1. Acquittal Appeal (DB) No. 29 of 2020 has been filed by Anirudh Kumar Nayak who is the informant of Namkum PS Case No.198 of 2013. He has challenged the judgment of acquittal of Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram @ Vijay Nayak recorded in Sessions Trial Case Nos.49 of 2014 and 102 of 2014.

2. Binod Nayak, Gurucharan Nayak, and Lalu @ Sanjay Nayak who were also put on trial along with the above-named accused have challenged their conviction under section 302/34 of the Indian Penal Code and section 27(1) of the Arms Act and the sentence of life imprisonment with a fine of Rs.10,000/- each awarded to them for the offence under section 302/34 of the Indian Penal Code and RI for 4 years and a fine of Rs.5,000/- each under section 27(1) of the Arms Act, in the aforesaid sessions trial cases.

3. A written report dated 1st August 2013 was given to the officer- in-charge of Namkum PS and on that basis a First Information Report was lodged against 13 persons. Anirudh Kumar Nayak made a specific allegation in his written report that in the afternoon of 1st August 2013 Binod Nayak made phone calls to his brother Ajit Nayak asking him to meet Pramod Singh in connection to a land dispute. His brother left village Tumbaguttu to meet Binod Nayak and both were seen together sitting at Nikhil Tent House at Sirkhatoli within Namkum PS. The informant further stated that his younger brother Amit Kumar Nayak while returning home from the college was passing through Nikhil Tent House and on that day Ajit Nayak was seen sitting at Nikhil Tent House with Binod Nayak, Bijay Nayak, Shiva Nayak, Ravi Nayak, Sikandar Nayak, Ajay @ Gabbar Singh Nayak, Sheru Nayak, Lalu Nayak, and Ram Nayak. The informant was informed by the witnesses that his brother was seen gossiping with the accused near the Block health center where he was shot dead around 04.15 PM. On receiving telephonic information, he left for the Block health center and on the way saw Lalu Nayak near the Military Camp going towards Kochatoli on a speeding motorcycle. The informant expressed his apprehension that Binod Nayak who was repeatedly calling his brother for measurement of 1.78 acres of land in respect of which a dispute was going on with Pramod Singh killed his brother under a conspiracy hatched with Lalu Nayak, Ram Nayak, and Gurucharan Nayak.

4. Dr. Jyoti Asha Champi who conducted the postmortem on the dead body of Ajit Nayak found the following injuries :

“External-

Abrasion- (i) 6 cm x 4 cm over left fore head

(ii) 3 cm x ½ cm over bridge of nose

(iii) 4 cm x 2 cm front of left knee Fire-arm injury-

(i) Wound of entrance 1 cm x ½ cm on right temporal region of head surrounded by tattooing 15 cm x 10 cm area on right side of face and right arm lateral side. The projectile passes through soft tissues, grazing the right temporal bone and makes an exit wound 2cm x lcm on right temporal region interior part.

(ii) Wound of entrance 3 cm x 1 cm on fronto lateral left chest middle part 8 cm below the nipple and 15 cm left to mid line surrounded by tattoing 9cm x 4cm area. The projectile passes through soft-tissues and breaks the left fifth ribs, perforated he pericardium, heart, right lung, then breaks the right fifth ribs lateral side. A bullet has been found lodged in soft tissue of back of right chest upper part. The margin of entrance wound was abraded and inserted. The track of wound was abraded and contused and there is presence of blood and blood-clot in pericardial and right chest cavity.

Opinion-

(i) The above noted injuries were ante-mortem.

(ii) Abrasions were caused by hard and blunt substance and fire arm- injuries were caused by fire-arm.

(iii) Death was due to hemorrhagic shock as a result of above noted fire- arm injury no. 2.

(iv) Time since death was 6 hours to 24 hours from the time of P.M. Examination.

(v) The recovered bullet was sent in a sealed envelope along with P.M. report.

(vi). The above noted fire-arm injuries were sufficient to cause death in the ordinary course of nature.”

5. After the investigation, seven accused were sent up for trial through Chargesheet No.304 of 2013 dated 25th October 2013 and Sessions Trial No.49 of 2014 was registered against them. Later on, Sessions Trial No.102 of 2014 was registered against Lalu Nayak pursuant to the filing of Chargesheet No.335 of 2013 dated 24th December 2013. By an order dated 6th February 2014, both the sessions trials were amalgamated. Eighteen witnesses were examined by the prosecution to support the charge against Binod Nayak, Bijay Nayak, Dharma Nayak, Ajay Nayak @ Gobar Singh @ Gabbar Singh Nayak, Gurucharan Nayak, Sikandar Nayak, Ram @ Vijay Nayak and Lalu @ Sanjay Nayak framed for the offence under sections 302/34 and 302/120-B of the Indian Penal Code and section 27(1) of the Arms Act.

6. Besides the oral evidence, the prosecution relied on the following documentary evidence to support the charge against the accused:

"Exhibit 1- signature of Panna Lakra on the written report of occurrence. Exhibit 2-signature of Panna Lakra on his statement u/s 164 Cr. PC. Exhibit 2/1- signature of Amit Kumar Nayak on his statement u/s 164

Exhibit 2/2 and 2/3- signature of Shankar Nayak & Tarun Kumar Nayak on the inquest report, prepared on 01.08.2013, at around 4.30 pm.

Exhibit 2/4 and 2/5- signature of Shankar Nayak & Tarun Kumar Nayak on the seizure list dated 01.08.2013 for seizure of blood stain soil and two mobiles from place of occurrence.

Exhibit 2/6 and 2/7- signature of Shankar Nayak & Tarun Nayak on the written report about the occurrence.

Exhibit 2/8 and 2/9- signature of Shankar Nayak & Tarun Kumar Nayak on the seizure list dated 02.08.2013, for seizure of two mobiles from tent house.

Exhibit 3-postmortem report

Exhibit 4-S.F.S.L Report of seized blood stain soil. Exhibit 4/1-SFSL report regarding blood group.

Exhibit 5-forwarding letter for SFSL report. Exhibit 6-statement u/s 164 Cr. PC. of Vijay Kumar

Exhibit 6/1-statement u/s 164 Cr. PC. of Amit Kumar Nayak Exhibit 6/2- statement u/s 164 Cr. PC. of Panna Lakra

Exhibit 7- inquest report, prepared on 01.08.2013, at around 4.30 pm.

Exhibit 8- seizure list dated 01.08.2013, for seizure of pellet from place of occurrence.

Exhibit 8/1- seizure list dated 01.08.2013 in the handwriting and signature of Md. Sohaib Khan, for seizure of blood stain soil and two mobiles from place of occurrence.

Exhibit 8/2-seizure list dated 02.08.2013, for seizure of two mobiles from tent house.

Exhibit 8/3- seizure list dated 28.08.2013, for seizure of white coloured Apachi Motorcycle from Pahalwana Dhaba, NH 33, Sidroll, Namkum

Exhibit 9- Endorsement on the FIR by the Officer in-charge Binod Kumar for registration of the case.

Marks for Identification X-X/6- CDR of mobiles."

7. The trial Judge held that the eyewitnesses were present near the place of occurrence and had seen Binod Nayak, Gurucharan Nayak, and Lalu Nayak talking to Ajit Nayak near the Block office. The learned Judge held that PW1 and PW3 clearly deposed in the Court that Binod Nayak shot at Ajit Nayak and thereafter all three fled away together. However, the prosecution story that the murder of Ajit Nayak was committed in the furtherance of a criminal conspiracy was found not established and, accordingly, the charge under section 120-B of the Indian penal Code failed. The learned Judge further held that Ajit Nayak was shot dead in furtherance of the common intention and the charges under section 302/34 of the Indian Penal Code and section 27(1) of the Arms Act were proved against Binod Nayak, Gurucharan Nayak, and Lalu Nayak. At the same time, finding no evidence against Bijay Nayak, Dharma Nayak, Ajay Nayak @ Gabbar Singh, Sikandar Nayak, and Ram @ Vijay Nayak the learned Judge held that the prosecution was not able to bring home the charge against them and, accordingly, they were acquitted of the charge under sections 302/34 and 302/120-B of the Indian Penal Code and section 27(1) of the Arms Act.

8. The learned Additional Judicial Commissioner-XX, Ranchi has held as under:

“30. ………………………………………………………………………..

In the instant case, I find that the prosecution has not adduced any circumstantial evidence for showing and establishing that there was a meeting of mind of accused persons to do an illegal act i.e. commission of crime of murder of the deceased. Mere circumstances that there was a land dispute in between the deceased and accused Binod Nayak, all accused persons were sitting at the tent shop of the accused Binod Nayak, and, statement of I.O. that on the relevant day of occurrence, accused persons had made call to each other, do not establish the offence of conspiracy.

31. Now, I find that the PW7 (doctor) has opined that deceased died because of fire arm injuries. During the postmortem, a bullet was recovered from the body of the deceased. A pellet was recovered and seized by the I.O. from the place of occurrence (Ext.8). The medical evidence in this regard is fully corroborated by the statement of eye- witnesses PW1, PW3, &, PW4, as they have deposed to the effect that two shots were made on the body of the deceased. So, it is clear that the accused persons had used arms in contravention of section 5 of the Arms Act for committing murder of the deceased Ajit Nayak.

32. From aforesaid discussion of prosecution's evidence, it is clearly proved that on the relevant day and time of occurrence, three accused persons Binod Nayak (A1), Gurucharan Nayak (A5), and Lalu @ Sanjay Nayak were present at the alleged place of occurrence of murder and with their common intention they fired gun shots resulting in death of deceased Ajit Nayak. Hence, I find and hold that the prosecution has succeeded to prove the charge of offences punishable u/s 302 r/w sec. 34 of IPC, and u/s 27(1) of the Arms Act against said three accused persons Binod Nayak (A1), Gurucharan Nayak (A5), and Lalu @ Sanjay Nayak. They are found guilty u/s 302 r/w sec. 34 of IPC, and u/s 27(1) of the Arms Act, accordingly, they are convicted for the same. The prosecution has failed to establish the charge of offence u/s 120B of IPC against the said three accused persons, accordingly, they are acquitted from the charge of offence u/s 120B of IPC. They are on bail, hence, their bail are cancelled, and, they are taken in custody. Let custody warrant be issued against them, and the record shall be put up on 17.12.2019 for hearing on the point of sentence.

33. At the same time, I find and hold that the prosecution has miserably failed to bring home the charge levelled against the remaining five accused persons Bijay Nayak (A2), Dharma Nayak (A3), Ajay @ Gobar Singh @ Gabbar Singh Nayak (A4), Sikandar Nayak (A6), and, Ram @ Vijay Nayak (A7), beyond the shadow of all reasonable doubts. As a result, the said five accused persons are not found guilty for committing any offence, hence, they are acquitted from the charge of Section 302/34, 302/120B of IPC, and section 27(1) of the Arms Act. Since they are on bail, they and their bailors are discharged from the liability of their bail bonds.”

9. The prosecution case began with the theory of criminal conspiracy hatched by Binod Nayak to murder Ajit Nayak. According to the prosecution, the motive behind the crime was a piece of land measuring about 1.78 acres which Binod Nayak wanted to grab and that is the reason he conceived a plan in which others also joined hands. As the prosecution story goes, Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram Nayak were also part of the criminal conspiracy and shared a common intention in furtherance of which Ajit Nayak was murdered and a common charge under sections 302/34 and 302/120-B of the Indian Penal Code and section 27(1) of the Arms Act was framed against them. Gurucharan Nayak and Lalu Nayak are said to have shared common intention with Binod Nayak who fired at Ajit Nayak near Namkum Block office and they have been convicted on the charge under section 302/34 of the Indian Penal Code and section 27(1) of the Arms Act.

10. As PW10, the informant tendered evidence in the Court that his brother Ajit Nayak left by his car to meet Binod Nayak who was repeatedly calling him on 1st August 2013. At that time, he was working with his brother at the Church and picked up one of the calls of Binod Nayak who asked him to send Ajit Nayak for a meeting. He received a phone call around 04.35 PM from a friend of his brother that Ajit Nayak was shot dead near Namkum health center. According to PW10, Mahavir Uraon, Suraj Mahali, Vijay Kumar Lal and Mahadeo Nayak were present when he reached Namkum health center. He reaffirmed in the Court that his younger brother saw the accused persons sitting with Ajit Nayak at Nikhil Tent House. He further said that his brother was killed due to the land dispute.

11. The prosecution examined four witnesses projecting them as eyewitnesses. They were not related to the deceased nor did they claim that they were close friends of the deceased. PW1, PW2, and PW3 have stated that they were working with Ajit Nayak and that was the reason of their acquaintance with Ajit Nayak. PW1 specifically denied in his cross- examination that he was related to or a friend of Ajit Nayak and PW4 was also not a close friend of Ajit Nayak, though a co-villager. PW1 was taking tea at a tea stall near Namkum Block office in the afternoon of 1st August 2013. He deposed in the Court that PW3 was with him at the tea stall. According to PW1, Ajit Nayak, Gurucharan Nayak, Lalu Nayak, and Binod Nayak were talking to each other near the Block office and Binod Nayak suddenly fired at Ajit Nayak who started running away towards the hospital and fell down near the gate of the hospital. In the ensuing commotion, people started fleeing away and Gurucharan Nayak, Binod Nayak, and Lalu Nayak left on a motorcycle brandishing pistols in their hands. According to PW1, he ran to Sadabahar Chowk and came again at the place of occurrence when saw the police arriving there. He gave a statement to the police narrating the incident and the police took his address and called him at the police station. He is a permanent resident of village Pandu where he returned after the incident and stayed there for about 2-2½ months. When he came back to his uncle’s place at village Barjhopari he was informed that the police were searching for him and then went to the police station. According to him, the police asked him to go to the house of Ajit Nayak where his statement was recorded by the police.

12. On 1st August 2013, PW2 was engaged as a laborer and working at Mission Costal Church with Ajit Nayak, Anirudh Nayak, and a few others. He is a witness about whom the informant has made a reference in his written report. He deposed in the Court that PW5 who is the younger brother of the deceased called him at Sadabahar Chowk and he saw the accused persons with the deceased sitting in the Nikhil Tent House. According to PW2, Binod Nayak asked Ajit Nayak to come to the Block office for a meeting in connection to the land dispute and left on a motorcycle. Ajit Nayak also left for the meeting and asked him to drop his brother at home and then come to Namkum Block. He saw Binod Nayak, Gurucharan Nayak, and Lalu Nayak talking to Ajit Nayak near the Block office. He further deposed in the Court that Binod Nayak fired at Ajit Nayak who ran towards the health center. He also fled away to Sadabahar Chowk and came back to the place of occurrence when the police arrived there. He narrated the entire story to the elder brother of Ajit Nayak who had reached there. PW2 also stated that he heard the sound of a second firing when he was fleeing away from the place of occurrence. He stated that he was so frightened that he fled away towards Sadabahar Chowk and could gather the courage to come back to the place of occurrence when he saw the police arriving there. In the cross-examination, PW2 stated that he was so afraid and frightened that he did not make any phone call nor did he inform any other person about the incident. In the cross-examination, this witness stood to his grounds that he had stated before the police that Ajit Nayak had asked him to take his younger brother home and then to come at Namkum Block and, that there was a land dispute between Ajit Nayak and the accused persons.

13. PW3 tendered evidence in the Court that around 04:15 PM- 04:30 PM on 1st August 2013 he was having tea near Namkum Block hospital. At that time, Ajit Nayak, Binod Nayak, Lalu Nayak and Gurucharan Nayak were talking to each other near the hospital gate and, in the meantime, Binod Nayak fired at Ajit Nayak and Gurucharan Nayak and Lalu Nayak chased Ajit Nayak who was running towards the hospital gate. After the firing, there was a commotion and he also ran away to Sadabahar Chowk. He further stated that the police made inquiries from him and noted his name and address after he again came back to the place of occurrence. According to PW3, he along with PW1 had gone to the police station but their statements were not recorded because the officer-in-charge was not there. While they were waiting outside the gate of the police station, two unknown persons came on a motorcycle and told them not to get involved in the matter because they also might be killed. In the cross-examination, PW3 admitted that he was staying in a rented house at Barjhopri which is about 3-4 km. away from Shalimar Bazaar and stated that Namkum Bazaar is further away from Barjhopri.

14. PW4 owned his statement recorded on 23rd August 2013 under section 164 of the Code of Criminal Procedure. In his deposition in the Court recorded on 23rd July 2014, PW4 said that Lalu Nayak, Gurucharan Nayak, Binod Nayak, and Ajit Nayak were talking near the Block gate. He saw an injured Ajit Nayak fleeing inside the gate and at that time Lalu Nayak, Gurucharan Nayak, and Binod Nayak had pistols in their hands. He admitted in the Court that Namkum Block is at a distance of about 2½ km from his house; on that day he had no work in the Block office and; there were several tea stalls on the way to Namkum Block. He further admitted that he is about 5 feet-5½ feet tall and the height of the boundary wall of the Block office was more than 6 feet. After a while when he came in the dock for further cross-examination, PW4 resiled from his previous statements made in the Court and stated that he had no personal knowledge about the occurrence and made tutored statements in the Court. PW4 went further ahead and said in the Court that he deposed falsely in the Court.

15. PW5 is the younger brother of Ajit Nayak. On 1st August 2013, he was returning from St. Xavier’s College and on the way home he reached Nikhil Tent House where his brother was sitting with Binod Nayak, Sikandar Nayak, Ram Nayak, Lalu Nayak, Gabbar Singh Nayak, Vijay Nayak, Ravi Nayak, Sheru Nayak and Shiva Nayak. He deposed in the Court that Binod Nayak asked his brother to come to the Block office for a meeting and he was asked to go home with Mahadev Nayak whom he had called to come there. The statement of PW5 was recorded under section 164 of the Code of Criminal Procedure with which he was confronted in the Court. He admitted that he did not make a statement before the Magistrate that when he arrived at the place of occurrence he was told that Binod Nayak, Lalu Nayak, Sikandar Nayak, Gabbar Singh Nayak, and Gurucharan Nayak had killed his brother in furtherance of a criminal conspiracy. However, he has in the same breath stated that he made such a statement before the police.

16. PW6 is the person who was a partner of Ajit Nayak and Binod Nayak in the purchase of land. His statement in the Court that there was no dispute between Ajit Nayak and Binod Nayak or with him has been highlighted by the learned counsels for the accused that the motive behind the murder of Ajit Nayak as projected by the prosecution was not established. PW8 and PW9 are maternal uncles of the deceased. They are the seizure witnesses who proved the seizure of mobile phones, pellets and blood-stained soil from the place of occurrence. PW8 affirmed in the Court that Samsung and Nokia mobile phones were seized from Binod Nayak on 2nd August 2013 when he was at Nikhil Tent House. PW8 has also seen the deceased sitting with Binod Nayak, Dharma Nayak, Lalu Nayak, Vijay Nayak, Sikandar Nayak, and others at Nikhil Tent House. PW9 affirmed that empty cartridges, blood-stained soil, and mobile sets were seized by the police in his presence. PW10 is the informant of this case. He was subjected to intense cross-examination but remained unfurled and stood to his ground that there was a land dispute between Binod Nayak and his brother. He expressed his suspicion before the police and reiterated in the Court that Binod Nayak who made several calls to Ajit Nayak and called him for a meeting was behind the murder of his brother. PW13 is another brother of the deceased who was on duty at the Army Unit. He made a statement in the Court that his brother Anirudh Nayak informed him on the phone that Binod Nayak had committed the murder of his brother in connivance with Gurucharan Nayak and Lalu Nayak. PW16 is the Magistrate who recorded the statement of the witnesses under section 164 of the Code of Criminal Procedure.

17. The testimony of PW1 and PW3 is attacked by Mr. A. K. Kashyap and Mr. Sanjiv Kumar, the learned senior counsels on the ground of (i) delay in recording of the police statement (ii) doubt on their presence at the time of occurrence and (iii) improvements made in the Court. These eyewitnesses are categorized by the defense as planted witnesses. Mr. Sanjiv Kumar, the learned senior counsel appearing for Binod Nayak submitted that PW1 and PW3 were available for their examination by the investigating officer inasmuch as these witnesses have admitted in the Court that they had disclosed their place of residence to the investigating officer but their statements under section 161 of the Code of Criminal Procedure have been recorded after a considerable delay and there is no explanation coming forth from the prosecution in this regard. The submissions made by Mr. Sanjiv Kumar, the learned senior counsel is two-fold viz. (i) PW1 and PW3 were planted by the prosecution at the latter stage of the investigation and (ii) on account of delay in recording their statements by the investigating officer their evidence in the Court became susceptible. Mrs. Neeta Krishna, the learned Amicus appearing for Binod Nayak would also submit that PW1 and PW3 were therefore no longer trustworthy witnesses on whom the Court can place implicit reliance. The learned senior counsels for the accused further submitted that no investigation was conducted regarding the land dispute, Birju Nayak and Amar Thakur were not examined by the investigating officer, and the material witnesses are associated with the deceased.

18. In a murder trial, the Court is required to examine the evidence of the witnesses very carefully where the murder is alleged to have been committed by the enemy of the victim. An inquiry as to whether the witness was a chance witness or really present on the scene of the offence necessarily goes to the cross-examination of the witness. The first step in this direction shall be to see whether there was a serious attempt by the defense to challenge the presence of the witness at the place of occurrence and mere speculative questions shall not serve any purpose. Therefore, a defense plea of delayed examination of a witness should be put to the investigating officer so as to enable him to explain and offer an explanation for the undue delay. This is necessary also for the reason that the question of delay in examining a witness may assume materiality only if there are other indications or suggestions of some unfair practice by the investigating officer to support the prosecution case. One significant feature of this case is that no question was put to the investigating officer for the delayed examination of Sarju Mahali (PW1) and Mahabir Oraon (PW3). In “Deep Chand & Ors.”1 the Hon’ble Supreme Court pointed out that the maxim falsus in uno falsus in omnibus is not a sound rule to apply in the conditions in this country. In cases where a witness is found to have given false evidence to certain particulars it becomes the duty of the Court to scrutinize the rest of his evidence with care and caution. If the witness is found trustworthy as to the main prosecution story and his remaining evidence supports the substratum of the prosecution case then the Court should uphold the prosecution case to the extent considered safe and trustworthy.

19. PW1 offered a reason for the delay in recording of his statements by the investigating officer. He stated that he had gone to the police station and was waiting at the gate of the police station. He was there for about 1½ -2 hours because the officer-in-charge was not there. In the meantime, two persons came on a motorcycle and inquired from him about his visit to the police station. These unknown persons who came on a motorcycle threatened him when he disclosed to them that he was waiting there to make a statement before the officer-in-charge. After this incident, he went back to his native village and appeared before the police to give his statement when again came back to the village Tumbaguttu. As reproduced hereinabove, PW3 also narrated a similar story for his delayed police statement. PW1 deposed in the Court that the Block office and the hospital were open on the day of the occurrence and the tea stall was at about 10 paces from the gate. He said in the cross-examination that PW3 was with him at the time of the occurrence at the tea stall. The conduct of PW1 has been criticized with reference to his statements in the cross-examination that

(i) he did not disclose before the police that around 01.00 PM-01.30 PM on 1st August 2013 he had gone to the house of Ajit Nayak and met his mother

(ii) he did not inform about the occurrence to any other person at Sadabahar Chowk (iii) he did not even inform his uncle and aunt about the incident at whose place he had spent the night and (iv) he did not reveal to any of his co-villagers about the occurrence.

20. In the first place, this is well settled as a legal proposition that conduct of a witness per se is not a ground to discard his evidence. The conduct of a witness needs to be examined in the context of facts and 1 Deep Chand & Ors. v. State of Haryana : (1969) 3 SCC 890 [LQ/SC/1969/431] circumstances of the case because it is almost impossible to read human mind and predict behavioral pattern of a person. Secondly, there is no set of natural reactions by a person and it cannot be said that in no circumstance a person would react in the manner as PW1 and PW3 have reacted. Without further elaboration, we say that the daylight murder of Ajit Nayak must have spread like a wild fire. Seen thus, the conduct of PW1 and PW3 was not unnatural. The omission in the police statement that he had gone to the house of Ajit Nayak in the afternoon is not a material contradiction in the evidence of PW1. He explained the reason for his visit to the house of Ajit Nayak that he had money due from Ajit Nayak for the construction of a boundary wall at Tumbaguttu. As the materials on record disclose, on 1st August 2013 the mother of Ajit Nayak had informed him that her son had gone towards Namkum. This is a pertinent issue that the aforesaid statements have been elicited by the defense in the cross-examination of PW1 wherein he offered a plausible explanation for going to Namkum market. During the trial, there was also an attempt by the defense to discredit PW2 with reference to his previous statements made before the police in which he had narrated a different story. PW2 made a statement before the police that Ajit Nayak had a love affair with the niece of Amar Thakur which was not liked by him and, for that reason, Amar Thakur and Birju Nayak were threatening to kill Ajit Nayak.

21. The testimony of a witness has to be considered as a whole and a conclusion as to the existence of a fact cannot be drawn by picking up some isolated portion from the testimony of a witness. Every omission in the testimony of a witness in the Court cannot be stretched to lay a foundation for doubting the witness. There may be reasons for such omission(s) which the witness may clarify if his previous statement is shown to him to remind him what he had stated before the police. The explanation to section 162 of the Code of Criminal Procedure provides that an omission to state a fact or circumstance may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. This is clear from the explanation to section 162 that every omission shall not amount to contradiction. This is unambiguously clear from the use of expression “may” therein and the legislative intent in this regard seems to be based on good reasons. Therefore, this is a matter in the realm of appreciation of evidence and whether or not an omission, variation, or discrepancy in the evidence of a witness shall amount to contradiction is a question of fact.

22. Section 172 of the Code of Criminal Procedure provides the manner in which a case diary is maintained by the police. Sub-section (2) provides that any criminal Court may make use of the entries made in a police diary in aid of the inquiry or trial but such entries cannot be used as evidence by the Court. Therefore, the prosecution or the defense cannot invite the attention of the Court to the police statement of a witness which was not proved in the manner provided under section 145 of the Evidence Act. Section 145 of the Evidence Act applies to the witness who according to the defense has made two contradictory statements. It provides that a witness may be cross-examined as to his previous statements made in writing or reduced into writing without such writing being shown to him, or being proved. However, if the defense intends to cross-examine a witness intending to contradict him by the writing his attention must be drawn to that part of the statement which is intended to be used for the purpose of contradicting him. If the witness admits to having made such a statement or statements before the police there is no need to prove his police statement and then that shall be read while appreciating his testimony in the Court. But when the witness denies having made a part of the police statement, it becomes necessary to elicit from the investigating officer that the witness had in fact made such a statement before him and then only the effect of denial by the witness having made such a statement or statements can be considered by the Court. Therefore, a witness can be contradicted with reference to his own statement and not by the statement of any other witness.

23. Mr. A. K. Kashyap and Mr. Sanjiv Kumar, the learned senior counsels adopted the familiar defense line to demonstrate that the witnesses have an interest in implicating the accused or at any rate to create uncertainty and doubt about their complicity in the crime. To allay any doubt when the defense tries to create such apprehensions, the Courts keep in mind the fundamental rules of evidence and the maxim that the accused should be given the benefit of doubt. Keeping these factors in mind, the Courts take the greatest possible care before convicting an accused who is presumed to be innocent till the contrary is established. Lord Goddard, C.J.2, summarized how a criminal trial should proceed with a simple illustration: When explaining to the Jury what the prosecution has to establish if a Judge begins to use the word “reasonable doubt” and tries to explain what is reasonable doubt and what is not, he is much more likely to confuse the Jury when if he tells them in plain language; “it is the duty of the prosecution to satisfy you of the prisoner’s guilt”.

24. PW1 stated before the police that he stopped at a tea stall at the Block office to have tea and snacks. He further stated that a firing took place around 4:30 PM near Namkum hospital and saw Binod Nayak and his friends fleeing away on a motorcycle after firing at Ajit Nayak. The presence of PW1 at a tea stall near the Block office at around 4:30 PM on 1st August 2013 has been challenged by the defense. However, his statement in the Court that he found Ajit Nayak talking to Gurucharan Nayak, Lalu Nayak and Binod Nayak near the hospital gate is not challenged in the cross-examination. Furthermore, his testimony in the Court is in sync with the following statements made before the police which are elicited from the investigating officer and thus are proven as fact:

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English Translation:

"15. The witness did not state before me that the Block and hospital were open on that day and the people were moving across the place. However, the witness did state before me that he stopped by a tea stall in front of the Block around 4:00 PM for tea and snacks and, that, around 4:30 PM a firing took place around Namkum hospital whereupon he ran there and saw that Binod Nayak of Karamtoli-Tumbaguttu and his friend were fleeing away on a motorcycle after firing at Ajit Nayak. Binod Nayak is a land broker and he has known him for a long time. (The witness further stated) that Binod Nayak, Lalu Nayak, and Gurucharan Nayak committed murder of Ajit Nayak under a conspiracy by them."

25. There are minor omissions in the testimony of PW1 and PW2 which appear to be normal. On a scrutiny of the testimony of PW1 and PW2 and their statements made before the investigating officer which are proved 2 Rox v. Kritz : 1950 (1) KB 82 at 90 in the Court, no such contradiction is demonstrable in their evidence that shakes the foundation of the prosecution case. As the police statement of PW1 reveals, his statement in the Court seems to be an elaboration of the facts stated by him before the police. There is nothing unnatural in the statement of PW1 that on hearing the sound of firing he ran towards the Block office. He clearly informed the police that Ajit Nayak was murdered by Binod Nayak in furtherance of a conspiracy with Lalu Nayak and Gurucharan Nayak who according to him was a land broker. There is no discrepancy in his statement before the police and his evidence in the Court that he saw Binod Nayak, Gurucharan Nayak, and Lalu Nayak fleeing away on a motorcycle. Now his presence at the tea stall near the Block office cannot be challenged on the ground that he made a statement before the police that he was going to fetch mutton from Namkum market and a mutton shop is at a distance of ¾ kilometer from the tea stall near the Block office. The delay in recording his statement by the investigating officer is also not material inasmuch as he did not narrate the incident in an exaggerated manner before him. Had he been untruthful, PW1 could have made an elaborate statements before the investigating officer incorporating false statements.

26. PW2 is also a truthful and trustworthy witness. His statement made before the police that Birju Nayak and Amar Thakur grabbed the land and Ajit Nayak had a love affair with the niece of Amar Thakur are used by the defense to contradict the prosecution story that the land dispute was between Ajay Nayak and Binod Nayak, and to put forth a defense story that Amar Thakur might have been involved in the occurrence as he had a grudge against Ajit Nayak. His presence at the Namkum Block is challenged on the ground that he had no reason to be there around 04:30 PM on 1st August 2013. In its effort to bring out the contradiction in the testimony of PW2, the defense elicited from the investigating officer that PW2 did not make a statement before him that Binod Nayak shot Ajit Bhaiya (Ajit Nayak) who ran towards the health center, and PW2 himself also ran away towards Sadabahar Chowk and heard another sound of firing. The investigating officer further deposed in the Court that PW2 did not make a statement before him that Ajit Nayak had called him at the Block office or, that after dropping PW5 at home he came to the Block office at Namkum and saw Ajit Nayak in the company of Binod Nayak, Gurucharan Nayak and Lalu Nayak. However, PW2 was not confronted in the Court with his previous statement that Binod Nayak made repeated calls to Ajit Nayak who left home in his Zen and this is in tune with his testimony in the Court. PW2 made a statement also before the police that Binod Nayak, Gurucharan Nayak, and Ram Nayak proceeded for the Block office on a motorcycle and this is also elicited from the investigating officer that he had expressed his doubt that the accused committed the murder of Ajit Nayak in furtherance of criminal conspiracy.

27. The relevant portions of the cross-examination of PW2 which was recorded on 07th July 2014 are extracted as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

16. I made a statement before the police that at the time of the incident I had reached the place of occurrence. This is not correct to say that I did not make the aforementioned statement before the police.

17. I cannot recollect whether or not I had informed Anirudh about the occurrence.

18. When I went to the place of occurrence the second time there I found a large number of public. At that time, I did not focused attention to see who among them were my co-villagers. I do not recollect whether I had spoken to Anirudh at that time. (The witness states on his own) that, at that time my mind was not working.

19. I made a statement before the police that Ajit had asked me at the tent house to take Amit home and then come to Namkum Block. I do not recollect whether or not I said to the police that Ajit had called me in the meeting.

20. I have no connection with the business of Ajit. The police arrived at the place of occurrence within 10-15 minutes. From a shop at Sadabahar chowk when I saw the police going to the place of occurrence I had also gone there. The police party was passing through the said place.

21. When I came back again to the place of occurrence I found the dead body of Ajit which was lying near the gate of health center. There is a tea and snacks shop in front of the gate of the health center of the Block.

22. I made a statement before the police that the accused persons had a continuing land dispute with Ajit since before.

23. I do not recollect whether or not I made a statement before the police that: “Birju Nayak and Amar Nayak got the land belonging to Ajit Nayak forcibly registered without paying the full consideration and they had captured the land after creating a land dispute”.

24. I do not recollect whether or not I made a statement before the police that: “Ajit Nayak had a love affair with the niece of Amar Thakur and that was not liked by Amar Thakur and, that, Amar Thakur and Vijay Nayak were threatening Ajit Nayak and to kill him”.

25. I was at the Church on the day of the occurrence. There was Ajit Nayak, Anirudh Nayak, Videsia Namaskar, Shankar and Mistry who were working along with me and whose name I know.

26. I know Panna Lakra.

27. After the occurrence when the police took my statement again at that time I was fully mentally healthy. I do not recollect whether police took my signature over my statement."

28. The defense has undoubtedly proved through the investigating officer that a part of the deposition of PW1 and PW2 does not form part of their police statements. However, it is well remembered that when the witnesses are contradicted by their previous statements in the manner provided under section 145 of the Evidence Act then their previous statements which were put to them shall be considered along with the evidence in the Court to assess the worth of their evidence and to determine their veracity.3 The so-called improvements made by PW2 when he deposed in the Court shall not be the grounds to discard his evidence in toto. The defense plea that PW1 and PW2 are not reliable witnesses because they have made substantial improvements in the Court runs contrary to the plea set up on the ground of delay in recording their statement by the police. Had these witnesses intended to make improvements in the prosecution case they would have made such elaborations before the police. Whereas, the police statements of PW1 and PW2 do not contain any exaggeration. On the contrary, the defense seeks to build a defense story on the basis of the statements made by PW2 before the police that Ajit Nayak was being 3 Major Som Nath v. Union of India : (1971) 2 SCC 387 [LQ/SC/1971/319] threatened by Amar Thakur and Birju Nayak. From the evidence of PW2, this is proved that there was a land dispute between Binod Nayak and Ajit Nayak and, as it is clear, that the initial doubt about the involvement of Amar Thakur was not found correct.

29. Sometimes it may seem that the witnesses are lying or they are not certain but a scientific or mathematical exactitude in the testimony of the witnesses is also not possible. The prosecution witnesses who are not closely related to the deceased cannot be labeled as interested witnesses. They are independent witnesses who had no motive to implicate the accused or depose falsely in the Court. The very fact that PW1 is a mason and PW2, PW3 and PW4 are laborers who were working together with the deceased sometime back in the past is far from being a reason for doubting their testimony. They are unsophisticated witnesses who are unrelated to the deceased and cannot be labeled as untruthful on account of the delay in their examination by the investigating officer. As held by the Hon’ble Supreme Court4 the same standard of examination as of a sophisticated urban witness is not applied while examining a rural witness.

30. A set of four witnesses i.e., PW12, PW14, PW15 and PW17 who are the co-villagers did not support the case of the prosecution and have been declared hostile. This is really not uncommon in criminal trials in India where on account of pressure from relatives or neighbors or for some other reason a witness comes to the Court and resiles from his previous statement made before the police. PW4 also seems to be prey to extraneous forces. This situation has been recently taken note of by the Hon’ble Supreme Court in “Jayantilal Verma”5 wherein the Hon’ble Supreme Court has observed as under:

“20. It is no doubt true that a large number of witnesses turned hostile and the trial court was also not happy with the manner of prosecution conducted in this case. But that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused.”

31. This is quite a significant fact that PW4 made a statement before the Magistrate that Binod Nayak, Gurucharan Nayak, and Lalu 4 Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra : (1973) 2 SCC 793 5 Jayantilal Verma v. State of Madhya Pradesh (Now Chhattisgarh) : (2021) 12 SCC 71 [LQ/SC/2020/785 ;] Nayak were carrying pistols and he saw a bleeding Ajit Nayak running towards the hospital gate. PW4 proved his statement before the Magistrate and stated in his examination in the Court that Ajit Nayak, Binod Nayak, Gurucharan Nayak, and Lalu Nayak were talking near the Block office, and at that time he heard a sound of firing. He admitted in the Court that in his statement under section 164 of the Code of Criminal Procedure he described the aforesaid incident before the Magistrate. He further admitted that his statement was recorded by the police on the same day Ajit Nayak was shot dead. This witness was examined on 23rd July 2014 and on that day he seems to have bravely faced the barrage of questions in the cross- examination. PW4 was quite firm and stuck to his grounds that he had seen Binod Nayak, Gurucharan Nayak and Lalu Nayak carrying pistols; he heard a sound of firing and; an injured Ajit Nayak was trying to flee away towards the Block office. But what happened on the next date of his further cross- examination is quite disturbing. He was brought for further cross- examination on 20th August 2014 and this gap of about one month was fully utilized by the accused to influence him. Now PW4 took a U-turn and resiled from everything that he had stated on 23rd July 2014. On the next date, his cross-examination was confined to only five questions and his response thereto was sufficient for the defense to close his evidence. This is another sad part of this case that PW4 was blunt enough to respond to a Court’s question that he was deposing falsely in the Court. However, the trial Judge remained oblivious to his duty as the Presiding Officer and did not proceed against him and let him go scot-free.

32. There are clear indications that PW4 was gained over by the defense and that is the reason he took a U-turn in the Court when he was produced for further cross-examination. The testimony of a hostile witness is not rejected in its entirety and it is well settled that a portion of the evidence of a hostile witness which is consistent with the case of the prosecution can be relied upon by the prosecution. Now a question may be posed whether statements made by PW4 on 20th August 2014 would bind the prosecution because he was not cross-examined by the Public Prosecutor. The purpose behind the cross-examination of a witness by the party who called him is to remind the witness what he had said on a previous occasion. This may so happen that the witness on account of lapse of time, loss of memory, his own forgetfulness, or any other reason of the same kind could not reproduce his statement made before the police but on being cross-examined by the party calling him the witness may admit of making such statement(s) before the police. However, a witness who supported the prosecution whole hog but later on denied everything that he had said in the Court becomes a tutored witness of the defense. The statement of a witness who turns hostile to the prosecution cannot be relied upon by the defense and a part of the testimony of a hostile witness which does not support the prosecution case must be excluded from consideration. The evidence of a hostile witness cannot destroy the prosecution case or make it doubtful (refer: “Nathusingh”6). Similarly the testimony of the prosecution witnesses who are otherwise reliable cannot be doubted merely on the basis of some stray statement of a hostile witness (refer: “Sahai”7). The statement of a hostile witness in the cross-examination by the defense remains untested and therefore cannot be admitted in evidence. The hostile witness becomes a witness for the defense but this is no longer a debatable issue that a part of the evidence of a hostile witness is admissible in evidence and usable by the prosecution in so far as it supports the case of the prosecution. As observed in “Bhagwan Singh”8 characterizing a witness as a hostile witness does not completely efface his evidence and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.

33. PW4 was not confronted with his previous statement when he was deposing in the Court, that Binod Nayak, Gurucharan Nayak, and Lalu Nayak had pistols in their hand. Of course, he was not certain who fired at Ajit Nayak among these three accused and that is the reason he did not make a specific allegation of firing before the investigating officer against any of them. There is no other infirmity in the testimony of PW4 and his evidence in the Court is completely in tune with the statements made before the police. Though, there is no clear indication that PW3 was influenced by the defense but his reluctance to answer some questions puts the Court on 6 Nathusingh v. State of M.P. : (1974) 3 SCC 584 7 State of U.P. v. Sahai and Ors. : (1982) 1 SCC 352 8 Bhagwan Singh v. State of Haryana : (1976)1 SCC 389 [LQ/SC/1987/501] guard. Except that, PW3 stuck to his statement made before the police that Binod Nayak made several calls to Ajit Nayak and there was a land dispute between them. This is in the public interest that the prosecution of an accused does not fall merely because the investigation was perfunctory or the Public Prosecutor failed in his duty to cross-examine a prosecution witness who turned hostile in the Court. This is the duty of the Court to examine the prosecution evidence dehors some missing links which are the result of the negligent investigation and if on a careful scrutiny of the prosecution evidence the Court finds a portion of the prosecution evidence reliable, the Court shall act upon it. PW3 and PW4 both have fully supported the prosecution case.

34. Acquittal Appeal (DB) No. 29 of 2020 is directed against the acquittal of Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram @ Vijay Nayak. Mr. D. K. Chakraverty, the learned counsel for Anirudh Kumar Nayak who is the informant submitted that the gist of the offence of criminal conspiracy is an agreement to break the law and not that everyone should have agreed to do a single illegal act. The argument of the learned counsel is that the other accused who are acquitted by the learned trial Judge had played the different roles assigned to them and it is not necessary that the prosecution must establish that they had actually participated in the crime when Ajit Nayak was shot dead.

35. The defense set up by the accused is an alibi that at the time of the occurrence they were at Nikhil Tent House and not at the Block office with Ajit Nayak. DW1 who was employed at the tent house confirmed this fact while she was deposing in the Court. She further stated that Arati Kujur is the person who sent information about the murder of Ajit Nayak near the Block office. However, Arati Kujur was not produced in the Court by the defense to lend support to the statement of DW1.

36. A simple meaning of the word alibi is “elsewhere”. This plea is taken by an accused in the defense to demonstrate that he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. Section 11 of the Evidence Act provides that the facts which are inconsistent with the fact in issue shall be relevant. Illustration (a) to section 11 explains by a simple example that a fact may be relevant in a criminal trial or inquiry. Illustration (a) to section 11 is extracted below:

“(a) The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant.

The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.”

37. The plea of alibi is only a rule of evidence recognized in section 11 of the Evidence Act and an alibi is not an exception under the Indian Penal Code or in any other law. As a rule, where the presence of the accused at the scene of crime is satisfactorily established by the prosecution the Court would be slow to believe any contra story to the effect that the accused was somewhere else when the crime took place. To establish a plea of alibi the burden on the accused would be rather heavy and, in such a circumstance, strict proof is required for establishing the plea. This is the prosecution evidence accepted by the defense that the distance between the tent house and the Block office was about 400 meters and therefore it was not improbable that the accused were present at the Block office when Ajit Nayak was shot. In “Sk. Sattar”9 the Hon’ble Supreme Court held that it is for the accused to establish the plea of alibi by leading positive evidence. The Hon’ble Supreme Court has held as under:

“35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana as follows: (SCC p. 27, para 20)

“20. … This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the above-noted concurrent finding of fact.””

38. The duty of the prosecution however does not end there and it cannot contend that the guilt of an accused must be held proved on his 9 Sk. Sattar v. State of Maharashtra : (2010) 8 SCC 430 [LQ/SC/2010/892] failure to establish the plea of alibi. As observed in “Sk. Sattar”, the failure of the plea of alibi would not necessarily lead to the success of the prosecution case and it is the duty of the prosecution to prove the case against the accused beyond a reasonable doubt. The offence under section 120-B was incorporated into the Indian Penal Code by an amendment in 1913. In the statement of objects and reasons to the Amendment Bill, it is indicated that the provisions under sections 120-A and 120-B are designed to assimilate the provisions of the Penal Code to those of the English law. This is widely accepted that section 120-B has been drafted in almost similar language as the Halsbury Law of England defines conspiracy. The passage in “Russell on Crimes” is also often quoted to explain the offence of conspiracy. In “Nalini”10 the Hon’ble Supreme Court referred to the statement of Judge Learned Hand11 who expressed his opinion that: “when men entered into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime”. PW2, PW5, and PW10 gave evidence in the Court that Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, Ram @ Vijay Nayak, Binod Nayak, Gurucharan Nayak and Lalu @ Sanjay Nayak were present at Nikhil Tent House in the afternoon of 1st August 2013 and at that time Ajit Nayak was sitting with them. This is the only piece of evidence the prosecution could lay during the trial to float the conspiracy story and to put Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram Nayak on trial.

39. The case of the prosecution is that Ajit Nayak called PW5 who was passing through Nikhil Tent House and asked him to call PW2 to take him home. The evidence of PW5 is sought to be corroborated with the statement of PW2. This is the prosecution evidence that PW2 came to Nikhil Tent House and asked PW5 to stay there for some time while he refueled the motorcycle. Mr. A. K. Kashyap, the learned senior counsel for Gurucharan Nayak has submitted that the only circumstance to prove criminal conspiracy is the presence of the accused at Nikhil Tent House but PW8 did not say anything about the presence of Gurucharan Nayak at Nikhil Tent House. This is not proved that Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram Nayak had accompanied Binod Nayak, 10 State v. Nalini : (1999) 5 SCC 253 11 Van Riper v. United States : 13 F.2d 961 Gurucharan Nayak, and Lalu Nayak to the Block office and were present at the place of occurrence lending help to Binod Nayak who fired at Ajit Nayak. In the Court, the eyewitnesses did not claim that these accused were present at or even seen around the Block office. In fact, PW1 did not identify Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram Nayak in the Court. The mere presence of these accused at Nikhil Tent House is not sufficient to support the conspiracy theory. There is no other evidence against these accused and as should be in a case based on circumstantial evidence no motive has been shown by the prosecution for the involvement of these accused in the murder of Ajit Nayak. We have examined the prosecution evidence from all angles and find that the acquittal of Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram Nayak does not warrant any interference.

40. The powers of the High Court in an appeal against acquittal are not restricted by any provision of the Code of Criminal Procedure and the High Court is entitled to reappreciate the evidence and come to a different conclusion where it finds that the trial Court ignored a vital piece of evidence which would conclusively establish the prosecution case or applied a wrong rule of law or evidence to scrutinize the evidence or used a different yardstick when examining the defense evidence. In “Nur Mohammed”12 the Judicial Committee gave an opinion that the High Court has full powers in an appeal against acquittal to review at large all the evidence upon which the order of acquittal is founded. In “Harbans Singh”13 the Hon'ble Supreme Court observed that before interfering in appeal with an order of acquittal the High Court must examine not only the questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower Courts to acquit the accused. “Harbeer Singh”14 is a case of appeal against acquittal in which the eyewitnesses were not corroborated by any independent evidence; two witnesses were found chance witnesses and they were not named in the First Information Report. In these facts, after referring to several judgments of the Court regarding the scope of interference in a criminal appeal against acquittal the Hon’ble 12 Nur Mohammed v. King Emperor : AIR 1945 PC 151 13 Harbans Singh v. State of Punjab : AIR 1962 SC 439 [LQ/SC/1961/341] 14 Harbeer Singh v. Sheeshpal : (2016) 16 SCC 418 [LQ/SC/2016/1355] Supreme Court finally held that the mere fact that another view would also have been taken on the evidence on record is not a ground for reversing an order of acquittal. In “Ghurey Lal”15 the Hon'ble Supreme Court again observed that the appellate Court in dealing with the cases in which the trial Courts have acquitted the accused should bear in mind that the trial Court's acquittal bolsters the presumption that the accused is innocent.

41. Keeping in mind the aforesaid principles, we have come to the conclusion that Acquittal Appeal (DB) No. 29 of 2020 deserves to be dismissed and, we order accordingly.

42. The prosecution case against Binod Nayak, Gurucharan Nayak, and Lalu Nayak is that they shared a common intention to commit the murder of Ajit Nayak. The intention of the accused has to be gathered from his act(s) and conduct as well as from the other relevant circumstances of the case. Section 34 of the Indian Evidence Act which does not create a substantive offence by itself is applied against one or more persons to prosecute them for the offence committed by one of the accused. Section 34 of the Indian Penal Code provides that when a criminal Act is done by several persons in furtherance of the common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone. In “Mahbub Shah”16 the Judicial Committee of the Privy Council pointed out that to invoke the aid under section 34 of the Indian Penal Code it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all.

43. The prosecution evidence against Binod Nayak is consistent and it is proved beyond reasonable doubt that he fired at Ajit Nayak near the Block office around 4:15 PM-4:30 PM on 1st August 2013. The firearm used in the crime was not recovered and the defense tried to argue that there would be millions of persons having the same blood group as Exhibit-4/1 discloses. The defense argument is based on picking up loopholes in the prosecution case, that the vital connecting links in the case are missing. The prosecution evidence is that the distance between Sadabahar Chowk and Namkum market is about 400 meters and Namkum Block office is adjacent to the Primary health center. The evidence of Dr. Jyoti Asha Champi is to 15 Ghurey Lal v. State of U.P : (2008) 10 SCC 450 16 Mahbub Shah v. Emperor : (1944-45) 72 IA 148 : AIR 1945 PC 118 [LQ/PC/1945/5] the effect that at 11:20 AM on 2nd August 2013 he conducted an autopsy over the dead body of Ajit Nayak and found firearm injuries. There were two wounds of entrance which were antemortem in nature and in his opinion the time elapsed since death was 6 Hrs. to 24 Hrs. from the postmortem examination. The medical evidence that Ajit Nayak suffered firearm injuries and the serological report proved through PW11 established that Ajit Nayak suffered bleeding injuries near the Block office. Mrs. Neeta Krishna, the learned Amicus appearing on behalf of Binod Nayak contended that the murder weapon was not recovered and though murder had been committed at a busy market place no independent witness has been examined in the Court. The recovery of the crime weapon is not a sine qua non for conviction in a murder case. In “Nankaunoo”17 the Supreme Court has held as under:

“9. The learned counsel for the appellant contended that the courts below failed to take note of the fact that the alleged weapon "country-made pistol" was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non- recovery of "country-made pistol" does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.”

44. Mrs. Neeta Krishna, the learned Amicus contended that CDRs of the calls made by Binod Nayak have been produced by the prosecution to show that Binod Nayak made phone calls to different persons but it is not established that Binod Nayak was calling Ajit Nayak on 1st August 2013. This plea is based on the CDRs marked for identification X-X/6 which do not mention the mobile phone number of Ajit Nayak. The investigating officer obtained CDRs and the tower location of mobile phone no. 9204595879 belonging to Binod Nayak; mobile no. 8051190649 belonging to Gurucharan Nayak; mobile nos. 8969511206 and 9572786311 belonging to Lalu @ Sanjay Nayak; mobile no. 9006497817 belonging to Ajit Nayak which were marked for identification. He deposed in the Court that Binod Nayak was around the place of occurrence when Ajit Nayak was shot dead.

"17 Nankaunoo v. State of U.P. : (2016) 3 SCC 317 [LQ/SC/2016/103] The eyewitnesses did not attribute firing upon Ajit Nayak by Gurucharan Nayak and Lalu Nayak. They were present near the Block gate with Binod Nayak and fled away together on a motorcycle. Except that, the prosecution could not produce any other evidence of the complicity of Gurucharan Nayak and Lalu Nayak in the crime, and to prove that the murder of Ajit Nayak was in furtherance of the common intention. There is direct evidence against Binod Nayak and the prosecution story to that extent is convincing. There is a specific allegation of firing by Binod Nayak but he did not offer any explanation for the incriminating circumstances put to him in the examination under section 313 of the Code of Criminal Procedure. The prosecution proved the motive of Binod Nayak behind the murder of Ajit Nayak and there are other corroborative materials as aforementioned to establish the charge of murder against Binod Nayak.

45. Having regard to the aforementioned facts and circumstances in the case, Binod Nayak is convicted and sentenced to life imprisonment with a fine of Rs. 10,000/- under section 302 of the Indian Penal Code.

46. To this extent, the conviction and sentence awarded to Binod Nayak in Sessions Trial Case Nos. 49 of 2014 are modified and Criminal Appeal (DB) No. 125 of 2020 is dismissed.

47. Criminal Appeal (DB) No. 207 of 2020 is allowed and, consequently, Gurucharan Nayak and Lalu Nayak are acquitted. They are discharged of the liability of bail bonds furnished by them.