ORISSA HIGH COURT,CUTTACK JCRA NO. 82 OF 2000 From the judgment and order dated 7.8.1999 passed by Sri P.C.Pathy, Sessions Judge, Kalahandi-Nuapada, in Sessions Case No.43 of 1998. ---------- Kamakhya Biswal … Appellant -versus- State of Orissa … Respondent For appellant - Smt. Pramila Mohanty For respondent - Shri S.K.Nayak, Addl. Government Advocate PRESENT: THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ----------------------------------------------------------------------------------- Date of hearing- 13.7.2011 :: Date of judgment- 20.10.2011 ----------------------------------------------------------------------------------- B.K.Patel,J This jail criminal appeal is directed against the judgment and order dated 7.8.1999 passed by the learned Sessions Judge, Kalahandi- Nuapada, in Sessions Case No.43 of 1998 convicting the appellant under section 302 of the Indian Penal Code ( for short, the I.P.C.) and sentencing him to undergo imprisonment for life for committing murder of deceased Harapriya Pradhan. 2. Appellant is deceased’s husband whereas informant P.W.1 is deceased’s father, P.W.3 is appellant’s mother and P.Ws.2 and 4 are appellant’s brothers. Occurrence took place on 12.2.1998 at about 2.30 P.M. in appellant’s village. 3. Prosecution case is that appellant started to indulge in unnecessary expenses for which the appellant and the deceased used to quarrel since about 10 months prior to the occurrence. Appellant mortgaged half of his land with P.W.9 for an amount of Rs.5000/- and squandered away the money. Thereafter, he gave his land on ‘bhag chas’ basis and spent usufructs unnecessarily. About four to five months prior to the occurrence appellant intended to sell some of his land to which deceased resisted for which the appellant threatened to drive her out and there was quarrel between them. On 8.2.1998 informant P.W.1 came to appellant’s village when the deceased told him regarding her dispute with the appellant and, in his presence, the appellant quarreled with the deceased and asked her to leave. In spite of his efforts P.W.1 could not pacify the appellant. In such circumstances, P.W.1 decided to take his daughter and her 1-1/2 month old son to his house but the appellant said that he would not allow P.W.1 to take his child. On 12.2.1998, P.W.1 discussed with P.W.3 and appellant’s brothers, and decided to take the deceased and her son to his house. Having taken such a decision, P.W.1 went to the house of appellant’s brother P.W.4 to apprise him of the decision. When he was in P.W.4’s house, at about 2.30 P.M. P.W. 1 heard shout raised by P.W.3 and came out. He found the deceased lying on the path and appellant dealing blows by means of tangia M.O.II on her. Seeing him, appellant ran away towards the jungle with M.O.II. P.W.1 tried to give water to the deceased but she was found dead. P.W.1 learnt from P.W.3 that when the deceased 2 was getting ready to go with him, appellant quarreled with her and told that unless he killed her he would not get peace and brought a tangia. When the deceased was coming to P.W.1, appellant ran from behind and dealt tangia blows on her as a result of which she died. On the basis of written report Ext.1 submitted at Sadar Police Station, Bhawanipatna on the same day, P.W.10 Officer-in-Charge registered the case and took up investigation. In course of investigation, witnesses were examined and inquest over the dead body of the deceased was held in presence of P.Ws. 5 and 6. Appellant was arrested. Tangia M.O.II was seized under seizure list Ext.5 and wearing apparels of the appellant were seized under seizure list Ext.4 from the possession of the appellant in presence of witnesses including P.W.6. Post Mortem Examination over the dead body of the deceased was conducted by P.W.7. On completion of investigation, charge-sheet was submitted against the appellant. 4. Appellant took the plea of denial. In course of cross- examination of witnesses it was also suggested by the defence that appellant was of unsound mind at the time of occurrence. 5. In order to substantiate the charge, prosecution examined 10 witnesses. All the P.Ws. except P.W.8, a police constable who assisted P.W.10 in the investigation, have already been introduced. Prosecution also relied upon documents marked Exts.1 to 13 and material exhibits M.Os. I, II and III. Placing reliance on the evidence of informant eye- witness P.W.1 stated to have been corroborated by medical evidence and 3 other incriminating circumstances, trial court held the prosecution to have proved the charge against the appellant. 6. In assailing the impugned judgment it was contended by the learned counsel for the appellant that trial court has failed to take note of material contradictions in the evidence of P.W.1. It is in the evidence that P.W.1 had omitted to make material allegations against the appellant in his police statement. It was further contended that there was no basis for the trial court to hold that evidence of P.W.1 is corroborated by the contents of the F.I.R. in view of the fact that P.W.1 himself admitted that he himself had lodged another First Information Report scribed by him before the police at 3 P.M. before lodging of the First Information Report Ext. 1. It was contended that P.W.1 is not at all a reliable and trustworthy witness. It was further contended that trial court committed error in recording the finding that tangia M.O.II was seized from the appellant in view of the evidence of P.W.6 to the effect that M.O.II was seized from inside the forest. Presence of blood in appellant’s shirt M.O.I, it was argued, does not incriminate the appellant in any manner, the appellant being deceased’s husband. It was strenuously contended that trial court has failed to appreciate evidence on record. 7. In reply, learned Additional Government Advocate contended that evidence of deceased’s father P.W.1 gets square corroboration from the contents of the F.I.R. Ext.1. Trial court has rightly placed reliance on him. It was further contended that the evidence of P.W.1 gets corroboration from the medical evidence and incriminating circumstance 4 of seizure of appellant’s shirt M.O.I and weapon of offence M.O.II from the appellant. It was urged that there is no infirmity in the impugned judgment. 8. Conviction of the appellant by the trial court is based mainly on the direct evidence of informant P.W.1, the deceased’s father. He testified that on the date of occurrence he had been to the appellant’s village. After taking food, he went to the house of appellant’s elder brother P.W.4. When he was talking with P.W.4, P.W.1 heard hulla from the house of the appellant on the village road. He came out of P.W.4’s house and found that deceased was lying on the village road and the appellant was dealing axe blows. He alleged that appellant also threatened him and thereafter ran towards the forest side with the axe. Due to assault made by the appellant, deceased died on the spot. It was asserted by him that appellant was spending money and was drinking by selling all his properties and by mortgaging the landed property for which deceased used to forbid the appellant not to spend the money like that. It is in his evidence that he lodged F.I.R. Ext.1 which was scribed by P.W.2. P.W.1 claimed to be a witness to inquest over the dead body of the deceased under inquest report Ext.2. Though P.W.1 testified in court to have seen the appellant dealing axe blows on the deceased, it has been brought out from the evidence of investigating officer P.W.10 that in his statement made in course of investigation P.W.1 had not stated to P.W.10 that he had seen the occurrence. P.W.1 also had not alleged in his police statement that appellant was dealing axe blows, or that appellant threatened him with assault. It has also been elicited from the evidence of 5 P.W.10 that P.W.1 stated before him that by the time P.W.1 reached the spot, the deceased had died. Thus, omission by P.W.1 to make vital allegations in his police statement amounts to material contradictions with his testimony in court. In such circumstances, P.W.1 can not be held to be a firm and reliable witness. 9. In the F.I.R. Ext.1 P.W.1 alleged that there used to be quarrel between the appellant and the deceased as the appellant used to squander away money as well as used to mortgage landed property. In court P.W.1 did not depose regarding any quarrel between them. On the other hand, in his cross-examination P.W.1 admitted that during the deceased’s life time appellant was taking all care to her and even he had taken her to Visakhapatnam and Ranchi for treatment when she had fallen ill. Also, in the F.I.R. P.W.1 asserted that after dealing axe blows on the deceased the appellant ran away towards forest and that he tried to give water to the deceased but he found the deceased to have died. Thereafter, he learnt from appellant’s mother P.W.3 that when the deceased dressed herself to accompany the informant to his house, appellant told the deceased that he would not get peace unless he killed her, and thereafter, the appellant procured an axe from his house, followed the deceased when she was going to P.W.1, and dealt axe blows on the village road near the house of one Brajabandhu as a result of which the deceased died. However, P.W.1 did not make such assertions in his testimony in court. That apart, P.W.1 made prevaricating statement regarding the circumstance of lodging of F.I.R. In his cross-examination P.W.1 stated that P.W.2 gave first F.I.R. upon which police came and inquired into the matter. In the police vehicle 6 he came to the occurrence village and gave his report to the police. P.W.1 deposed that he did not know what happened to the F.I.R. which he had given. P.W.2, stated to be the scribe of the F.I.R. Ext.1, testified in his cross-examination that he and his nephew first lodged F.I.R. at the police station at about 3 P.M.. Thereafter, police came to their village for investigation and sent the dead body of the deceased for post-mortem. According to him, again F.I.R. was given at 7 P.M. He himself scribed the F.I.R. which was given at 7 P.M. It is categorically stated by him that police made a rough writing and on seeing that he wrote the F.I.R. and that whatever the police had written he copied and submitted. It was also stated by him that P.W.1 told him to write the F.I.R. as per the direction of police. Thus, not only there is no scope to hold that contents of the F.I.R. corroborates the evidence of P.W.1 in material particulars but also in view of prevaricating statements regarding circumstance of lodging of the F.I.R., F.I.R. Ext.1 can not be relied upon on its face value as a first information report spontaneously lodged soon after the occurrence without deliberation. P.W.1’s evidence with regard to lodging of two F.I.Rs. and P.W.2’s evidence to the effect that F.I.R. was scribed as per the direction of police take away from Ext.1 the intrinsic value usually attached to F.I.R. Therefore, evidence of P.W.1, who has not been found to be reliable witness, cannot be stated to have been supported by the contents of the F.I.R. 10. With regard to circumstance of seizure of tangia M.O.II, the weapon of offence, P.W.10 testified that he searched for and arrested the accused. Thereafter, he seized the tangia M.O.II from the possession of the 7 accused under seizure list Ext.5. P.W.6, who is a signatory of seizure list Ext.5, deposed that police seized an axe from inside the forest locally known as Badhia Dongar and prepared seizure list Ext.5. In his cross- examination P.W.6 testified that police showed appellant’s shirt M.O.I and tangia M.O.II to him and told that they had seized M.O.II and that he signed on seizure list in the village. Thus, not only evidence of P.W.10 does not suggest that tangia M.O.II was seized at the instance of the appellant but also P.W.6 did not support the assertion of P.W.10 that tangia M.O.II was seized from the possession of the appellant. In such circumstances, prosecution has failed to substantiate that tangia M.O.II incriminates the appellant. 11. P.W.10 further deposed that he seized appellant’s wearing apparels including shirt M.O.I under seizure list Ext.4 after his arrest. P.W.6 testified that police seized shirt M.O.I and appellant’s lungi on production by the appellant. As has already been pointed out, in his cross-examination P.W.6 told that police showed shirt M.O.I and tangia M.O.II and told him that they had seized M.O.II. It was also stated by him that he signed on the seizure list in the village. Thus, prosecution also has failed to adduce cogent evidence regarding circumstance of seizure of shirt M.O.I. No doubt chemical report reveals that human blood was detected on shirt M.O.I. However, detection of human blood on appellant’s shirt by itself does not constitute a firm basis for sustaining the charge against the appellant. It is to be borne in mind that appellant being the husband of the deceased possibility of appellant coming in contact with the deceased 8 after her death in course of which his shirt was stained with blood cannot be ruled out. 12. Thus, on a conspectus of the evidence on record, it is found that neither the direct testimony of informant P.W.1 nor the circumstances relied upon by the prosecution, individually or taken together, inspires confidence to hold beyond reasonable doubt that the appellant was the author of deceased’s homicidal death. Therefore, the appellant is entitled to benefit of doubt. The impugned judgment and order is not sustainable. Accordingly, the impugned judgment and order of conviction is set aside. The appeal is allowed. Appellant Kamakhya Biswal is acquitted of the charge. He be set at liberty forthwith, unless his detention is required otherwise. …………………… B.K.Patel Pradip Mohanty,J. I agree. ………………………… Pradip Mohanty Orissa High Court, Cuttack, Dated 20th October,2011/Palai 9