HIGH COURT OF ORISSA : CUTTACK
CRIMINAL APPEAL No.564 of 2006
AND
CRIMINAL APPEAL NO.38 of 2007
From the judgment and order dated 22.12.2006 passed by Shri
B.N.Das, Additional District and Sessions Judge, Nayagarh in
S.T.Nos.174/101/107 of 2005/2004 S.T.Case Nos.175/102/204 of
2005/2004 and S.T.Case Nos.176/8/26 of 2005.
IN CRLA NO.564 OF 2006
Mirza Asaf Alli Baig & another .......... Appellants
Versus.
State of Orissa ........... Respondent
For Appellants : M/s. R.K.Nayak, P.K.Moharaj,
R.P.Roy, S.K.Das and
S.P.Das
For Respondent : Government Advocate.
IN CRLA NO.38 OF 2007
Parsuram Bihari .......... Appellant
Versus.
State of Orissa ........... Respondent
For Appellant : M/s. R.K.Nayak, S.K.Dash,
S.P.Dash, P.C.Mohanty,
R.P.Roy and C.R.Kanungo.
For Respondent : Government Advocate.
PRESENT
THE HON'BLE SHRI JUSTICE A.S. NAIDU
AND
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing : 09.10.2009 : Date of judgment: 10.2009
B.K.NAYAK, J. The appellants in both the appeals have challenged the judgment
and order dated 22.12.2006 passed by the Additional Sessions Judge,
Nayagarh in S.T.Case Nos.174/101/107 of 2005/2004, S.T.Case
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Nos.175/102/204 of 2005/2004 and S.T.Case Nos.176/8/26 of 2005
convicting the appellants under Sections 302/120-B of the Indian Penal
Code and sentencing them to undergo R.I. for life and to pay a fine of
Rs.5,000/-, in default, to undergo R.I. for further period of six months.
2. The appellants along with four other accused persons, namely,
Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @
Lalbihari Das faced their trial being charged under Sections 452/120-B,
120-B, 302/120-B of the Indian Penal Code for allegedly committing the
murder of Dr.Abid Alli Baig in pursuance of a conspiracy hatched by them
by trespassing into the house of the deceased.
3. The totality of the prosecution case that came to light during the
course of investigation which was launched on the basis of the F.I.R. lodged
by one Nakula Das (P.W.6) is to the following effect :
The deceased Dr.Abid Alli Baig had a Clinic close to his paternal
house at Nayagarh where the informant was working as a Compounder. On
6.8.2002 at about 8.00 A.M., the informant came to the clinic in connection
with his duty and for opening of the Clinic he went into the house of the
deceased to collect the keys. On arrival, he found the front door and the
bedroom door of the house of the deceased lying open, so also the Almirah
and Box of the deceased kept inside the house. Some articles were lying
scattered inside the house. The informant called out the deceased, but he
failed to get any response. When he was about to come out of the house, he
discovered some blood on the wall of the drawing room of the house. On
suspicion he entered into the drawing room and found the doctor (deceased)
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lying dead there in a pool of blood. The informant, thereafter, immediately
lodged the report against unknown culprits, on the basis of which the
Inspector-in-charge, Nayagarh Police station (P.W.49) registered P.S.Case
No.166 of 2002 and took up investigation.
4. During the course of investigation, P.W.49 proceeded to the spot
and found the dead body of the deceased and household articles were lying
scattered. He prepared spot map and took Video photographs, issued
requisition for Scientific Team and sniffer dog. On their arrival, they took
photographs of the spot and discovered some finger prints from the calling
bell switch on the outer verandah of the house, glass cover of the cup board
and liver of the lock of the drawing room and thereafter developed the finger
prints and took photographs. The Scientific Team also collected sample
blood from the spot and prepared a report vide Ext.4. The I.O. held inquest
over the dead body of the deceased in presence of witnesses and thereafter
sent it for post mortem examination. From the spot, he collected and seized
sample filter paper, broken white bottle soaked with blood and a book under
the title “Miracle of M.S.M.Natural Solution forpain”. The I.O. also seized
from the house of the deceased one SBBL gun (M.O.V) along with some
ammunitions, one Auto Pistol (M.O.VI), Air Gun (M.O.VII) and Revolver
(M.O.VIII). After the post mortem report, on the following day the I.O. seized
the wearing apparels and one Tabiz belonging to the deceased. On
01.01.2003, the I.O., Shri B.K. Raju (P.W.49) made over charge of
investigation to the Shri M.K. Subudhi, Inspector of C.I.D., (Crime Branch).
On 21.1.2003, Sri Uttam Kumar Singh, another Inspector of police, CID
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(C.B.) (P.W.50) took over charge of investigation from Sri M.K.Subudhi.
During the course of investigation, P.W.50 examined the wife and sisters of
the deceased, re-examined other witnesses and recorded their statements.
On 04.02.2003, he visited the spot along with Director, State Forensic
Science Laboratory and seized some blood stains available on the door
screen of the drawing room. On 07.02.2003, he arrested all the accused
persons except accused-Mallick Soleman, collected their finger prints and
sent the same to Finger print Bureau. On completion of investigation, the
I.O. submitted charge-sheet making out a case that accused-Mirza Asaf Alli
Baig who is the brother of the deceased and his son accused Mirza Aslam
Alli Baig @ Amir had long standing enmity with the deceased over their
paternal properties for which they had threatened him of dire consequences,
and that accused-Parsuram Bihari had also enmity with the deceased, since
the latter in his capacity as the President of K.C. Club, Nayagarh had taken
over possession of a patch of land and constructed a boundary wall thereon
extending the area of the Club on its western side which was being objected
to by accused-Parsuram Bihari, who had also threatened the deceased to do
away with his life. It is further made out by the prosecution that these three
accused persons joined together and hired accused- Mallick Soleman,
Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das as
contract killers and conspired with them to kill the deceased and resultantly
in pursuance of such conspiracy these four accused persons caused murder
of the deceased inside his house in the night of 5/6.8.2008.
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5. The defence plea is a complete denial of the involvement of the
accused persons in the alleged crime. It was further stated by the accused
persons that they were falsely implicated.
6. In order to prove its case, the prosecution examined as many as 52
witnesses. No defence evidence was led by the accused persons. Of the
prosecution witnesses, P.W.6 is the informant, P.Ws.3, 4, 5, 9, 11, 16, 20,
24, 38 and 39 are some members of K.C. Club, Nayagarh. P.Ws.22, 25 and
30 are the sisters and P.W.44 is the widow of the deceased. P.Ws.21 and 52
are two Scientific Officers. P.W.31 is the doctor of District Headquarter
Hospital, Nayagarh, who conducted post mortem on the dead body of the
deceased on police requisition. P.W.42 is the Executive Officer, Nayagarh
N.A.C. P.Ws.43, 48 and 34 are respectively Tahasildar., R.I. and Junior
Clerk of Revenue Department, P.Ws. 28, 29, 33, 35, 36 and 37 are the
seizure witnesses. P.Ws.8, 10, 15 and 32 are Potato godown owners. P.W.27
is the Manager of Bhuasuni temple, Ogalapada. P.Ws. 40 and 41 are the Toll
Gate Employees. P.Ws.12 and 13 are two independent witnesses. P.Ws.1, 2,
26, 46 and 47 are some residents of Nayagarh Town. P.Ws.18 and 45 are
two police personnel who had accompanied the dead body of the deceased
for post mortem examination. P.W.19 is the Video Recorder. P.Ws.14 and 17
are co-villagers of accused-Banua. P.W.51 was the S.I. of Police, Nayagarh
Police Station on the date of occurrence. P.Ws. 49 and 50 are two
Investigating Officers.
7. On consideration of the evidence on record, the trial court has
come to the following conclusions ;
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(i) there is no cogent and consistent evidence on record
regarding implication of accused persons, namely,
Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat
Patra and Banua @ Lalbihari Das with the crime, and
that they have agreed among themselves to commit the
murder of the deceased;
(ii) there is no evidence on record that the accused persons,
namely, Asaf, Aslam and Parsuram have committed
house trespass in the night of occurrence in pursuance of
the criminal conspiracy;
(iii) the prosecution has successfully brought home the
charge under Sections 302/120-B of the I.P.C. against
the accused persons namely, Asaf, Aslam and Parsuram;
With the aforesaid findings the trial court acquitted accused
persons, namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat
Patra and Banua @ Lalbihari Das of all the charges. The trial court however,
convicted the present appellants under Sections 302/120-B of the I.P.C.
8. In assailing the impugned order of conviction and sentence, the learned
counsel for the appellants submitted that in absence of any direct evidence
regarding the murder of the deceased, the whole prosecution case rests on
circumstantial evidence and that the only circumstance for which there is
some shaky prosecution evidence being the motive of the appellants to do
away with the deceased out of revenge would not by itself be sufficient to
convict them for the offence of murder. He also submits that there is no
acceptable evidence to prove the motive of the appellants to cause murder of
the deceased. His further contention is that the trial court having disbelieved
the prosecution story about the conspiracy that the four accused persons,
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namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat Patra and
Banua @ Lalbihari Das committed the murder of the deceased in pursuance
of a conspiracy entered into by all the accused persons, it could not have
convicted the appellants under Sections 302/120-B of the I.P.C.
9. The learned counsel appearing for the State submitted that the impugned
order of conviction and sentence is well founded and needs no interference.
10. It is submitted at the Bar that the impugned order passed by the trial
court in so far as it relates to acquittal of the four accused persons, namely,
Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @
Lalbihari Das has not been challenged.
11. There is no doubt that the deceased died a homicidal death, which is
established from the medical evidence. Evidence of the doctor (P.W.31), who
conducted post mortem examination over the dead body of the deceased,
and the post mortem report (Ext.10) reveal that the deceased sustained one
incised injury of size 8″ x 2″ x ½” x 1″ extending from the upper most part
of the neck 1″ lateral to midline on left side obliquely upwards the right ear
lobule and another incised wound of 4 ½” x ½” x 1/4″ over the left side
cheek on the mandible and some scratch marks over right side base of the
neck and upper chest. The incised wound on the neck had completely cut
the carotid artery and jagular veins causing copious haemorrhage that
brought about the death of the deceased.
12. The question that falls for determination is as to whether in pursuance of
a conspiracy entered into between the appellants and the four acquitted
accused persons, the latter committed the murder of the deceased so that
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the appellants can be held guilty under Sections 302/120-B of the I.P.C.
Admittedly, there is no direct evidence with regard to murder of the
deceased. It appears from the evidence of the I.Os that during investigation
with the assistance of the Scientific Team, P.W.49 collected the finger prints
from the calling bell switch on the outer verandah of the house of the
deceased, from the glass cover of cup board and lever of the lock of the
drawing room which were developed and photographed, and that after arrest
of the accused persons by P.W.50, their finger prints were obtained and sent
to the Finger Prints Bureau for matching. P.W.50 has clearly admitted that
finger prints of the accused persons did not match with the prints collected
from the house of the deceased and, therefore, the finger prints report did
not connect the accused persons with the crime. In absence of any
semblance of evidence that the four acquitted accused persons in fact
committed the murder of the deceased or that they conspired with the
appellants to cause such murder, the trial court has acquitted them of all
charges. However, citing negligence and laches on the part of the first I.O.
(P.W.49), the court below has observed that for wrong and laches committed
by the Investigating Officer criminal justice should not suffer, and
accordingly convicted the appellants.
13. The whole prosecution case rests on circumstantial evidence. The
‘Panchsheel’ of proof of a case based on circumstantial evidence which is
usually called five golden principles have been stated by the apex Court in
Sharad Birdhichand Sarda v. State of Maharashtra; AIR 1984 SC 1622
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and Md.Sher Bahadur Khan v. State; (1996) 10 OCR 167;. The principles
are as follows :
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established,
as distinguished from ‘may be’ established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on
any other hypothesis except that the accused is
guilty;
(3) the circumstances should be of a conclusive
nature and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
14. In the instant case, the prosecution attributed motive to the appellants
for causing the death of the deceased. While appellant -Mirza Aslam Alli and
his son are said to have long standing enmity with the deceased over the
paternal property for which they had been threatening the deceased with
dire consequence, accused-Parsuram Bihari was allegedly having enmity
with the deceased since the latter as the President of K.C. Club, Nayagarh,
had taken over possession of a patch of land and constructed western side
boundary wall thereon which was being objected to by Parsuram Bihari and,
therefore, the deceased was being threatened by him. The trial court in
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paragraph-12 of the judgment clearly discussed as to how the witnesses
examined by the prosecution to prove conspiracy among the accused
persons have not supported the prosecution story. There is no acceptable
evidence of any independent witness with regard to the motive of appellant-
Parsuram Bihari to do away with the life of the deceased. P.Ws. 22, 25 and
30, who are the sisters of the deceased, and P.W.44, the wife of the
deceased, were examined by the I.O. more than five months after the killing
of the deceased. With regard to the enmity between the deceased on the one
hand and his accused brother-Asaf and nephew-Amir on the other, the
evidence of the aforesaid witnesses reveal that there was quarrel and ill
feeling between them over the family properties, after their father died and
the deceased came to Nayagarh in 1987, and several civil and criminal
litigations were started between them. However, the evidence of P.W.6, who
is very much acquainted with the affairs and the relationship between the
deceased and his accused brother, reveals that at the time of the incident
they were pulling on well with each other. He has further stated that
accused-Asaf had undergone, a surgery for harnia at a Nursinghome at
Nayagarh and the deceased was looking after him. P.W.26 is a lawyer of
Nayagarh and family friend of the deceased and his brother. He has
admitted in his evidence that there was ill feeling between the deceased
and his brother and there were several litigations between them. He
negotiated for a compromise and ultimately all the cases including a
partition suit were compromised in the year 2000. In the light of such
evidence, it is hard to believe that accused-Asaf and his son had still a
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motive to take revenge on the deceased by causing his murder.
15. Law is well settled that motive may be a circumstance to raise suspicion
against the accused, but suspicion howsoever strong it may be cannot take
the place of real proof. On the basis of such a circumstance, it is not
possible to draw an irresistible conclusion which is incompatible with the
innocence of the accused, particularly when there is no other circumstance
connecting the appellants with the crime in question.
16. There are other suspicious circumstances which remain unexplained and
raise doubts about the complicity of the appellant in the crime. First of all,
the finger prints collected from the calling bell switch on the outer verandah
of the house, glass cover of the cup board and lever of the lock of the
drawing room did not match with the finger prints of any of the accused
persons. This means that real persons who had left finger prints could not
be identified. Prosecution has failed to rule out the possibility of
involvement of those persons, who had left their finger prints. One open
condom was recovered from the bed room of the deceased on the day
following the murder during the course of investigation. Admittedly, the wife
of the deceased was not present with the deceased in the night of murder.
The prosecution has not come out with any explanation about the
availability of an open condom in the house of the deceased. The wife of the
deceased has admitted in her cross-examination that her husband was a
man of loose character and he had so many enemies. It is also in the
evidence that one Antaryami Das was inimical towards the deceased as
because the deceased had seized a truck which Antaryami had purchased
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on loan with the guarantorship of the father of the deceased. All these
unexplained facts also raise a grave doubt about the complicity of the
appellants in the alleged offence.
17. The trial court has categorically found that conspiracy to kill the
deceased has not been proved and, therefore, acquitted other four accused
persons, who allegedly committed the murder in pursuance of the
conspiracy. In the cases of Fakhruddin v. The State of Madhya Pradesh;
AIR 1976 S.C. 1326 and Girija Shankar Misra v. State of U.P.; AIR 1993
S.C. 2618, it has been held by the Apex Court that the offence of conspiracy
cannot survive the acquittal of alleged co-conspirators. If the alleged real
murderers, namely, Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat
Patra and Banua @ Lalbihari Das were acquitted for want of proof of
conspiracy and murder by them pursuant to such conspiracy entered into
by them with the present appellants, the present appellants who were
alleged co-conspirators cannot be held guilty under Section 302 read with
Section 120-B of the I.P.C.
18. In the light of the discussions made above, we are of the view that the
impugned judgment of conviction and sentence of the appellants under
Sections 302/120-B of the I.P.C. cannot be sustained. We, accordingly, set
aside the said order of conviction and sentence and acquit the appellants in
both the appeals of the charges under Sections 302/120-B of the I.P.C.
Accordingly, both the appeals are allowed.
……………………….
B.K.Nayak,J.
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A.S.Naidu, J. I agree.
………………………..
A.S.Naidu, J.
Orissa High Court, Cuttack The . November,2009/G.B.Samal
