Orissa High Court
Ashish Singh Alias Nitesh Kumar Singh vs The State Of Orissa on 21 September, 2016
Author: Biswanath Rath
Bench: Vinod Prasad, Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
CRLA No.148 of 2011
From the judgment and order dated 14.2.2011 passed by Shri Kashinath Rout,
Ad hoc Additional Sessions Judge, Fast Track Court, Champua in S.T. Case
No.40/240 of 2008.
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Ashish Singh @ Nitesh Kumar Singh ... ... ... Appellant
-Versus-
The State of Orissa ... ... ... Respondent
For Appellant: Mrs. Nisha Agrawal,
Mr. S.C. Mohapatra,
Learned Amicus Curie.
For Respondent: Mr. J. Katkia,
Additional Government Advocate
PRESENT :
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of hearing :: 01.8.2016 & Date of Judgment : 21.09.2016
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Biswanath Rath, J.This appeal at the behest of sole appellant Ashish Singh @ Nitesh Kumar Singh is directed against the impugned judgment and order of his conviction and sentence dated 14.2.2011, passed by Ad-hoc Additional Sessions Judge, Fast Track Court, Champua, by which learned trial Judge, while acquitting two other accused Baljit Singh @ Pinky and Guru Sharan Singh @ Billu, has convicted the present appellant for offences u/Ss 302/34, 120B/34, 387/34,506/34 I.P.C. and U/Ss 25 & 27 Arm's Act and has sentenced him to Life imprisonment with fine of Rs. 10000/=(Rs. Ten Thousand only) and in default of 2 payment of fine to undergo further 1 year simple imprisonment on the first charge of murder, 2 years RI for the second charge of conspiracy, 2 years RI with fine of Rs. 2000/=(Rs. Two thousand only) and in default of payment of fine to undergo additional 3 months simple imprisonment for the third charge of extortion and 2 years RI for the fourth charge of intimidation. For offences under the Arm's Act appellant has been sentenced to 3 years RI with fine of Rs. 5000/= (Rs. Five Thousand only) and in default of payment of fine to serve additional 6 months simple imprisonment u/s 25 Arm's Act and 3 years RI with Rs. 10000/= (Rs. Ten Thousand only) fine and in default of payment of fine to undergo further 1 year simple imprisonment u/s 27 Arm's Act. All the convictions and sentences have been recorded in S.T.Case No.40/240of 2008, State versus Ashish Singh @ Nitesh Kumar Singh and others, relating to P.S. Case No.145, corresponding to G.R.Case No. 274 of 2007 of court of J.M.F.C. Barbil. Learned trial Judge has also directed all the substantive sentences to run concurrently.
2. For a clear understanding, prosecution case, from the stage of lodging of FIR, divulged during investigation and later on disclosed in the Sessions trial by the prosecution witnesses, stated briefly with eschewing of unnecessary facts, would reveal that one Govardhan Apat resident of sub- district Barbil district Keonjhar has two sons Kusa Apat/ PW17 and Naba Apat/ PW18 who both are transporters of iron ore albeit house of PW17 is at a distance of 25 KMs from Barbil police station. Besides having a transporter business PW17 was also a politically active personality being a member of ruling BJD party and was contesting for MLA from Champua constituency. Dhanurjaya Sindhu/ PW24 was the sitting MLA from the said constituency at the relevant 3 point of time, whose wife is Smt. Saraswati Sindhu/ PW25.Kuldeep Singh @ Raja/ PW19 is the employee of both PW17 & 18. Rinku @ Rakesh Chugh/ PW15 is the nephew of both PW17 & 18. Likewise, in Barbil, one Umashankar Sonkar @ Bablu/ PW3, a fruit seller, and his wife Smt. Reena Sonkar/ PW4 had a house at Joda and one Asutosh Prakash Shukla was their tenant in that house and was engaged in business of transporting iron ores in his trucks and dumpers. Jagbindar Maffi/ PW2 is a neighbor of PW3 & 4 being resident of the same locality, Ward No.8, Joda Municipality and he was a transporting commission agent. Sannu Sonkar/ PW9 is brother -in-law of Bablu Sonkar/ PW3. Similarly One Maheswar Tripathi resident of Busugaon has two sons Srimanta Kumar Tripathi/ PW7 and Sushil Kumar Tripathy/PW14 who both are transporters. Out of the two acquitted accused Baljeet Singh @ Pinky owns a big garage, in Barbil, by the side of the main Barbil- Raurkela road where, besides repair work of truck and dumper bodies were also built, while another acquitted accused Guru Sharan Singh @ Billu had a motor part shop at Bhadra Sahi , Barbil.
3. Further prosecution allegation is that some unknown extortionist was making ransom calls to Naba Apat/ PW18. Regarding demand of extortion money, it is mentioned in the FIR/ Ext.16, that Naba Apat/PW18 informed his nephew Rinku Chugh/ PW15, who gave a written report regarding the crime to S.I. Sushant Kumar Taudia/ PW23 of P.S. Barbil, on the strength of which P.S. Case No. 144 of 07, u/s 387 I.P.C. was registered and PW/23 commenced investigation into that offence. While the matter stood thus, in the mean time, further calls were made to PW18 to pay the money in between Kiriburu Chowk and Bhadrasahi Chowk or he will be done to death and, it is mentioned in the 4 FIR/ Ext.16, that due to fear PW18 decided to pay Rs. 3.5 lacs to the caller. Further prosecution case is that for nabbing the extortionist it was decided in a meeting held at OMCD Guest House to constitute a team and consequently a police team, for the said purpose ,was formed consisting of S.I. G.Barla/ PW29, A.S.I. M.N.Bastia/PW 16, HM B.Padhee/PW31, Hav. N. Behra/ PW10,LNK679D.Kerketta(deceased),S/509R.K.Kar/PW11,S/498P.K.Lakra/,PW 12, S/504 S.L.Bhoi/PW 20, S/537 D.N.Minz/PW 21, S/520 R.R.Jena/PW26, S/416 K.M.Roudia /PW24 C/2 A.K. Nayak/PW32 and informant S.I. Sushanta Kumar Taudia/ PW/23 under the supervision of SDPO,Barbil and IIC, P.S.Barbil. The police party arranged a trap to nab the culprits. At about 6.50 p.m. extortionist asked Rinku Chugh PW/ 15 to hand over the money between Kiriburu Chowk and Govt.College,Barbil. In a Scorpio, OR 02 AP 0027, of PW18, that persons consisting of PWs 10, 23, 15 along with deceased LNK D. Kerketta came to the place of the incident. Other police personnel and independent witnesses came there on mobikes. At 7 P.M. on the said date 27.7.2007, two persons on a Bajaj Discover motor cycle bearing registration No. UP 65 AE 8131 came near Sub- Treasury Junction, Barbil and asked to deliver cash. Suddenly informant/PW23, LNK D.Kerketta(deceased), with assistance of other scorpio passengers caught hold of both the motor cyclists and tried to capture them. At that time, it is alleged, that one of them, the present appellant, managed to slip a little distance and fired from his pistol at informant's party. The bullet hit LNK D. Kerketta on his head who fell down on the road with bleeding injuries. Since that culprit went on firing Hav. N.Behra/ PW10 fired from his A.K.47 Rifle to prevent that culprit from further firing as a result of which that culprit sustained injury and 5 fell down on the ground. At that moment one Bolero speeded through that spot making indiscriminate firing towards informant's party. Taking advantage of such an opportunity another culprit escaped into bushes and busy area making cover firing. An American Pistol loaded with three rounds of live ammunition, and a separate magazine with seven rounds of live ammunition, an Airtel SIM card, one link steel Key and a Motorola mobile phone were recovered from the appellant which was seized by PW23 vide seizure list 13/1. Seizure list of Bajaj Discover Motor cycle is Ext. 14/1. Accused, after interrogation, disclosed his name as Nitesh Singh. Both the injured were immediately shifted to Govt. Hospital, Barbil for treatment and from there they were shifted to Tisco Hospital, Joda for better management of their injuries. FIR/ Ext.16, about the incident was written by S.I. S.K.Taudia/PW23 of P.S.Barbil and was sent through C/2 A.K.Naik to IIC police station Barbil for registration of the crime, which was registered by S.I. Gosnar Barla/PW29, as P.S. Case No. 145, u/s 307/34 I.P.C. and 25/27 Arm's Act at 7.30 p.m. Subsequently on receiving information that the injured LNK D.Kerketta succumbed to the bullet injury, on 28.7.2007 at 9.35 a.m., while under treatment in Tisco Hospital, Joda, that PW29, converted the crime into 302 I.P.C. from 307 I.P.C.
4. Initial investigation into the crime was conducted by S.I. Gosnar Barla/ PW29, who interrogated informant PW23 and other witnesses, seized seizure list prepared by S.I./PW23 vide Ext. 13/1,14/1,15/1, examined seizure witnesses, prepared requisition for medical examinations of the two injured albeit they were already under treatment, prepared seizure list of used cartridges vide Ext.7, recorded confessional statement of the accused appellant, seized 6 ammunition from the house of Sonkar vide seizure list Ext.19, converted crime from 307 I.P.C. to 302 I.P.C., conducted inquest over the dead body of the deceased and prepared inquest report Ext.1 and then dispatched the cadaver to the Govt. Hospital for autopsy purposes along with dead body chalan Ext. 20. Command certificate for deployment of police personnel of Barbil police station is Ext. 11. Ext. 12 is the seizure list of pistol of ASI M.Bastia and seizure list of A.K.-47 Rifle of Hav. Niranjan Behra/ PW10, is Ext.3. Later on the said weapon was given in custody of PW10 and Zimanama is Ext.4. Vide seizure list Ext. 8 wearing apparels of the deceased were seized. Two acquitted accused Pinki @ Baljit Singh and Dilu @ Gurucharan Singh were arrested by this witness, who also seized a Nokia cell phone from Baljit Singh bearing no. 9938088060 vide Ext. 9. From Dilu @ Gurucharan Singh a Samsung cell phone SIM Card No. 9937732869 was seized vide Ext.10. Ballastic Expert from S.F.S.L. Bhubaneshwar visited the spot on 14.8.07 and examined the ammunition. On 25
8. 2007 medical treatment report of the appellant was produced and his remand was sought. On 3.9.2007 accused appellant was arrested by this witness after his discharge from the hospital. Further investigation into the crime was conducted by S.I. Subhranshu Sekhar Misra / PW35, of Barbil Police Station , who is the 2nd I.O. of the case. PW35 recorded statements of other witnesses, applied to the District Magistrate cum Collector, Keonjhar to accord sanction for accused prosecution under the Arm's Act through S.P. Keonjhar and received sanction vide Memo No. 1942 dated 23.11.2007. This sanction was for prosecution of accused appellant along with other accused Bijay Jaiswal, Nisanta Singh, A.P.Sukla, Pinky @ Baljit Singh and Bilu @ Gurusaran Singh, in all 6 (Six) 7 accused. This witness received Post Mortem report and injury report of the appellant, applied for call details to S.P. Keonjhar, dispatched material objects to Forensic Science laboratory Rasulgarh through JMFC Barbil vide forwarding report Ext.23. Report by Forensic Science laboratory is Ext. 24 to 24 / 7. PW35, the second I.O. also got NBWs issued against absconding accused and ultimately laid charge sheet against accused appellant Ashish Singh, Bijay Jaiswal, Nisanta Singh, A.P.Sukla, Pinky @ Baljit Singh and Bilu @ Gurusaran Singh, in all 6(Six) accused, for offences u/s 323/302/387/506/120(B) and 25 & 27 Arm's Act. Seizure list of bed Head tickets of the deceased and the appellant accused is Ext. 26.
5. Assistant Surgeon Govt. Hospital, Barbil, Dr. Aswani Kumar Das/ PW28 had conducted autopsy on the dead body of the deceased on 28.7.2007 at 2.45 P.M. vide Ext.17, and had found that the body was well built, pale, eyes and mouth closed, blood stained left ear, bruise left ear, and rigor mortis present in lower limb. Following ante mortem injuries were noted by the doctor in the post mortem examination report/ Ext. 17:-
"Bruise on left eye brow region 1 and 1/2cm x 1 cm on the left side of head like a hole and probed it makes a passage like a tunnel which has widen apart from wound of entry to wound of exit. The wound of entry which was situated on the left side of the head 4 cm above base of the left ear, over tempero parietal region which is small circular clear margins and inverted with faint colour. The wound of Exit: Left side of the head 6 cm away from the base of the left ear which is larger, evated(everted), free from colour(collar) of abrasion 8 with a large haematoma. The distance between the wound of entry and exit is 4 and ½ cm. with fracture on temporal and parietal bone on left side.
On dissection Meninges and rain normal. Only lacerated on the wound side, i.e. cerebral hemisphere , accumulation of huge amount of blood under the injured area. Accumulation blood in intra cerebral region. Lungs niormal Heart empty chambers free, spleen liver normal, stomach empty.
Cause of death Shock due to haemorrhage. The time since death is within 8 hours from the time of P.M. examination. Cause might due to gun shot injury."
6. Dr. Bijoy Kumar Behra/PW30, Assist. Surgeon, District Head Quarter Hospital Keonjhar had examined the appellant at a subsequent stage at 3.25 P.M. on 30.7.2007. The doctor who had treated the appellant at the first instance has been withheld by the prosecution. According to doctor PW 30, at the time of admission, appellant right hip joint was already plastered. PW30 left the opinion to be collected from specialist Orthopedic doctor of DHH Keonjhar and consequently Dr. Balaji Naik, Orthopedic specialist had examined the appellant and, according to his report, appellant had sustained following injury:-
"(i) there is a communitted (communicated) fracture of back of right heap joint. The x-Ray plate no. referred to is bearing no.1340 dtd.1.8.07."9
The nature of the injury was grievous. Medical report of the appellant is Ext. 22.
7. G.R. Case No. 274 of 2007 was registered on the basis of submitted charge sheet and ultimately the case was committed to the Sessions Court for trial, where it was numbered as S.T.Case No. 40/240 of 2008, State versus Ashish Singh and others. Ad hoc ASJ (FTC) Champua, charged the accused on 27.7.2009 under seven heads for offences u/s 120B, 302/34,307, 387/34, 506(II)/ 34 I.P.C. and 25 & 27 Arm's Act. Appellant pleaded not guilty, denied all the charges and claimed to be tried.
8. In order to bring home the charges, prosecution in all examined 35 (thirty five) witnesses and exhibited 26 (twenty six) case related papers. Out of these witnesses eight(8) are police personnel of police station Barbil, nine(9) are police personnel of 4th Battalion OSAP, four(4) are inquest witnesses, two(2) are seizure witnesses, two(2) are Doctors, two(2) are investigating Officers, besides other witnesses.
9. Defence while making complete denial of the allegations and incriminating circumstances, on the other hand, came up with exonerative plea of false implication and the appellant pleaded in his statement u/s 313 Cr.P.C. that he was a passerby at the time when the incident occurred in which he also sustained firearm injury on his pelvic region in the exchange of bullets between the parties and he has been falsely implicated in the case with intention to hide the actual incident best known to the prosecution. In defence, appellant examined Ashutosh Singh/D.W.1 and also exhibited certified copies of judgments 10 in Criminal Appeal No.1/2009, Criminal Appeal No.2/2009 & Criminal Appeal No.3/2009 analogously passed by the Sessions Judge, Keonjhar.
10. Learned trial Court analyzing the evidences and materials on record and especially relying upon the evidences of P.Ws-11, 12, 16, 17, 20, 23, 26, 27 & 34, while acquitting other two accused, Baljit Singh @ Pinky and Guru Sharan Singh @ Billu, vide impugned judgement and order dated 14.2.2011,held only accused appellant guilty for commission of offences under Sections-302/ 387/ 506/ 120(B)/ 34 of I.P.C. and Sections 25 & 27 of the Arms Act and accordingly sentenced him to undergo life imprisonment along with fine of Rs.10,000/- in default to undergo simple imprisonment for one year under Section 302/34 of I.P.C, rigorous imprisonment for two years under Section 120(B)/34 I.P.C, rigorous imprisonment for two years and to pay a fine of Rs.2,000/- and in default to undergo simple imprisonment for three months under Section 387/34I.P.C., rigorous imprisonment for two years under Section 506/34 of I.P.C., rigorous imprisonment for three years and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for six months under Section 25 Arms Act and three(3) years along with fine of Rs.10,000/- and in default to undergo simple imprisonment for one(1) year under Section 27 of the Arm's Act and directed the substantive sentences to run concurrently. Hence this appeal by the sole convicted accused.
11. In the backdrop as above that we have heard Mrs. Nisha Agrawala, learned counsel for the appellant and Sri J. Katkia learned AGA for the State and have perused and vetted through the impugned judgment and trial court record as well record of the appeal.
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12. Appellant's counsel assailed impugned judgment on innumerable grounds and premises and she urged that the entire case against the appellant is fabricated, cooked up and manufactured and has been foisted due to mistake of facts by a team of police officers who wanted to wash off their hands from the demise of a police officer when in fact the incident occurred in a totally different manner with unknown persons involved and police was unable to work out the case. It is submitted that though the genesis of the incident is alleged to be extortion calls made to PW18 but very strangely prosecution miserably failed to bring forth any details regarding those extortion calls nor it could connect the appellant with any of those calls or mobile numbers or phones by which any ransom demand was made by the appellant. Evidence of both Naba Apat/ PW18 and his brother Kusa Apat/ PW17 are wholly untrustworthy and seems to be figment of their imagination. They are untrustworthy witnesses and no credence can be attached to their depositions. On a close scrutiny they seems to be perjurer. PW18 was not at all present at the spot and hence his evidence is of no value qua the main extortion incident and the alleged role assigned to the appellant. PW 17 had no personal knowledge about the demand of extortion money and his evidence depicts that, in fact, he was not present at the spot nor had seen the deceased sustaining any gunshot injury and hence his testimony is also valueless to nail in the appellant. Giving a thrust to her submissions it was contended that Rinku @ Rakesh Chugh/ PW 15, who, according to the prosecution, had informed the police at the first instance completely demolished prosecution edifice as he turned hostile and did not support prosecution case at all and thus the very genesis of the incident becomes obscure. Next it was urged 12 that the prosecution witnesses have irreconcilably contradicted themselves in respect of main incident and hence they are all un-creditworthy. Prosecution, deliberately and intentionally with ulterior motives, has suppressed all important facts from being brought before the trial court and hence entire prosecution version is based on concealment of facts and consequently no credence can be attached to it as it had not prosecuted the appellant with clean hands. Who caught the accused appellant is not at all established as there are major contradictions with many stories about it argued learned counsel. Who fired at the deceased also remains a disproved fact as there are many versions to the said story. Investigation into the crime is a total remiss and is perfunctory. It has left much to be desired and since the entire prosecution edifice is pastiched on the testimonies of mostly police personnel, it cannot be given any credence. All major witnesses are interested police personnel and they have narrated a parrot like version which, on a closer scrutiny, fails to withstand test of truthfulness. Except bald statements and ipse dixit of witnesses there is no credible evidence to establish the charge of extortion and murder. It was further contended that two other accused have been acquitted on the same evidence and , in absence of any material, charge of conspiracy does not stand. No cell phone details were proved and albeit incident is alleged to have occurred in a busy market place there is no sign of indiscriminate firing nor any other person has been injured which belies test of common sense. Statements of none of the eye witnesses matches with the other and hence conviction cannot be sustained on such confused and distracted version. Police was unable to work out the case nor could apprehend other culprits including the person who had slipped from the 13 spot according to its version. Bolero from which indiscriminate firing was made could not be traced out. Prosecution was unable to substantiate allegation of indiscriminate firing. Although prosecution had a specific case that the incident occurred during the raid to nab extortionist especially when he was to get extortion money but neither any cash is seized nor any evidence was led with regard to recovery of cash at the time of the incident. AK-47 Rifle, which was used by Hav. Niranjan Behra/ PW10 was neither produced nor it is proved that the appellant had sustained injury by AK-47Rifle. More over incident occurred in a crowded market place, prosecution could not bring any independent witness of locality and had to remain content with examining mostly police personnel and inimical witnesses. Mrs. Agrawal further submitted that since all the witnesses produced by the prosecution are interested witnesses, in absence of any independent witness, the conviction should not be sustained. Sustaining of gunshot injury on the pelvis region by the appellant when he was facing Hav. Niranjan Behra/ PW10 is an impossibility. It is also very weird that appellant was on a bike yet he sustained bullet injury on the pelvis part and more over he had not received any other injury when, in fact, in an incident like the present he would have sustained much more grievous injuries. He had not received any fall injury as well and this belies prosecution case that he had fallen down from the motor cycle. Some of the witnesses disclosed that two persons, in an attempt to receive ransom, came on a Motor Bike wearing helmet but surprisingly, even though one of them is caught, no helmet has either been seized or produced. There are series of glaring discrepancies in the statements of all the fact witnesses, for which, evidence of none of these witnesses are reliable. Defense 14 plea is quite possible and hence appellant should be conferred benefit of doubt. Learned trial court has not slated down convincing reasons for disbelieving DW1 and hence it's analysis is lop sided. There is no demolition of his evidence by the prosecution rendering the conviction fatal. Looking to the whole scenario emanating from the record involving the death of LNK-679-David Kerketta, it becomes apparent that the prosecution has made a deliberate attempt, by concealment of facts and fabricating evidences, to convert an incident of Dacoity by unknown persons into a case of murder, from Section 396 IPC to Section 302 IPC making the entire trial defective. Since appellant was hit in the cross firing therefore he was taken to be a culprit and was framed in the incident with cooked up story. From the statements of almost all the eye witnesses, there is a clear allegation of attempt of dacoity. Articles and material objects seized were never sealed nor they were produced in court which, on the one hand, does not rule out tampering and, on the other hand, damages prosecution case irreparably. Thus, charge sheet filed against the appellant under Section 302 IPC was a total remiss and illegal and the conviction imposed against the appellant fails on that score only. Mrs. Nisha Agarwal, learned counsel also submitted that no sanction was proved or filed for prosecution of the appellant under the Arm's Act and appellant's conviction u/s 25 & 27 of the said Act is unsustainable. There is total absence of ingredients to bring the crime within the purview of section 302 I.P.C. and hence conviction for that offence is vulnerable. Lastly, it is contended that prosecution having failed to establish any motive for the appellant to commit deceased murder or kill the member(s) of the raiding party, order of conviction of the appellant under Section 302, IPC otherwise also remains unwarranted. It 15 was, therefore, submitted that the appeal be allowed and conviction and sentence of the appellant be set aside and he be acquitted of the charges and be set at liberty.
13. Arguing to the contrary, Sri J.Katikia, learned Additional Government Advocate, appearing for the prosecution, contended that apart from ocular testimony of the eye witnesses, medical evidence, the contact of the appellant prior to occurrence, persons present during occurrence, further more the gunshot injury he sustained while making fire at the spot, is enough to sustain his conviction. Mere discrepancy here and there is to be ignored and cannot benefit the defence looking to the seriousness of the crime. For the findings and observations made in the judgment by the trial court and for the involvement of the appellant in such a serious crime, the judgment and order of conviction against the appellant should not be interfered with and hence appellant's appeal be dismissed.
14. We have pondered over rival submissions and have minutely scrutinized oral and documentary evidences on record. Graver the crime, stricter the scrutiny is a word of caution which has fallen from the Apex Court time and again and hence we have approached each and every core issue assiduously with circumspection and caution. Our examination of the record reveals some very dissatisfactory and disquieting aspects about the whole case and we proceed to record them.
15. First of all we advert to the charge of demand of ransom and note that the precursor of the present incident was the extortion calls made by an unknown caller to Naba Apat/ PW 18. According to PW18, vide para 3 of his 16 deposition, he had lodged a FIR in that respect on 18 5.2007 against unknown persons. This FIR, which could have authenticated prosecution charge of demand of extortion, was suppressed by the prosecution and was withheld from the court so much so that even PW 18 did not tender it during his deposition. This has eroded claim by PW 18 to some extent. Second FIR, to establish the charge of ransom demand, is alleged to have been lodged by Rinku @ Rakesh Chugh/ PW15, which has got a reference in Ext.16, lodged by S.I. S.K. Taudia/ PW23. Albeit it is stated that on the basis of this FIR, a formal FIR No. 144 was registered on the date of the incident itself (27.7.2007), u/s 387 I.P.C., but this FIR by PW-15 too was withheld by the prosecution from filing in the court. Thus the allegation that there was demand of ransom from PW 18 rests only on the oral evidence of witnesses and not on any documentary evidence, although available, which creates a serious doubt about the genuineness of the said allegation in as much as the two FIRs by the victim was suppressed and only FIR by the police S.I. has been filed. Since the defence plea is of fabrication of a false case, none filing of the two FIRs, definitely erodes prosecution version to a great extent. Added blow to the prosecution case when Rinku @ Rakesh Chugh/ PW15, who is alleged to have informed the informant S.I. Taudia/ PW23 about the ransom demand from unknown culprit by lodging of a FIR, became hostile and did not support the prosecution case including the charge of demand of ransom. He was declared hostile and was cross examined by the prosecution but of no avail. Prosecution could not muster any courage to bring on record FIR lodged by PW15 and confront him with the same. Thus, the very basis of registration of FIR/Ext.16, lies in a realm of suspicion in as much as PW 15 17 categorically stated " I do not know informant Sushant Kuamr Taudia name suggested. I do not know the accused persons standing in the dock. One Naba Apat of Barbil had taken my Scorpio vehicle on hire basis in the year 2007. Naba Apat went to police station at Barbil in my vehicle and later on police called me to show the papers relating to that vehicle ................... I have no knowledge about the incident." This witness also completely denied his earlier 161 statement by deposing that he was never interrogated by the police in connection with the crime in question and police had obtained his signature on blank papers. Furthermore there is no seizure of any money nor there is any convincing reference to it at any point of time. If PW17 had taken money to be paid to the extortionist and the same was not paid, why the police did not seize it and made a seizure memo in that respect? Why there is no reference to it?. What has happened of that money? All these natural question remains unanswered and it seems that, in fact, no money demand was made nor any money was taken to be paid nor in fact the money was taken to the spot and the entire prosecution version in this respect is based on pure concoction.
16. Another significant aspect which crumbles the charge of ransom demand is that no credible evidence was brought before the trial court to convincingly establish call details regarding demand of extortion money. Every evidence on this aspect is hazy and unconvincing. FIR/ Ext.16 do not contain any mobile number from which ransom calls were made. Rinku/PW15 turned hostile. Naba Apat/ PW18 albeit deposed that appellant and acquitted accused Baljit Singh were demanding money but he had not lodged any FIR arraigning them as accused and, contrary to it, he had lodged FIR against unknown persons and 18 that FIR was also was not proved nor exhibited and there by his claim that appellant had demanded money seems to be a false assertion. It is recollected here that, according to prosecution witnesses themselves, Naba Apat/ PW18 is not an ordinary person. He is real brother of Kusa Apat/ PW17, who is an active member of ruling BJD party in the State and had contested MLA election. PW 18 did not lodge any report against the appellant on 27.7.2007 and his examination- in- chief claim in this respect is per-se false. His deposition in para 3 is-
" I had reported about demand of money by the accused persons before the police on 18.5.07. It is a fact that I had written in that F.I.R. that some unknown persons are demanding money to me. I had not gone to the police station on 27.7.07. On 27.7.07 I have not lodged any written report before the police officer of Barbil P.S. I was not present at the place of occurrence where there was firing on a police officer."
17. Para 4 of cross examination of PW18 is full of significant omissions which belies his claim about ransom demand being made by the appellant. Testimony of PW17, who is brother of PW18, also does not improve the situation. Para 3 of depositions of this witness is also galore with significant omissions and regarding demand of money, vide para 2 of his depositions, his evidence is all hearsay and is in-admissible. Thus on an overall analysis of the significant evidences we are of the view that prosecution has miserably failed to establish convincingly that appellant had made any ransom demand from Naba Apat/ PW18 and this part of the prosecution story seems to afterthought and manufactured.
19
18. At this stage, we advert to second significant aspect and observe that it is noteworthy that so far as PWs 1 to 9 are concerned their testimonies for establishing the charges against the appellant are wholly insignificant and insidious.PW1 is a witness of inquest proceedings only and has proved his signature on inquest memo Ext.1. Jagbindar Maffi/ PW2 came to know about the incident two days after and he stated only this much that one of the accused Asutosh was residing in the same locality of his house in the house of one Bablu/ PW3, a fruit seller. He does not " know anything more about this". PWs3 and4,Uma Shankar Sonkar and Smt. Reena Sonkar, are spouses and they have stated that they do not know the appellant and they came to know about the occurrence two days after. One Asutosh Prakash Shukla was a tenant (residing) in their house in Ward No.8, under Joda Municipality and besides that they also "do not know any thigh more about the occurrence". Their evidence regarding the occurrence therefore is all hearsay and is in-admissible. Suresh Chandra Palei/ PW5 turned hostile and he also does not know the appellant and anything about the incident. He even denied being interrogated by the police in connection with the present incident. Sunil Dutta/ PW6 also did not know the appellant. He is a post occurrence witness and had arrived at the spot after an hour and by that time injured were already shifted to the hospital. His evidence to establish appellant's complicity in the crime is of no value. He was also not examined by the police. Srimanta Kumar Tripathi/ PW7 also does not know any- thing about the incident and he also does not recognize the appellant. His evidence discloses that ransom demand was made from him also and while he was in conversation with the extortionist that the present incident occurred which is clear 20 from para 3 of his depositions and this fact belies appellant's involvement in the crime. PW7 stated in para 3 " During the course of above liationing with the person, who was giving threats to me , the above alleged occurrence occurred near the treasury office at Barbil.". He has named another extortionist Anup Srivastava as the person who was giving him threats. Bidyadhara Palei/ PW8 also does not know the appellant nor he had seen the incident in question. His evidence is also hearsay. This witness however does not mention any ransom demand made from him by any person as was deposed by PW17 and hence the statement of PW17 regarding demand made from Bidyadhar Palei is all false and fabricated more so when his allegation is not supported even by his brother PW18 also. Evidence of Sannu Sonkar/PW9, who is brother -in-law of PW3, is also worthless to fasten the charges on the appellant. Thus, what evinces from the evidences from PW1 to PW9, is that none of them have implicated the appellant in any crime and their testimonies are insignificant, moldy and inconsequential to establish the charges against the appellant especially when nobody else has been convicted u/s 120 B I.P.C.
19. Now we turn to third significant aspect as to who had fired at the deceased. In this respect, at every stage, prosecution has come up with a nascent version and manner in which occurrence had occurred. Since every witness has his own story to describe therefore evidences of prosecution witnesses are, irreconcilably, at variance with each other and therefore it is significant to register them in a seriatim. First of all informant S.I. of P.S. Barbil, S.K. Taudia/ PW23 mentioned in the FIR/Ext. 16 that "At about 7 PM two persons came in a Bajaj Discover Motor Cycle near Sub-Treasury junction Barbil 21 and asked to deliver the cash. Suddenly LNK-679 D.Kerketta, I myself and with assistance of the occupants of the scorpio caught hold of both the motor cyclists and tried to capture them . At that time one of them (later who disclosed his name as Nitesh Singh ) managed to slip to a little distance and fired from a pistol aiming to us. The said bullet hit the head of LNK-679 D.Kerketta who fell down on the road with bleeding injury. As the said culprit kept firing continued Hav. N.Behra opened fire at the culprit to prevent him from further firing." Description of the actual incident as above firstly does not disclose that it was a case of murder but discloses that it was case of dacoity with murder and secondly this version does not matches with eye witnesses account disgorged before the trial court. The first fact witness examined in the trial about the actual incident is Hav. Niranjan Behra/PW10, who is alleged to have fired at the culprit. He has evidenced that " We remained by the side of Treasury, Barbil. Two persons came in a Bike and asked money to the driver of the scorpio vehicle. The person who had complained was inside the scorpio vehicle said to take money to these bike riders.Taudia Babu and the driver caught hold of the person who was pillion rider of the motor cycle. The motor cycle driver started firing bullet aiming on Devid Kerketa which struck on his head on left side. Devid Kerketa fell down. I fired bullet to the person who was firing bullet to Devid Kerketa. The bullet fired by me hit on the leg of that person. The witness identified accused person Asish Singh alias Nitesh Singh standing in the dock That person namely Asish Singh alias Nitesh Singh fell down and I along with others caught hold of him ." Above evidence is false as the person complained was not inside the scorpio at all. Neither PW15 nor PW 18 had gone to the spot. PW 15 had turned hostile. More 22 over why the culprit will demand money from an unknown driver? Very significantly such a deposition rules out an offence of murder but makes out a case of Dacoity, where murder was committed during course of extortion involving five or more persons. We will point out later that, in fact, initially, it was a case of dacoity as had been accepted by many prosecution witnesses. A third story surfaced through deposition of Ranjit Kumar Kar/ PW11, from Special Security Force at BBSR Special Branch, who contradicting previous two witnesses, stated that " Two persons came in a bike and they asked to give money to the informant and at that time Kerketa Babu and Bidyadhar Mohanti caught hold the pillion rider of the bike. When the pillion rider was attempted to be caught hold the pillion rider Asish Singh alias Nitesh Kumar Singh started firing and due to fire by Asish Singh alias Nitesh Singh Kerketa Babu succumbed to the fire wound which struck on head of Kerketa Babu. Kerketa Babu fell down. When Asish Singh alias Nitesh Kumar Singh were trying to fire further bullet he was caught hold by Behra Babu and others." Prasant Kumar Lakra/ PW12, another witness from O.S.A.P., 4th Battalion, Raurkela, who is also said to be present at the spot had this to say- " The person who was driving the motor cycle started firing by means of one pistol which struck on the head of Devid Kerketa...." This witness has also said that "pillion rider was caught hold". He has further stated -" Niranjan Behra started firing which landed on the leg of accused person Asish Singh @ Rajesh Singh. The person whom Devid Kerketa and others had caught managed to escape on seeing the Bolero vehicle came suddenly started firing." Another witness Madhabananda Bastia/ PW16 came with a altogether new story. According to him demand of money was made from 23 Rinku Chugh/ PW15, which was never the prosecution case till this stage. He also said that PW 15 was in the police vehicle but PW 15 directly denied entire prosecution claim. He has narrated a new incident altogether. His deposition is -"
I was inside the compound of Treasury , Barbil and heard gunshot fire sound. I came closure to the scorpio where from such gunshot was heard. I saw a person was firing bullet from pistol and was going towards the busy area by the side of the road. I saw police officer have caught hold Nitesh Singh accused person standing in the dock. ..................... Havildar Behra inorder to catch Nitesh Singh has fired bullet from his A.K. 47 gun............ I saw Devid Kerketa lying with fire wound received by him as was shoot to him and I heard that he was shoot by Nitesh Singh." Kusa Apat/ PW17 has still another story to tell that -"
At Kiriburu Chhak on that day at about 6.30 P.M. police along with me were present and at that time accused pesons came and there was exchange of fire between police and the accused persons and the fire of the pistol by Asish Singh , one police officer namely Kerketta Babu succumbed to the fire shot injury at the spot." Yet another prosecution witness Sibalal Bhoi/ PW 20 of 4th Battalion Raurkela, had not seen actual assault but he claimed that he had caught the appellant, which is no bodies case. David Nirmal Minz of 4th Battalion testified altogether new incident. According to him -" I saw two persons came in a bike and appeared near the Marshal vehicle and thereafter I heard sound of firing of bullet. I saw Kerketta Babu lying with bullet injury on his head. "Niranjan Babu fired on retaliation to the fire to Kerketta Babu and the first bullet was missed and the second bullet landed on the leg of Asish Singh". This is not the evidence of Hav. Behra/ PW 10. His categorical evidence is that he had fired only 24 once. The blow to the truthfulness to the prosecution version came from informant S.I. S.K.Taudia/ PW 23. Against the facts slated in his FIR he evidenced that -" Two persons at that time covering their head in helmets......... These two persons demanded money to Rinku Choque(Chugh) said that ""Rupiya Kaha he nehin to goli maridenga" i.e. where is money if not paid we would murder by firing. At that time, they started firing towards our team. The bullet hurled landed on the head of L.Naik David Kerketta and he immediately fell down on the road having profuse bleeding injury on his head. I along with others tried to catch that person who fired at David Kerketta but he was continuing to fire by the pistol held by him. Looking to the situation, Hab.N. Behera fired at that person, which landed on his leg and thereafter we could manage to nab that person, who is now facing trial in this case.......... The other culprits managed to flee from the spot who were not caught by us." However at a later stage of his cross examination in para 2 and 3, he has completely changed his version and stated new facts as: -
"I cannot say if the place of occurrence was found up expecting no escape from the spot by the culprits. We had not verified the easy possible ways of escape from the spot by the culprits. I was not having any arm or ammunitions with me. When the culprits started firing at the first instance no counter firing was hurled from our side towards the culprits. No one of our team try to nab the culprits. I along with four others had tried to catch the culprits but failed at the first instance. We had tried to snatch the arms hold by them but we failed. Niranjan Behera, Habildar, Rinku Chough, Bidyadhar Mahanta, Raja 25 @ Kuldip Singh were with me. Except Niranjan Behera others were within the age group of within thirty. I cannot say the Regd. No. of the Bolero and also it's colour which was plying by the side of the team at that time and the persons from that vehicle were indiscriminately were firing. I cannot say if the escaped persons were fired. The person who escaped was chased by me but he gushed into the rush of the general public. When the escaped culprit was intermingled with the general public we left him not chasing.
I saw the bullet would on the person of David Kerketta but I cannot say when he got such bullet wound.
The place of occurrence is a busy place. There are houses of official residence and shops near the spot. I had not asked general public about the fleeing of one of the culprit from the spot. The culprits who was nabbed was sent for medical examination. The seizure lists Ext. 13/1 and 14/1 and 15/1 prepared by me are in printed form available in the police office. In Ext. 13/1 (seizure list) the case number was found which was later on cut. I had prepared the seizure list Ext. 13/1 and 14/1 at the spot. The local residents of the spot were not invited or called to become witness in the seizure.
The seized material objects were not sealed and covered to prevent tamper. I am not finding the material objects in the Court today. I scribed the F.I.R. at the spot.
I cannot say with whom the accused person and the deceased David Kerketta was sent for medical examination. I had not made any requisition for examination of the injured persons. I have not sent the 26 injured person and accused person to hospital so I cannot say what information was supplied to the examining doctor in this regard. The station diary entry No mentioned in Ext.13/1 and 14/1 was mentioned by me but I cannot say if it was written at the spot or at the P.S. I have not mentioned in the F.I.R. that the seized materials objects were sent along with the F.I.R."
20. Rashmi Ranjan Jena, also from 4th Battalion/ PW26 narrated another new story and stated that " On reaching at the spot I found two persons were standing at the spot in the Barbil Town and talks relating to payment of ransom as was made these persons were awaiting to take the ransom persons of our team tried to catch these two culprits standing on the road and they were caught. One out of them started firing at police personnel". He does not name the appellant. Rest of the PWs 27, 30 31, 32 has repeated version by one or the other witness and therefore, for the sake convenience, we eschew repeating the same.
21. In view of above we are not sure who was driving the motor cycle and who was pillion rider, whether they were wearing any helmet or not? Who fired at the deceased whether driver or pillion rider, and the exact manner in which occurrence occurred. We are examining the trustworthiness of all persons who are educated and most of them are police personnel and some of them belong to special police force. Merely by being member of police force their evidence cannot be discarded nor they can be dubbed as untrustworthy witnesses but their entire evidence is to be scrutinized with much care, caution and circumspection. The fact which may be trivial in respect of an ordinary 27 person may not be trivial qua the police personnel as they are used to describe about the crime incident. When informant himself could not describe the incident in an un-doubtful single manner and when each of the witness has made some or the other improvement which casts a serious suspicion in the manner in which the incident had occurred and when the allegation of catching of the appellant during the course of the incident itself is suspicious, it is very difficult to come to a positive finding that the charge against the appellant has been established to the hilt and prosecution witnesses are trustworthy and reliable, especially when the appellant accused had come up with a defence plea which is equally compatible with prosecution version. It is very important to note that during his cross examination informant PW 23 had to admit in para 3
-" I saw the bullet wound on the prson of David Kerketta but cannot say when he got such bullet wound.". This deposition unerringly indicate that either his FIR is after thought and he was not present at the spot or he has deliberately tried to fabricate a story when the incident had occurred in a different manner.
22. At this stage we cannot resist the temptation of mentioning that FIR seems to have been lodged after some investigation and not prior to it and hence chances of consultation and deliberation and concoction cannot be ruled out. This impression we have gathered from the statement of the informant PW23 himself when he has mentioned in the FIR itself that- " .... Who did not disclose his identity but through questioning he gave his identity to be Bijay Jaiswal and later as Nitesh Singh of Benaras." This makes the defence version quite probable on preponderance of probability and seems to have a ring of truth in it which cannot be discarded out right. It was prepared after some investigation into 28 the crime was already conducted. To check the correctness of the version contained in the FIR and its genuineness only, when we scanned the police record we found that FIR is also in doubt because to the Doctor in TISCO Hospital, Joda, at 8 P.M. on 27.7.2007, the incident day, it was informed that the incident had occurred at 6.40 P.M. , which fact is clear from the first page of Bed Head Ticket from TATA STEEL HOSPITAL, JODA. It is mentioned by the doctor- " A case of gunshot injury Lt. side of temporal Pareital bone of the head with severe bleeding on to duty at 6.40 P.M. near Barbil as reported...." . It is also because a case was manufactured to show a case of murder that the cutting was made in the original official FIR and time of incident was changed and more over FIR was not registered u/s 387 I.P.C. but only u/s 307/34 I.P.C., albeit facts registered in the body of FIR clearly made out that offence. It is because of this reason, that it seems , that the prosecution did not got exhibited bed head ticket from Joda Hospital concerning the deceased. This fact completely escaped notice of learned trial Judge also who pedantically accepted police charge sheet without any application of his mind and also conducted the prosecution with such mistakes. These mistakes seems to have occurred because of undue haste in process of altering an incident of dacoity into a murder case as suggested by the defence.
23. Now we come to the forth suspicious aspect of the prosecution case as to who, in fact, had caught the appellant. According to Hav.N. Behra/ PW10, it was informant/ PW 23 and driver Kuldeep Singh/ PW19 who had caught the appellant but PW 19 does not utter a word in that respect. His evidence concerning the main incident is all hearsay and he has evidenced that 29 police had made him sign on some papers concerning the incident and he does not know what was written on it. He was also declared hostile by the prosecution. PW11, on the contrary, deposed that Behra Babu and others had caught the appellant. PW12 states that it was deceased and Bidyadhar Mohanti who had caught him vide para 2 of his deposition but before the police he had said that it was Niranjan Behra and Bidyadhar Mohanti who had caught the accused. He had also told the police that the driver who had fired and who could not be caught had fired at the deceased Kerketta vide para 4 of his testimony. PWs 16, 17 and 18 have evidenced that it was police who had caught the appellant. PW 19 Kuldeep Singh @ Raja does not say anything about it. He was also declared hostile. According to PW 20 it was he who had caught the appellant. According to PWs 21, 23, 26,27, 31 and 32 all the persons had caught the appellant. In view of these discrepancies it seems that glaring discrepancies had occurred in the evidences of various witnesses only due to the reason that the incident had not occurred as alleged by them but in some other manner and witnesses are all dangling on their imaginations. This makes the defence story more probable.
24. Adverting now to the defence argument that in fact it was case of dacoity which has been transformed into a case of murder , we find, from the evidence of witnesses as well as from the fact situation, that the same has got enough substance in it. As already discussed, from PW 1 to PW 9, witnesses are not relevant for the main incident. According to PW 10 , vide his examination- in- chief itself, he had accompanied IIC of Barbil in plain dress as they " were to nab dacoits as per information received by the IIC". PW 11 corroborates PW 30 10 as he deposed " I along with others were called to nab dacoits .....". So is the statement of PWs 12. According to PW21 they were to catch culprits "who were demanding money illegally to businessmen". PW 23 also had lodged the FIR regarding shooting during an incident of taking ransom, which, according to the prosecution itself, involved more than five accused and hence it was an incident of dacoity and not of murder covered u/s 396 I.P.C. Prosecution evidence itself is that during the course of the incident fire was made when the nabbed accused tried to flee free. Theory of repeated fire is belied by the fact that no other person was injured, although the place of the incident was a busy market place nor any sign of indiscriminate firing was found from the spot. No body else except the deceased and the appellant were injured in the incident. It is also very queer that the informant had gone to the spot empty handed. We note that in every robbery there is either theft or extortion. Robbery is dacoity if five or more persons are associated with extortion, which is the present case. Otherwise also , as the facts are described before the trial court it has to be a case of 388 I.P.C. and not 387 I.P.C. or in any case it has to be crime of robbery with murder with more than five people involved and hence a crime punishable u/s 396 I.P.C. This fact also gets a support from the fact that in the inquest report, Ext.1,which was performed on 28.7.2007 between 10.30 A.M. to 11 A.M. , initially it was mentioned that the crime is under section 396 I.P.C. but subsequently it was interpolated and section 307/34 I.P.C. and then 302/120B/34 I.P.C. and 25 & 27 Arms Act were mentioned. The same facts is also true about Ext. 20, which is a special report prepared on 28.7.2007. There also section 396 I.P.C. was mentioned and then it was scored out and section 307/34 I.P.C. was mentioned. 31 Who made these interpolations is not known and how section 396 I.P.C. came to be mentioned is also not disgorged, which creates a serious doubt on the veracity of the prosecution case and authenticates defence plea of false implication as it being a case of dacoity by unknown persons. Merely because someone was murdered during extortion attempt will not bring the incident into the ambit and purview of 302 I.P.C. as there was no intention to commit murder or cause such bodily injury as in all likely hood would have caused death. The entire facts sans intention to commit murder and hence entire trial by the court below is totally misdirected. Learned trial Judge also failed in his responsibility to prosecute the appellant for the crime which was disclosed from the police record against him. He seems to have been swayed away by the fact that a police person has lost his life. Learned trial Judge completely failed to analyze as to whether fire was made with an intention to commit murder or it was made in an attempt to escape and not to commit murder. The entire trial procedure seems to be a total remiss. This we are constraint to observe also for the reason that whatever evidence which were favorable to the accused appellant was either eschewed or was explained with unacceptable puerile reasonings. DW 1 was not discussed and glaring mistakes committed by the prosecution were ignored. Hence we are of the opinion that the appellant has been prosecuted unfairly.
25. Now we turn towards those circumstances which cumulatively indicate that prosecution has remained unsuccessful in establishing appellant's guilt and indicate that the incident did not occur in the manner alleged by the prosecution. These circumstances are significant to judge as to whether defence by the appellant is probable or not? Registering these circumstances we find that 32 non sustaining of any other injury by the appellant in the scuffle to apprehend him and sparing him by the police personnel , when he is alleged to have shot at their own man is very strange as, normally under such circumstance appellant would have been severely beaten. It is also very strange that the informant does not know the number and colour of Bolero from which gun shots were fired at them. Equally strange is the fact that no record from the police station regarding bringing the appellant to the police station, after he was apprehended, was produced by the prosecution. Similarly non production of any medical report about examination of the appellant at the first instance so as to establish that he had sustained gun shot from AK-47 rifle and not from any other weapon is very dicey. Albeit, informant's case is that both the culprits wore helmets but non seizure of helmet nor producing of the same in court indicate that, in fact, incident did not involve accused nor any helmet was with the appellant and evidence of PW 23 is false. More over motor cycle alleged to have been recovered from the incident spot was never endeavoured to be connected with the appellant and so is the case with mobile phone and the SIM card alleged to have been seized from the appellant and hence an adverse inference is compelled to be drawn against prosecution to the effect that prosecution story regarding the manner of incident is not true and genuine. Complete denial by Rinku Chugh/ PW15 about the ransom demand and reporting the matter to the police and complete silence by Naba Apat/ PW 18 about informing Rinku Chugh/ PW 15 about the ransom demand crumbles the prosecution edifice from it's very core as in that event there was no occasion for the informant/ PW 23 to register a FIR or plan a trap to apprehend the extortionists. Some of the prosecution witnesses falsely deposed 33 that ransom was demanded from Rinku Chugh/ PW 15 and that he was present in the scorpio vehicle of the police at the incident spot and money was demanded from him. It is equally bizarre that neither Naba Apat nor his brother Kusa Apat, PWs 17 & 18, lodged any report with the police on 27.7.2007 about the illegal demand of ransom although it is establish on record that Kusa Apat/ PW 17 was politically very strong and was contesting for MLA supported by ruling BJD party of the State. No evidence was led to show as to how and from where the money alleged to be paid to the culprits was arranged neither any evidence to that effect was brought on record indicating thereby that such a claim by the prosecution is all hypothetical and cooked up. Neither those currency notes were marked nor any description of them was trotted out during the trial. No money was even seized by the two I.O.s. No trace of Bolero Jeep alleged to be involved in the crime, and acquittal of other two accused persons, which now has attained finality, are all significant factors, which certainly are not trivial or incipient, diminishes veracity of prosecution allegation from its core and suggests that the incident certainly did not occur in the fashion alleged by it. All these factors speaks a lot against the prosecution and creates a serious doubt in the credibility and truthfulness of its allegations and veracity in its witnesses. It is of immense importance to register, which goes a long way to discredit the prosecution case, is the admitted fact that neither the American pistol nor the magazine nor the cartridges, alleged to have been recovered from the appellant, were produced during trial as material objects nor here exhibited . Where are those weapons is not known to anybody. No finger print of the appellant was taken to establish that it was he who had wielded weapon recovered from him. No attempt was made 34 by either of the two I.Os. to get gun powder marks from the palm of the appellant. Why prosecution has concealed such vital informations from the trial court leaves much to be answered. Learned trial Judge also erred in his examination of merits of the case when he has brushed aside criticism by the defence by trivializing the castigations by observing that it is of no effect and that it does not make any difference. Added to this lapses is another vital fact that , according to informant/ PW 23 himself, he had not sealed recovered material at all and thereby kept alive chances of tempering and hence recovery by the informant and subsequent examination by expert is valueless. No credibility can be attached to expert report in such fact and circumstances, especially when the appellant completely denied having in his possession or having wielded any weapon. It is categorical deposition of informant S.K.Taudia/ PW 23, which is very significant, that -"The seized material objects were not sealed and covered to prevent tamper.I am not finding the material objects in the court today". Where is the pistol used by the appellant. Prosecution has no answer to it. It seems that appellant was not involved in the crime and the pistol shown to have been used by him is all fabricated. It seems that PW23 does not have much knowledge about the incident as well because he has no idea about the number and color of the Bolero vehicle from which gun fires were made nor he has any idea as to with whom injured police personnel and the appellant were dispatched to the hospital. In Para3, informant/ PW23 categorically deposed that he does not know with whom the accused person and the deceased were sent for their medical examination. When we vetted through the original record we found that different time of incident was informed to the Doctor, as medical treatment record of the 35 deceased indicate that doctor had noted a different time of the incident and the culprit were also unknown.
26. Another fact which belies truthfulness of the prosecution version is that according to PW 10 he has fired a single shot from his AK -47 on the accused, whereas according to David Mirmal Minz/PW21 two shots were fired by PW 10, the first one missed but the second one caused injury on the hip of the accused. When we checked the authenticity of such a claim we find that in the case diary it is mentioned by the I.O. that from the spot he had collected four(4) empties of AK-47. From where other three empties came is not known. Further damaging evidence came from Rushibar Giri/ PW13, constable attached to Barbil police station, when he stated, in para 2, of his examination-in- chief that " On 28.7.07 on production of Havildar, Niranjan Behera items of material like one 7.62 A.K.47 rifle, 3 magazines of live cartridges containing 25 nos., each . This is seizure list already marked Ext. 3....." If the three magazine deposited by PW 10 contained full cartridges and if one magazine had only twenty-one catridges, then his and the prosecution story that he had made a single retaliatory fire to stop the culprit from firing further is all false and concocted. No credence therefore can be attached to the prosecution story, which seems to be all fabricated. This witness/ PW13 further damaged prosecution case by stating, in para 3(wrongly mentioned para 2), first para of his cross examination, that all the seizure lists were prepared at the police station, as all the materials were brought to the police station. This does not rule possibility of creating false evidence as admittedly none of the materials were sealed at the spot as per PW23, the informant and seizure witnesses especially Kuldeep Singh @ 36 Raja/PW19 and Laulin Tirkey/ PW33, who are seizure witnesses of Exts. 13,14,15 and Ext.3, of pistol , cartridges, SIM card, cell phone etc. and of rifle of Hav.Niranjan Behera/ PW10, cartridges etc. clearly deposed that they had no knowledge about what was written in the seizure lists signed by them. PW19 deposed that he was made to sign on a paper in connection with the case, whereas PW33 in his cross examination deposed that seizure list was prepared at the P.S. and he has not read the contents of Exts. 3 to 12 personally. With such testimonies no credence can be attached to the seizures made by the I.O. at all.
27. Another unsatisfactory feature of the trial is that no sanction to prosecute the appellant for offences under the Arms' Act was filed before the trial court. This is an admitted position. Learned trial Judge run down such a significant lapse by observing that obtaining of sanction has got a reference in the case diary with sanction number and hence non filing of the same is not detrimental to the prosecution case. We are not sure as to whether any sanction was at all obtained? If obtained why the same was not filed along with the case record as in absence of the same learned Magistrate/ JMFC, Barbil was incompetent even to take cognizance of that offence. Learned trial court completely failed to take note of such a serious mistake. In fact, in absence of any sanction, prosecution of the appellant for the charges u/s 25 & 27 Arm's Act was wholly illegal and without jurisdiction. No attempt was made to examine from the office of District Magistrate also to prove that such a sanction was, actually, accorded for appellant's prosecution. Proof of documentary evidence in absence of original document or even secondary evidence, is inadmissible in view of 37 various provisions of Chapter V Evidence Act, which requires that contents of a document can be proved only by primary or secondary evidence. Primary evidence in the case is not available and for secondary evidence no material was brought forth. Mere mention in the case diary is no proof that sanction was accorded by the District Magistrate and hence conviction of the appellant under sections 25 & 27 Arm's Act are illegal. From internal pages 6 and 50, of the impugned judgment, there remains little or no doubt that the trial of the appellant, in absence of sanction being filed, is wholly illegal. Conclusions by learned trial Judge, at internal pages 50/51, in this respect, are totally unacceptable and we are constrained to take a contrary view, in as much as, the guilt of the accused has to be established clear of all reasonable doubts to the hilt and burden of proof never shifts from the shoulder of the prosecution. By process of hide and seek , by suppression of important facts and evidences conviction cannot be secured by resorting to bizarre logic.
28. Another worrying fact is that the incident is alleged to have taken place on 27.7.2007 and appellant is alleged to have been arrested at the spot but there is absolutely no remand papers concerning him available on record till 2.9.2007 as he was formally arrested on 3.9.2007 after being discharged from the hospital on 3.9.2007 at 9 A.M. Testimony of informant/PW23 in this respect does not indicate any evidence in that respect.
29. Prosecution has also not tendered any evidence regarding treatment of both the injured in Govt. Hospital and also in Tisco Hospital, Joda, which according to the appellant's counsel is for the reason that facts contained therein would have established fabrication and concoction of the prosecution 38 version. In this respect evidence of informant PW23 at paras 2 and 3 of his cross examination, already reproduced herein above, are notable. By bare reading his testimonies indicate that he was not present at the spot and his evidence is based on suppositions.
30. Prosecution has also concealed from the court the site plan map prepared by the I.O. as a first step of investigation. Though the map is on record , the same was not got exhibited ostensibly for the reason that no motor cycle was shown in the map, nor any place of firing was shown, nor any place of empties were depicted, nor any place of Scorpio or Bolero was indicated, nor any blood on the spot was depicted nor place from where accused fired was shown, nor place of PW 10 from where he fired was shown and many such significant omissions. It is also very significant to note that no blood was found on the spot nor the same was collected. This makes prosecution story doubtful. Prosecution to avoid from being castigated for such lapses conveniently suppressed site plan map from the court to it's detriment, but learned trial Judge ignored this aspect also with lop sided analysis.
31. Another fact which dents prosecution version is that Appellant and Bijoy Jaiswal are two different persons. It seems that Bijay Jaiswal was caught and he escaped and since appellant had sustained incidental shot being a passerby, that he was framed in the incident by alleging that he has disclosed his name as Bijay Jaiswal and later on as Nitesh Singh was an extortionist. The fact that Bijay Jaiswal is another accused is clear from internal page 7 of the impugned judgment where it is mentioned that against Bijay Jaiswal charge sheet was submitted as absconder. The said page further depicts involvement of 39 more than five persons in the incident indicating it to be case of dacoity. Since Bijay Jaiswal absconded the said name was anointed to the appellant.
32. From meticulous examination of evidences of prosecution witnesses it further emerges that PW-10 had not told to the I.O. that they had waited near Treasury Barbil and that Taudia Babu and driver of the vehicle had caught the pillion rider. PW 12 has also not informed the I.O. that Niranjan and Bidyadhar Mohanti had caught the pillion rider. Page 2 of deposition of PW1 indicate that he was made to sign on a blank inquest memo. He is a NEWS reporter. PW 11 does not explain injury to the appellant in his evidence. It is not understandable that when PW10 himself had not said that he fired four shots, from where three empties of his AK-47 were found? This remains unexplained and indicate that prosecution version is not true and there are expatiations. PW 16 has not at all seen who had fired at the deceased. He only saw that the person firing was escaping in busy area of the road. He also does not explain the manner in which appellant had sustained injury nor explained his injury. Both PW17 and 18 are unreliable and worthless witnesses and they do not depose anything substantial. PW 18 was not present at the spot and hence had no knowledge about the actual incident and his conduct makes him untrustworthy witness. PW 17 who was present at the spot is a perjurer as he is contradicted by Bidyadhar Palei , no report was lodged by him and time of incident was changed by him to 6.30 P.M. and that according to him deceased lost his life at the spot which fact is per se false. PW 2 and 19 have turned hostile and did not support prosecution case at all. Seizures made by the I.O. therefore is in doubt. PW 20 had deposed for the first time in court without being examined by the police and 40 hence is a got up witness on whom no reliance can be placed. PW 21 had not seen who had fired at the deceased . His evidence is self contradictory and in cross examination he had clearly stated that -" When I arrived at the spot I saw Kerketta Babu was lying with bullet injury on his head." PW 23 the informant is also a worthless witness as he himself had developed a new story about the incident and his deposition taken as whole indicate that he has testified fabricated version. His FIR, which was written after due interrogation and not in any haste, contains significant omission and hence he also cannot be relied upon. PW 24 and 25 are hearsay witnesses concerning the main incident and their evidence qua the appellant is trivial and valueless. PWs 26 & 27 have the same criticism like others and their cross examination makes them unreliable witnesses. PW 29 is the 1st I.O. and he has left much which was expected of him. His investigation is perfunctory and sloppy. He did not arrest the appellant till 3.9.2007 for more than one month and six days. Except preparing seizure memos he does not seems to have carried substantial investigation. His efforts are a total remiss. All pivotal aspects were not at all investigated. PW-29 has been suggested that all seizure memos and custody memos have been fabricated by him for the purposes of the case. Our critical examination of evidences further indicate that though there is no dispute with regard to place, time of occurrence and the incident taking place, but with the lewd discrepancies as above and since most of the witnesses are of the police team we find it difficult to accredit prosecution story. More over charge sheet against present appellant under Section 302 I.P.C. appears to be completely a misdirected one. Motive and preparedness to kill the raiding party is totally absent for which 41 charge under Section 302, I.P.C. as against the appellant also appears to be of no prudent act by the trial court.
33. The defence has not only pleaded a case of denial of involvement in the occurrence but through deposition of D.W.1 appellant even has gone to the extent of describing as to what really happened. He has even examined Ashutosh Singh/D.W.1, to lend credence to his defence version that he had come to Barbil in search of a job which was promised to him by DW1 in the Transport Organization, called, Ridhi Sidhi Transport Organization. Evidence of this witness could not be contradicted except to give bald suggestion. No relationship of DW1 with the appellant was established and therefore DW1 had no occasion to depose falsely and become enemy of the police. Evidence of D.W.1 has not been taken into account by the Trial Court at all who completely eschewed it. This is an unfair examination of the case. This apart, this Court also observes that the incident has taken place in a very crowded place but the prosecution miserably failed to garner support of any independent witness and has examined only interested persons and police witnesses. Some of them became hostile and others gave their own story about the manner in which incident had happened. No person of locality came forward to support prosecution version. This also castes a doubt on the reality of the allegations leveled by the prosecution.
34. Three other circumstances which are important to exonerate the appellant are that even though prosecution alleges that shot was fired at the appellant to desist him from firing further at the police party indicating thereby that the appellant was facing towards the police party when he was shot at. How 42 then the appellant sustained injury at his hip joint is not understandable. The part of body where appellant has sustained injury unerringly indicate that his back was towards the shooter. This creates a doubt concerning prosecution allegation that the appellant was a culprit and he was firing at the spot. It is because of this reason that his finger prints were not taken nor the pistol was produced in court and the same was also not sealed at the spot by PW23. Even more motor cycle was not connected with the appellant. It also seems that because of this reason appellant was not arrested for more than a month and was not taken on remand. It is because of this reason that no attempt was made to apprehend absconding accused nor any serious attempt was made to identify the Bolero and persons inside it. Rest of the two accused were acquitted by the learned trial Judge. Added worrying aspect is that the appellant has been acquitted under section 307 / 323/34 I.P.C. If the evidence is that appellant continued to fire why he has been acquitted u/s 307 I.P.C. is a big question to answer. More than five persons were involved and hence appellant's prosecution and his conviction with the aid of section 34 is also wholly unwarranted. He was never been prosecuted for being a member of an unlawful assembly u/s 147 I.P.C. Further more no identification of any other accused was got conducted to check as to whether any of them was the second motor cyclist. This was intentionally and deliberately not done because the prosecution was conscious that incident of murder had definitely not taken place and the appellant is innocent injured victim of a shooting incident and he came to be hit in a cross firing.
35. In an overall scrutiny, to separate the grain from the chaff, we find that it cannot be said with any amount of certainty that the present was an 43 incident of murder. On the contrary it seems that a case of dacoity, according to the prosecution witnesses themselves, was transformed into a case of murder. Prosecution has miserably failed to establish it's alleged motive and manner of happening of the incident. None of it's witnesses are reliable and much criticism can be leveled against them. Investigation seems to be sloppy, sluggish and galore with remiss and is totally perfunctory. It was directed to project an incident of dacoity to one of murder. Pivotal issues have either been ignored or no evidence was led to establish them. Since the prosecution have failed on all scores it can be safely concluded that it had failed to establish the charges against the appellant to the hilt conferring benefit of doubt on the appellant accused.
36. We further find, after going through the judgment rendered by the trial court, that the impugned judgment passed by the trial court is based on improper consideration of relevant aspects as narrated herein above. Accepting pedantically the parrot like statements of all police personnel, ignoring glaring intrinsic inherent improbabilities surfaced in statements of witnesses and taking a determined view, has made the impugned judgment vulnerable and fallible, which cannot be sustained and thereby renders appellant's conviction and sentence, recorded through impugned judgment and order, vulnerable, unsustainable and susceptible to be overturned as the same cannot be concurred or upheld. Every significant aspect, learned trial Judge, had tried to explain by observing that the same is of no consequences because of consistence evidence of appellant firing at the deceased. This approach by the learned trial Judge is totally misdirected and erroneous. He was expected to scan 44 and separate truth from falsehood. He has failed to critically appreciate the case from the angle that appellant had his own version and witnesses are all police personnel who will always be interested in bolstering up their case. Learned trial Judge also recorded some of the findings which was totally against the evidence on record. Mere parrot like statements without critical scrutiny in it's veracity is no scanning of records. Observations concerning sanction, investigation, reliability of witnesses, criminal history of the appellant without any documentary proof and confirmed positive evidences are all de-hors the evidences and are besides the record and therefore are liable to be discarded out right.
37. In the last, we do not find any force in the submission of learned Additional Government Advocate while concluding his submissions that because appellant has not been tried for proper offence, the appeal should be allowed and the matter be sent back for retrial.
In our opinion, since we find that the prosecution had tried to fabricate a false case, it will not be proper to remand back for retrial as in that eventuality, a fair trial will be a far cry and, therefore, we are not inclined to remand the matter back for retrial.
38. While parting away we put on record the able assistance rendered by Sri S.C.Mohapatra, learned amicus-curiae appointed by us.
39. In the final outcome, we allow appellant's appeal, set aside his conviction and sentences recorded through impugned judgment and order dated 14.2.2011, passed by Ad-hoc Additional Sessions Judge, Fast Track Court, Champua, in S.T.Case No.40/240of 2008, State versus Ashish Singh @ Nitesh Kumar Singh and others, and acquit the appellant Ashish Singh @ Nitesh Kumar 45 Singh of all the charges framed against him. The appellant is confined in jail. He is directed to be released from jail forthwith and be set at liberty, in the event his presence is not warranted in jail in any other case.
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Biswanath Rath, J.
Vinod Prasad, J. I agree.
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Vinod Prasad, J.
Orissa High Court, Cuttack.
The 21st day of September, 2016/SKS/AKD.