1. The Appellants, by filing this Appeal, from inside the jail, have challenged the judgment of conviction and order of sentence dated 04.06.2016 passed by the learned Additional Sessions Judge, Jajpur in C.T No.28 of 2013 arising out of G.R Case No.929 of 2011, corresponding to Jenapur P.S. Case No.110 of 2011 of the Court of the learned Judicial Magistrate First Class (JMFC), Chandikhole.

The Appellants (accused persons) thereunder have been convicted for commission of offence under section 302/34 of the Indian Penal Code, 1860 (in short, ‘the IPC’) and accordingly, they have been sentenced to undergo rigorous imprisonment for life and pay fine of Rs.10,000/- each in default to undergo rigorous imprisonment for a period of one (1) year.

2. On 08.11.2011 morning around 10.15 am, Dasamati Gagrai, wife of Ashok Gagrai appearing at Jenapur Police Station presented a written report to the Inspector-in-Charge (IIC) of Jenapur Police Station. The report being treated as FIR (Ext.4), the IIC registered the case and directed one Sub-Inspector (SI) of Police attached to the Police Station (P.W.9) to take up the investigation. It was stated in the FIR that Ashok Gagrai, the husband of the Informant (P.W.3) was assaulted to death by these accused persons and two others in the crusher area of one Mantu Babu, where he was then working. It was also intimated that the dead body of Ashok was lying in the nearby field. In course of investigation, the Investigating Officer (I.O-P.W.9) examined the informant (P.W.3) and having visited the spot, prepared the spot map (Ext.5). He then held inquest over the dead body of the deceased and prepared the report to that effect. Other incriminating articles were seized from the spot and then the dead body was sent for post mortem examination by issuing necessary requisition. In course of investigation, these accused persons were arrested and forwarded in custody to the Court. The incriminating articles were sent for chemical examination through Court.

3. On completion of investigation, Final Form was submitted on 07.05.2012 placing these accused persons and three others to face the Trial for commission of offence under section 302/34 of the IPC.

4. Learned JMFC, Chandikhole on receipt of the Final Form, took cognizance of the offence under section 302/34 of the IPC and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused persons.

5. In the Trial, the prosecution in total has examined nine (9) witnesses. As already stated, the informant, who happens to be the wife of the deceased has been examined as P.W.3. The Doctor, who had conducted post mortem over the dead body of the deceased has appeared in the witness box as P.W.1. Prosecution has also examined one Arjun Hembrum as the eye witness. P.W.8 is another Doctor, who had examined P.W.7, who is said to have sustained injuries in course of quarrel which had ensued at the first incident between the accused persons on one hand and the deceased on the other.

6. Besides leading the evidence by examining above the witnesses, the prosecution has proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.13/1. Out of those, the important are the FIR, Ext.4, Post Mortem Report, Ext.1, Injury report of P.W.8, Ext.3 and the inquest report, Ext.6.

7. The case of the defence is that of complete denial and false implication. However, no evidence has been piloted from the side of the accused persons in support of said plea.

8. The Trial Court having examined the evidence of P.W.1, the Doctor, who had conducted post mortem examination and his report (Ext.1) has arrived at a conclusion that the death was on account of the injuries received by the deceased and it was homicidal in nature. In fact, this aspect of the case was not under the challenge before the Trial Court and that has also been the situation before us.

It has been stated by P.W.1 that during post mortem examination, he had noticed three incised wounds; one on the ear lobe and two others below the left side ear on the occipital area. As per his evidence, these injuries are ante mortem in nature. He too has stated to have found on dissection, the subdural haemorrhage below the wounds and three punctured wounds below the abdomen through which the bowel (intestine) had come out. As per his evidence, the nature of death was homicidal and its cause was haemorrhage and neurological shock. Having gone through the evidence of P.W.1 with the other evidence available on record that the deceased was seen lying dead with injuries all over his body, on the face of the evidence of the I.O (P.W.9) who too had noted all those injuries in his report (Ext.6), we are left with no option but to hold that Ashok met a homicidal death.

9. Learned Counsel for the Appellants (accused persons) having taken us through the depositions of P.W.2, P.W.3, P.W.4 and P.W.7 submitted that their evidence are not to be believed as regards the role to have been played by these accused persons in assaulting the deceased to death. He submitted that the Trial Court committed grave error in accepting their version by holding them to be the truthful witness without critically analyzing their evidence which are in great variance with one another on the material aspects running irreconcilable.

10. Learned Counsel for the State on the other hand while supporting the finding of guilt returned by the Trial Court submitted that there being no such glaring infirmity in the evidence of these witnesses, the Trial Court did commit no mistake in convicting the accused persons for committing the offence under section 302/34 of the IPC.

11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.9) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.13/1.

12. The wife of deceased (P.W.3) has stated that at the relevant time, her husband Ashok Gagrai was working in the crusher of one Mantu Babu and these accused persons were also working in the same crusher unit. It has also been stated by P.W.7 that he was working in that Mantu Babu’s crusher but he states that the deceased was working in the said crusher six months prior to the incident and they all were continuing to work. P.W.2 has stated that the wife of deceased was working in the crusher of Sridhar Parida after leaving the crusher of Mantu Babu. P.W.2 states that in that night there was a quarrel at the crusher site and four accused persons assaulted the deceased by iron rod, bhujali, wooden handle and took him to field and there they again assaulted him. He has further stated that they all drank liquor in the crusher site of Mantu Babu and the deceased had also joined them in drinking liquor. It is his evidence that he did not go to the place where the quarrel was going on and out of fear, he returned and did not go again in the night. He states to have no knowledge as to who was holding what weapon. When this witness states to have reported the matter at the police station, the evidence of the I.O (P.W.9) is silent on that score. P.W.2 though states to have given a written report at the police station, that is not being proved from the side of the prosecution which would have provided corroboration to the evidence of P.W.2. For this there comes no explanation. As P.W.2 states to have not been examined by Police and he pointed out that he was for the first time deposing about the incident in the trial, which is after about two years; the credibility of the evidence of this P.W.2 comes under the clouds of doubts.

13. P.W.3, the wife of the accused states that she was then working in the crusher unit of Sridhar Parida which is nearby. It is stated that the accused persons brought her husband to a field near the crusher of Mantu Babu and assaulted him and they were having three other companions. But who are they is not stated. As per her evidence all of them were assaulting the deceased by lathi, iron rod and bhujali. Although, she states to have seen the incident being present in the crusher of Sridhar Parida she does not state how she went there and what was the occasion during that night to move out. It is also stated by her that then she being at a distance of 100 meters witnessed the incident. It was around 8 pm in the night and therefore for P.W.3 to see the incident by remaining at a distance of 100 meters is doubtful when it is not stated that the entire area was having the flush night. She does not state to have taken any step to prevent the incident to continue. She again states that she could not save her husband and fled away to the crusher. This conduct of P.W.3 also to some extent tells upon the credibility of her version. It is her evidence that a quarrel arose between them and in course of quarrel, the incident took place. She has also stated to have consumed handia (local intoxicant) with her husband but she does not state as to what was the reason of the quarrel. The reaction and response of this witness (P.W.3) appears to be not normal as she having seen the incident has not gone to inform anybody although she states when she came back, her husband was lying and the incident was going on. Thus we not only find the evidence of P.W.3 to be quite confusing as regards the happening of the incident, the role of the accused persons etc but also not passing through the test of reliability.

P.W.4 has stated that deceased was assaulted on a field near the crusher but she does not state as to who assaulted the deceased. When she states that they were assaulting with lathi and bhujali, she does not state as to who are they. This witness also states to have seen the incident from a distance of 80-100 meters int hat night around 8 pm when it is not said that it was a moonlit night or the area was flushed with flood lights. She next states that being threatened by them he fled away. But then she is not stating as to who had threatened her. It is her evidence that accused Bira had assaulted her husband on his left hand. The husband of P.W.4 is P.W.7. When we go through his evidence it is seen that he has stated that when he had intervened and tried to separate the accused persons and the deceased at that time accused Bira had dealt blow causing injuries and out of fear he with her wife P.W.4 left the place. This is running differently from the evidence of P.W.3 It is his evidence that in the night he was sleeping inside a hut and the accused persons were searching for the deceased and they having found the deceased pulled him to a distance and assaulted him with bhujali on different parts of his body like leg and head which is however not stated by any other witnesses. When he states that crusher staffs were also present in the office, he does not name any of them and he also states to have been stating about the incident for the first time before the Court in the Trial which is two years after. This we find that with the evidence of all these witnesses as to the happening of the incident, role played by the accused persons and other surrounding circumstances, the prosecution cannot be said to have proved the charge against the accused persons beyond reasonable doubt.

14. In that view of the matter, we find that the finding of guilt against the accused persons as has been returned by the Trial Court cannot be sustained.

15. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 04.06.2016 passed by the learned Additional Sessions Judge, Jajpur in C.T No.28 of 2013 are hereby set aside.

The Appellants (accused persons) be set at liberty forthwith, if their detention is not warranted in connection with any other case.