ORISSA HIGH COURT,CUTTACK JCRA NO. 40 OF 2001 From the judgment and order dated 29.3.2001 passed by Shri M.R.Patnaik, learned Additional Sessions Judge, Talcher in S.T.Case No.24-A/39 of 1999/2000 arising out of G.R.Case No.301/1998 committed by the learned S.D.J.M., Talcher. ---------- Kandarpa Chandra Kuthar … Appellant -versus- State of Orissa … Respondent For appellant - M/s Mrutunjaya Rath, Antaryami Biswal, D.P.Ray, J.P.Mohanty, P.P.Ray, and S.Pasayat. For respondent - Mr. S.K.Das, Addl. Standing Counsel. PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ----------------------------------------------------------------------------------- Date of hearing & judgment- 17.11.2011 ----------------------------------------------------------------------------------- B.K.Patel,J. This appeal from jail is directed against the judgment and order dated 29.3.2001 passed by the learned Additional Sessions Judge, Talcher in S.T.Case No.24-A/39 of 1999/2000 convicting the appellant for commission of offence under section 302 of the Indian Penal Code (for short, the I.P.C.) and sentencing him to imprisonment for life for having committed murder of deceased Chandramani Kuthar. 2. The appellant is deceased’s brother. Informant P.W.1 is their father. P.W.13 is deceased’s wife. Occurrence took place on 25.7.1998. 3. Prosecution case is that there was dispute between the appellant and the deceased over distribution of sale proceeds of family land. Appellant used to express his anguish and desires to get rid of the deceased. It is alleged that deceased went from his village Haladiakata to village Dumduma at about 7.30 P.M. on the date of occurrence to purchase tobacco but did not return home. In the following morning while informant P.W.1 had gone to attend call of nature, he was informed that someone murdered the deceased and the dead body was lying under a tree near the village school. He rushed to the spot and found the deceased lying dead with spot injuries on his face, chest, neck and back. On the basis of F.I.R. Ext.1 presented by P.W.1 at Talcher Police Station, P.W.14 Inspector of Police registered the case and took up investigation. On completion of investigation, charge sheet was submitted against the appellant for commission of offence under section 302 of the I.P.C. 4. Appellant took plea of denial and false implication of the prosecution case. 5. In order to substantiate the charge prosecution examined 14 witnesses. P.W.1 informant was a witness to inquest also. P.W.2 is a post-occurrence witness who turned hostile. P.W.6 was examined as an eyewitness. P.W.7 is post-occurrence witness. P.W.10 was 2 examined to depose regarding motive for commission of the offence. P.W.11 was examined who turned hostile. P.W.13 is deceased’s wife. P.W.12 the doctor who conducted post-mortem examination of the deceased. P.Ws. 8 and 9 were examined to prove seizure of incriminating articles including weapon of offence knife M.O.I at the instance of the appellant. Of them, P.W.9 turned hostile. P.Ws. 3 and 5 are inquest witnesses. P.Ws. 3 and 4 are seizure witnesses. P.W.14 is the Investigating Officer. Prosecution also relied upon documents marked Exts. 1 to 11 and material objects M.Os. I and II. No defence evidence was adduced. 6. On perusal of evidence on record trial court discarded evidence if eyewitness P.W.6 holding that in view of vital contradiction no reliance can be put on P.Ws.’s evidence. However, trial court held the prosecution to have established circumstance of recovery of weapon of offence M.O.I at the instance of appellant and convicted and sentenced the appellant as stated supra. 7. In assailing the impugned judgment it is submitted by the learned counsel for the appellant that it has rightly been held by the trial court that evidence of P>W.6 is not reliable in view of grave inconsistencies between his testimony in court and statement made before the Investigating Officer P.W.14. It is submitted that conviction of the appellant is based solely on the evidence of P.W.8 with regard to recovery of knife M.O.I. Referring to the evidence of P.W.8 and I.O. P.W.14 it is contended that circumstance of recovery of knife M.O.I as 3 deposed to by P.W.8 is not consistent with the evidence of P.W.14. It is further contended that evidence of P.W.8 does not disclose that the appellant was in custody when he made disclosure statement leading to recovery of knife M.O.I so as to attract provision under section 27 of the Evidence Act. It is further argued that circumstance of seizure of knife M.O.I by itself cannot constitute an incriminating circumstance for sustaining finding in a criminal trial. 6. Learned counsel for the State upon reference to evidence of P.Ws. 8 and 14 submitted that there is no reason to disbelieve recovery of weapon of offence at the instance of the appellant. 7. Having carefully scrutinized evidence on record and the impugned judgment, it is found that evidence of witnesses including ocular testimony of P.W.6, other than P.Ws. 8 and 14, is of little significance. In view of vital contradiction between evidence of P.W.6 in court and statement made by him during investigating before P.W.14, evidence of P.W.6 has rightly been rejected to be unreliable. Of the two witnesses P.Ws. 8 and 9 who deposed regarding recovery and seizure of knife M.O.I, P.W.9 has been declared to be a hostile witness by the prosecution. He did not support the prosecution case for recovery of knife M.O.I at the instance of the appellant. P.W.8 testified that on the date of occurrence at about evening time when he was sitting near the house of P.W.11 along with one Kabi Behera, they saw that the appellant came in a cycle up to the 4 house of P.W.11. When appellant saw deceased there, he returned back in his cycle. After remaining there for half an hour, P.W.8 and said Kabi Behera went to their respective houses. P.W.8 deposed that on the very same night towards last part he was called by police to the police station. Bhimsen and Kabi were also taken to the police station. Police inquired about death of the deceased and on their denial of no knowledge, police called the appellant to the police station. Appellant disclosed in the police station before the police to have killed the deceased and thereafter disclosed about keeping of knife M.O.I by which he killed the deceased at Budhabandha. Thereafter, appellant led police in the police jeep to Budhabandha. P.W. 8 and others also accompanied them in the jeep. Appellant recovered knife M.O.I from Budhabandha in their presence and produced the same before the police. P.W.8 identified knife M.O.I to be the said knife. P.W.8 further testified that after recovery of knife M.O.I appellant led the police to the house of his sister’s husband and produced napkin and thereafter he led police to his house and gave recovery of lungi and old cycle which were seized under seizure list Exts. 5 and 6. P.W.6 did not depose that appellant was in custody when he made disclosure statement and led recovery of knife M.O.I. According to P.W.8, knife M.O.I was recovered and seized immediately after they were taken to and narrated in the police station in the early hours of morning following the night of occurrence. P.W.14 testified that he arrested the appellant at 3.55 P.M. on 28.7.1998 and that while in police custody appellant made 5 disclosure statement and led to recovery of knife M.O.I and napkin M.O.II from the tank. They were seized under seizure list Ext.6. Thus, it is evident that appellant was taken to custody two days after the occurrence and seizure of knife M.O.I and napkin M.O.II was effected under seizure list Ext.6 on 28.7.1998. However, P.W.8 testified that recovery and seizure of M.Os.I and II were made in the morning following the night of occurrence i.e. on 26.7.1998. In view of such contradiction in the testimonies of P.Ws.8 and 14 regarding the circumstances under which weapon of offence knife M.O.I was seized, it would not at all be safe to conclude that prosecution has proved the circumstance. Therefore, prosecution is not entitled to any benefit under section 27 of the evidence Act. In absence of any other evidence, unerringly pointing out complicity of the appellant with commission of murder of the deceased, there is no basis to hold that the appellant is guilty of the charge. The impugned judgment is liable to be set aside. 8. We, accordingly, allow the appeal and set aside the judgment and order dated 29.3.2001 passed by the learned Additional Sessions Judge, Talcher in S.T.Case No.24-A/39 of 1999/2000 convicting the appellant for commission of offence under section 302 of the I.P.C. and sentencing him to imprisonment for life. The appellant is acquitted of the charge. …………………… L.Mohapatra,J. 6 ……………………… B.K.Patel,J Orissa High Court, Cuttack, Dated 17th Nov.,2011/Palai 7