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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Government Appeal No. 17 of 2002 (Arising out of the Judgment and Order of acquittal dated 22.07.2000 passed by Shri N.N. Praharaj, 1st Addl. Sessions Judge, Berhampur in S.C. No.35/1999 (S.C. No.199/1999 G.D.C.) involving offence under section 302/34 of the Indian Penal Code, 1860). State of Orissa … Mr. Pradeep Kumar Mohanty, Addl. Government Advocate. Appellant -versus- Darji Bisoi & another … Respondents Mr. S.N. Mishra-4, Advocate (Amicus Curiae) CORAM:
Legal Reasoning
THE HON’BLE MR. JUSTICE B.P. ROUTRAY THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Date of Judgment : 06.03.2025 1. Heard Mr. P.K. Mohanty, learned Addl. Government Advocate appearing for the Appellant and Mr. S.N. Mishra-4, learned Amicus Curiae for the Respondents. 2. The present appeal by the State is directed against the judgment of acquittal dated 22.07.2000 passed by the learned G.A. No.17 of 2002 Page 1 of 7 1st Additional Sessions Judge, Berhampur in S.C. No.35/1999 (S.C. No.199/1999 G.D.C.). 3. The charged offences were for commission of murder of the deceased Ranjan Mishra (hereinafter in short called „deceased‟) in furtherance of common intention of both the accused-Respondents. 4. The prosecution alleges that, on 4.02.1999 at about 11 A.M. when the informant and the deceased (who was a Tractor Driver) were talking on some issue, standing near the house of the informant, both the accused persons (present Respondents) came there in a bicycle and started talking with the deceased. After sometime, one of the accused suddenly caught hold of the hands of the deceased and the other accused stabbed the deceased 3 to 4 times in his belly. When the witnesses raised hullah, both the accused persons tried to run away from the spot, but one of them namely Darji Bisoi was apprehended and the other accused namely Ingli @ Dillip Bisoi managed to flee away from the spot. 5. According to the prosecution, T.I. parade was held and seizures were made including the bicycle and the weapon of offence, i.e. knife. G.A. No.17 of 2002 Page 2 of 7 6. The prosecution relied on the evidence of P.Ws.1 & 2 and 4 to 7 as eye-witnesses to the occurrence. 7. Undisputedly, the death of the deceased is homicidal in nature as per the opinion of the doctor who conducted postmortem examination of the deceased seeing the nature of injuries and circumstances of the crime. So far as the complicity of the accused persons is concerned, it is found from the evidence that no eye-witness except P.W.5 supported the prosecution version in their examination-in-chief. P.W.5 though stated in his examination-in-chief that when the deceased was talking with the accused persons, he was stabbed and the accused persons are those two persons who stabbed the deceased and ran away from the spot; in his cross- examination he completely contradicted his own version. What has been stated by him in his cross-examination is important to be reproduced here – “5. 3 to 4 days after the occurrence, I was called to the P.S. Police called me from my house and took me to the P.S. In all, I was called 2 to 3 times from my house to the P.S. and whenever I was asked by the police, I have stated to have no knowledge and all the times I was telling the police that after getting information of stabbing I went to the spot. Lastly, at the advice of the police, I gave my statement before the Magistrate. The local people were going and coming to the P.S. in G.A. No.17 of 2002 Page 3 of 7 connection with this case, which I have found them at the P.S. 6. These two accused persons were shown to us by the police at the P.S. and for the second time I see these accused persons in the court. Four to five days after the occurrence, these two accused persons were shown to us by the police at the P.S. There are no other persons were found with these accused persons, when they were shown to me by the police at the P.S. 7. Again, one to two months thereafter we were taken before the Magistrate by the police to give our evidence. I have not stated to the Magistrate that I can identify the culprits if they are produced before me. My statement given in my examination- in-chief was not stated before the I.O.” 8. In view of such statement made by P.W.5 in his cross- examination, his entire statement given in the examination-in- chief has lost its credibility. The testimony of this witness made during his cross-examination makes his evidence unacceptable and unworthy of credence. 9. Though P.Ws.1 and 2 have stated in their evidence to have seen the accused persons running away from the spot, but the same would only be taken as relevant fact, if in the given circumstances such statement is found worthy. The statement regarding behaviour and conduct of the accused persons post- occurrence the crime may be relevant, but such conduct cannot G.A. No.17 of 2002 Page 4 of 7 be accepted as relevant universally without reference to the specific facts of the given case. When the witnesses do not support the prosecution case with regard to the allegations against them for committing murder of the deceased, their conduct, as deposed by P.Ws.1 and 2 after commission of the alleged offence, cannot be said relevant to connect the accused persons in commission of the murder of the deceased. When the material evidence is found absent and the eye-witnesses have turned hostile retracting their version, the only statement of P.Ws.1 and 2 to see the accused persons ran away from the spot do not establish the case of the prosecution against them. 10. Similar is the evidence regarding recovery of the bicycle and the weapon of offence, i.e. knife. Although both the Material Objects are stated to have been recovered and seized by the Investigating Officer at the instance of the accused/respondents, there is no evidence to bring nexus with the crime. The Chemical Examination Report is silent about the blood group in the wearing apparel of the accused/respondents so also the weapon of offence. Hence, the seizure in itself is not sufficient to bring the charge established against the accused/Respondents. G.A. No.17 of 2002 Page 5 of 7 11. While agreeing with the findings of the learned trial court, we do not see any merit in the present Appeal to establish the charges of murder against the accused- Respondents beyond all reasonable doubts. This is more so, because the evidence discloses that one of the accused was apprehended while he was running away from the spot and was well within the reach of the people to identify, whereas he too has been tested in the T.I. Parade thereby makes the whole case of the prosecution cloudy. Consequently, the evidence of neither the eye witness account nor the circumstances leading to the seizure of incriminating material establishes a link between the crime and the criminal. In essence, therefore, even if the death of the deceased is proved to be homicidal, the culpability thereof cannot be attributed to the accused- respondents in absence of a definite and cogent evidence. We are, therefore, of the view that the learned Trial Court has rightly disbelieved the prosecution case holding the prosecution to have failed to establish the charge against the accused persons beyond all reasonable doubts, and we find no infirmity in the impugned Judgment and Order passed by the learned trial court acquitting the accused/respondents from the charges. The impugned Judgment and order dated 22.07.2000 is confirmed. G.A. No.17 of 2002 Page 6 of 7 12. Accordingly, the Government Appeal is dismissed. (B.P. Routray) Judge (Chittaranjan Dash) Judge Orissa High Court, Cuttack. The 06th March, 2025. S.K. Parida, ADR-cum-APS Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 11-Mar-2025 15:54:05 G.A. No.17 of 2002 Page 7 of 7