ORISSA HIGH COURT, CUTTACK CRLA NO. 409 OF 2007 From the judgment and order dated 4.7.2007 passed by Shri S.R. Bohidar, learned Ad hoc Additional Sessions Judge, Fast Track Court, Jagatsinghpur in S.T. Case No.33 of 2006 (S.T. No. 649 of 2003) arising out of G.R.Case No.27/2003 of the file of learned J.M.F.C.(P), Kujang corresponding to Paradip P.S.Case No.11 of 2003. ---------- Ashu @ Mir Asmat and Ajus @ Sk.Ajijul(Azizul) … Appellants -versus- State of Orissa … Respondent For appellants - M/s G.N.Mohapatra, P.K.Sahoo, S.K.Rout, Miss S.Das & S.K.Jena. For respondent - Additional Government Advocate PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ---------------------------------------------------------------------------------- Date of hearing- 24.11.2011 :: Date of judgment-7.12.2011 ---------------------------------------------------------------------------------- B.K.Patel,J. This appeal is directed against the judgment and order dated 4.7.2007 passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court, Jagatsinghpur in S.T. Case No.33 of 2006 (S.T. No. 649 of 2003) convicting and sentencing the appellants under sections 302 and 201 read with 34 of the Indian Penal Code (for short, the I.P.C.). Each of the appellants has been sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/-, in default to undergo rigorous imprisonment for two years, under Sections 302 read with 34 of the I.P.C.; and to undergo rigorous imprisonment for three years under Sections 201 read with 34 of the I.P.C. 2. Allegation in the case relates to murder of deceased Nrusingha Mishra @ Bapuni. Informant P.W. 18 is his father and P.W. 17 is his mother. 3. Prosecution case is that deceased and appellants were friends. It is alleged that on 7.1.2003 at about 3 P.M. the appellants came to the house of deceased on a scooter bearing registration No. DL.25-9666 and called the deceased to come with them to purchase a vehicle. The deceased accompanied the appellants with Rs.40,000/-in cash saying that he would come back within 2 to 3 hours. However, he did not return till night. Informant P.W. 18 went to the appellants and another friend of the deceased, namely Babu, in search of the deceased, but, he could not find them. It is further alleged that on the following day P.W.18’s nephew P.W. 19, who belongs to Kendrapara, came and told P.W. 18 that on 7.1.2003 at about 7 P.M. he saw the deceased at Duhuria bridge proceeding with two other persons on scooter bearing registration No. DL.25-9666 in a high speed towards Chandikhol. Deceased was sitting in the middle. On 11.1.2003 dead body of an unknown male aged about 21/22 years was found floating in river Kharasrota. In this connection O.I.C., Binjharpur P.S. P.W. 24 registered U.D. Case No. 2 of 2003 and directed A.S.I. of police P.W. 15 to conduct enquiry. In course of such 2 enquiry, P.W. 15 conducted inquest over the dead body of the deceased and dead body was subjected to post mortem examination by P.W. 22 at District Headquarters Hospital, Jajpur. Wearing apparels of the deceased were also seized. In the meanwhile, informant P.W. 18 came across newspaper report regarding recovery of dead body of a young male. From description of the wearing apparels of the deceased he suspected the dead body to be of his son. P.W. 18 went to Binjharpur Police Station and identified the deceased’s wearing apparels, wrist-watch and photographs. However, gold chain which the deceased was wearing was missing. Alleging that the appellants called the deceased from home and committed his murder in order to take away the gold chain which the deceased was wearing and cash of Rs.40,000/- which the deceased had taken, P.W. 18 lodged the First Information Report at Paradeep Police Station on 14.1.2003. P.W. 25 registered the case and took up investigation. It is alleged that in course of investigation, gold chain M.O.V which the deceased was wearing was recovered at the instance of appellant Ajus @ Sk.Ajijul while he was in custody. On completion of investigation, charge sheet for commission of offences under Sections 364/302/ 201/120B/34 of the I.P.C. was submitted against the appellants. 4. On consideration of materials on record, trial court framed charge under Sections 364, 302, 201 and 120B read with 34 of the I.P.C. 3 5. Appellants took the plea of denial and false implication. 6. In order to substantiate the charge, prosecution examined twenty nine witnesses. P.Ws.15,17,18,19,22,24 and 25 have already been introduced. Out of them, P.Ws.2, 3, 9, 10, 11, 12, 16 and 27 turned hostile. P.Ws. 1, 5 and 6 denied to have any knowledge regarding the case. P.Ws. 7 and 8 were inquest witnesses. P.W. 13 saw the unidentified dead body floating in the river and sent information to Binjharpur Police Station. P.W. 14 a police constable, P.W. 15 an A.S.I. of Police and P.W. 24 the O.I.C. of Binjharpur P.S. were associated with the enquiry in U.D. Case No. 2 of 2003. P.W. 20 is the scribe of the F.I.R. P.W. 23 a police constable assisted in investigation. P.W. 26 did not say anything about the occurrence and stated that he does not know the appellants. P.Ws. 28 and 29 are witnesses to seizure of scooter. Thus, evidence of the above witnesses are of little help to the prosecution in implicating the appellants with the alleged offences. 7. P.W. 4 is a goldsmith who stated to have purchased a gold chain from appellant Ashu @ Mir Asmat. As has been stated earlier P.W. 17 is deceased’s mother and informant P.W. 18 is deceased’s father. P.W. 19, deceased’s cousin, stated to have seen the deceased going on a scooter with two other persons on 7.1.2003 towards Chandikhol. P.W. 21 is a jewellary shop owner who stated to have sold gold chain M.O.V to informant P.W. 18. P.W. 22 is a doctor who conducted post mortem examination over the dead body of the deceased. P.W. 25 is the investigating officer. Prosecution also relied 4 upon documents marked Exts. 1 to 12/1 and material objects M.Os. I to X. Appellants examined D.Ws. 1 to 7 as defence witnesses and also relied upon document marked Ext. A. 8. Trial court held the prosecution to have established the charge under Sections 302 and 201 read with 34 of the I.P.C. against the appellants by proving the following circumstances: i) medical evidence of P.W.22, ii) the motive of gain the appellants for committing the offences, iii) the deceased was last seen together in the company of the appellants on 7.1.2003, and iv) recovery of gold chain M.O.V at the instance of appellant Ajus @ Sk. Ajijul. However, appellants were acquitted of the charges under Sections 120B and 364 read with 34 of the I.P.C. 9. Learned counsel for the appellants upon reference to evidence of P.Ws. 17, 18 and 19 argued that prosecution has miserably failed to prove that the deceased was last seen together with the appellants. In this connection reliance was placed mainly on the evidence of deceased’s mother P.W. 17. It was also contended that evidence of P.W. 19 is altogether silent regarding presence of the deceased in the company of the appellants. It was further argued that prosecution has failed to adduce evidence regarding recovery of gold chain M.O.V at the instance of any of the appellants. Evidence of P.W. 4 does not in any manner connect the gold chain M.O.V with any of the appellants. It was further contended that not only prosecution has 5 failed to prove the other two circumstances i.e. the homicidal death of the deceased and the deceased having cash and gold chain with him but also the two circumstances as such do not incriminate the appellants in any manner. 10. Learned counsel for the State argued that prosecution has established all the four circumstances against the appellants beyond reasonable doubt. 11. Prosecution relied upon evidence of P.Ws.17,18 and 19 as well as P.Ws. 3 and 9 to prove that the deceased was last seen together in the company of the appellants. P.Ws. 3 and 9 were declared to be hostile witnesses. Deposition of P.W.3 in course of cross-examination by prosecution reads: “It is a fact that I was working as a Hotel boy at Binjharpur in the hotel of Krushna Ch.Sahu. It is not a fact that I have not stated before the police on 7.1.03 at about 10.30 a.m. accused Asmat and other two accd.persons came to the hotel by one scooter no.DL-25-9566 to take their dinner and Asmat was calling Mausa, and the other persons were wearing blue colour jacket and one Jin pant and there was a muffler on his neck. Thereafter, they took their dinner.” (sic) Thus, in course of cross-examination by the public prosecutor nothing material in support of prosecution was elicited in the evidence of P.W.3. He simply admitted to have made certain statements to the Investigating Officer in course of investigation. Moreover, such statements related to “accused Asmat and other two accused persons” and scooter bearing registration number ‘DL-25-9566’. Not only two appellants were the only accused persons who faced trial but also 6 registration number of the scooter referred to by P.W.3 has no relevance to the present case. It is also trite that admission by a hostile witness to have made certain statements before the police in course of investigation simply amounts to proof of police statement which can only be used to contradict that witness. Likewise, P.W.9 was also declared to be the hostile witness in view of his denial to have any knowledge about the case. This witness also admitted to have made certain statements before the I.O. That apart, P.W.9 admitted to have made statement under section 164 Cr.P.C. before the Magistrate. P.W.9’s substantive evidence before the trial court was that he did not know anything about the case. That apart, in course of his cross-examination by the defence, P.W.9 stated that he was detained at Paradip P.S. for about fifteen days and he was threatened by police to make certain statements before Magistrate. Thus, evidence of P.Ws. 3 and 9 is of no assistance to the prosecution. 12. P.W.19, who happens to be cousin of the deceased, testified that on 7.1.2003 at about 7 to 8 P.M., when he was purchasing chocolate from a betel shop near Duhuria Chhak of Kendrapara, three persons passed in a scooter and he saw the deceased was sitting in the middle, and on 8.1.2003 P.W.19 appraised of the same to P.W.18. There is nothing in the evidence of P.W.19 to connect any of the 7 appellants with the two persons alleged to have been seen by him on the scooter along with the deceased. 13. P.Ws.17 and 18 testified that at about 3 P.M., when P.W.18 was about to leave the house for duty, the appellants reached there house in a scooter. According to P.W.18 registration number of scooter was DL-25-9666. According to both the witnesses, on being called deceased left home with cash for purchasing a motorcycle with the appellants. Though P.W.18 deposed that for the last time he saw the deceased when he left with the appellants at 3 P.M. on 7.1.2003, P.W.17 further testified that one hour thereafter deceased again came to the house. On being asked by her, deceased stated before her that he had forgotten to take the muffler with him. After taking muffler deceased went away with the appellants who were standing on the road. However, it has been elicited in the evidence that P.W.17 had not stated before investigating officer P.W.25 that the deceased left home after taking muffler along with the appellants who were standing on the road. Thus, though P.W.17 had stated at the earliest before the P.W.25 that the deceased came home again to take muffler, she had omitted to state that at that time appellants also had come with the deceased. Therefore, such omission being material amounts to material contradiction in the evidence of P.W.17. In view of such omission, P.W.17’s assertion to have last seen the deceased with the appellants when he returned home to take muffler, is not capable of being accepted. On the contrary, from the evidence of P.W.17, it 8 appears that though deceased had left home along the appellants at about 3 P.M. on 7.1.2003, one hour thereafter deceased had come home alone to take the muffler. Prosecution case of the deceased to have been last seen together with the appellants in order to connect the appellants with commission of murder of the deceased is snapped by the evidence of P.W.17 herself. Prosecution is therefore found to have failed to establish the vital circumstance of the deceased to have been last seen together with the appellants before his death. 14. Recovery of gold chain M.O.V which the deceased was wearing at the instance of appellant Ajus @ Sk. Ajijul was relied upon by the prosecution and accepted by the trial court as another vital circumstance to connect the appellants with the offence. Trial court has referred to and placed reliance on the evidence of P.Ws.4, 12, 18, 21 and 25 in this context. Investigating officer P.W.25 appears to have arrested the appellant Ajus @ Sk. Ajijul on 19.1.20003 and appellant Ashu @ Mir Asmat on 29.1.2003. He testified that while appellant Ajus @ Sk. Ajijul was in custody he confessed to have committed the offence alongwith the co-appellant and to have sold the gold chain of the deceased. P.W.25 proceeded to Binjharpur market alonwith the witnesses and appellant Ajus @ Sk. Ajijul who led them to Khan Jewellery shop and identified P.W.4 to be the person to whom he had sold the gold chain. On being asked P.W.4 admitted to have purchased a gold chain from the appellants and produced it. Gold chain was seized under seizure list Ext.2. P.W.12, a signatory to seizure list Ext.2, 9 turned hostile. P.W.18 identified M.O.V to be the gold chain which the deceased was wearing and stated that he had purchased it from the jwellery shop of P.W.21. P.W.21 supported P.W.18 and testified that gold chain M.O.V was manufactured and sold to P.W.18 by him. 15. In such circumstances, evidence of P.W.4 assumes significance in establishing the link between the gold chain M.O.V and the appellants. P.W.4 stated in his examnation-in-chief that it was the appellant Ashu @ Mir Asmat who came and gave a gold chain and took Rs.4,500/- from him. Appellant Ashu @ Mir Asmat’s mausa was present with him. In his cross-examination P.W.4 admitted to the defence suggestion that he had not stated before the police in course of investigation that appellant Ashu @ Mir Asmat gave him a gold chain and took money. Therefore, on his own admission P.W.4 developed the prosecution case while deposing in court. On further cross- examination P.W.4 went to the extent of deposing that M.O.V was not the chain which was given by appellant Ashu @ Mir Asmat to him. Thus, not only evidence of investigating officer P.W.25 regarding seizure of gold chain M.O.V from P.W.4 is not supported by any other witness but also P.W.4 denied to have purchased the gold chain M.O.V from any of the appellants. Hence, prosecution has failed to prove the circumstance of seizure of the gold chain M.O.V so as to indicate complicity of appellants with the offence under which they faced trial. 16. It is also found that medical evidence available from P.W.22 is altogether silent that death of the deceased was homicidal in nature. 10 P.W.22 conducted post-mortem examination over the dead body of the deceased at 4.30 P.M. on 11.1.2003. He found two lacerated injuries, one with blood clot inside on the occipital region with fracture of occipital bone and laceration of brain below the fracture site, and another on the occipito parietal region of the scalp behind the right ear; apart from bruise on the left side face including left side forehead which surrounded left eye and left side cheek up to the left angle of mouth. There was subcutaneous haematoma below the skin on the left side zygomatic area. There was also haematoma on the surface of the brain. P.W.22 opined that cause of death was due to haemorrhage and shock resulting from injuries to vital organs like brain and that injuries on the deceased could be caused if heavy iron substance was repeatedly struck upon over a body. However, in course of cross-examination P.W.22 testified that injuries on the deceased were also possible in course of fall and admitted that he had not mentioned in the post- mortem report that injuries could be caused if a heavy substance was repeatedly struck upon over a body. P.W.22 also stated that he could not say that the injuries which he found during post-mortem examination were homicidal in nature. 17. The only other circumstance on which prosecution relied upon was that the appellants’ grudge against the deceased as the deceased did not accede to the request of appellant Ashu @ Mir Asmat to lend him Rs.20,000/- for his sister’s marriage, the appellants’ greed for gold chain M.O.V and Rs.40,000/- which the deceased had taken 11 for purchase of motorcycle were the motive for commission of the offence. There is no clinching evidence regarding recovery of money and gold chain belonging to deceased at the instance of or from the possession of any of the appellants. Moreover, in absence of proof of any other circumstance, motive by itself cannot constitute the basis to sustain charge in a criminal trial. 18. In view of the above, it is found that prosecution has failed to prove the charge against the appellants and the impugned judgment and order passed by the trial court are liable to be set aside. In the result, the appeal is allowed. The impugned judgment and order passed by the trial court are set aside. The appellants are acquitted of the charge. ……………………… B.K.Patel,J L.Mohapatra,J. I agree. …………………… L.Mohapatra,J. Orissa High Court, Cuttack, Dated 7th Dec,2011/Palai 12