JUDGMENT
L. Mohapatra, J.
1. Both the appellants having been convicted for commission of offences under Sections 302/34 of the Indian Penal Code (in short ‘I.P.C.’) and sentenced to imprisonment for life by the learned Additional Sessions Judge, Khurda in S.T. Case No. 19/95 of 1999 have preferred this appeal against such order of conviction and sentence.
2. Case of the prosecution as revealed from the F.I.P., is that the deceased and appellant Mobarak were carrying on goat business and the appellant Mobarak was coming to the house of the deceased once or twice in a month. Three years prior to the death of the deceased, appellant Mobarak had taken some gold ornaments from P.W. 6 wife of the deceased for marriage of his sister. In spite of repeated requests the said appellant did not return the gold ornaments. A month prior to the occurrence the father of the deceased P.W. 5 had asked the appellant not to come to their house when he found the said appellant gossiping with P.W. 6. Thereafter, prior to the date of occurrence while P.W. 5 was returning to his house, it is alleged that the appellant Yusuf threatened to kill him with a katari for which the village gentries were informed about the incident who assured P.W.5 to wait till the end of fasting month. On two or three occasions there was also quarrel between the appellant Mobarak and the deceased and his wife P.W. 6 in relation to return of the gold ornaments. On the date of incident at about 3 P.M. appellant Yusuf called the deceased to accompany him to collect arrear dues, but the deceased did not return home in the night. On the next day morning while P.Ws. 5 and 6 were in their house, they heard some one saying that a person has been murdered at Gujuri Gadia by the side of the railway line. P.W.5 went to the spot along with the other villagers and found the dead body lying with the multiple injuries on different parts of his body. P.W.5 found the head of the deceased severed from the trunk and also one monkey cap lying on the railway line. Handle of a sword and one GANAPATI mark napkin were also found at the spot. P.W.5 hereafter lodged the report, which was reduced to writing, and investigation was undertaken. After completion of investigation, charge sheet was filed against both the appellants for commission of offences under Sections 302/34 I.P.C.
The plea of the defence is complete denial of the prosecution allegations.
3. The prosecution in order to prove the charges examined fifteen witnesses whereas none was examined on behalf of the defence. Out of the fifteen witnesses examined on behalf of the prosecution, P.W.5 is the informant and is also father of the deceased. P.W.6 is the wife of the deceased. P.Ws. 3, 4 and 7 are seizure witnesses and P.W. 7 is also a witness to the inquest. P.W.1 is another seizure witness. P.W. 14 is the doctor who conducted postmortem examination of the deceased. P.W.8 is a witness to collection of arrear dues P.W. 9 is a tiffin shop owner in whose shop the appellant Yusuf and the deceased had been seen at about 9 P.M. and P.W. 10 is the driver of the jeep who had taken the appellant Mobarak and left the said appellant near a hillock. P.W. 11 is the person in whose house the appellant Mobarak and P.W. 10 stayed in the night and P.W. 12 is the person who found the dead body of the deceased near the railway track. P.W. 13 is a person who met appellant Yusuf and the deceased when they were taking tiffin at a Dhaba at Dadhimachha Gadia chhack and P.W. 2 had found the appellant Yusuf and the deceased coming on foot holding a cycle. P.W.15 is the Investigating Officer. The trial Court on the basis of the evidence of P.Ws. 2, 5, 6, 8, 9, 10, 11, 12 and 13 found the appellants guilty of the charges and convicted them thereunder.
4. The learned Counsel for the appellants assails the impugned judgment on the ground that there being no eyewitness to the occurrence, the prosecution case is entirely based on circumstantial evidence. According to the learned Counsel for the appellants, the circumstances tried to be proved by the prosecution in course of trial are full of inconsistencies and there are several missing links making the prosecution case improbable and unacceptable. The learned Counsel for the appellants drew attention of the Court to the evidence of the aforesaid witnesses on whom reliance was placed by the trial Court and pointed out the missing links in support of his submission that a chain of circumstances pointing at the guilt of the appellants having not been proved, both the appellants could not have been convicted for commission of the said offences.
The learned Counsel for the State, on the other hand, relied on the very same witnesses and submitted that there was a motive for commission of such offence and on the date of occurrence the deceased had been seen with the appellants whereafter the dead body of the deceased was found. Therefore, on the basis of such nature of evidence, the trial Court having found the appellants guilty of the charges, there is no reason according to the learned Counsel for the State to interfere with the impugned judgment.
5. Undisputedly there is no eyewitness to the occurrence and the prosecution solely relied on circumstances available from the witnesses i.e., P.Ws. 2, 5, 6, 8, 9, 10, 11, 12 and 13. The prosecution has tried to prove the motive behind commission of such offence and also relied on the. last seen theory.
There is no dispute that the dead body of the deceased was found with multiple injuries and the head had been severed from the trunk. From the evidence of P. W. 14, it appears that the deceased has sustained as many as 24 incised wounds and the head had been completely separated from the trunk. He was of the opinion that the death was homicidal in nature. P.Ws. 5 and 6 are the witnesses who speak about the motive. P.W. 5 is the informant and father of the deceased. He in his deposition has stated that the appellant Mobarak had taken some gold ornaments from P.W. 6 for marriage of his sister, but in spite of repeated requests, he did not return the same for which a month prior to the incident he had asked the appellant Mobarak not to come to their house specially when on that day he found him gossiping with P.W. 6. He has also stated that some days thereafter while he was returning to his house, on the way the appellant Yusuf threatened to kill him and the matter was informed to the village gentries. He has also stated that on the date of occurrence at about 3 P.M. the appellant called the deceased to go to Dadhimachhagadia to collect the arrear dues from the persons who had taken meat from them and accordingly, the deceased had accompanied the appellant Yusuf but did not return home. Next day morning the dead body of the deceased was found near the railway track. From the evidence of the I.O. P.W. 15, it is found that this witness had not stated anything before the police during investigation about non-return of gold ornaments by the appellant Mobarak. He had only stated before the police that he having found the appellant Mobarak gossiping with P.W. 6 had asked him not to come to their house. P.W.6 is the wife of the deceased. She has stated in her deposition that about 2 to 21/2 years before the incident the appellant had taken gold ornaments for marriage of his sister. In spite of repeated requests made by the deceased, he did not return the same and in relation to the above there was quarrel between the deceased and the appellant Mobarak on two to three occasions. She has also stated that on the date of occurrence at 3 P.M. being called by the appellant Yusuf, her deceased husband left the house for collection of the arrear dues, but the deceased did not return. On the next day the dead body of the deceased was found near the railway track. From the evidence of P.W. 15 the I.O., it appears that this witness had stated before him during investigation that without the knowledge of her husband she had given ornaments to appellant Mobarak and when her husband came to know about it, he asked her to collect the gold ornaments from the appellant Mobarak. On examination of evidence of these two witnesses, it appears that the appellant Mobarak may have some motive having not returned the gold ornaments and there being quarrel between the deceased and the said appellant in this regard on two to three occasions prior to the incident. But no motive is attributed so far as appellant Yusuf is concerned by these two witnesses.
6. The trial Court relied upon the evidence of P.W. 2 and some other witnesses to hold that the appellant Yusuf was last seen with the deceased. P.W. 2 has stated that on the date of occurrence he had gone to Tapang to collect goats and on the way near Khajurigadia Sanka he found the appellant Yusuf and the deceased coming by foot and the deceased was holding a cycle. The veracity of the statement of this witness is challenged by the learned Counsel for the appellants on the ground that his evidence in cross-examination shows that he had quarreled with his son-in-law and his father when they had come to take his daughter to their house and therefore he not being in good relationship with the in-laws of the daughter, he could not have stayed in their house in the night as claimed by him. The other witness relied upon by the trial Court is P.W. 9. He has stated that he had got a tiffin shop at Tapang Chhak and about a year back the , appellant Yusuf and the deceased had come to his tiffin shop at about 9 P.M. and after taking tiffin both of them went away towards Dhaulimuhan in a cycle. Similarly, P.W. 10 on whom reliance was placed by the trial Court has stated that about ten months back being called by appellant Mobarak he had gone with him in a jeep which was taken on hire by GRIDCO. He was working as driver in that jeep. Both proceeded towards village Anda and on the way near a hillock the appellant asked him to stop the vehicle and thereafter he got down from the jeep and went away to some place nearby and after fifteen minutes again returned back. Thereafter, both of them returned to his house. This witness was declared hostile and was cross-examined by the prosecution. P.W. 11, who was also declared hostile, was relied upon by the trial Court. He has stated that in the month of January on a day the appellant came to their house at about 12 mid night. The appellant Mobarak stayed in their house in that night. He did not mark any bloodstain in the pant and shirt of the appellant Mobarak. P.W.13 is the most important witness on whom much reliance was placed by the prosecution as well as the trial Court. He in his deposition has stated that he has got a meat shop at O.C.C. Chhak near Dadhimachhagadia. On the date of occurrence, he had gone to collect, arrear dues from his. customers and after collecting his arrear dues from some customers at about 8 P.M. while he was returning home on the way, near Tapang High School he found appellant Yusuf and the deceased. When he reached Jhankijhari, he found the appellant Mobarak going towards the paddy field holding a bamboo lathi and another weapon wrapped with cloth. When he asked the appellant Mobarak to come with him, he said that he was going to see one of his bullocks lying in the paddy field. This witness has further stated that after, coming back home he again went to the house of Yasin Khan by crossing the railway line and near the level crossing he found appellant Yusuf coming with a cycle holding a green coloured torch. When he focused the torch light he found some read spots on his pant and shirt. On the next day he heard that the deceased has been killed. In cross-examination this witness has stated that about 12 mid night he went to the house of his partner Yasin Khan and after taking with him for about five minutes he returned back to his house. On examination of the evidence of P.W. 15 the I.O. it appears that this witness had stated before him that on the alleged date at about 5 P.M. he had seen both the appellants near Bhramar Dhaba of Dadhimachhagadia Chhak and he had also stated before the I.O. that on the alleged date he closed his shop at 9 P.M. He had not stated before the I.O. that on the night of occurrence he had seen the appellant Yusuf near Tapang High School. He had stated before the I.O. that on the date of occurrence at about 12 mid night he had noticed some blood stains on the wearing pant and shirt of the appellant Yusuf. This witness had not stated before the I.O. that by focusing torchlight he could notice some red spots on the wearing pant and shirt of the appellant Yusuf. He has also not stated that on the night of occurrence he had come to the house of his partner Yasin. Though much reliance was placed by the prosecution as well as the trial Court on the evidence of this witness who claims to have seen the appellants with the deceased, from the evidence of I.O., we find that material contradictions have been brought out. Though this witness claims to have gone to his partner at 12’0 clock in the night, he had hot stated so before the I.O. Though this witness states in Court that he had seen the appellant Yusuf and the deceased near Tapanga High School, he had not stated so before the I.O. Though this witness claims to have found blood stains on the wearing apparels of the appellant Yusuf by focusing a torch light, he had not stated anything before the I.O. regarding focusing a torch light, he could notice some reds spot on the wearing pant and shirt of the appellant Yusuf. Apart from this, on examination of the entire evidence, we also find that there is absolutely no material against the appellant Mobarak so far as his involvement in the alleged offence is concerned. P.W. 13 claims that he had seen the said appellant going towards the field with a bamboo lathi and a weapon rapped in cloth. There is no evidence to show that the so called weapon had been used by the said appellant for commission of the offence. On examination of the entire evidence, we find that so far as appellant Mobarak is concerned, the prosecution has been able to prove the motive to some extent, but his involvement in the commission of the alleged offence has not been proved at all. So far involvement of appellant Yusuf is concerned, the prosecution has only been able to prove that he was seen with the deceased on the date of occurrence but there is nothing further to accept the evidence of P.W. 13 who claims to have seen the said appellant at about 12’O clock in the midnight having blood stains on his wearing apparels. Since the evidence of this witness is of full material contradictions, it will be unsafe to rely upon such witness. Therefore, so far as appellant Yusuf is concerned, the only circumstance proved by the prosecution is last seen but no motive is attributed to the said appellant. On over all analysis of the entire evidence as discussed above, we find that the prosecution has measurably failed to establish a chain of circumstances so as to prove the charges against the appellants. On the basis of existing evidence, it cannot be said that it is the appellants and the appellants only who have committed murder of the deceased.
7. We, therefore, allow the appeal, set aside the impugned judgment and order dated 30.10.2000 passed by the learned Addl. Sessions Judge, Khurda in S.T. Case No. 19/95 of 1999 convicting the appellant for commission of offence under Sections 302/34 I.P.C. and sentencing each of them to undergo imprisonment for life.
8. It appears from the record that appellant No. 1 Mobarak Ali Khan was directed to be released on bail this Court on 7.1.2003. It is stated that appellant No. 2 is still in custody. If that be so, appellant No. 2 Yusuf Ali Khan be set at liberty forthwith unless his detention is required in any other case.
B.K. Patel, J.
9. I agree.