L.MOHAPATRA, J & B.K.PATEL, J. JCRLA. NO. 103 OF 2004 (Decided on 19.12.2011) BAINSI MOHAKUD …….. Appellant. .Vrs. STATE OF ORISSA ……..Respondents. EVIDENCE ACT, 1872 (ACT NO. 1 OF 1872) – S.27. For Appellant - Mr. Subhasis Sen. For Respondents - Mr. Sangram Das, Addl. Standing Counsel. B.K. PATEL, J. This appeal from jail is directed against the judgment dated 30.6.2003 passed by learned Ad hoc Additional Sessions Judge, (Fast Track Court), Baripada in S.T. Case No.29/75 of 2003 convicting the appellant and sentencing him to undergo imprisonment for life under Section 302 of the Indian Penal Code (for short ‘the I.P.C.’) for having committed murder of deceased persons Dulumu Deogam and Menja Deogam. 2. Deceased Menja was deceased Dulumu’s wife. P.W.6 is their daughter. Appellant is P.W.6’s husband. Informant P.W.4 and P.W.5 are deceased Dulumu’s brothers. Occurrence took place in the night of 11/12.10.2002. 3. Prosecution case is that in the night of occurrence itself P.W.6 came to the house of informant P.W.4 and disclosed that her husband, the appellant killed both the deceased persons by assaulting them with a crowbar and the dead bodies were lying in front of their house. She also disclosed that the appellant assaulted and caused injuries on P.W.4’s niece. On being asked, P.W.6 further disclosed that as there was quarrel between her and the appellant regarding cooking and throwing of chicken curry and protest raised by the deceased persons, the appellant got enraged, brought a crowbar from inside the house and assaulted the deceased persons causing their death. P.Ws.4 and 5 went to the house of the appellant and found both the deceased persons lying dead having injuries on them. Accused was absent. One Rama Mohakud and Malli Mohakud on being asked told that at about 12 in the mid night the appellant came and told them to look after his children. On being further asked, the appellant told them that he had killed his parents-in-law by assaulting with crowbar, and thereafter the appellant left. On the basis of written report Ext.7 submitted by P.W.4 at Sarat Police Station, the O.I.C. P.W.9 registered the case and took up investigation. On completion of investigation, charge-sheet under Sections 302 and 323 of the I.P.C. was submitted against the appellant. 4. The appellant took the plea of denial and false implication. 5. In order to substantiate the charge, prosecution examined nine witnesses. P.Ws.4, 5, 6 and 9 have already been introduced. Of them P.W.6 was declared to be hostile witness. P.W.1 is a witness to seizure of articles from the spot. P.Ws.2, 3 and 8 are doctors. P.W.2 medically examined the injured persons including P.W.6 whereas P.Ws.3 and 8 conducted post-mortem examination over the dead bodies of the deceased persons Menja Deogam and Dulumu Deogam respectively. P.W.7 is a post- occurrence witness. Prosecution also relied upon documents marked Exts.1 to 20 and material object M.O.I, the iron bar (Sabala). No defence evidence was adduced. Placing reliance on the evidence of P.Ws.4 and 5; medical evidence of P.Ws.3 and 8; and evidence of investigating officer P.W.9 the trial court held the appellant guilty of commission of offence under Section 302 of the I.P.C. However, appellant was acquitted of the charge under Section 323 of the I.P.C. 6. In assailing the impugned judgment it is contended by the learned counsel for the appellant that the only alleged eye-witness to the occurrence P.W.6 did not support the prosecution. In such circumstance, the trial court was not justified in recording the conviction on the basis of hearsay evidence of P.Ws.4 and 5. It is argued that medical evidence of P.Ws.3 and 8 does not indicate complicity of appellant with the alleged offence. It is further contended that seizure of iron bar/crowbar M.O.I. from the house of the appellant does not incriminate the appellant. 7. Learned counsel for the State placing reliance on the evidence of P.Ws.4, 5, 7 and 9 supports the impugned judgment. 8. We have scrutinized the evidence of all the nine witnesses. It is not disputed that death of both the deceased persons was homicidal in nature. In course of post-mortem examination P.Ws. 3 and 8 found multiple lacerations and contusions on them. There was a also stab injury on deceased Menja Deogam. Internally the deceased persons had sustained multiple fractures. All the injuries were ante mortem in nature. P.Ws. 3 and 8 opined that cause of death of deceased persons was intracranial haemorrhage with sub-dural haematoma due to laceration of brain and fracture of skull caused by blunt, heavy and elongated weapon. 9. Informant P.W.4 as well as P.W.5 are post-occurrence witnesses. P.W.4 deposed that it was P.W.6, who happens to be his niece, came to his house at night and disclosed before him that the appellant had killed her parents by means of crowbar. On his query, P.W.6 disclosed that as there was quarrel between the appellant and P.W.6 regarding cooking of chiken and on protest by P.W.6’s parents, the appellant got enraged and assaulted them by means of crowbar causing their instaneous death. On the following morning he went to the house of the appellant. They found both the deceased persons lying dead having bleeding injuries. Their wearing apparels were stained with blood. P.W.4 also testified that they found the crowbar stained with blood affixed to the roof of the house. P.W.4 stated to have lodged F.I.R. Ext.7 at the police station. P.W.5 stated in his evidence that P.W.4 came to him in the morning and told that both the deceased persons had been killed. On his query, P.W.4 told that P.W.6 came and told him regarding the occurrence. P.W.5 stated to have accompanied P.W.4 to the 2 house of the appellant and found both the deceased persons lying dead having bleeding injuries on them and a crowbar stained with blood was kept on the thatched roof of the house. Thus, P.W.4 stated to have heard regarding the occurrence from P.W.6 and P.W.5 testified to have heard regarding the occurrence from P.W.4. However, P.W.6, the appellant’s wife testified that she did not know about the occurrence. She was declared to be hostile witness. Though she was cross-examined by the prosecution, nothing has been elicited from her to implicate the appellant with the commission of murder of deceased persons. Therefore, evidence of P.Ws.4 and 5 is of no assistance to the prosecution in establishing the charge of commission of offence under Section 302 of the I.P.C. against the appellant. 10. None of the witnesses deposed that crowbar M.O.I was discovered at the instance of the appellant. P.W.7 stated that having seen the police personnel, he went to the house of the appellant and found the dead bodies of both the deceased persons lying near the door of the house of the appellant with bleeding injuries and also a blood stained crowbar. It also appears from the evidence of P.Ws.4 and 5 that crowbar M.O.I was affixed to the roof of the house. Therefore, it is obvious that alleged weapon of offence M.O.I was not discovered at the instance of the appellant. Crowbar M.O.I having not been proved to have been discovered in consequence of information received from the appellant while in police custody, prosecution is not entitled to avail any benefit under Section 27 of the Evidence Act. 11. In view of the above, there is no legal evidence on record to sustain the conviction of the appellant. Therefore, the impugned judgment is liable to be set aside. 12. Accordingly, the appeal is allowed. The order of conviction and sentence dated 30.6.2004 passed by the learned Ad hoc Additional Sessions Judge (Fast Track Court), Baripada in S.T. Case No.29/75 of 2003 convicting the appellant under Section 302 of the I.P.C. and sentencing him to undergo imprisonment for life is set aside, and he is acquitted of the charge. It is stated that the appellant is in custody. If that be so, the appellant, Bainsi Mohakud, be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed. 3