Criminal Appeal No. 244 of 1998 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK. CRIMINAL APPEAL No.244 of 1998 An application under Section 374 of the Criminal Procedure Code, 1973. -------------- Bhima Singh Pradhan and Others …… Appellants -Versus- State of Orissa …… Respondent ---------------------------------------------------------------------------------------- For Appellants : Mr. P. Nayak, Advocate Mr. D. Nayak, Advocate For Respondent : Ms. S. Patnaik, Additional Government Advocate ----------------------------------------------------------------------------------------- CRIMINAL APPEAL No.291 of 1998 Sibaram Pradhan and Others …… Appellants -Versus- State of Orissa …… Respondent ---------------------------------------------------------------------------------------- For Appellants : Mr. D.P. Dhal, Senior Advocate Mr. S.S. Lenka, Advocate For Respondent : Ms. S. Patnaik, Additional Government Advocate ----------------------------------------------------------------------------------------------------------------------------- 2 CORAM : HONOURABLE MR. JUSTICE S. TALAPATRA HONOURABLE MISS. JUSTICE SAVITRI RATHO JUDGMENT 5th July, 2023 S. Talapatra, J. Both the appeals being CRA No.244 of 1998 and CRA No.291 of 1998 are clubbed together for disposal by a common judgment in as much as both the appeals arise out of the same judgment of conviction dated 05.09.1998 delivered in S.T. Case No.79 of 1997 by the Sessions Judge, Kandhamal, Boudh, Phulbani. 2. The convicts namely Sibaram Pradhan, Kalidas Pradhan, Nirmala Pradhan, Nala Pradhan, Bimala Pradhan and Shyama Sundar Pradhan are respectively the Appellants No.1, 2, 3, 4, 5 and 6 of the Criminal Appeal No.291 of 1998 and Bhima Singh Pradhan, Ghana Pradhan and Chintamani Pradhan @ Chandramani Pradhan respectively the Appellants No.1, 2 and 3 of the Criminal Appeal No.244 of 1998. It may be noted that by the order dated 13.11.2000 passed in Misc. Case No.498 of 2000, the Appellants No.3, 4, 5 and 6 of Criminal Appeal No.291 of 1998 have been released on bail on consideration of delay in disposal of the appeals. Further, the Appellants No.1 and 2 were also Page 2 of 32 3 released on bail by virtue of the order dated 11.01.2006 delivered in Misc. Case No.117 of 2003. By the order dated 10.05.2000, delivered in Misc. Case No.297 of 1998 arising from Criminal Appeal No.244 of 1998, the Appellants of the Criminal Appeal No.244 of 1998 were released on bail on the same ground. It may be noted that by the order dated 18.08.2020 passed in both the appeals, this Court had directed the Registry to obtain instructions about the wellbeing and whereabouts of the Appellants from the I.G. of Police (Administration) or the S.P. concerned, as it was deemed necessary for proceeding further. Hearing was complete on 13.10.2020 and the appeals are reserved for judgment. But, by the order dated 07.10.2021 the appeals were released from part
Legal Reasoning
a decision of this Court in Bhagaban Gouda vs. State of Odisha :(2019) 76 OCR- 752. The law as enunciated by the apex Court in Sharad Birdhichand Sarda v. State of Maharashtra: AIR 1984 SC 1622 has been made foundation of Bhagaban Gouda: 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. 2. The facts so established should be consistent only with the hypothesis of the guilt of the deceased, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty can be derived. 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. Page 11 of 32 12 Mr. Dhal, learned Senior Counsel has submitted that in a case where the prosecution depends upon the circumstantial evidence, the Court shall bear in mind the caution given by the apex Court. While appreciating the circumstantial evidence, there is likelihood that the conjecture or suspicion may take place of the legal proof. Such suspicion however strong may be, cannot take place of proof. The Court has to be watchful and ensure that conjecture and suspicions do not take the place of legal proof. The Court must satisfy itself that the various episodes in the chain of evidence is established clearly. The complete chain of circumstances must be such as to rule out a reasonable likelihood of innocence of the accused. According to Mr. Dhal, learned Senior Counsel, the prosecution has miserably failed to prove the meeting of mind for committing the offence. The only circumstance that has been proved is the last seen together. According to Mr. Dhal, learned Senior Counsel, the circumstance of last seen together alone cannot be sufficient to convict a person. In this regard, law has been lucidly enunciated in Inderjit Singh and Another vs. State of Punjab: AIR 1991 SC 1674. In Inderjit Singh (supra) where it has been clearly held that, it is well settled that in a case which is structured on circumstantial evidence, the prosecution must establish all the circumstances by Page 12 of 32 13 independent evidence and the circumstances as established thereof must form a complete chain in proof of guilt of the accused beyond all reasonable doubt. It has been further held in Inderjit Singh (supra) that in a number of cases it has been held that the only circumstance namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. It is true that the deceased's death was homicidal, but since there was no direct witness connecting any of the appellants in the crime, the Court should appreciate the circumstantial evidence. In that case, it was held that the circumstances relied upon by the prosecution are hardly sufficient to establish the guilt of the accused. The circumstance, i.e. the absence of enmity between the accused and the deceased and the witness would show that the accused had no enmity or grudge against the deceased. Where the circumstances are neutral and do not help the prosecution’s case, it has been held by the Supreme Court as follows:
Arguments
heard. We have heard the appeals at length. Mr. P. Nayak, learned counsel has appeared for the Appellants in the Criminal Appeal No.244 of 1998 on instruction of Mr. D. Nayak, learned counsel. Mr. D.P. Dhal, learned Senior Counsel assisted by Mr. S.S. Lenka, learned counsel has appeared for the Appellants in the Criminal Appeal No.291 of 1998. Ms. S. Patnaik, learned Additional Government Advocate has appeared for the State in both the appeals. Page 3 of 32 4 3. By the impugned judgment dated 05.09.1998, the Appellants have been convicted under Sections 302 and 201 read with Section 34 of the IPC. It has been observed by the trial judge as follows: “17. On a careful analysis and scrutiny of the evidence as discussed above there can hardly be any doubt to say that there was pre-meditation and meeting of minds of the accused persons; resulting that they shared the common intention in committing the crime. 18. Thus, on a careful consideration of the evidence on record and discussing from different angles of vision, I am inclined to hold that prosecution has proved the charge under Sections 302 and 201 read with Section 34 of the IPC against the accused persons beyond all reasonable doubts.” Pursuant to the said conviction, the Appellants were sentenced to suffer rigorous imprisonment for life for committing offence under Sections 302/34 of the IPC. But the trial judge did not pass any sentence under Section 201/34 of the IPC, even though the said charge was held to have been proved. We have noticed that no fine has been imposed on the Appellants deviating from the mandate of the law. But there is no challenge against the inadequate sentence by the State. 4. Prosecution against the Appellants was launched on the basis of the F.I.R. (Ext.1) filed by one Pradesh Pradhan (P.W.1) on 08.01.1997. Based on which Sarangada P.S. Case No.01 of 1997 under Sections 365/364/34 of the IPC was initially registered. In the said F.I.R. it was discussed that on the date of occurrence Sampadeo Pradhan Page 4 of 32 5 (hereinafter referred to as the “deceased”) went to Nuagaon weekly market to sell cabbages. When the deceased did not return home, his wife, namely, Sabita Pradhan and his brother (P.W.1) and other villagers searched for them. Sabita Pradhan, the wife of the deceased reported at the Sarangada P.S. about missing of her husband. By the missing report (Ext.2), Station Diary entry was made by the police. The police enquired to find out the deceased. Later on the dead body of the deceased was found in the sewerage drain (nala) having visible marks of injuries on his person. On recovery of the dead body, P.W.1, the brother of the deceased lodged the F.I.R. (Ext.1). The investigation was taken up and the police report under Section 173 (2) of the Cr.P.C. was submitted, charge-sheeting the accused persons (the Appellants) on 08.04.1997 under Sections 302/201 read with Section 34 of the IPC. In course of the time, the charge was framed by the trial judge against the Appellants for committing murder, for causing disappearance of evidence having common intention in carrying out those offences. The Appellants denied the charge and pleaded innocence. 5. In order to substantiate the charge, the prosecution adduced 11 witnesses including the informant and the Investigating Officer (P.W.11). The Appellants did not adduce any witness. It may be noted Page 5 of 32 6 further that the prosecution introduced as many as 19 documentary evidence (Exts.1 to 19) including the inquest report (Ext.3). Postmortem examination report (Ext.4). Spot map (Ext.10). Chemical examination report (Ext.19). 12 material objects (M.O.I to XII) were admitted in the evidence. M.O.I is the axe, which was allegedly used for committing murder of the deceased. The defence did not place any documentary evidence and not admitted any material objects to rebut the evidence of the prosecution. After the prosecution evidence was recorded all the Appellants were separately examined under Section 313(1)(b) of the Cr.P.C to have their response against the incriminating evidence. It appears on scrutiny of those statements that all the Appellants reiterated their innocence by stating that the evidence as led by the prosecution is irrelevant, concocted and beyond their knowledge. Finally, on appreciation of the evidence, the trial judge has returned the judgment of conviction as stated before. Those findings are under challenge in these appeals. 6. Mr. D.P. Dhal, learned Senior Counsel appearing for the Appellants in Criminal Appeal No.291 of 1998 has highlighted, at the outset, that the alleged date and time of occurrence is 29.12.1996 at about 6.00 PM. But the F.I.R. (Ext.1) was registered on 08.01.1997 at Page 6 of 32 7 about 8.00 AM. In the F.I.R., the following persons were suspected as the assailants: 1. Kalidas Pradhan 2. Sibaram Pradhan 3. Nirmala Pradhan 4. Nala Pradhan 5. Chandramani Pradhan 6. Ghana Pradhan 7. Bhima Pradhan According to the First Information Report, which was filed on 08.01.1997 the occurrence took place when the deceased went to Nuagaon to sell cabbages. It has been alleged in the F.I.R. that due to political rivalry the accused persons assaulted the deceased causing serious injuries. Eventually, he died. After death, the dead body of the deceased was thrown into Kumbhari Nala in village Gutingia. Initially the wife of the deceased had lodged a missing report and the Investigating Officer (P.W.11) conducted the investigation. During the investigation, he (P.W.11) recovered the dead body of the deceased which was identified by his brother (P.W.1). Subsequently P.W.1 registered case on the basis of the said F.I.R. On completion of the investigation the charge sheet was filed against all the Appellants. Mr. Page 7 of 32 8 Dhal, learned Senior Counsel has submitted that if the testimonies are scanned, it would surface that there is no legal evidence against the Appellants. The conviction is based on suspicion. P.W.1, the brother of the deceased did not reveal the names of the Appellants as the assailants. P.W.2 did not as well reveal any material involving the Appellants. However, P.W.3-Sumana Dandia has claimed to be the eye witness of the occurrence. According to P.W.3, he had seen some persons assaulting the deceased. But he did not reveal the identity of the assailants. P.W.4-Pratap Kumar Pradhan was declared hostile, as he did not support the case of the prosecution. P.W.5-Laba Naik has stated in the trial that when he had gone to attend the call of nature, he heard a hulla from the side of the Durga Mandap. Out of curiosity, he went to the spot and he saw some of the accused persons near the spot. But he did not implicate any of those persons for being involved in the assault. P.W.6-Sisira Pradhan has claimed that he knew all the accused persons. On 09.01.1997, in course of the search, he and other persons found the dead body of the deceased in the said nala. At that time, he found the accused-Shyama Sundar Pradhan holding a spade standing inside the Nala. Those accused persons ran away on seeing them. They went near to the Nala, P.W.6 and other persons found a scarf (piece of cloth) Page 8 of 32 9 drenched with blood. He identified that the scarf belongs to Sampadeo, the deceased. He found a gunny bag and pair of hand gloves near the Nala. They went further close to the Nala and found the dead body of the deceased. According to Mr. Dhal, learned Senior Counsel, P.W.6 did not implicate the Appellants. P.W.7-Dr. Manoranjan Sarangi conducted the postmortem examination on the dead body of the deceased. P.W.8- Jadumani Behera is the seizure witness of an axe which was recovered from the house of Shyama Sundar Pradhan. P.W.9-Santipani Naik is a witness to seizure of one axe, one dhoti, two lungis and shirt. P.Ws.8 and 9 did not disclose any incriminating material against the Appellants. P.W.10-Pradipta Kumar Sathua escorted the dead body to the hospital for postmortem examination. As stated earlier, P.W.11 conducted the investigation. The statement of P.W.3 (Sumana Dandia) and P.W.5 (Laba Naik) were also recorded under Section 164 of the Cr.P.C. The statement of one Taladhwaja Naik was also recorded under Section 164 of the Cr.P.C, but he was not examined in the trial. According to Mr. Dhal, learned Senior Counsel, all those statements (recorded under Section 164 of the Cr.P.C.) were not proved and even not marked as exhibits. Mr. Dhal, learned Senior Counsel has emphatically stated that the prosecution has failed to prove the charges against the Appellants Page 9 of 32 10 beyond reasonable doubt. The materials relied by the trial judge do not form any legal evidence. Mr. Dhal, learned Senior Counsel has contended further that on a reading of the judgment of conviction, it would appear that the trial judge has relied on the statement as recorded under Section 164 of the Cr.P.C. According to Mr. Dhal, learned Senior Counsel, those are inadmissible evidence as the witnesses concerned did not prove those statements in the trial. As such, the judgment of conviction as passed by the trial Court is grossly illegal and the same is based on no evidentiary materials and hence, warrants interference. Mr. Dhal, learned Senior Counsel has asserted that the statement recorded under Section 164 of the Cr.P.C. is not a substantive piece of evidence, but those statements can be used to bring out the corroboration. According to Mr. Dhal, learned Senior Counsel, there is no direct evidence against the Appellants showing that they played any role in assaulting the deceased or they had meeting of minds for committing the offence. The burden entirely lies on the prosecution to prove the charge beyond reasonable doubt. Even in a case based on circumstantial evidence, the hypothesis is required to be tested. Unless the circumstances cumulatively taken together lead to irresistible conclusion pointing only to the guilt of the accused, such hypothesis cannot be Page 10 of 32 11 relied on. In this regard, Mr. Dhal, learned Senior Counsel has relied on
Decision
“The only relevant circumstance as pointed above is that the appellants and the deceased left the house together in a friendly manner for bird-shooting. It is needless to say that no conviction can be passed on this sole circumstance. In the result; the convictions and sentences awarded by the Courts below are set aside.” Page 13 of 32 14 7. Mr. P. Nayak, learned counsel who has appeared for the Appellants of Criminal Appeal No.244 of 1998 has followed the same line of submission, as made by of Mr. Dhal, learned Senior Counsel. In addition, he has highlighted that in the cross-examination of P.Ws.3 and 5, whose statement was recorded under Section 164 of the Cr.P.C, has stated that as they were sitting by the side of the fire, “it was difficult to recognize or identify of the persons”. They did not disclose to anybody for 10 to 15 days from the day of occurrence, as they could not identify the persons who assaulted the deceased- Sampadeo Pradhan. Mr. Nayak, learned counsel has stated that the belated disclosure affects trustworthiness of the witness. Moreover, the statement as recorded under Section 164 of the Cr.P.C. has not been proved. It has been stated by Mr. Dhal, learned Senior Counsel and Mr. Nayak, learned counsel that P.W.4 who had stated that he saw the assailants, but he did not reveal their names in the trial. Consequently, he was declared hostile. Mr. Dhal, learned Senior Counsel, at this juncture, has stated that the testimony of P.W.6 cannot be relied on, in as much as he had seen the accused persons doing something by spade in the Nala and they fled away after seeing them. This fact may generate strong suspicion against the Appellants No.5 and 6, but Page 14 of 32 15 cannot be treated as substantive evidence to convict someone. Further, it has been contended by Mr. Nayak, learned counsel that while providing the analogy, in Paragraphs 13 and 14 of the judgment, the trial judge has relied on the examination-in-chief ignoring the version of the witnesses in their cross-examination. It is the solemn duty of the trial judge to verify the truthfulness of the testimony after reading both the parts of the testimony. To a query from this Court, both Mr. Nayak, learned counsel and Mr. Dhal, learned Senior Counsel have contended that even though the statement recorded under Section 164 of the Cr.P.C. has been marked Exts.16, 17 and 18, but those were not proved following the procedure as laid down in law. Mr. Dhal, learned Senior Counsel has relied on a few more decisions, but we are not inclined to extract or refer the proposition elaborately. The principle as laid down on those reports are well consolidated viz. no statement of witness can be utilized as the evidence without affording opportunity of cross-examination. If statute permits to follow the different course, the court can do so. But the probative value will be the same. The statement made under Section 164 of the Cr.P.C. can only be used to contradict the maker during the trial (See Sadan Bhalu and two others vs. State of Orissa: 2010(I) OLR-553). Page 15 of 32 16 Following decisions have also been relied on by the counsel for the Appellants in order to show that the chemical examination was not carried out by preserving the seized materials: i. Binder Munda vs. State of Orissa : 1992 (11) OLR 63 ii. Nimai Murmu vs. State of Orissa : 59 (1985) CLT 488 iii. Krupasinghu Shaw & others vs. State of Orissa: (2014) 57 OCR 1139 The following decisions have also been pressed into service on belated disclosure and its consequence. In Babuli vs. State of Orissa: AIR 1974 SC 775, the apex Court had succinctly held that where the witness did not disclose the name of the accused for 20 hours, his testimony cannot be treated as reliable. According to Mr. Nayak, learned counsel there is no evidence at all to sustain the finding of on conviction. 8. Ms. S. Patnaik, learned Additional Government Advocate has admitted that even though there is no direct evidence against the Appellants but the circumstances have been proved to the hilt. The Appellants had definite role in causing death of the deceased (Sampadeo Pradhan), as the deceased belonged to the rival political party. Ms. Patnaik, learned Additional Government Advocate has quite emphatically submitted that the motive to murder the deceased by the Page 16 of 32 17 Appellants has been established by the evidence of P.Ws.1 and 2. When the deceased did not return after selling the cabbages, P.W.1 and the deceased’s wife, who was not examined in the trial, carried out search. P.W.1 has stated that the wearing apparels were sent home by one Pidra Dehury. According to P.W.1, he went for canvassing for the ensuing Gram Panchayat election. P.W.1 has testified that he could know the names of most of the Appellants from one Taladhwaja Naik. That person was not examined in the trial. Ms. Patnaik, learned Additional Government Advocate has further submitted that the fatal assault on the person of the deceased has been established by the inquest report (Ext.3) and the postmortem examination report (Ext.4). Ms. Patnaik, learned Additional Government Advocate has contended that objection relating to the delay in examining the witnesses is wholly irrelevant, as the dead body was recovered after more than a week. P.W.7, after postmortem examination which was carried out on 10.01.1997, found the following injuries: “(1) An area of 30 inches x 24 inches on the back of the deceased was damaged and smeared with mud. (2) A cut injury over an area of 6” x 6” was found on the scalp having no bleeding over it. Page 17 of 32 18 (3) The skin over an area of 12” x 7” on waist and buttock were lost. (4) There were blebs on various parts of the body. (5) Teeth were loose and fallen. (6) The right parietal bone and the frontal bone are found fractured.” All those injuries according to the postmortem doctor (P.W.7) were possibly caused by hard and blunt object. The injuries were antemortem and sufficient to cause death in ordinary course of nature. The opinion of P.W.7 is very categorical that the death was due to haemorrhage and shock. Ms. Patnaik, learned Additional Government Advocate has brought to our notice that the defence did not challenge the statement of the postmortem doctor or his report (Ext.4). Ms. Patnaik, learned Additional Government Advocate has thereafter submitted that there is no reason to doubt the involvement of the Appellants in the murder of the deceased. According to Ms. Patnaik, learned Additional Government Advocate, P.W.3 is the sterling witness of the prosecution in substantiating the charge. P.W.3 has asserted that he saw the Appellants including Sibaram Pradhan and Kalidas Pradhan assaulting the deceased. But Ms. Patnaik, learned Additional Government Advocate did not provide any explanation in respect of the statement Page 18 of 32 19 made by P.W.3 in his cross-examination stating that because of the fire he could not see properly who were the persons assaulted the deceased. P.W.4 who was otherwise styled as the eye witness did not support the prosecution case. At this juncture, we have also noted the observation of the trial judge which is as follows: “The evidence of P.W.4 cannot be thrown in toto only because he is a hostile witness. In my opinion P.W.4 has thrown light on the prosecution case.” According to Ms. Patnaik, learned Additional Government Advocate, P.W.5 who is a police personnel by occupation, had seen the part of the transaction. P.W.5 has stated about the presence of the Appellants, namely, Sibaram, Kalidas, Nala, Nirmal and Shyama. P.W.5 has given the description of the wearing apparels of the accused persons. This, according to Ms. Patnaik, learned Additional Government Advocate is a significant input in the chain of the circumstantial evidence. P.W.6 has testified that the Appellant Bimala was standing on the ridge and the Appellant-Shyama was holding a spade. They were digging a pit. Seeing P.W.6 and other persons, those Appellants fled away. Immediately after that occurrence, the dead body was found in the said Nala. Ms. Patnaik, learned Additional Government Advocate has also added that this evidence is highly relevant to prove the charge under Page 19 of 32 20 Section 201 of the IPC. P.W.8 has testified that the weapon of offence, the axe (M.O.I) was seized from the house of the Appellant Shyama Sundar Pradhan. In the trial, P.W.8 had identified the said axe. At this juncture, it is necessary to take note that the report of the biological and serological examination, as carried out by the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar (Ext.19) clearly recorded that even though there had blood stain in the Tangia, but on that blood stain, no opinion could be formed. 9. For purpose of reference, we would like to extract below, one of the observations made by the trial judge in the judgment dated 05.09.1998: “On going through the evidence of the I.O. (P.W.11) with great care and the statements of witnesses Laba Naik (P.W.5), Suman Dandia, Taladhwaja Naik recorded under Section 164 Cr.P.C. those lent assurance and support to the charges leveled against the accused persons.” It is therefore, apparent that the witnesses whose statements were recorded under Section 164 of the Cr.P.C. were not even examined in the trial. But those statements were relied on by the trial judge for returning the finding of conviction. 10. Ms. Patnaik, learned Additional Government Advocate has finally submitted that on a fresh appreciation of the evidence, it would Page 20 of 32 21 irresistibly surface that the prosecution has successfully led the evidence to establish the charge beyond reasonable doubt. 11. For purpose of appreciation of the rival contentions, we think it apposite to take a brief survey of evidence. The material parts are already reflected while recording the submission of the learned counsel appearing for the parties. 12. P.W.1, the informant and brother of the deceased, namely, Pradesh Pradhan has stated in the trial that on 29.12.1996 the deceased being accompanied by Pidra Dehury and Munsi Pradhan went to Nuagaon weekly market for selling cabbages, but he did not return home in the evening. He has also stated that after the sale of cabbages, he went to Gutingia, but did not return in that evening. His sister-in-law, namely, Sabita Pradhan, the wife of the deceased went out to search out the deceased. They reached the house of Pidra Dehury. On inquiry it could be gathered that the deceased after returning from Nuagaon weekly market kept his weighing apparatus and weights in the house of Pidra Dehury. Two significant statements made by P.W.1 in the trial are as follows: (1) After 6 to 7 days from the date when the deceased got missing one Taladhwaja Naik told him that Sibaram Pradhan, (the Page 21 of 32 22 Appellant No.1), Kalidas Pradhan (the Appellant No.2), Nala Pradhan (the Appellant No.4), Nirmala Pradhan (the Appellant No.3) and Shyama Sundar Pradhan (the Appellant No.6) in Criminal Appeal No.291 of 1998 were carrying a dead body towards a tank being followed by the some persons on 29.12.1996 during the night hours. (2) During the time of missing, the campaign for Gram Panchayat election was going on and his deceased brother was a candidate for the Sarpanchship of Gutingia Gram Panchayat. Sibaram Pradhanm and Chintamani Pradhan were contesting against the deceased. P.W.1 has also identified the missing report (Ext.2) filed by the wife of the deceased Sabita Pradhan. But in the cross-examination, he has stated that he filed the F.I.R. as per instruction of Sabita Pradhan, the wife of the deceased. It may also be noted that the Sabita Pradhan was not examined in the trial. Thus, it surfaces that so far as the substance of the F.I.R. is concerned, it was not proved. However, the testimony of P.W.1 as the independent witness cannot be burshed aside for that reason. 13. P.W.2-Makardhwaja Naik has made some statements having no bearing on the prosecution case. Page 22 of 32 23 14. P.W.3-Sumana Dandia has stated that on the night of occurrence at about 10.00 PM he was sitting by the side of fire. The fire was arranged for his comfort from the cold. But in the cross- examination, he has stated that the fire was burning outside the Mandap, but adjacent to the Mandap. There is a compound wall around the Mandap about 5 to 6 feet. Thereafter, he made the following statement which we extract from the deposition: “I was sitting outside the compound wall of the Mandap. The read was visible slightly from the place where I was sitting by the side of the fire, but it was difficult to recognize or identify persons.I have not gone to the place where the deceased was beaten as I was frightened and came away.” 15. P.W.4-Pratap Kumar Pradhan has completely deviated from his statement as recorded by the police under Section 161 of the Cr.P.C. He has denied that he was ever examined by the police. He has stated that he did not make any statement to the effect that by the light of moon, he saw the accused Sibaram Pradhan and Kalidas Pradhan dragging the dead body having wearing black dress towards A.M.C.S. godown. Apparently that statement which has been denied by P.W.4 in the trial, stands in contradiction to the prosecution case. 16. P.W.5-Laba Naik which has been relied so heavily by the prosecution has stated that on the night of occurrence while he Page 23 of 32 24 was working at a shop, he went to attend the call of nature. While going to the place to pee, he heard hulla from the side of Durga Mandap. Out of curiosity, he stood there for a while. There was electric pole near the place of occurrence and there was moonlight also. He has categorically stated in his examination-in-chief that he saw the Appellants Sibaram Pradhan, Kalidas Pradhan, Nala Pradhan, Nirmala Pradhan and Shyama Sundar Pradhan were near the place of occurrence i.e. Durga Mandap. For their assault, the man [the deceased] fell down on the ground. Being frightened, he came back. After a little while he accompanied by the master tailor, came to the place and found the dead body of the deceased- Sampadeo Pradhan in the pool of blood, and his head was towards the canal side. In the cross-examination, he has stated as follows: “7. I was examined by the police babu in this case. I was examined by the police in this case five days after the occurrence. I have not stated before the police that on the night of occurrence, while I was going to attend the call of nature, I heard a hulla from the side of Durga Mandap ( the witness volunteers and says that out of fear he did not say so). I have not stated before the police that out of curiosity, I stood a while near the spot. I have not stated before the police that there is a electric pole near the spot. I have not stated before the police that accused Sibaram was shouting in KUI language “BARKA BERIKA”. I have not stated before the police that the accused persons were assaulting a man who wearing a black pant and covered his body with a serf. I have not stated before the police that Page 24 of 32 25 the man who was assaulted near Durga Mandap fell down on the ground.” The said passage clearly shows that P.W.5 has been improvising the statement in the trial and as such, no reliance can be placed on such statement. 17. P.W.6-Sisira Pradhan has stated that on 09.01.1997 when P.W.6 along with his brother, the wife of the deceased Indramani Digal, Benjamin Pradhan and some others went up to Kumbhari Nala. They found Bimala Pradhan standing on the ridge and Shyama Sundar Pradhan was holding a spade inside the Nala. The accused persons, namely, Shyama Sundar Pradhan and Bimala Pradhan seeing them went away at once. When they went towards Nala, they found a piece of cloth (scarf) soaked with blood lying nearby. That was the deceased’s scarf. They had found one gunny bag and the number of hand gloves lying near the Nala. They went further close to the Nala and found the dead body of the deceased lying there. According to P.W.6, pit where the dead body was lying was fresh. We got an impression that the said transaction had occurred in the daytime. In the cross-examination, the defence failed Page 25 of 32 26 to make any dent in his statement made during the examination-in- chief. 18. P.W.7-Dr. Manoranjan Sarangi carried out the postmortem examination over the dead body of the deceased. Injuries have been noted at the time of recording the submission of Ms. Patnaik, learned Additional Government Advocate appearing for the State. No effective cross-examination of P.W.7 was carried out. 19. P.W.8-Jadumani Behera is the witness of seizure. He has identified the seizure list (Ext.5) dated 19.01.1997 by which one lungi, dhoti and an axe were seized in his presence. According to him, the said axe was seized from the house of Shyama Sundar Pradhan (the Appellant No.6 in Criminal Appeal No.291 of 1998) and he had identified that axe specially. In the cross-examination, he has clearly stated that such type of weapon (M.O.I) with broken handle cannot be available in the ordinary household. 20. P.W.9-Santipani Naik is another seizure witness of those materials which were seized in presence of P.W.8. But in the examination-in-chief, he has made a significant statement. He had stated as under: Page 26 of 32 27 “I can identify those articles, if those are shown to me. M.O.I is not the tangia which was seized. The handle of the axe which was seized had been broken at the time of seizure. There was blood stained marks in the axe. The lungis, dhoti and shirt which were seized were stained with blood.” The prosecution did not make any attempt to re- examine P.W.9 so far as the statement in respect of Tangia is concerned. 21. P.W.10-Pradipta Kumar Sathua was a constable attached to the Sarangada P.S. He had escorted the dead body for postmortem examination. He has admitted the Command Certificate (Ext.8) in the evidence. He had also admitted the seizure list (Ext.9) by which the wearing apparels of the deceased were seized. 22. P.W.11-Sudam Mallick investigated the case. In the trial, he has briefly narrated how he had conducted the investigation by collecting the blood stained earth and sample earth along with one tooth (M.O.II) from the place of occurrence. He had recorded the statements of the witnesses. That apart, he held the inquest over the dead body of the deceased and prepared the report (Ext.3). He took all necessary steps for chemical examination. He had also seized the piece of cloth and gunny bag from the place where the dead body was lying. He seized one shirt containing blood stain and Page 27 of 32 28 one check lungi by preparing the seizure list (Ext.14) on 09.01.1997 from the house of one Aparna Pradhan. He had also seized one blood stained lungi (M.O. X) from the house of Nirmala Pradhan (the Appellant No.3 in Criminal Appeal No.291 of 1998). He had seized two dhotis (M.O. XI) having blood stain. He had also stated that he had seized one axe with broken wooden handle (M.O.I) on production by Shyama Sundar Pradhan (the Appellant No.6 in Criminal Appeal No.291 of 1998). This statement stands totally in contradiction to the statement made by P.W.8 who had testified in course of the cross-examination as under: “On 19.01.1997 the axe M.O.I was seized in my presence. At the time of seizure, the accused Shyama Sundar was not present. The wife of accused Shyama Sundar was present. Accused Sibaram was also not present.” He identified the axe (M.O.I) in the trial. P.W.11 has made the following statement in the trial. “I took steps for recording the statements of witnesses under Section 164 Cr.P.C. Exts. 15, 16 and 17 are the statements of witnesses recorded under Section 164 Cr.P.C. I took steps for sending the M.Os. and seized articles to S.F.S.L. Rasulgarh through S.D.J.M., Baliguda under the forwarding report Ext.18, Ext.19 is the report of the chemical analyst.” P.W.11 has confirmed in the cross-examination that P.W.1 did not state to him that the accused persons Sibaram Page 28 of 32 29 Pradhan, Kalidas Pradhan, Nala Pradhan and Shyama Sundar Pradhan were carrying a dead body towards tank. P.W.5 has not stated to him that the man who had been assaulted fell down on the ground near Durga Mandap. 23. We have also perused the statement recorded under Section 164 of the Cr.P.C. of Laba Naik (P.W.5), Sumana Dandia (P.W.3) and Taladhwaja Naik, who was not examined in the trial. We have also scrutinized the postmortem examination report (Ext.4), inquest report (Ext.3) and the chemical examination report (Ext.19). The chemical examination report in respect of apparatus, wearing apparels of some of the Appellants did not serve any purpose in as much as the blood-stain was not adequate and hence, no opinion could be formed. Even though the prosecution had initially tried to project the case fully based on direct evidence, but later on, the prosecution projected the case as a case supported by both direct and circumstantial evidence. From the testimony of P.W.1 it transpires that whatever knowledge of the occurrence he had lodged the F.I.R on that basis. He derived the knowledge/information from the wife of the deceased, who was not examined in the trial. That apart, he has testified in the trial that he Page 29 of 32 30 gathered the name of the assailants from one Taladhwaja Naik whose statement under Section 164 of the Cr.P.C. was recorded on 09.02.1997. But for the reason, best known to the prosecution, he was not examined in the trial. As such, even if the incriminating material in the said statement is available, since the person who made those statements was not examined in the trial, the said evidence cannot be used against the Appellants. It is legal right of the accused to have the opportunity of cross-examination or to confront the said witness. Even if those statements are brought on the record, unless those statements are proved in the trial following the procedure, no part thereof cannot be used as the legal evidence. The statement recorded under Section 164 of the Cr.P.C. occupies a higher degree of reliability as the said statement is recorded by a Judicial Magistrate at the time of investigation. But for that reason, it cannot be held that the procedure of proving the content can be waived. Therefore, the statements whatsoever, Taladhwaja Naik has made cannot be considered as the legal evidence. We have already noted that two witnesses viz. P.Ws.3 and 5 relied heavily by the prosecution have stated two different version. So far as P.W.3 is concerned his statement relating to identification of Sibaram Page 30 of 32 31 Pradhan (the Appellant No.1) and Kalidas Pradhan (the Appellant No.2) in Criminal Appeal No.291 of 1998 is concerned, becomes doubtful in view of the statement made by P.W.3 that it was difficult to recognize or identify the person. Hence, the evidence of P.W.3 is of no value. So far as the P.W.5 is concerned, the trustworthiness has been seriously questioned, as after seeing the assault, he did not inform the police about the occurrence, later on he appeared as the eye witness to the occurrence. He has admitted that he did not reveal anything to the police officer at the time of his examination under Section 161 of the Cr.P.C. Whatsoever, he had testified in the trial unquestionably was improvised to frame the Appellants. The evidence of this nature cannot be relied on for convicting a person for committing a serious crime. That apart, the master tailor who accompanied him was not examined by the prosecution. The prosecution has utterly failed to prove that the axe (M.O.I) which was recovered from the house of one of the Appellants is in any way connected to the crime. Moreover, one of the seizure witnesses, P.W.9 has categorically stated that the Tangia, which has been shown to him in the trial is not the same Tangia which was seized during the investigation. For absence of cohesive evidence, the Page 31 of 32 32 Appellants are entitled to get benefit of doubt. As a consequence of the above inference drawn by us, we set aside the impugned judgment and order of conviction and sentence dated 05.09.1998. 24. 25. In the result, the appeals are allowed. The Appellants are on bail. In view of this order of acquittal, their sureties are discharged from liability. 26. Registry is directed to send a copy of this judgment to the trial court forthwith. 27. If the physical records are still lying with the Registry, those shall be sent down forthwith. Savitri Ratho, J. I agree. …………………………… ( S. Talapatra, J.) …………………………… (Savitri Ratho, J.) Orissa High Court, Cuttack. The 5th day of July, 2023 L. Murmu, Senior Stenographer Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 03-Oct-2023 15:07:58 Page 32 of 32