext. 10 that the sustained physical sharp edged weapon injuries could be possible by recovered weapons from the well at the behest of the accused appellants. In fact such a deposition in the cross examination is the most significant link with other surrounding circumstances nailing in the appellants as the culprits who had committed the crime. It was the most damaging statement got elicited by the accused themselves.

22. Before entering into more serious aspects which were incisively urged before us, we would like to observe that albeit it was contended that the investigation is inept, feckless, clumsy and does not inspire any confidence but both the learned counsel failed to pin point any significant lapses by both the I.Os We have vetted through the testimonies of both the investigating officers, PW14 and PW15, minutely but have not been able to find out any such glaring omission or un-naturality in it which can erode the credibility of entire investigation. Although there are some lapses and the I.O.s wound have done well to plug them but those pitfalls do not dent the pivotal issues determinative of appellants' guilt. Cross examination in this respect is also shoddy and has left much to be desired and we say no more. Moreover, reliability evaluation of fact witnesses is not at all diminished by investigation.

23. Homicidal death since established convincingly clear of all haziness, the only answerable question remains to be adjudicated is as to whether appellants were the perpetrators of the crime or somebody else had executed it. Prosecution has sought to prove complicity of the appellants and their involvement in the crime by bringing forth circumstances pointing out fingers at their involvements as the real culprits, which the appellants argue of being insidious and cipher. Examining these circumstances it is noted that first circumstance is the confessional statement of Dara Seth(A3) of murdering the deceased with (A1) & (A2) and arrest of rest of the two same day at 11.30 a.m Albeit, confession of an accused in police custody and against the co. accused are inadmissible but what is of significance is that their confessional statements led to recoveries relating to the crime from the places which could be within the special knowledge only of the accused appellants makes these confessions culpable and incriminating. These statements are admissible u/s 27 of Evidence Act and are damning material against the appellants. Confessional statements have been proved as Exts.23 to 25. Besides I.O, these recoveries have been proved by PWs 10, 11 and 12. According to Sajjan Kumar Agarwal/PW10, (A1) made the confessional statement on 24.4.94 at 12 noon at Laida bus stand and from there PW10 on his scooter and the accused(A1) and the police party in a jeep went to the ridge of the tank and there, after removing a stone, (A1) brought out a cloth bundle from inside a hole and on un-tying the bundle one gold gajaband mali of two tier, four gold bangles, one brass necklace with brass locket, were recovered and seizure list Ext. 15 was slated down recording therein that (A1) had made disclosure statement of concealment of ornaments and got those recovered. Accused also produced same day their wearing apparels Exts. 16, 17 & 18 stained with blood, which according to their disclosure they were wearing at the time of the murders and while assaulting the deceased it had got stained with blood. During cross examination it was got elicited from this witness that gajaband mali and bangles were of gold as two gold smiths Kumud Prusti and Agam Kumar Panda examined them at the spot and confirmed them to be of yellow metal. Seizure of these ornaments was made between 12 noon and 1.00 p.m, whereas attires were seized at 4 p.m What is of significance is that according to this witness only Abhiram Rohidas (A1) had made the disclosure statement concerning concealment of ornaments and not the other two. PW10 further deposed that he had no enmity with accused and it is wrong to say that the police had not made any seizure in his presence. Agam Kumar Panda/PW11, another recovery witness corroborated the version of PW10 entirely and further deposed that he had also examined the recovered ornaments. This witness emphatically refuted defence suggestion that he was absent during recovery and subsequently he had signed the recovery memo. However PW11 confirmed that seized ornaments and cloths were not exhibited in the court. He discarded defence case that because of threats by the police he was deposing falsely. Thus the scanty cross examination of these witnesses neither discredit their evidence nor in any manner dent the prosecution case. Conversely, their evidences establishes to the core that at the pointing out of appellant Abhiram Rohidas/(A1) gold ornaments were recovered from the western side of ridge from a hole concealed by a stone and mud and from confessional statements of all of them, their blood stained attires were recovered. Accused have failed to get it elicited that the place of concealment was accessable to all and sundry and therefore special knowledge of concealment can be safely attributed only to the appellant (A1).

24. Next incriminating circumstance is that recovered ornaments were put to identification by son and daughter-in-law/PW4 & 6, and in the presence of Sri. Tara Prasad Ratha, JMFC, Sambalpur, both of them have correctly identified them vide identification memo, Ext.7 Appellants have castigated the identification for the reason that PW4 had stated during his cross examination that police had called him at P.S and had shown him the ornaments, which he had identified in T.I parade but this statement does not diminish the value of identification by PW6, who very categorically stated that she was never shown the ornaments. Since identification by both of them are in conformity with each other, the snipping by appellants counsel on this score does not rob the prosecution of its benefit. Further, since the plea of the accused appellants is of total denial and they do not claim the ornaments to be their own, no credence can be attached to the submissions of appellants' counsel additionally for the reason that there was no motive for the witnesses and the I.O to implicate the appellants in the crime. Defence has miserably failed to get it elicited from any of the witnesses that both son and daughter-in-law, PW4 & 6 had even a scanty reason to arraign appellants as accused. Snipping of identification was also urged for the reason that the ornaments were not produced in court during trial. No doubt this is a lapse but it does not adversely affect the prosecution case so as to shake its core, especially when it is established that gold ornaments were recovered at the instance of (A1) and recovery has been proved to be genuine. It is not the defence case that deceased mother had no such ornaments as were recovered. Thus on an overall analysis non-production of ornaments in court has little or no effect at all on the prosecution case especially when PW4 & 6 were not suggested that they had not participated in the identification parade at all. Some other trivial criticism of T.I parade was made because the Magistrate was unable to recollect number of articles mixed with the identifying articles, their weight etc. but since all those contentions are insignificant because Magistrate/PW10 was not suggested that he had not conducted T.I Parade it will be futile to examine them in detail. On the record it is well proved that the ornaments belonging to the mother deceased were recovered at the instance of (A1) from a ridge which was within his special knowledge and no explanation is coming forth from (A1) regarding that recovery, therefore it is a significant circumstance against (A1) regarding his involvement in the crime. In this respect regard can be had from the Apex Court decision in Gurjinder Singh v. State Of Punjab: (2011) 3 SCC 530 wherein it has been held as under:-

“27. With regard to the recovery of the pistol, the learned counsel is right that the pistol was recovered from a public place but it was recovered from the place which could not have been easily located by anyone and, therefore, the accused cannot get benefit which the learned counsel wanted him to get. From the memo of recovery, it is clear that the pistol had been hidden by digging earth under a plant of Sarkanda about half a kilometre away from a bridge of Ladhuwala Uttar. Thus, it is very clear that the pistol had been hidden by digging earth under the plant of Sarkanda about half a kilometre away on the eastern katcha path from the bridge of Ladhuwala Uttar and, therefore, in our opinion, the recovery cannot be said to be from a place which could have been easily accessible to anyone.

28. With regard to recovery memo, the mistake committed in writing the word “witness” or “witnesses” cannot be said to be so material so as to adversely affect the case of the prosecution. In our opinion, such trivial mistakes should not give any benefit of doubt or any sort of benefit to the accused. In fact, the recovery was made in the presence of Ajaib Singh, Assistant Sub-Inspector and Balbir Singh, Head Constable. It is also not correct that the memo of recovery was not produced before the Court.

29. Exhibit P-46, which reveals the fact about the statement made by the accused in relation to pistol incorporates the entire statement made by the accused. Therefore, the said document itself incorporates the statement made by the accused. Moreover, simply because the recovery was made in the presence of policemen would not adversely affect the prosecution case. A police officer can be a reliable witness if the court finds him to be a truthful person and in that event there is no harm in relying upon his statement. In the circumstances, we do not find anything objectionable if the pistol had been recovered in the presence of policemen.”

25. Coming to another culpable circumstance of recovery of weapons of assault from the well of the house at the instance of the accused, same has been evidenced by son PW4, Mukutdhari Sahu/PW12, and the I.O Pramod Kumar Patel/PW14. From the well situated in the back yard of the house those weapons Bhujali (M.O.II) Bhujali Cover (M.O.IV) and Knife(M.O.III) were recovered. According to PW12 & 14, all the accused while in police custody made confessional statements and disclosed that they had plunged spring knife, Bhujali and its cover inside the well situated in the backyard of the house vide Exhibits-23, 24 and 25, that the well was got dried up and Chandrashekhar Kalo went down inside the well and brought out those weapons, seizure list of which is Ext.19 During his cross examination, PW12 deposed that at the time of recovery only he and Binod Tiwari were present and when water was waist high that Kalo had entered inside the well. Although PW12 was suggested that no disclosure statements were made by the accused, but he has refuted that suggestion. He has also proved presence of PW4 at the time of said recovery. Appellants' counsel castigated the recovery for the reason that PW4 had stated that the recovery was made two or three days after the murder i.e, 19.4.94, when actually it was made on 24.4.94 The submission is that the recovery was made much earlier without any disclosure statements and subsequently to authenticate it and implicate the appellants story of Kalo had been introduced and because of this reason, Kalo has been withheld by the prosecution and not examined in the trial. The submission apparently seemed to have substance in it, but on a deeper scrutiny is in fact devoid of it. For the statement of the son/PW4 time confusion can very well be explained due to lapse of time and mental tormented condition of the son both of whose parents were done to death unexpectedly all of a sudden. He had to take care of cadavers of both of his parents, arrange for their last rites, co-operate with the police for their autopsy examination, recollect stolen household articles and many other innumerable thoughts must have engrossed him so much that it is puerile to accept that he will recollect precisely with exactitude the times of happening of each and every fact. A mere suggestion to an independent witness, PW12, who had no animus with the accused does not erode the credibility of his depositions regarding happening of a fact. It has also been harangued incisively that blood group on the weapon could not be matched with that of the deceased father/husband. Perusal of Ext. 28, which is a serologist report indicate that matching of group was not possible because of insufficiency of quantity. This however does not fade away the complicity of the appellants in the crime because entire circumstances cumulatively point at them as being the real culprits. On the submissions advanced, we can usefully take benefit of State of Rajasthan v. Teja Ram: AIR 1999 SC 1776 wherein it has been held as under:-

“25. Failure of the Serologist to detect the origin of the blood, due to disintegration of the serum in the meanwhile, does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a Serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such a guess work that blood on the other axe would have been animal blood is unrealistic and farfetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit can be claimed by the accused.

26. Learned counsel for the accused made an effort to sustain the rejection of the above said evidence for which he cited the decisions in Prabhu Babaji Navle v. The State Of Bombay , AIR 1956 SC 51 and Raghav Prapanna Tripathi & Others v. State Of Uttar Pradesh , AIR 1963 SC 74. In the former Vivian Bose, J. has observed that the Chemical Examiner's duty is to indicate the number of blood stains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. It was a case in which one circumstance projected by the prosecution was just one spot of blood on a dhoti. Their Lordships felt that “blood could equally have spurted on the dhoti of a wholly innocent person passing through in the circumstances described by us earlier in the judgment.” In the latter decision this Court observed regarding the certificate of a chemical examiner that inasmuch as the bloodstain is not proved to be of human origin the circumstance has no evidentiary value “in the circumstances” connecting the accused with the murder. The further part of the circumstance in that case showed that a shirt was seized from a dry cleaning establishment and the proprietor of the said establishment had testified that when the shirt was given to him for dry cleaning it was not bloodstained.

27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existed therein. They cannot be imported to a case where the facts are materially different.”

In John Pandian v. State, Represented by I.G of Police, T.N:AIR 2011 SC (Suppl) 531 it has been laid down as under:-

“33. It was then urged by the learned counsel that this was a open place and anybody could have planted veechu aruval. That appears to be a very remote possibility. Nobody can simply produce a veechu aruval planted under the thorny bush. The discovery appears to be credible. It has been accepted by both the Courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the Forensic Science Laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.”

Yet in Sunil Clifford Daniel v. State Of Punjab: 2012 Cr.L.J 4657 it has been held by the apex court as under:-

“28. Most of the articles recovered and sent for preparation of FSL and serological reports contained human blood. However, on the rubber mat recovered from the car of Dr. Pauli (CW.2) and one other item, there can be no positive report in relation to the same as the blood on such articles has dis-integrated. All other material objects, including the shirt of the accused, two T-shirts, two towels, a track suit, one pant, the brassier of the deceased, bangles of the deceased, the under-garments of the deceased, two tops, dumb bell, gunny bag, tie etc. were found to have dis-integrated.

29. A similar issue arose for consideration by this Court in Gura Singh v. State Of Rajasthan, AIR 2001 SC 330: (2000 AIR SCW 4439), wherein the Court, relying upon earlier judgments of this Court, particularly in Prabhu Babaji Navle v. State of Bombay, AIR 1956 SC 51; Raghav Prapanna Tripathi & Others v. State Of Uttar Pradesh , AIR 1963 SC 74; and Teja Ram (AIR 1999 SC 1776: 1999 AIR SCW 1514) (supra) observed that a failure by the serologist to detect the origin of the blood due to dis-integration of the serum, does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it is possible, either because the stain is too insufficient, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain, with some objectivity, no benefit can be claimed by the accused, in this regard.

xx xx xx xx xx xx

31. A similar view has been reiterated in a recent judgment of this court in Criminal Appeal No. 67 of 2008, Jagroop Singh v. State Of Punjab., decided on 20.7.2012 (reported in AIR 2012 SC 2600: 2012 AIR SCW 4315), wherein it was held that, once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group(s) loses significance.”

Recently apex court reiterated the same view in R. Shaji v. State Of Kerala: AIR 2013 SC 651, wherein under similar circumstances it has been observed by the apex court as under:-

“17. It has been argued by the learned counsel for the appellant, that as the blood group of the blood stains found on the chopper could not be ascertained, the recovery of the said chopper cannot be relied upon.

A failure by the serologist to detect the origin of the blood due to dis-integration of the serum, does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group (s) loses significance”

26. Next culpable material against the appellants is the finger prints recovered from the incident scene from mirror fixed with steel glass wall almirah, vide seizure list Ext.22 and its examination report. Samples of accused finger prints were also taken for examination with the recovered finger prints. The report by Director, State Finger Prints Bureau, Rasulgarh, Bhubaneshwar, proved that collected finger print from the almirah mirror matched with right thumb impression of appellant Dara Seth(A3). Appellants' criticism is that I.O has not proved collection of finger prints and the report by expert and hence that cannot be utilised against the appellants. On this aspect we find that in para 1 of his testimony I.O/PW14 has stated “Suspecting that these articles have been handled by the culprits, the services of scientific officer was requisitioned and scientific officer was also arrived at the spot for examination and verified those articles and detected and lifted some finger prints and furnished his spot visit report which is marked Ext.22” At another place in para 3, I.O/PW14 has deposed “On 25.4.94 I took the specimen finger prints of the accused persons at P.S ……”. These two statements were not challenged by the accused at all and hence accused had full conscious knowledge what incriminating material against them had surfaced in evidences, which they had to rebut. In their examinations u/s 313 Cr.P.C also question no. 13 relates to finger prints. Of course due to error answer to this question by (A3) is not penned down but answer by rest of the two has been recorded but this should not distract us from the main substratum of the case. Learned trial court has dealt with this aspect on internal pages 20/21 of the impugned judgement and concluded that since I.O has not proved collection of specimen impressions and has also not proved dispatch of the same for expert examination and has also not proved expert report dated 15.2.95, therefore all these evidences cannot be relied upon. Here we find that the entire approach of learned trial court is faulty and we do not approve of it. Learned trial judge completely eschewed and probably the provision of Section 293(3) Cr.P.C had escaped his notice. The aforesaid section ordains provision making any document purported to be a report under the hands of a Government scientific expert admissible in evidence without calling such expert as a witness. The report of Government scientific expert which has been made admissible under this section includes, u/s 293(4) Cr.P.C, a report by Director of the finger Print Bureau also and hence learned trial court committed a manifest error in observing that the report by finger print expert is not admissible in evidence and cannot be considered. In Ramnaresh v. State of Chattisgarh: (2012) 4 SCC 257 it has been held as under:-

“18. PW 1, PW 6 and PW 12 had substantially supported the case of the prosecution and we are unable to notice any substantial conflict or contradiction in their statements. The semen, blood and bloodstained clothes, which had been seized during the investigation, had been sent for examination. The report of the FSL had been placed on record as Ext. P-23. Such evidence would be admissible in terms of Section 293 CrPC.”

27. Further it is to be noted that since the finger print expert report is admissible in its entirety therefore all the facts mentioned in the report have to be taken to be correct unless proved to be wrong. Consequently when the report mentions that samples was received by the forensic science laboratory dispatched by the I.O relating to crime number mentioned therein, the natural outcome is that I.O had dispatched it for scientific examination. Thus learned trial Judge fell in apparent error in making an observation otherwise, albeit he was right in relying upon the said report. Additionally what is of significance is that lifting of finger prints are not the only material against the accused. There are other reliable circumstantial evidences of unimpeachable character available against the accused appellants which all incriminate them. Accused Dara Seth has not at all explained how and in what manner his finger prints have been found on the mirror of almirah inside bed room of the deceased. In normal circumstances the said prints should not have been there. Statement of I.O for collecting finger prints and the expert report consequently fixes appellants guilt and provides for a surest link the chain of circumstances. At this juncture we would like to observe that learned trial Judge should not have acted like a robotic recipient of testimonies. It was his onerous responsibility to conduct the trial as a live Judge. He would have done better to exercise his power u/s 165 of the Evidence Act read with section 311 Cr.P.C to conduct a fair and impartial trial to fathom out real truth and separate the grain from the chaff. After all it was his responsibility to punish the guilty. If he was of the opinion that finger print expert report was not duly proved and that was a material evidence of immense significance he should have got it proved without jeopardising case of either sides. Power u/s 165 of the Evidence Act read with section 311 Cr.P.C to question the witnesses and take additional evidence have been incorporated in the statute books not merely as ornamental provisions and we leave the matter here. Without dragging the issue any further we discard contentions of the appellants by referring to an apex court decision in Munna Kumar Upadhyay v. State of A.P: AIR 2012 SC 2470 wherein it has been laid down-

“23. No suggestion was put to this witness in his cross-examination that he never went to the site, never collected the finger prints or that the finger prints of the accused were never sent by the police to him. We may also notice that, even to the investigating officer, this suggestion was never put. The attempt on behalf of the accused to object to the evidence of the finger prints on the ground that the investigating officer has not told in his examination-in-chief that he had taken the finger prints of the accused and sent them to the expert does not carry much weight in view of the above documentary, ocular and expert evidence. It was expected of the Investigating Officer to make a statement in that behalf, but absence of such statement would not weight so much against the prosecution that the court should be persuaded to reject the evidence of PW38 along with the clinching evidence of Ext. P-52, P-72 and P-73 respectively.

24. Equally without merit is the submission on behalf of the appellant that the finger print could be there upon the almirah in the normal course of business, as accused No. 1 was the domestic servant working in the bungalow. What is important is that the presence of finger prints of accused No. 2 found in the house and particularly on the almirah in the bedroom of the deceased, remain unexplained and secondly, no attempt was made by any of the accused persons to take a stand to explain their conduct.

25. The reliance upon the case of Chandran alias Surendran v. State of Kerala [1991 Supp (1) SCC 39, para 21 and 24: (AIR 1990 SC 2148)] is again not of help to the accused inasmuch as the facts of that case were totally different and the accused had taken up the plea that the finger prints upon the glass had been taken by the police by coercion. The Court, on the facts of that case and upon the evidence before the Court, came to the conclusion that finger print evidence was not reliable because among all glass pieces, only two had matching finger prints and no appropriate explanation has been given.

26. In the present case, lifting of chance finger prints and on comparison being found to be matching with the sample finger prints of the accused, taken by the Police, is not the only piece of evidence. There is corroborating evidence of the prosecution witnesses on the one hand, and on the other, evidence of PW-12, the daughter of the deceased, who identified the gold ornaments, which were stolen by the accused from the almirah, as belonging to her deceased mother and which were recovered from the possession of accused persons.

27. This Court, in the case of B.A Umesh v. Registrar General, High Court Of Karnataka., High Court of Karnataka [(2011) 3 SCC 85: (AIR 2011 SC 1000: 2011 AIR SCW 3671)], where the finger prints were found on the handle of a steel almirah to which the persons from outside had no access, held as under:-

“75. The aforesaid position is further strengthened by the forensic report and that of the fingerprint expert to establish that the fingerprints which had been lifted by PW 13 from the handle of the steel almirah in the room, matched the fingerprint of the appellant which clearly established his presence inside the house of the deceased. The explanation attempted to be given for the presence of the fingerprints on the handle of the almirah situated inside the room of the deceased does not inspire any confidence whatsoever. In a way, it is the said evidence which scientifically establishes beyond doubt that the appellant was present in the room in which the deceased was found after her death and had been identified as such not only by PW 2, who actually saw him in the house immediately after Jayashri was murdered, but also by PWs 10 and 11, who saw him coming out of the house at the relevant point of time with the bag in his hand. The fingerprint of the appellant found on the handle of the almirah in the room of the deceased proves his presence in the house of the deceased and that he and no other caused Jayashri's death after having violent sexual intercourse with her against her will.”

28. In light of the above, we have no hesitation in rejecting this contention of the appellant. The prosecution has by other evidence, clearly been able to establish the physical contact between the accused and the articles within the almirah, and therefore, the almirah door also.”

28. Now, we turn to other accusatory evidences bringing forth involvement of the appellants in the murder and they are that according to confessional statements by the accused they had entered into the house of the deceased on a pretext of giving them mangoes. Some green mangoes were found at the drain of the house in conformity with the disclosure statements vide Ext.14 It was further confessed that the deceased were also assaulted by rapha (spade) lying at the spot and such statement finds corroboration from the evidence of the I.O/PW14, who after reaching at the spot had found a blood stained spade at the spot which he had seized vide Ext. 12. Jayanarayan Nayak(D1) was murdered with the Bhujali(M.O.II) and doctor concurred with that confession when he opined that ante mortem injuries of Jayanarayan Nayak(D1) could be possible by discovered Bhujali. Another condemnatory circumstance of significance against the appellants is that the clothes worn by them during the course of the incident contained blood. Recovery of these blood stained clothes have been proved both by Sajjan Kumar Agarwal/PW10 and Agam Kumar Panda/PW11 but very surreally none of them were challenged concerning said recovery. In this respect their statements in examination-in-chief went unchallenged. No explanation for the same came forth from any of the accused also for such a pivotal damning evidence. As already discussed herein above all these facts coupled with the fact that (A1) had got recovered the looted gold ornaments leads to irresistible conclusion that but for them no-body else could have committed the murders. Consistency of medical evidence further lends corroboration to the prosecution version. Motive as already discussed was very much in existence. The residue of entire exercise does not indicate any other person to be perpetrators of annihilating the two deceased but for the present appellants. Criticism of impugned judgement by both the appellants counsel fades away in confidence inspiring creditworthy evidences of all the fact witnesses. Investigation into the crime albeit cannot be said to be above board and even during trial I.O has committed mistakes to his own peril but singularly or cumulatively these aspects do not rob the prosecution case of its authenticity and truthfulness.

29. In the last, before parting away with this case, we would like to say that the learned trial Judge would have been more careful in prosecuting the appellants also for the offence u/s 398 I.P.C His lack of proper exercise has afforded much chance to castigate his decision. It would be better for all the trial Judges to be more careful hence forth in framing charges and recording 313Cr. P.C statements of the accused. Be that as it may, since we find that conviction of the appellants for the charge of murder is not dented because of their non-prosecution for the charge u/s 398 I.P.C, therefore we do not say any thing further than what we have already said. Reliance can be had on Section 464 Cr.P.C in this respect. No failure of justice has occasioned due to non prosecution of appellants for the said crime. On an overall analysis we refer to apex court decision in Ramesh v. State of Rajasthan: (2011) 3 SCC 685 wherein under similar circumstances guilt of the accused have been determined to be established from paras 20 to 44.Confessional statements, recovery of gold and silver ornaments at the instance of the appellants, recovery of weapon of assault at the pointing out of the appellants, recovery of mangoes from the drainage, finger prints of Dara Seth on the mirror, recovery of blood stained cloths of the appellants, finger print expert report and many other chain of circumstances sketched herein above convincingly establishes accused persons' participation in double murder and of their being the real culprits. No false case has been foisted against them and their defence is palpably false.

30. Clumping entire culpable material evidences against the appellants the precipitated residue, without admitting any other hypothesis, is that only appellants are guilty of double murder and they have been rightly convicted. In the end the appeals by all the three appellants, Abhiram Rohidas(A1), Bhabani Shankar Kumra (A2) and Dara Seth(A3) against the impugned judgement of conviction and order of sentence dated 26.2.96, recorded by Additional Sessions Judge, district Sambalpur, in S.T No. 180/39 of 1994, State v. Abhiram Rohidas, relating to crime no. 36 of 94, U/Ss 449/302/382/34 I.P.C police station Katarbaga district Sambhalpur, lacks merit and are hereby dismissed. Their conviction and sentence through the impugned judgement and order are hereby confirmed. Appellant Dara Seth(A3) is in custody, he shall remain in custody to serve out his entire sentence. Rest of the two appellants Abhiram Rohidas(A1) and Bhabani Sankar Kumar(A2) are on bail. Their bail and personal bonds are cancelled and they are directed to be taken into custody forthwith and be lodged in jail to serve out their sentences as imposed.

Let the trial court be intimated for compliance.

I agree.

BISWANATH RATH, J.