Leave granted.
This appeal by Siba Nial @ Trilochan challenges the judgment
of affirmation by the High Court confirming his conviction under
Sections 302 and 109 of the Indian Penal Code, 18601, for the
murder of Dhaneswar Kata and his wife, Nirupama Kata, during the
intervening night of 31.05.2013 and 01.06.2013.
The case of the prosecution, as reflected in First
Information Report2 No. 72/2013 dated 01.06.2013 registered with
Police Station – IIC, Boden, District - Nuapada, Odisha, is that
Dhaneswar Kata and Nirupama Kata were found dead on the terrace of
the house on the morning of 01.06.2013, having suffered gunshot
injuries. They had gone to sleep on the previous night on the
terrace of the house along with other family members, namely,
SignatureDhananjayaNot Verified Kata, who was examined as PW-4, and Kishor Bachha, who
Deepak Guglani
1For short, “IPC.”
2For short, “FIR.”
was not examined.
Dhananjaya Kata (PW-4), in his Court deposition, did not
claim having seen the person(s) who had shot dead Dhaneswar Kata
and Nirupama Kata. This was also confirmed by the informant,
Hrushikesh Kata (PW-1), who did not name any particular person as a
culprit in the FIR (Exhibit 1). Dalimba Kata (PW-2), the wife of
the informant, Hrushikesh Kata (PW-1), deposed on similar lines and
did not name the culprit. None of these witnesses deposed about how
the offence was committed and why they did not hear any gunshots.
The appellant, Siba Nial @ Trilochan, and the co-accused,
Prabhulal, who is the son-in-law of Hrushikesh Kata (PW-1), were
arrested on 09.06.2013, that is, nearly 9 days after the
occurrence. The appellant, Siba Nial @ Trilochan, is the nephew of
Prabhulal, the co-accused. Prabhulal, it is stated, absconded after
being released on bail and has not been arrested till date.
To prove its case against the appellant, Siba Nial @
Trilochan, the prosecution primarily relied upon the testimonies of
Manoranjan Behera (PW-4) and Krutibash Chhatria (PW-7), who were
neighbours residing in the vicinity. They deposed that, during the
intervening night of 31.05.2023 and 01.06.2023, they had seen the
appellant, Siba Nial @ Trilochan, and the co-accused, Prabhulal, on
a motorcycle near the house where the deceased people were staying.
While the appellant, Siba Nial @ Trilochan, remained near the
motorcycle, Prabhulal had gone up and thereupon, Manoranjan Behera
(PW-4) and Krutibash Chhatria (PW-7) heard the sound of two bullets
being fired. Later on, the appellant, Siba Nial @ Trilochan, and
the co-accused, Prabhulal, drove away on the motorcycle.
What is intriguing and makes the versions of Manoranjan
Behera (PW-5) and Krutibash Chhatria (PW-7) doubtful and debatable
is their silence from 01.06.2013 till 09.06.2013. This is
significant given the fact that the locality must have been shaken
on coming to know that Dhaneswar Kata and his wife, Nirupama Kata,
had been shot dead. As noticed above, the FIR (Exhibit 1) does not
name any culprit or perpetrator. We have already referred to the
depositions of Hrushikesh Kata (PW-1) and Dalimba Kata (PW-2), who
had deposed on similar lines. Dhananjaya Kata (PW-4), who was
sleeping with both the deceased persons on the terrace of the
house, has also not named the perpetrators, though he is the person
who would have seen the persons committing the crime given the fact
that both Manoranjan Behera (PW-5) and Krutibash Chhatria (PW-7)
have deposed that there was the sound of gunshots being fired, not
once but twice.
The prosecution also relied upon the disclosure statement of
the appellant, Siba Nial @ Trilochan, which led to the recovery of
the pistol marked as Exhibit M.O.I along with the Magazine marked
as Exhibit M.O.II which were seized vide seizure memo, Exhibit 4.
These recoveries were made on 09.06.2013. The postmortem report,
marked as Exhibit 10, and the deposition of Dr. Jitender Kumar
Soren (PW-16) as well as the ballistic report (Exhibit 17),
however, are ambiguous and do not support the prosecution’s
version. In fact, the postmortem report (Exhibit 10) and the
deposition of Dr. Jitendra Kumar Soren (PW-16) indicate that the
external injury on the head could have been due to a rifle firearm
bullet that was not fired from close range. However, as per the
depositions of Manoranjan Behera (PW-5) and Krutibash Chhatria (PW-
7), the bullets were fired from a close range after Prabhulal had
climbed onto the terrace to commit the offence.
The ballistic report (Exhibit 17) records that a country-made
semi-automatic pistol, four rounds of cartridges and two magazines
were sent for examination on 22.07.2013. As recorded above, the
pistol along with cartridges, etc., as per the police version and
the testimony of Salya Naik (PW-17), the investigating officer,
were recovered on 09.06.2013. Thereafter, another sealed packet was
received by the forensic laboratory from the Biology and Serology
Division on 13.11.2014. The result of the examination, as per the
ballistic report (Exhibit 17), was that the body wall of the cases
were found bulged indicating that they were fired from a country-
made firearm. However, the percussion caps of both the cartridge
cases were missing. Thus, it was not possible to compare the
firing pin marks on the cartridge cases found at the spot with the
test-fired cartridge cases. With reference to the deformed,
jacketed bullets, on examination, the report opined that individual
characteristics of striation marks on the two bullets found in the
bodies were not sufficient for comparison with the test-fired
bullets.
Dhananjaya Kata (PW-4), in his deposition, did refer to
motive, as there was statedly a property dispute between the
deceased, Dhaneswar Kata, and the co-convict, Prabhulal. However,
he also deposed that his brother, Dhaneswar Kata, had gotten
married to Nirupama, who was from a different caste, being a
Brahmin, and there was opposition to their marriage from both
sides, that is, from the families of Dhaneswar Kata as well as
Nirupama Kata.
In view of the aforesaid discussion highlighting the
deficiencies and discrepancies in the prosecution’s case, the guilt
of the appellant, Siba Nial @ Trilochan, does not stand proved and
established beyond reasonable doubt. The impugned judgment,
confirming the conviction of the appellant, Siba Nial @ Trilochan,
is accordingly set aside. The appeal is allowed.
The appellant, Siba Nial @ Trilochan, shall be released from
jail forthwith, unless he is required to be detained in connection
with any other case.
Pending application(s), if any, shall stand disposed of.