ORISSA HIGH COURT, CUTTACK. Criminal Appeal No. 53 of 2005 From the judgment and order sentence dated 24.12.2004 passed by Shri A.K. Behera, Addl. Sessions Judge, Fast Track Court No. III, Cuttack in S.T. Case No. 799 of 2001, under Section 302/34, I.P.C. ---------- Govinda Chandra Rout and two others … Appellants Versus State of Orissa … Respondent For Appellants : Mr. Rajesh Panda, Advocate. For Respondent : Addl. Standing Counsel. ---------- P R E S E N T : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of Hearing : 10.11.2010 Date of Judgment : 10.11.2010 --------------------------------------------------------------------------------------------------- 1. This appeal is directed against the judgment and order of sentence dated 24.12.2004 passed by learned Ad hoc Additional Sessions Judge (Fast Track Court No. III), Cuttack in Sessions Trial Case No. 799 of 2001, convicting all the three appellants for commission of offence under Section 302/34, I.P.C. and sentencing each one of them to suffer imprisonment for life. 2. Case of the prosecution is that on 04.11.1997 informant Basant Sahu (P.W.14) presented a written report at the P.S. alleging therein that on 03.11.1997 at about 2 p.m. his daughter Rubi @ Rebati Sahu (deceased) aged about 17 years had gone to the village ‘padia’ along with a spade and basket to bring some earth. Half an hour thereafter when her mother P.W.15 went to the said ‘padia’, she saw the basket was lying with full of earth, but the deceased was missing. When the deceased did not return home, they searched further but did not find her. Ultimately on 04.11.1997 the dead body of the deceased was found in a naked condition near the ‘kia’ bush of Taga Padia and a bamboo stick was lying near that. Suspecting that the deceased had been killed by someone, the report was submitted at police station. 3. On these allegations, report having been submitted, investigation was taken up by the police. The dead body of the deceased was subjected to post-mortem examination and on the basis of the post-mortem examination report and other materials collected during investigation, charge-sheet was submitted against all the three appellants for commission of the offence under Sections 302/376 (2) (g) / 34, I.P.C. 4. The prosecution, in order to prove the charge, examined 18 witnesses, but none was examined on behalf of the defence. The plea of the defence was complete denial. 5. Learned trial court, in absence of any direct evidence, relied on circumstantial evidences and found the appellants guilty of 2 the charge under Section 302/34, I.P.C. but acquitted them of the charge under Section 376 (2)(g), I.P.C. 6. Mr. Panda, learned counsel appearing for the appellants, assailing the impugned judgment, submits that the entire prosecution case is based on circumstantial evidences and the only relevant witnesses are P.Ws.14 and 15. Referring to the evidence of these two witnesses, it was contended by learned counsel that the evidence only proves a prior quarrel between the family of the deceased and the accused persons and there is nothing more in the entire evidence to support the findings of the learned Adhoc Addl. Sessions Judge. Learned counsel for the State on the other hand relied on the evidence of the two more witnesses, i.e., P.W.13, the doctor, who conducted the post-mortem examination and P.W.18, the constable who was leading the dog-squad. Referring to the evidence of these two witnesses, learned counsel for the State submitted that the circumstance narrated by those witnesses clearly proves that these appellants could have committed the alleged offence and none else. 7. Since the case of the prosecution is entirely dependant on circumstantial evidence, we have carefully examined the evidence of all the witnesses examined by the prosecution. Out of 18 witnesses examined by the prosecution, P.Ws.1, 2, 3 and 4 had only stated to have seen the dead body of the deceased. P.W.3 is also a witness to the inquest of the dead body. Apart from P.W.3, P.Ws.5 and 9 are also witnesses to the inquest. P.W.8 is a witness to the seizure under Exts.3, 4 and 5. P.Ws.6, 11 and 12 turned hostile and did not support 3 the case of the prosecution. P.W.13 is the doctor, who conducted the post-mortem examination, P.W.14 is the informant, who is the father of the deceased and P.W.15 is the mother of the deceased. P.Ws.16 and 17 are the two Investigating Officers and P.W.18 is the police constable, who led the dog squad. Therefore, the relevant witnesses to be considered in this case are P.Ws.13, 14, 15, 16, 17 and 18. P.W.13 is the doctor, who conducted the post-mortem examination. He found several injuries on the body of the deceased. He was of the opinion that the injuries were ante-mortem in nature and the cause of death was asphyxia resulting from pressure on the neck and gagging of mouth. He was also of the opinion that some of the injuries also coincide with both sexual assault and asphyxia violation. On the basis of this report, charge-sheet was filed for commission of the offence under Section 376 (2)(g) and 302/34, I.P.C. Accepting the evidence of this witness, one can safely come to a conclusion that the deceased had been subjected to sexual assault prior to her death and she died of asphyxia. 8. The prosecution relied on the evidence of the informant, who is the father of the deceased, examined as P.W.14 and the mother of the deceased examined as P.W.15. P.W.14, in his deposition has stated that in the month of August, 1997 the appellants had assaulted the deceased and P.W.15. Though the matter was informed to the villagers, nobody took care of the same and the appellants were teasing P.W.15. There is nothing else in the evidence of this witness to show that these appellants were in any manner involved in commission of the above offence. Similar is the evidence of P.W.15, 4 who is the wife of the informant (P.W.14) and mother of the deceased. Though these two witnesses stated that the appellants had assaulted the deceased and P.W.15 in the month of August and the villagers did not do anything on their complaint, P.W.3, in his examination-in-chief has also referred to that incident and has stated that the said dispute was settled by way of a compromise. Therefore, from the evidence of P.Ws.14 and 15 we do not find anything to connect the present appellants in commission of the alleged offence. 9. The other evidence relied on by the learned counsel for the State is the evidence of P.W.18. P.W.18 was working as a police constable and was attached to the dog squad. He, in his deposition, has stated that at the place of occurrence a bamboo stick was lying and the police dog after getting the scent of the bamboo stick went towards the house of the three appellants and moved around there. Except this, there is no other material on record to connect the appellants with commission of the alleged crime. 10. Learned Trial Court relied on the evidence of the Investigating Officer in relation to P.W.6, who during investigation had stated to have seen three persons moving around in the night. This witness turned hostile in course of the trial. Therefore, the trial court could not have referred to the evidence of the I.O. in this regard in order to render a finding that the three appellants were moving around in the night, as seen by P.W.6. 11. On analysis of the entire evidence, as stated above, since we find no material at all to connect the appellants with commission 5 of the aforesaid crime, we find every justification to set aside the impugned judgment. Accordingly, the Criminal Appeal is allowed. The impugned judgment convicting all the three appellants for commission of offence under Section 302/34, I.P.C. is set aside and the appellants are acquitted of the charge. Since all the three appellants, namely Govinda Chandra Rout, Fagu Ch. Rout and Laxman Jena are in jail custody, they be released forthwith, unless their detention is required in connection with any other case. ………………….. L. Mohapatra, J. …………………. C.R. Dash, J. Orissa High Court, Cuttack. The 10th day of November, 2010. /Parida. 6