ORISSA HIGH COURT,CUTTACK JCRA NO. 292 OF 2000 From the judgment and order dated 9.8.2000 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No.72 of 1998 (Sessions Case No.69 of 1998 in the file of Sessions Judge,Koraput- Jeypore) arising out of G.R.Case No.553/1997 committed by the learned S.D.J.M., Jeypore corresponding to B. Singhpur P.S.Case No.52 of 1997. ---------- Daitari @ Gopinath Bhotra and another … Appellants -versus- State of Orissa … Respondent For appellant - Mr. S.K.Jee For respondent - Addl. Standing Counsel. PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ----------------------------------------------------------------------------------- Date of hearing & judgment- 3.11.2011 ----------------------------------------------------------------------------------- B.K.Patel,J. Being aggrieved by the judgment and order dated 9.8.2000 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No.72 of 1998 convicting and sentencing the appellants for commission of offences under sections 302 and 201 read with 34 of the Indian Penal Code (for short, the I.P.C.), the appellants have preferred this appeal from jail. Each of the appellants has been sentenced to imprisonment for life under section 302 read with 34 of the I.P.C. and to undergo rigorous imprisonment for five years under section 201 read with 34 of the I.P.C. 2. The deceased was a Grama Rakhi attached to B.Singhpur police station. Prosecution case is that on 8.10.1997 O.I.C. of B.Singhpur Police Station (P.W.17) was informed about discovery of a dead body inside a well of P.W.8 in village Khajuriguda. P.W.17 made station diary entry regarding the information and proceeded to the village. Dead body was brought out from the well and identified to be that of the deceased. It was noticed by P.W.17 that tongue of the deceased was protruding. Suspecting that the deceased was murdered, he drew up plain paper F.I.R. against unknown culprit and took up investigation. In course of investigation, it came to light that about a month prior to the discovery of the dead body, the two appellants were following the deceased and had declared that they would kill somebody that night. Investigation also disclosed prior enmity between the appellants and the deceased. While in custody appellants made confessional statements and led to the discovery of Ganji M.O.III which the deceased was wearing. Upon autopsy by P.W.14 it was found that deceased was killed by manual throttling. Upon conclusion of investigation charge sheet was submitted against the appellants for commission of offences under sections 302/201/34 of the I.P.C. 3. Appellants took plea of denial and false implication. 2 4. Prosecution examined 18 witnesses in order to establish the charges. P.Ws. 5, 8 and 9 were stated to have last seen the deceased with the appellants. Out of them P.W.8 was declared to be a hostile witness. P.Ws. 1 and 3 are relations of the deceased who deposed regarding recovery and identification of the dead body. P.W.4 is deceased’s mother who deposed regarding prior enmity between the deceased and the appellants. P.Ws.6, 11 and 12 are seizure witnesses whereas P.W.7 is an inquest witness. P.W.10 is a witness to seizure of Ganji M.O.III at the instance of the appellants. P.W.13 accompanied dead body for post-mortem examination and also is a witness to seizure under seizure list Ext.7. P.W.14 is the doctor who conducted post mortem examination over dead body of the deceased. P.Ws.2 and 15 were declared to be hostile witnesses. P.W.16 is the doctor who deposed regarding treatment of appellant Gopinath upon reference to O.P.D. register. P.Ws. 17 and 18 are Investigating Officers. Prosecution also relied upon documents marked Exts.1 to 16 and material objects M.Os. I to IV. No defence evidence has been adduced. Placing reliance on evidence of P.Ws.5 and 9 stated to have been corroborated by medical evidence and circumstance of seizure of Ganji M.O.III at the instance of the appellants, trial court held the prosecution to have proved the charges against the appellants. 5. It is contended by the learned counsel for the appellants that evidence of neither P.W.5 nor P.W.9 is firm enough to support the 3 inference that appellants were following the deceased on the date of occurrence. It is pointed out that P.W.14 categorically opined that time of post mortem examination since death of the deceased was approximately one month. P.W.5 deposed that one and half months after he last saw the deceased, the dead body was recovered. P.W.9 deposed that it was on 10.11.1997 he and P.W.5 last saw the deceased when he was being followed by the appellants. It is strenuously argued that as dead body of the deceased was recovered on 8.10.1997 no importance can be attached to the assertion of P.Ws. 5 and 9. It is further contended that prosecution has not led any reliable evidence to conclude that the deceased was wearing Ganji M.O.III on the date of occurrence. Moreover, P.W. 10 categorically admitted in his cross- examination that Ganji M.O.III was recovered from the place situated near a road which was accessible to all. In such circumstances, trial court erred in holding that the prosecution has proved complicity of the appellants with commission of murder of the deceased. 6. Learned counsel for the State submits that though there is no eyewitness to the occurrence, prosecution has proved the charges against the appellants by the circumstantial evidence. Not only the deceased was last seen when the appellants were following him but also on that date appellants had declared that they would kill someone. It is in the evidence of P.W.5 that deceased was last seen wearing Ganji M.O.III which was recovered at the instance of the appellants. 4 7. We have carefully examined the entire evidence on record. Admittedly, there is no eyewitness to the occurrence. P.W.1 deposed that about one and half months prior to discovery of dead body of the deceased, deceased had come to his house in the night. Deceased took his meal in his house and proceeded towards police station stating that on the next morning he would go to Ambaguda from the police station. Deceased was not seen in the village after that. His dead body was recovered one and half months thereafter. P.W.1 also deposed to have identified dead body of the deceased. There is nothing in the evidence of P.W.1 to indicate that the deceased was wearing Ganji M.O.III in the night of occurrence. P.W.2 was declared to be a hostile witness. P.W.3 deposed that upon seeing human palms and feet in the well of P.W.6 Bidyadhar Pangi, he showed it to P.W. 6. Thereafter, they called Sarpanch and Ward Member of the village. As decided P.W.3 went to the police station and orally reported the matter to the O.I.C. Next day, dead body of the deceased was recovered from the well with assistance of Fire Brigade. P.W.3 as well as deceased’s mother and others identified dead body of the deceased. P.W.3 also was a witness to inquest. P.W.3 further deposed that there was enmity between the deceased and the appellants due to quarrel between them during Dhemsa Nacha which took place about one year prior to the discovery of dead body of the deceased. There was also some dispute between them regarding collection of SALAPA juice. In his cross-examination, 5 P.W.3 testified that seized Ganji found in court belonged to deceased and was recovered from the well along with dead body of thedeceased. He also admitted that he was not pulling on well with the appellants. P.W.4 also deposed regarding discovery of dead body of the deceased and prior enmity between the deceased and the appellants. P.W.5, on whose evidence much reliance has been given by the trial court, deposed that about one and half months prior to discovery of dead body of the deceased, one night he requested P.W.8 to accompany him to his village. Accordingly, P.W.8 and P.W.9 accompanied him towards his village. On the way, one Bhola also joined them. They found that deceased was coming towards B.Singhpur. He was wearing a Lungi M.O.II, Ganji M.O.III and a towel. Thereafter, P.W.5 saw that the two appellants were coming in that road following the deceased. Seeing them the appellants asked as to where they had been to, to which P.W.5 and others replied that they had been to attend call of nature. Then, P.W.5 asked the appellants as to where they were going to, to which appellant Gopi replied “TODAY WE SHALL MURDER SOMEBODY”. Thereafter, P.W.5 went to his house whereas others returned. P.W.5 testified in his cross-examination that he did not tell anybody in his village about declaration made by appellant Gopi regarding his intention to kill somebody. A plain reading of the evidence of P.W.5 would indicate that incident referred to by him, in course of which appellants were following the deceased and appellant 6 Gopi told that they were going to murder somebody, took place one and half months prior to discovery of dead body of the deceased. He categorically deposed in his examination in chief that one and half months after the incident he saw dead body of the deceased which was discovered from a well. P.W.6 simply deposed regarding recovery of dead body from his well and regarding seizure of stone M.O.I tagged to the dead body. P.W.7 is an inquest witness. P.W.8 stated that P.W.5 was working in his hotel as a waiter. One night as it was a bit late P.W.5 requested him to accompany him to village Khajuriguda because he was afraid to go alone. P.Ws. 8 and 9 accompanied P.W.6. On the way one Bhola joined them. They saw the deceased going towards B.Singhpur wearing a Lungi similar to M.O.I and full Ganji and carrying a towel on his shoulder. When P.W.8 and others proceeded further they saw the appellants coming from their front side. According to P.W.8 it was P.W.1 who was asked by the appellants as to where from he was coming to which P.W.1 replied that he was coming from attending call of nature. This witness was declared to be a hostile witness and put leading questions by the prosecution in course of which he denied to have made statement before the Investigating Officer regarding any declaration made by appellant Gopi. 7 P.W.9 deposed that when he along with P.Ws. 5 and 8 and one Bhola were coming towards village Khajuriguda, on the way they came across the deceased going towards B.Singhpur wearing check Lungi M.O.II and full Ganji ,and having a gamucha on his shoulder. Appellants asked them as to where they had been to, to which they replied that they had been to attend call of nature. On P.W.5’s enquiry about their destination, appellant Gopi declared that they would kill somebody on that date (JONUKU AAJI BODHO KORIBU). Thereafter, both the appellants went in the road the deceased had gone. In course of cross-examination, not only to the question put on behalf of the defence but also to the question put by the Court, P.W.9 stated that the above incident took place on 10.11.1997. He further stated in cross- examination that for the first time he narrated the incident in the court. Thus, no reliance can be put to the evidence of P.W.9 in view of the fact that the dead body of the deceased was discovered on 8.10.1997 whereas P.W.9 deposed that above incident took place on 10.11.1997. P.W.10 deposed that while in custody both the appellants disclosed before the Circle Inspector of Police P.W.17 that appellant Gopi had concealed deceased’s Ganji M.O.III in a bush. Thereafter, appellant Gopi led to the recovery of M.O.III. In his cross-examination, it is admitted by him that place from where M.O.III was recovered is accessible to all as it is situated near road. 8 Evidence of P.Ws. 11 to 13 is of no help to the prosecution in implicating the appellants regarding commission of the offence. P.W.14, the doctor who conducted post-mortem examination found that Hyoid bone was fractured into three pieces. He opined that death of the deceased was due to manual throttling and time of post mortem examination since death was one month approximately. P.W.15 was declared to be a hostile witness. P.Ws. 16 to 18 are official witnesses. 8. On an analysis of the evidence adduced by the prosecution it is found that admittedly dead body of the deceased was recovered from a well upon discovery on 8.10.1997 and subjected to post mortem examination by P.W.14 on 10.10.1997. On such examination, P.W.14 opined that time of post mortem examination since death was one month approximately. P.W.5 deposed that when he last saw the deceased being followed by the appellants, the deceased was wearing Ganji M.O.III. Thus, according to P.W.5 appellants were following the deceased and appellant Gopi told that they would murder somebody one and half months before he saw dead body of the deceased which was recovered from a well. However, P.W.3, in course of cross- examination, testified that seized Ganji belonging to the deceased was recovered from the well along with dead body of the deceased. Evidence of P.W.8 who was put leading questions by the prosecution is of no help to the prosecution. P.W.9 stated that he along with P.Ws. 5 and 8 last 9 saw the deceased when he was followed by the appellants on 10.11.1997. Therefore, evidence of P.Ws. 5,8 and 9 neither individually nor taken together is capable of being relied upon as the basis for recording the finding that in the night of occurrence appellants were following the deceased and declared that they would kill somebody. There is also no basis to hold that the deceased was wearing Ganji M.O.III in the night of occurrence or that seizure of Ganji M.O.III is an incriminating circumstance against any of the appellants. In absence of proof of such circumstances, evidence adduced by the prosecution regarding prior enmity between the deceased on the one hand and appellants on the other by itself cannot constitute a circumstance to infer complicity of the appellants with commission of murder of the deceased. Therefore, prosecution is found to have failed to establish the circumstances which may be held to constitute a chain to sustain the finding that appellants are guilty of the charge. The impugned judgment is, therefore, liable to be set aside. 9. We, accordingly, allow the appeal and set aside the order of conviction and sentence dated 9.8.2000 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No.72 of 1998 convicting the appellants under sections 302/34 and 201/34 of the I.P.C. and sentencing them to undergo imprisonment for life and rigorous imprisonment for five years respectively. The appellants are acquitted of the charges. 10 It is stated that the appellants are in custody. If that be so, the appellants Daitari @ Gopinath Bhotra and Pakulu Bhotra be set at liberty forthwith, unless their detention is required in connection with any other case. …………………… L.Mohapatra,J. ……………………… B.K.Patel,J Orissa High Court, Cuttack, Dated 3rd November,2011/Palai 11