Orissa High Court
Mirza Asaf Alli Baig & Another vs State Of Orissa on 4 November, 2010
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA : CUTTACK
CRIMINAL APPEAL No.564 of 2006
AND
CRIMINAL APPEAL NO.38 of 2007
From the judgment and order dated 22.12.2006 passed by Shri
B.N.Das, Additional District and Sessions Judge, Nayagarh in
S.T.Nos.174/101/107 of 2005/2004 S.T.Case Nos.175/102/204 of
2005/2004 and S.T.Case Nos.176/8/26 of 2005.
IN CRLA NO.564 OF 2006
Mirza Asaf Alli Baig & another .......... Appellants
Versus.
State of Orissa ........... Respondent
For Appellants : M/s. R.K.Nayak, P.K.Moharaj,
R.P.Roy, S.K.Das and
S.P.Das
For Respondent : Government Advocate.
IN CRLA NO.38 OF 2007
Parsuram Bihari .......... Appellant
Versus.
State of Orissa ........... Respondent
For Appellant : M/s. R.K.Nayak, S.K.Dash,
S.P.Dash, P.C.Mohanty,
R.P.Roy and C.R.Kanungo.
For Respondent : Government Advocate.
PRESENT
THE HON'BLE SHRI JUSTICE A.S. NAIDU
AND
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing : 09.10.2009 : Date of judgment: 10.2009
B.K.NAYAK, J.The appellants in both the appeals have challenged the judgment and order dated 22.12.2006 passed by the Additional Sessions Judge, Nayagarh in S.T.Case Nos.174/101/107 of 2005/2004, S.T.Case 2 Nos.175/102/204 of 2005/2004 and S.T.Case Nos.176/8/26 of 2005 convicting the appellants under Sections 302/120-B of the Indian Penal Code and sentencing them to undergo R.I. for life and to pay a fine of Rs.5,000/-, in default, to undergo R.I. for further period of six months.
2. The appellants along with four other accused persons, namely, Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das faced their trial being charged under Sections 452/120-B, 120-B, 302/120-B of the Indian Penal Code for allegedly committing the murder of Dr.Abid Alli Baig in pursuance of a conspiracy hatched by them by trespassing into the house of the deceased.
3. The totality of the prosecution case that came to light during the course of investigation which was launched on the basis of the F.I.R. lodged by one Nakula Das (P.W.6) is to the following effect :
The deceased Dr.Abid Alli Baig had a Clinic close to his paternal house at Nayagarh where the informant was working as a Compounder. On 6.8.2002 at about 8.00 A.M., the informant came to the clinic in connection with his duty and for opening of the Clinic he went into the house of the deceased to collect the keys. On arrival, he found the front door and the bedroom door of the house of the deceased lying open, so also the Almirah and Box of the deceased kept inside the house. Some articles were lying scattered inside the house. The informant called out the deceased, but he failed to get any response. When he was about to come out of the house, he discovered some blood on the wall of the drawing room of the house. On suspicion he entered into the drawing room and found the doctor (deceased) 3 lying dead there in a pool of blood. The informant, thereafter, immediately lodged the report against unknown culprits, on the basis of which the Inspector-in-charge, Nayagarh Police station (P.W.49) registered P.S.Case No.166 of 2002 and took up investigation.
4. During the course of investigation, P.W.49 proceeded to the spot and found the dead body of the deceased and household articles were lying scattered. He prepared spot map and took Video photographs, issued requisition for Scientific Team and sniffer dog. On their arrival, they took photographs of the spot and discovered some finger prints from the calling bell switch on the outer verandah of the house, glass cover of the cup board and liver of the lock of the drawing room and thereafter developed the finger prints and took photographs. The Scientific Team also collected sample blood from the spot and prepared a report vide Ext.4. The I.O. held inquest over the dead body of the deceased in presence of witnesses and thereafter sent it for post mortem examination. From the spot, he collected and seized sample filter paper, broken white bottle soaked with blood and a book under the title "Miracle of M.S.M.Natural Solution forpain". The I.O. also seized from the house of the deceased one SBBL gun (M.O.V) along with some ammunitions, one Auto Pistol (M.O.VI), Air Gun (M.O.VII) and Revolver (M.O.VIII). After the post mortem report, on the following day the I.O. seized the wearing apparels and one Tabiz belonging to the deceased. On 01.01.2003, the I.O., Shri B.K. Raju (P.W.49) made over charge of investigation to the Shri M.K. Subudhi, Inspector of C.I.D., (Crime Branch). On 21.1.2003, Sri Uttam Kumar Singh, another Inspector of police, CID 4 (C.B.) (P.W.50) took over charge of investigation from Sri M.K.Subudhi. During the course of investigation, P.W.50 examined the wife and sisters of the deceased, re-examined other witnesses and recorded their statements. On 04.02.2003, he visited the spot along with Director, State Forensic Science Laboratory and seized some blood stains available on the door screen of the drawing room. On 07.02.2003, he arrested all the accused persons except accused-Mallick Soleman, collected their finger prints and sent the same to Finger print Bureau. On completion of investigation, the I.O. submitted charge-sheet making out a case that accused-Mirza Asaf Alli Baig who is the brother of the deceased and his son accused Mirza Aslam Alli Baig @ Amir had long standing enmity with the deceased over their paternal properties for which they had threatened him of dire consequences, and that accused-Parsuram Bihari had also enmity with the deceased, since the latter in his capacity as the President of K.C. Club, Nayagarh had taken over possession of a patch of land and constructed a boundary wall thereon extending the area of the Club on its western side which was being objected to by accused-Parsuram Bihari, who had also threatened the deceased to do away with his life. It is further made out by the prosecution that these three accused persons joined together and hired accused- Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das as contract killers and conspired with them to kill the deceased and resultantly in pursuance of such conspiracy these four accused persons caused murder of the deceased inside his house in the night of 5/6.8.2008. 5
5. The defence plea is a complete denial of the involvement of the accused persons in the alleged crime. It was further stated by the accused persons that they were falsely implicated.
6. In order to prove its case, the prosecution examined as many as 52 witnesses. No defence evidence was led by the accused persons. Of the prosecution witnesses, P.W.6 is the informant, P.Ws.3, 4, 5, 9, 11, 16, 20, 24, 38 and 39 are some members of K.C. Club, Nayagarh. P.Ws.22, 25 and 30 are the sisters and P.W.44 is the widow of the deceased. P.Ws.21 and 52 are two Scientific Officers. P.W.31 is the doctor of District Headquarter Hospital, Nayagarh, who conducted post mortem on the dead body of the deceased on police requisition. P.W.42 is the Executive Officer, Nayagarh N.A.C. P.Ws.43, 48 and 34 are respectively Tahasildar., R.I. and Junior Clerk of Revenue Department, P.Ws. 28, 29, 33, 35, 36 and 37 are the seizure witnesses. P.Ws.8, 10, 15 and 32 are Potato godown owners. P.W.27 is the Manager of Bhuasuni temple, Ogalapada. P.Ws. 40 and 41 are the Toll Gate Employees. P.Ws.12 and 13 are two independent witnesses. P.Ws.1, 2, 26, 46 and 47 are some residents of Nayagarh Town. P.Ws.18 and 45 are two police personnel who had accompanied the dead body of the deceased for post mortem examination. P.W.19 is the Video Recorder. P.Ws.14 and 17 are co-villagers of accused-Banua. P.W.51 was the S.I. of Police, Nayagarh Police Station on the date of occurrence. P.Ws. 49 and 50 are two Investigating Officers.
7. On consideration of the evidence on record, the trial court has come to the following conclusions ;
6
(i) there is no cogent and consistent evidence on record regarding implication of accused persons, namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das with the crime, and that they have agreed among themselves to commit the murder of the deceased;
(ii) there is no evidence on record that the accused persons, namely, Asaf, Aslam and Parsuram have committed house trespass in the night of occurrence in pursuance of the criminal conspiracy;
(iii) the prosecution has successfully brought home the charge under Sections 302/120-B of the I.P.C. against the accused persons namely, Asaf, Aslam and Parsuram; With the aforesaid findings the trial court acquitted accused persons, namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das of all the charges. The trial court however, convicted the present appellants under Sections 302/120-B of the I.P.C.
8. In assailing the impugned order of conviction and sentence, the learned counsel for the appellants submitted that in absence of any direct evidence regarding the murder of the deceased, the whole prosecution case rests on circumstantial evidence and that the only circumstance for which there is some shaky prosecution evidence being the motive of the appellants to do away with the deceased out of revenge would not by itself be sufficient to convict them for the offence of murder. He also submits that there is no acceptable evidence to prove the motive of the appellants to cause murder of the deceased. His further contention is that the trial court having disbelieved the prosecution story about the conspiracy that the four accused persons, 7 namely, Mallick Solemn, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das committed the murder of the deceased in pursuance of a conspiracy entered into by all the accused persons, it could not have convicted the appellants under Sections 302/120-B of the I.P.C.
9. The learned counsel appearing for the State submitted that the impugned order of conviction and sentence is well founded and needs no interference.
10. It is submitted at the Bar that the impugned order passed by the trial court in so far as it relates to acquittal of the four accused persons, namely, Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das has not been challenged.
11. There is no doubt that the deceased died a homicidal death, which is established from the medical evidence. Evidence of the doctor (P.W.31), who conducted post mortem examination over the dead body of the deceased, and the post mortem report (Ext.10) reveal that the deceased sustained one incised injury of size 8" x 2" x ½" x 1" extending from the upper most part of the neck 1" lateral to midline on left side obliquely upwards the right ear lobule and another incised wound of 4 ½" x ½" x 1/4" over the left side cheek on the mandible and some scratch marks over right side base of the neck and upper chest. The incised wound on the neck had completely cut the carotid artery and jagular veins causing copious haemorrhage that brought about the death of the deceased.
12. The question that falls for determination is as to whether in pursuance of a conspiracy entered into between the appellants and the four acquitted accused persons, the latter committed the murder of the deceased so that 8 the appellants can be held guilty under Sections 302/120-B of the I.P.C. Admittedly, there is no direct evidence with regard to murder of the deceased. It appears from the evidence of the I.Os that during investigation with the assistance of the Scientific Team, P.W.49 collected the finger prints from the calling bell switch on the outer verandah of the house of the deceased, from the glass cover of cup board and lever of the lock of the drawing room which were developed and photographed, and that after arrest of the accused persons by P.W.50, their finger prints were obtained and sent to the Finger Prints Bureau for matching. P.W.50 has clearly admitted that finger prints of the accused persons did not match with the prints collected from the house of the deceased and, therefore, the finger prints report did not connect the accused persons with the crime. In absence of any semblance of evidence that the four acquitted accused persons in fact committed the murder of the deceased or that they conspired with the appellants to cause such murder, the trial court has acquitted them of all charges. However, citing negligence and laches on the part of the first I.O. (P.W.49), the court below has observed that for wrong and laches committed by the Investigating Officer criminal justice should not suffer, and accordingly convicted the appellants.
13. The whole prosecution case rests on circumstantial evidence. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the apex Court in Sharad Birdhichand Sarda v. State of Maharashtra; AIR 1984 SC 1622 9 and Md.Sher Bahadur Khan v. State; (1996) 10 OCR 167;. The principles are as follows :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
14. In the instant case, the prosecution attributed motive to the appellants for causing the death of the deceased. While appellant -Mirza Aslam Alli and his son are said to have long standing enmity with the deceased over the paternal property for which they had been threatening the deceased with dire consequence, accused-Parsuram Bihari was allegedly having enmity with the deceased since the latter as the President of K.C. Club, Nayagarh, had taken over possession of a patch of land and constructed western side boundary wall thereon which was being objected to by Parsuram Bihari and, therefore, the deceased was being threatened by him. The trial court in 10 paragraph-12 of the judgment clearly discussed as to how the witnesses examined by the prosecution to prove conspiracy among the accused persons have not supported the prosecution story. There is no acceptable evidence of any independent witness with regard to the motive of appellant- Parsuram Bihari to do away with the life of the deceased. P.Ws. 22, 25 and 30, who are the sisters of the deceased, and P.W.44, the wife of the deceased, were examined by the I.O. more than five months after the killing of the deceased. With regard to the enmity between the deceased on the one hand and his accused brother-Asaf and nephew-Amir on the other, the evidence of the aforesaid witnesses reveal that there was quarrel and ill feeling between them over the family properties, after their father died and the deceased came to Nayagarh in 1987, and several civil and criminal litigations were started between them. However, the evidence of P.W.6, who is very much acquainted with the affairs and the relationship between the deceased and his accused brother, reveals that at the time of the incident they were pulling on well with each other. He has further stated that accused-Asaf had undergone, a surgery for harnia at a Nursinghome at Nayagarh and the deceased was looking after him. P.W.26 is a lawyer of Nayagarh and family friend of the deceased and his brother. He has admitted in his evidence that there was ill feeling between the deceased and his brother and there were several litigations between them. He negotiated for a compromise and ultimately all the cases including a partition suit were compromised in the year 2000. In the light of such evidence, it is hard to believe that accused-Asaf and his son had still a 11 motive to take revenge on the deceased by causing his murder.
15. Law is well settled that motive may be a circumstance to raise suspicion against the accused, but suspicion howsoever strong it may be cannot take the place of real proof. On the basis of such a circumstance, it is not possible to draw an irresistible conclusion which is incompatible with the innocence of the accused, particularly when there is no other circumstance connecting the appellants with the crime in question.
16. There are other suspicious circumstances which remain unexplained and raise doubts about the complicity of the appellant in the crime. First of all, the finger prints collected from the calling bell switch on the outer verandah of the house, glass cover of the cup board and lever of the lock of the drawing room did not match with the finger prints of any of the accused persons. This means that real persons who had left finger prints could not be identified. Prosecution has failed to rule out the possibility of involvement of those persons, who had left their finger prints. One open condom was recovered from the bed room of the deceased on the day following the murder during the course of investigation. Admittedly, the wife of the deceased was not present with the deceased in the night of murder. The prosecution has not come out with any explanation about the availability of an open condom in the house of the deceased. The wife of the deceased has admitted in her cross-examination that her husband was a man of loose character and he had so many enemies. It is also in the evidence that one Antaryami Das was inimical towards the deceased as because the deceased had seized a truck which Antaryami had purchased 12 on loan with the guarantorship of the father of the deceased. All these unexplained facts also raise a grave doubt about the complicity of the appellants in the alleged offence.
17. The trial court has categorically found that conspiracy to kill the deceased has not been proved and, therefore, acquitted other four accused persons, who allegedly committed the murder in pursuance of the conspiracy. In the cases of Fakhruddin v. The State of Madhya Pradesh; AIR 1976 S.C. 1326 and Girija Shankar Misra v. State of U.P.; AIR 1993 S.C. 2618, it has been held by the Apex Court that the offence of conspiracy cannot survive the acquittal of alleged co-conspirators. If the alleged real murderers, namely, Mallick Soleman, Sk.Salim @ Pinku, Babuni @ Subrat Patra and Banua @ Lalbihari Das were acquitted for want of proof of conspiracy and murder by them pursuant to such conspiracy entered into by them with the present appellants, the present appellants who were alleged co-conspirators cannot be held guilty under Section 302 read with Section 120-B of the I.P.C.
18. In the light of the discussions made above, we are of the view that the impugned judgment of conviction and sentence of the appellants under Sections 302/120-B of the I.P.C. cannot be sustained. We, accordingly, set aside the said order of conviction and sentence and acquit the appellants in both the appeals of the charges under Sections 302/120-B of the I.P.C. Accordingly, both the appeals are allowed.
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B.K.Nayak,J.
13A.S.Naidu, J. I agree.
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A.S.Naidu, J.
Orissa High Court, Cuttack The . November,2009/G.B.Samal