Pratap Malik vs State Of Odisha

S. Talapatra, J

This appeal, by the convict (hereinafter referred to as the ‘appellant’) is directed against the judgment and order of conviction and sentence dated 23.12.2013 delivered in C.T.(Sessions) No.346 of 2011, arising from G.R. Case No.340 of 2011.

By the said judgment dated 23.12.2013, the appellant has been convicted for committing the offence punishable under Sections-302/506/201 of the IPC and consequent thereupon, he has been sentenced to suffer imprisonment for life and to pay fine of Rs.15,000/-(Rupees fifteen thousand) for committing the offence punishable under Section 302 of the IPC with default imprisonment. The appellant has been further sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.5,000/- (Rupees five thousand) with default imprisonment for committing the offence punishable under Section-506 of the IPC and further, he has been sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.10,000/- (Rupees ten thousand) with default imprisonment for committing the offence punishable under Section 201 of the IPC. It has also been stated that the substantive sentences shall run concurrently and the period of detention already undergone by the appellant shall be set off against the sentences of imprisonment in terms of Section-428 of the Cr.P.C. In addition, it has been directed that a sum of Rs.20,000/- (Rupees twenty thousand) out of the fine, if realized, be paid to the informant, namely Chitrasen Malik (P.W.1) as compensation under Section-327 of the Cr.P.C. for death of his father.

Briefly stated, the prosecution case is that the father of P.W.1 (the informant) went to the house of the appellant to pacify him as a quarrel broke out between his son (P.W.1) and the appellant, when the appellant threatened to kill the informant. The father of P.W.1 went to tender apology. During that time, at about 7 P.M. in the evening, the appellant killed the father of P.W.1 by pressing his neck with the help of ODHANI and the father of P.W.1 succumbed to death. Thereafter, the appellant left the body of the father (P.W.1) to a distance of 50 ft. and threw away the dead body by the side of a cabin and absconded from his house with his family. The informant, having seen the dead body of his father near the cabin, could understand that the appellant, out of anger had killed his father. He had informed the Police Station. Based on the said information, a specific Police case was registered and the investigation was taken up. On completion of the investigation, final report under Section-173(2) of the Cr.P.C. was filed against the appellant for committing the offence punishable under Sections-506/302/201 of the IPC. He was put to trial after framing the charge, which the appellant denied.

In order to prove the charge of criminal intimidation, murder and for causing the disappearance of the evidence with intention to screen himself, the prosecution adduced 14 witnesses including the informant (P.W.1). Apart from that, 12 documentary evidence (Ext.1 to Ext.12) were introduced by the prosecution. At the instance of the defence, the signature of P.W.10 on Ext.3 (the seizure list) was admitted in the evidence as Ext.A. 12 Material Objects (M.O. I to XII) are also brought on record.

The defence did not adduce any further evidence. After recording the evidence of the prosecution, the appellant was examined under Section- 313 of the Cr.P.C. when he stated that he has been falsely framed in this case. He denied the evidence as laid by the prosecution.

Having appreciated the evidence, the trial court returned the finding of conviction by observing that the chain of circumstances brought to record by the prosecution completely proves the guilt of the appellant. The trial court has observed as follows:

“At the outset, there is unshaken evidence of P.Ws that there was enmity between the deceased and accused, the accused had bore grudge against the deceased and his son, he prepared himself to take revenge by leaving his family members in the house of his father-in-law, he came back to achieve his motive and intention, he got the chance to fulfill his anger finding an opportunity of arrival of the deceased to his house, he took the revenge by pressing the neck of the deceased and inflicting injuries on his person, the witnesses saw not only the dragging mark but also blood stain drops from his house to the place where the dead body was thrown, the nature of the injuries were found to be ante-mortem and homicidal in nature and the investigation by an independent I.O established that the accused is the author of the crime but none else and the entire facts, evidence and circumstances on record speaks that the chain is complete and no third man is there to kill the deceased.”

Mr. Dibyashree Ray, learned counsel having appeared for the appellant, has submitted that, there is no witness, who had seen that the appellant had done any criminal act, to say the least of killing the deceased by stifling. According to Mr. Ray, learned counsel, there is no evidence that the appellant had dragged the dead body from his house to a point at a distance and left the dead body there. Even there is no evidence that the deceased and the appellant had any animosity. The story of breaking out of a quarrel with the deceased son and the appellant cannot be relied, in as much as, there is no reliable independent witness to corroborate P.W.1 in this regard. Even no witness has come forward to prove the dragging marks.

The medical evidence, as introduced by the prosecution, does not corroborate the prosecution case of dragging. According to Mr. Ray, learned counsel, when the charge of serious offence is sought to be proved by the circumstantial evidence, every episode forming the circumstances be proved so well, so that no doubt is left at all. According to Mr. Ray, learned counsel, the circumstances as proved by the prosecution did not form any chain showing that it is the appellant, but none other has committed the murder of the deceased, the father of P.W.1.

In response thereto, Mr. S.S. Kanungo, learned Addl. Government Advocate has submitted that the finding of the trial Judge is well reasoned and based on those findings, the conviction returned, cannot be questioned. Mr. Kanungo, learned Addl. Government Advocate has further submitted that the motive has been clearly established in as much as the appellant gave threat to kill P.W.1. But when his father went to appease the appellant, he killed the father of P.W.1 by strangulation. The motive, the discovery of the dead body in a place not far away from the house of the appellant and the dragging marks, injuries, moreover, the Post Mortem examination report stand to support the prosecution case. Mr. Kanungo, therefore, has emphatically stated that, the facts have been established in a manner which is consistent only to the hypothesis of guilt of the appellant. There is no explainable or any other hypothesis except that the appellant is guilty. Moreover, the circumstances as proved are of the conclusive nature. The prosecution has been able to establish a chain of the episodes so complete that no gap has been left, and as such, inference has to be inconsistent with innocence of the appellant. It rather shows that in all human probabilities, the culpable act has been committed by the appellant.

For the purpose of appreciating the rival contentions, it will be apposite for us to make a brief survey of the evidences laid by the prosecution.

P.W.1-Sri Chitrasen Malik, the son of the deceased has testified in the trial that he lodged the information on 25.04.2011 in respect of the occurrence. He has further testified that the appellant constructed a house on their land and as such, a quarrel broke out between them and the appellant. The appellant threatened to kill him and his father. His father had come to the house of the appellant to tender apology, out of fear. In the next morning, the informant saw the dead body of his father, stained with blood, lying near the cabin. He has categorically testified that “he saw a row of stained of blood from the house of the accused to the spot where the dead body was lying and the distance between the appellant’s house and the spot is about 25 ft.” He identified the First Information Report (F.I.R.), Ext.1, that he had filed. He disclosed during their cross-examination that one Bipin Babu wrote the F.I.R. He denied the suggestion that he did not state to the Police that the appellant constructed the house on their land and there was a quarrel between him and themselves or that the appellant had threatened to murder him. He has further stated that, there are four houses in between his house and the house of the appellant. Those four houses belong to Jhari Malik, Mata Malik, Gopi Malik and Alekha Malik. Mata Malik and Gopi Malik are his adjacent neighbours. Houses of Souri Malik and Dari Malik are adjacent to the house of the appellant. He had no other land except the area measuring 0.04 decimal of that homestead. He has described the place where the dead body was found. According to P.W.1, the dead body of his father was lying at a distance of 100 meters from his house by the side of a concrete road near a cabin of Souri Malik. He saw bleeding from the ears of his father. He had also noticed four wounds on both of the thighs of his father. He has categorically stated that “this much of injuries I noticed in his body in front of the Police at the time of inquest.” He has categorically stated during the said cross-examination, that he had not seen the murder of his father and did not see any mark of violence at the spot. He denied the suggestion that he had illicit relation with the wife of the appellant and he was warned by the appellant not to visit his house.

P.W.1 has further stated that, he did not go to the house of the appellant. He denied the fact that, the appellant had requested his father (the deceased) to convince him to not visit his house or that his father refrained him from going to the house of the appellant. He has also denied the suggestion that, out of the old enmity, P.W.1 had framed the appellant in this case by attributing the criminal liability of murder on him. He has also denied the specific suggestion made to him that he had caught the hands of the appellant’s wife. He denied the suggestion that the appellant did not have any role in killing his father.

P.W.2- Priya Nath Malik is the nephew of the deceased. He had witnessed the dead body and, as he was present during the inquest. He had put his signature on the inquest report. He has also testified that the dead body was lying at a distance of 20 ft. away from the house of the appellant. During the cross-examination, the endorsement that was appearing on the inquest report, had been shown to P.W.1. The said endorsement, which is written in Odia, if translated verbatim would read as Pratap Malik killed Kartik Malik (the deceased) pressing his throat is true. He has also admitted that he had put his signature on the said endorsement. But at that time, at the instance of the prosecution, he was declared hostile, as he resiled from his statement as recorded by the Investigating Officer during the investigation. The prosecution cross examined him and had shown the previous statement as recorded under Section 161 of the Cr.P.C., but P.W.2 denied to have made the said statement, except that part that he was examined by the Police and he found the dead body lying in front of the house of the appellant with blood patches and injuries on the person of the dead body. But, during the cross-examination, he stated that the quarrel had taken place 7-8 days before the day of occurrence. He has admitted that the appellant did threaten of killing P.W.1. He has also admitted that the accused was not found in his house, when he saw the dead body, lying at the place as referred. He has admitted during his cross-examination that he did not see anything and hence, it cannot be said, who killed Kartik Malik why and how. He has also stated that the occurrence took place during the summer. During that season, evening falls at about 7 P.M. In the cross-examination as carried out by the appellant, P.W.2 has made the following statement:

“Police told me that on throttling, the death of the deceased was caused and so when such thing with Police had made endorsement in Column-9 of the inquest report. There was bleeding from his right ear and scratch injury on both of his legs. Except the above injuries, there was no other injury on the deceased.”

He denied that he has been influenced by the appellant.

P.W.3-Arjuna Malik testified that he saw the dead body of Kartik Malik by the side of the road at a distance of about 30-40 hands away from the house of the appellant. In his presence, the Police seized blood stained earth, sample earth, one plastic blood-stained jarkin, one mat (plastic) stained with blood from the house of the accused. The Police prepared the seizure list and he signed over the seizure list (Ext.3). At the instance of the prosecution, P.W.3 was also declared hostile.

During the cross-examination as carried by the prosecution, P.W.3 had stated that accused was not present in his house. Throughout the day, he was not present in his house. P.W.3 was there till the Post Mortem Examination was over. He denied his statement made to the Police that Kartik Malik and Chitrasen Malik were in the habit of visiting the house of Pratap Malik and prior to 7-8 days of the occurrence, there was exchange of hot words between Pratap Malik and Chitrasen Malik, for which Pratap Malik had threatened to kill Chitrasen, as Chitrasen had illicit relation with Kanchan, the wife of the appellant. He further denied that on 25.04.2011, the deceased went to the house of the appellant to settle the dispute and in the next morning, he saw the dead body of Kartik Malik. He had also denied to have stated that in order to cause disappearance of the evidence, the appellant dragged the dead body from his house and left it near the cabin. He denied of being influence by the appellant. During the cross-examination, he has testified that the house of Kartik Malik is in the beginning line of the village, while the house of Pratap Malik is towards the end of the village and between those houses, there are 25 houses. He has also stated that the seized properties have not been produced in the trial.

P.W.4-Bapi Ojha testified that he saw the dead body of Kartik Malik in the morning and he has stated that, the dead body was lying 30 to 40 hands away from the house of the appellant. He saw bleeding from the ears of the deceased and also 5/6 bleeding injuries on the back side of the dead body. He has testified in the trial that there was bad-blood between the deceased and the appellant over a piece of land. He has categorically stated in the trial that he noticed patches of blood in row from the dead body to the house of the accused. He was present during the inquest procedure and he had signed over the inquest report. He has acceded in the cross-examination that he did not state to the Police that he saw blood in row connecting the spot and the house of the accused, as that was not asked by the Police. He denied that he had stated anything about the illicit relation between the wife of the appellant and P.W.1. But he has confirmed that he had stated to the Police that there was exchange of hot words between Chitrasen (P.W.1) and Pratap, the appellant for which Kanchan, the wife of the appellant had left the house of Pratap few days prior to the occurrence. He denied to have given the evidence falsely.

P.W.5-Bata Malik stated that in one morning he saw the dead body of Kartik Malik lying along the cabin of one Alekha. It appeared that, the said body was being dragged from another place, the house of Pratap Malik, but he had immediately stated that he did not see Pratap Malik his relation at the spot. He did see the dragging marks from the house of Pratap to the point of the cabin. He has categorically stated as follows:

“As Pratap was absent in his house and as I saw the dragging marks from the house up to the spot, I guessed that Pratap might have killed Kartik Malik. I was examined by the Police. After the incident today for the first time in the Court, I am seeing the accused in the dock, as he was absconding.”

In the cross-examination, he has categorically stated that, he made the statement to the Police on the day, when the dead body was discovered. But he has stated in the cross-examination that the house of Kartika would be about 25 ft. from the place where the dead body was lying. The dead body was removed from that place by the Police at about 12 noon [of the following day]. He has admitted that the deceased is the uncle, husband of father’s sister (PIUSA). He denied to have any knowledge about the illicit relation of P.W.1 but he saw P.W.1 with the wife of the appellant, as suggested. He denied that, he saw P.W.1 was holding the hand of the wife of the appellant, Kanchan. According to him, the Police took the photographs of the dragging marks. The dragging marks were on the road and according to him that was a concrete road.

P.W.6-Kirtan Malik testified in the trial that in one morning, he saw the dead body of Kartik Malik lying at a distance of 10 ft. from the house of Pratap and the dead body was lying near the cabin of one Satyananda. There was rain on the previous night. His house is about 50 ft. away from the spot. He denied to have any knowledge how Kartika died. He has confirmed to corroborate that the appellant was not found in the locality after the occurrence took place. He has also stated that the dead body was lying 50 ft. away from his house. He denied to have stated to the Police that Chitrasen (P.W.1) had illicit relationship with Kanchan Malik (wife of the appellant).

P.W.7-Dr. Niranjan Swain was working as the Medicine Specialist in D.H.H., Jajpur. On the requisition of the Police, he conducted Post Mortem examination of the dead body of Kartik Malik about 4.50 P.M. and according to him, the cause of death is due to asphyxia resulted from manual strangulation, along with haemorrhage and neurogenic shock caused by the head injury, inflicted by hard and blunt object. It seemed to be homicidal in nature. According to him, the death had taken place within 18 to 24 hours estimating between 4.50 P.M. to 10.30 P.M. of the proceeding day. He identified his report (Ext.4). He had also stated in his cross-examination that the head injuries that was found on the person of the deceased is possible if one would fall on the concrete road depending on the thrust of fall. Again, he has stated that, the types of head injuries that were found on the person of the deceased are not possible on fall. These types of injuries are possible, if hit by bamboo stick, iron rod and stone-blow. According to him, there were bruises on the front side, but there were no abrasion on the back-side. The injuries found around the neck might have caused by any rope or any napkin for being tightly tied around the neck.

P.W.8-Damodar Malik has testified that the appellant fled away from the village. He has further testified that he saw the dragging marks from the house of the accused to the point, where the dead body of Kartik Malik was lying. At that point, he was declared hostile at the instance of the prosecution and he was allowed to be examined by the prosecution.

During the cross-examination by the prosecution P.W.8 is denied to have made any statement before the Police that there had been illicit relation between Kanchan, the wife of the appellant and Chitrasen (P.W.1) for which the appellant had grudge against Chitrasen or that threatened by saying he would kill P.W.1. He also denied that he had stated to the Police that the appellant murdered Kartik Malik and left his dead body to the road near the back side of the cabin.

In the cross-examination carried by the defence, he stated that the distance of the house of the deceased from the concrete road is 5 ft., but he has confirmed that, the dragging marks were found from the house of the accused to the point, where the dead body was found lying.

The dragging mark was noticed on the earth along with both side of the road. The cabin situates close to the concrete road.

P.W.9-Deba Malik stated that the dead body was covered by a towel. The accused was not found in the house. He also stated that he saw the dragging marks from the house up to the dead body, but on the concrete road. The distance between the house of the appellant and the spot where the dead body was found lying would be about 39 ft. 8 inch. The breadth of the concrete road would be 10 ft. He was also declared hostile, as he had resiled from the statement made to the Investigating Officer. He was allowed to be cross examined by the prosecution. He denied that the appellant confessed to him that he had killed Kartik Malik by using a black ODHANI. He had also denied that he had given any signature on the disclosure statement made by the appellant. He denied of suppressing any truth. Even though in the cross-examination carried out by the defence, he admitted that he had signed one paper without knowing the content recorded by the Police. He gave description that there are five houses. He stated that there were no injuries on the back and the leg of the deceased. There was no enmity between the appellant and the deceased over a land dispute.

P.W.10-Sridhar Malik has stated that Kartik Malik did not return home on the night of the occurrence. There was heavy rain on that night. On the next morning, he saw the dead body of Kartik Malik behind the cabin. The house of the appellant is situated at a distance of 30 to 40 ft. away from the point, where the dead body of Kartik was found. He has stated that the house of the appellant and the dead body was intervened by a road but he has corroborated testifying that he saw the dragging marks from the spot, where the dead body was found lying up to the house of the accused and the deceased, who was absent in his house. In his presence, the Police seized blood stained earth, sample earth, one blood stained plastic jerrycan and blood stained grey-colour plastic mat and those were recovered from the house of the appellant. He has admitted his signature on the seizure list (Ext.3). In the cross-examination, he did not deviate from his statement made in the examination-in-chief. But he had testified that he saw the injuries on the dead body. He has also identified his signature on the inquest report as stated. There were cut injuries on the back of the deceased. He saw cut injuries on his left leg from ankle joint to thigh with bleeding. He saw injuries on his back. The Police also saw the injuries.

P.W.11-Rahasa Malik has testified in the trial and stated that on the day of occurrence about 5 P.M., the appellant went to his father-in-law’s house with his daughter. He left his daughter in his father-in-law’s house and came back to his house. On the next day, the Police enquired from him about Pratap and he told the Police that Pratap had gone with his daughter to his father-in-law’s house and he returned after leaving his daughter at his father-in-law’s house. He was also declared hostile and allowed to be cross examined by the prosecution. He denied the purported statement claimed to have been made to the Investigating Officer.

In the cross-examination, carried by the defence, P.W.11 testified that, he was not even examined by the Police. He made the following statement in his further cross-examination as carried out by the defence:

“Kartika consumes heavy liquor. Sometimes after consuming heavy liquor Kartika does not return home and sometimes on fall he receives injuries.”

P.W.12-Manoranjan Malik was declared hostile, immediately after he had identified the signature on the seizure list (Ext.6). He was allowed to be cross examined but he denied to have made any statement to the Police during the investigation. He stated Arjuna Malik (P.W.3) is the son-in-law of the deceased, Kartik Malik.

P.W.13-Alekha Mallik was also declared hostile, as he did not support his previous statement made to the Police and he was allowed to be cross-examined by the prosecution. But in the cross-examination, carried out by the defence, he had testified that Kartika did not consume liquor, but his son used to take liquor and he had categorically stated that he had never been examined by the Police.

P.W.14- Upendranath Sethi is one S.Is. of Police who was working in Dharmasala Police Station on 26.04.2011. Having received the information, the I.I.C. registered the case and on his endorsement and direction, he took up the investigation. He testified in the trial that he had visited the spot and took the photographs of the deceased, which are marked as M.Os. I, II, III, IV, V, VI & VII but the defence raised objection as the photographs were straight away admitted in the evidence without due verification. He testified that, he conducted the inquest over the dead body and prepared the inquest report. Thereafter, he sent the dead body for Post Mortem examination. In the course of the investigation, he seized the blood stained earth and sample earth from the spot and prepared the seizure list in presence of the witnesses. He seized the wearing dresses and the Command Certificate. He testified in the trial that he had arrested the appellant and on his arrest, he confessed his guilt and voluntarily made disclosure of the fact leading to the recovery of weapon of offence, i.e black ODHANI which he had stated to have kept concealed inside the heap of old clothes. The accused led him to the concealed spot to give recovery of the ODHANI. He had seized the ODHANI by preparing the seizure list (Ext.10). He made the requisition to the C.D.M.O. to know whether the strangulation was possible by the ODHANI. On completion of the investigation, he submitted the charge sheet. He has confirmed that P.W.2 told him that there had been exchange of hot words between Chitrasen Malik and Pratrap Malik 7/8 days prior to the occurrence. He confirmed that Arjuna Malik (P.W.3) stated to him that Kartika and Chitrasen were in the habit of visiting the house of Pratap Malik and prior to 7/8 days of the occurrence, there was exchange of hot words between Pratap Malik and Chitrasen Malik, for which Pratap Malik had threatened to kill Chitrasen, as Chitrasen was suspected of having illicit relation with Kanchan, the wife of Pratap for which Chitrasen had sent his father Kartik Malik on 25.04.2011 to settle the dispute. On the next morning, he saw the dead body of Kartika Malik. He had confirmed that, P.W.3 had stated that he saw the dragging marks from the house of the appellant to the cabin. P.W.8 stated him that there was illicit relation between Kanchan and Chitrasen for which Pratap had grudge against Chitrasen and he threatened to kill him and that on 25.03.2011, Pratap murdered Kartik Malik and left the dead body of Kartik on the road side, precisely at the back side of the cabin. He also confirmed that P.W.9 stated to him that while in custody, the appellant confessed his guilt of having killed Kartik by using black ODHANI. He had stated further that the appellant concealed the ODHANI in some place. P.W.14 confirmed that P.W.11, Rahasa Malik stated to him that on 27.04.2011, Pratap took his daughter to his father-in-law’s house, Pratap threw his trolley in the river and thereafter, brought out the trolley from the river.

He admitted in the trial that he had not seen the seized properties in the Court, as those were sent for the chemical examination.

P.W.14 was re-examined in the trial, when he testified that a small plastic mat (M.O.VIII), small plastic container (M.O.IX), check lungi (M.O.X), check lungi of blue colour (M.O.XI) were seized. He had seized a black ODHANI (M.O.XII). He had sent the seized articles for chemical examination. But he had testified unambigously that he did not notice any foot print in between the house of the accused and the place where the dead body was lying. The type of ODHANI marked as M.O.XII is ordinarily used by the girls. He has admitted in the cross-examined that he did not enquire whom the ODHANI belonged to. From the records, we find the forwarding report of the J.M.F.C., Chandikhole for sending those material objects for chemical examination, but that was not admitted in the evidence. Similarly, we have come across the chemical examination reports. No report from the chemical examination was admitted in the evidence.

Mr. Ray, learned counsel, in order to buttress his submission has relied on a decision of this Court in Bai @ Nilu @ Niranjan Behera vs. State of Odisha reported in 2022 (I) ILR-CUT-241, where it has been held that to complete the chain of circumstances and to come to a conclusion that the accused, in fact, had committed the crime, the motive receives significance and the same is required to be proved by the prosecution to complete the chain of circumstances.

Having appreciated the evidence and the submission, it appears that there is no proof that the deceased went to the house of the appellant in order to settle the dispute between the appellant and his son (P.W.1). Though P.W.1 in his testimony before the Court has stated that his father had gone to the house to tender apology out of fear, but he has not made any explanation, when his father did not return from the house of the appellant as told by the appellant why he had not enquired the whereabouts in that night. Such statement has been made in the aftermath. That apart, a few witnesses have stated that the referred quarrel took place 7-8 days prior to the day of occurrence. The said statement strikes at creditworthiness of the statement of P.W.1.

The prosecution relied on (i) the evidence of motive, (ii) the evidence of dragging marks from the house of the appellant to the spot where the dead body was found on the next morning and (iii) the discovery of ODHANI by which, as it has been suggested by P.W.14, the appellant might have strangulated the deceased. P.Ws.2 & 3 turned hostile. P.W.3 is the son-in-law of the deceased. So far as the motive is concerned, there are two sets of evidence have been introduced by the prosecution, one the dispute relating to a piece of land and the other. P.W.1’s illicit relation with the wife of the appellant. The former has been subscribed by P.W.1, whereas the first one has not been corroborated by any other witness. Even no documentary evidence in this regard is available. On the contrary, some of the witnesses have testified that both the deceased and his son, P.W.1 used to visit the house of the appellant quite frequently. P.W.1 occupies a position to know the matters from a close quarters. He has not stated when the said quarrel as regards the land had taken place. He has generally stated that the appellant threatened to kill him, but he did not state when the said threat was extended to him. Moreover, some of the witnesses have vouched in the trial that during the night of occurrence, there had been heavy shower. It is really inconceivable how the dragging marks on earth was retained to be seen in the next morning even though some of the witnesses have stated that the marks were found with bleeding injuries. In the natural course of action, this nature of evidence cannot be trusted without the test of doubt. Moreover, the prosecution has failed to prove the statement relating to the discovery of the so called ODHANI by which, as it has been projected the appellant has strangulated the deceased. On the contrary, both the witnesses of discovery turned hostile. As such, the discovery remained not proved.

It is well settled proposition of law that any statement of self-incrimination before the Police is inadmissible in the evidence. Therefore, the confession made to P.W.14 does not have any evidentiary value. On the contrary, P.W.14, when he had been confirming the statement of the hostile witnesses has categorically stated that he was told of dragging marks, has sufficiently damaged the prosecution case. Even the photographs as claimed to have been taken have not been proved by the photographer following the due procedure as already established by way of development of the law. The Investigating Officer cannot come to the dock to show the photographs for the purpose of their admission in the evidence. Therefore, even if photographs were taken of the dragging marks, those were not admitted by observing the procedure. The prosecution has lost the direction even in respect of the motive as stated. They were not sure what was the motive. Is it the relation of the appellant’s wife with P.W.1 or the land dispute. There is no clinching evidence in this regard. There is no concrete material even to infer that there was some dispute relating to the so called relation of P.W.1 with the wife of the appellant. So far as the evidence on the dispute regarding the land has been allowed to be scattered away by the prosecution. Therefore, we are persuaded to hold that the motive has not been proved beyond reasonable doubt. Motive is one of the important component in a case of the circumstantial evidence. The prosecution has failed to prove it.

We have verified the Post Mortem examination report. The Post Mortem report, even though has been admitted by P.W.7, in his testimony, he did not talk about any ligature mark, but the trial judge has opined that from the photograph, he could see the ligature mark. For the purpose of reference, the relevant part of deposition of P.W.7 may be referred to:

“There was bruise on the front side, but there were no injuries on the back side. The injuries found on the neck by me is not possible, if one would tighty tie the neck by means of napkin or rope.”

P.W.7 has clearly opined that the cause of death is attributable to the head injuries and asphyxia due to manual strangulation. It is really surprising that the contents of the Post Mortem report has not been proved by the post-mortem doctor but he has admitted the report (Ext.4). From the report, external injuries as recorded are ……bruise haematoma side an echyoneus over the neck. There is no mention of the ligature mark. There were bruises. Even in the detailed description of injury in the Post Mortem report, only the bruises over the front and back side of the neck has been highlighted. Also the other injuries over the head have been detailed.

Even at the time of giving opinion, it appears to us, the post-mortem doctor was a bit confused as regards whether by fall on a hard substance, such injuries can be received or not. As such, the circumstantial evidence as sought to be proved by the prosecution got blurred and scattered. It did not form any chain to destroy the hypothesis of innocence of the appellant completely. Even if, there exists strong doubt against the appellant, but to convict someone, we require legal evidence and the prosecution has failed to lead such legal evidence to prove the episodes of the circumstances in order to form a chain to establish that it is the appellant but none has committed the murder.

Having observed thus, the impugned judgment and order dated 23.12.2013 is set-aside.

The appellant is acquitted from the charges as aforestated. As such, the appellant be released and set at liberty forthwith, if not wanted in any other case.

In the result, the appeal stands allowed.

Send down the LCRs. forthwith.

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