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2017 DIGILAW 1029 (ORI)

Hosen Khan v. State of Orissa

2017-09-12

S.PANDA, S.PUJAHARI

body2017
JUDGMENT S. PUJAHARI, J. - The judgment of conviction and order of sentence passed by the learned Adhoc Addl. Sessions Judge, F.T.C., Khurda in S.T. Case No.61/126 of 2007, convicting the appellants under Sections 302/34 of the Indian Penal Code hereinafter referred to as “the I.P.C.”) for murder of one Rakina Biwi (hereinafter referred to as “the deceased”) and sentencing each of them to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- and, in default, to undergo rigorous imprisonment for five months each on that count, are under challenge in this CRLA. 2. The prosecution case before the Trial Court was that the deceased was given in marriage to one widower, namely, Rossan Khan ( P.W.9), a resident of village Bhimpada, Tangi Sahi under Bolgarh P.S. in the district of Khurda. The first wife of Rossan Khan (P.W.9) was the sister of appellant No.3.Rossan Khan ( P.W.9), however, settled in an interior village under Dasapalla P.S. in the district of Nayagarh, as a village quack to eke out his living, leaving his wife in his native village in the house constructed by him, wherein his elder brother appellant No.1, his wife appellant No.3 and their daughter appellant No.2, also reside. It is the case of the prosecution that taking the long absence of P.W. 9 from the home, the appellants had meted the deceased with cruelty to make her living impossible in the said house, so that they can enjoy and grab the house property. For that purpose, the appellants also, made an attempt to kill her by immolating her. But, when the people gathered there, the appellant No.1 gave out that the deceased accidentally caught fire and took her to District Headquarters Hospital, Nayagarh for treatment. On the next day, when some of her co-villagers i.e. P.Ws. 1,2,4,5 and 13 visited the hospital to see her condition, the deceased disclosed before them that she was immolated by the appellants. Thereafter, one of them i.e. P.W. 2 reported the matter to the police at Bolgarh P.S. in writing vide Ext. 1 and a case was registered under Section 307/34 of the I.P.C. But in the meanwhile the deceased had succumbed to the injuries in the hospital. Thereafter, one of them i.e. P.W. 2 reported the matter to the police at Bolgarh P.S. in writing vide Ext. 1 and a case was registered under Section 307/34 of the I.P.C. But in the meanwhile the deceased had succumbed to the injuries in the hospital. Basing on such report, investigation was carried on and on conclusion of the investigation, the Police found substance in the F.I.R. allegation and placed charge-sheet against the appellants under Sections 498A/302/34 of the I.P.C. The case of the appellants was committed to the Court of Sessions by the learned S.D.J.M., Khurda, after taking cognizance of the aforesaid offences. 3. As it appears, the case being placed before the Court of the learned Adhoc Addl. Sessions Judge (F.T.C.). Khurda for trial, charge was framed against the appellants for the said offences. The appellants having pleaded not guilty to the charge, prosecution examined as many as 16 witnesses and exhibited 14 documents, so also 4 material objects. The appellants having taken the plea of denial and false implication, examined a doctor of District Headquarters Hospital, Nayagarh who had treated the deceased, as D.W. 1 to dispel the prosecution evidence of oral dying declaration said to have been made by the deceased before the witnesses that the appellants immolated her, to be worthy of credence. On conclusion of the trial, as it appears, the death of the deceased sustaining burn injury, having not been disputed and also there being ample evidence in this regard, the trial Court returned the impugned judgment of conviction and order of sentence against the appellants basically placing reliance on the oral dying declaration made before the co-villagers such as P.Ws. 1,2, 4, 5 and 13, while acquitting them of the charge under Sections 498A/34 of the I.P.C. 4. During the pendency of the CRLA, the appellant No.3, who is the wife of the appellant No.1, stated to have died and as such the case against her is abated, though no specific order in this regard was passed earlier. 5. In the absence of Mr. D. Panda, learned Advocate appearing for the appellants, Mr. D. Samal, learned member of the Bar being appointed as Amicus Curiae has argued extensively the matter, disputing the sustainability of the conviction. Thereafter, Mr. 5. In the absence of Mr. D. Panda, learned Advocate appearing for the appellants, Mr. D. Samal, learned member of the Bar being appointed as Amicus Curiae has argued extensively the matter, disputing the sustainability of the conviction. Thereafter, Mr. D. Panda, learned Advocate appearing for the appellants appears and both of them submit that the impugned judgment of conviction is based on erroneous appreciation of the evidence on record and as such the same cannot be sustained. Reiterating their contention, it is submitted that no doubt, a conviction can be recorded solely on the basis of dying declaration, but the same must be worthy of credence. It is their further submission that the material available on record being indicated the fact that the deceased when admitted in the hospital, was not in a position to disclose anything about the occurrence, as she had sustained 100 percent burn injuries and her condition was serious as revealed from the medical evidence i.e. bed-head ticket Ext. 6 and other relevant material on record in this case, it is quite unsafe to place reliance on the dying declaration stated to have been made before some person who are in inimical term with the appellants. The trial Court, therefore, solely relying on the same could not have convicted the appellants,. Hence, they submit, the impugned judgment of conviction and order of sentence are indefensible and liable to be set aside. 6. Per contra defending the judgment of conviction and order of sentence, learned Counsel for the State submits that the trial Court making detailed scrutiny of the evidence on record, having accepted the dying declaration to be worthy of credence and there being no hard and fast rule that unless the doctor certified a person at the relevant time was capable of making dying declaration, such dying declaration cannot be relied upon, the contention advanced in this regard criticising the impugned judgment of conviction of the Trial Court is without any substance. He further contends that since in this case, it is revealed from the version of P.Ws. 1,2, 4, 5 and 13 that the deceased had made a dying declaration indicating the fact that she was set ablaze by the appellants and those witnesses have no visible animosity to falsely implicate the appellants, the judgment of conviction and order of sentence impugned, need no interference in this appeal. 7. 1,2, 4, 5 and 13 that the deceased had made a dying declaration indicating the fact that she was set ablaze by the appellants and those witnesses have no visible animosity to falsely implicate the appellants, the judgment of conviction and order of sentence impugned, need no interference in this appeal. 7. It is not in dispute that in this case the deceased was admitted in the hospital sustaining burn injuries. The aforesaid fact is emerged from the evidence of the witnesses more particularly P.W. 9, the husband of the deceased who was residing elsewhere, so also the doctor P.W. 10. It transpires from the evidence of P.W. 5, the A.S.I. of Police that on the death of the deceased while undergoing treatment, the matter was reported in Nayagarh P.S. by Dr. L.N. Bisoi pursuant to which U.D. Case was registered vide U.D. Case No.2 of 2007 and he took up the enquiry and during that he sent the dead body of the deceased for post mortem examination vide dead body challan Ext. 14. Post mortem examination was done by P.W. 14 Dr. Narmada Sahu, the Medical Officer, District Headquarters Hospital, Nayagarh as well as by Dr. Suresh Ch. Mishra and they found the burn injuries on the person of the deceased and the deceased died of burn injuries sustained, as revealed from the testimony of P.W. 14. P.W. 14 in this regard stands corroborated by the post mortem report Ext. 12, a contemporaneous document prepared by them evidencing the same. Nothing is there indicating the fact that the doctor had not bestowed required care and caution in conducting the post-mortem examination. However, no eye witness version is available indicating the fact how the deceased sustained burn injuries which contributed to death of the deceased. But, the trial Court as stated earlier placing reliance on the oral dying declaration said to have been made by the deceased before P.Ws,1, 2, 4, 5 and 13 implicating the appellants to have immolated the deceased, held the appellants guilty of murder. Therefore, the evidence in this regard is only the oral dying declaration which has been criticized by the learned Counsel for the appellants as well as the learned Amicus Curiae, to be worthy of credence, but the State Counsel has justified the conviction recorded on such oral dying declaration, in their respective contention as stated earlier. 8. Therefore, the evidence in this regard is only the oral dying declaration which has been criticized by the learned Counsel for the appellants as well as the learned Amicus Curiae, to be worthy of credence, but the State Counsel has justified the conviction recorded on such oral dying declaration, in their respective contention as stated earlier. 8. Before appreciating the contention raised with regard to sustainability of the conviction based on an oral dying declaration and to have been made by the deceased while undergoing treatment in the Hospital, it would be apposite to mention here that there is no impediment in law to record a conviction solely basing on the dying declaration including an oral dying declaration, notwithstanding absence of certification by the doctor about the fitness of the deceased to make such dying declaration, if the evidence adduced in this regard is found to be acceptable and reliable. No hard and fast rule is there indicating the fact that unless such dying declaration is corroborated by any other evidence on record, the same cannot be made a foundation to record a conviction. 9. The Apex Court in the case of Khushal Rao Vrs. No hard and fast rule is there indicating the fact that unless such dying declaration is corroborated by any other evidence on record, the same cannot be made a foundation to record a conviction. 9. The Apex Court in the case of Khushal Rao Vrs. State of Bombay, reported in AIR 1958 SC 22 , have held as follows : “ It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made, it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” (Quoted from placitum). “In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. “In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration aws not free from the infirmities.” (Quoted from placitum). In the case of Kusa and Others vrs. State of Orissa, reported in (1980) 2 SCC 207 , the Apex Court have held as follows : “Although a dying declaration should be carefully scrutinised but if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment to founding a conviction on such a dying declaration even if there is no corroboration.” (Quoted from placitum). In the case of Laxman Vrs. State of Maharashtra, reported in (2002) 6 SCC 710 , a Constitution Bench of the Apex Court dealing with the evidence of dying declaration, have held as follows : “3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it is said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.” In the case of Ranjit Singh and others Vrs. State of Punjab, reported in (2006) 13 SCC 130, the Apex Court have held as follows : “13...... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.” In the case of Ranjit Singh and others Vrs. State of Punjab, reported in (2006) 13 SCC 130, the Apex Court have held as follows : “13...... conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards correctness or otherwise of the said dying declaration, the Courts in arriving at the judgment of conviction shall look for some corroborating evidence....... “ 10. Keeping in mind the aforesaid exposition of law, the evidence on record relating to dying declaration in this case has to be scrutinized to examine the sustainability of the conviction recorded. As it appears from the evidence on record that the prosecution had come out with a case that in order to grab the house property which said to have been constructed by the husband of the deceased (P.W. 9), the appellants stated to have meted the deceased with cruelty and ultimately immolated her. But a relation of the deceased examined as P.W. 8 did not support or speak the same. The husband of the deceased (P.W.9) also made no whisper on the same. None of the witnesses also made whisper on the same. However, presence of motive though lends assurance to the prosecution case, but its absence is not always fatal, if the case is established against the accused by reliable evidence on record. 11. It transpires from the evidence of P.W. 2 who is the informant in this case and alleged F.I.R. Ext. 1 that on 05.03.2007 in between 6 p.m. to 7 p.m., hearing unusual screaming/bawl from the house of the appellants where several other villagers had assembled, he made query to appellant No.1 – Hosen Khan, who disclosed before them that while the deceased was sleeping inside her house, her mosquito net accidentally caught fire and consequently she sustained burn injuries. His evidence further reveals that almost simultaneously Fire Brigade staff arrived, the appellant No.1 – Hosen Khan opened the door and Fire Brigade staff entered inside the house and they found the deceased with 100 percent burn injuries all over her body. His evidence further reveals that almost simultaneously Fire Brigade staff arrived, the appellant No.1 – Hosen Khan opened the door and Fire Brigade staff entered inside the house and they found the deceased with 100 percent burn injuries all over her body. Bolgarh police also arrived there and on the direction of the police, the deceased was immediately taken to the hospital by appellant Nos.1 and 3. It again transpires from his evidence that on the next day he along with Kamrun Khan (P.W.5), Ahimad Khan (P.W. 12), Israil Mahammad (P.W. 13) and Batas Khan (P.W. 4) went to the hospital and when he asked the deceased, in the absence of the accused Hosen Khan, in slow voice, she told that all the three accused persons poured kerosene over her body and set fire as a result of which her body was burnt. The evidence of P.W. 2 also revealed that in his presence police seized one TIN DIBIRI (Lamp), one bottle containing some Kerosene, one half burnt polyester saree land one half burnt mosquito net from the house under seizure list (Ext.2) and identified such Material Objects marked as M.Os.I to IV. He has also proved his signature therein. In cross-examination, he stated that when he asked the deceased how she sustained the burn injuries, the deceased with much difficulty disclosed that all the appellants poured kerosene over her body and set her ablaze. P.Ws. 4, 5 and 13 have similarly deposed that being asked by P.W. 2 the deceased inculpated the appellants to have set her ablaze. But, P.W. 12 did not support the prosecution case and made no whisper on the dying declaration. As it appears from the evidence of P.W. 2 when he asked the deceased further as to why she did not shout or try to run away, the deceased disclosed that the accused persons gagged her mouth and that when she tried to come away, they caught hold of her hands. The evidence of other witnesses such as P.Ws. 4, 5 and 13 is silent in this regard. It transpires from the evidence of P.W. 13 that the deceased could not disclose anything at the first instance. But, when they disclosed their names, the deceased stated about the same. The evidence of other witnesses such as P.Ws. 4, 5 and 13 is silent in this regard. It transpires from the evidence of P.W. 13 that the deceased could not disclose anything at the first instance. But, when they disclosed their names, the deceased stated about the same. Furthermore, it transpires from the evidence of this witness that all these witnesses had discussed with the deceased for about half an hour in the hospital in the absence of any nurse or doctor there. According to P.W. 2, in between 10 a.m. to 11 a.m. they reached at the hospital and the dying declaration was made. P.W.4 disclosed that they reached at the hospital at 7 a.m. P.W.5 did not say when they reached the hospital and dying declaration was made. P.W, 13 deposed that they went to the hospital at 8 a.m. It also appears from the evidence of these witness except P.W. 4 that the deceased sustained 100 per cent burn injuries on her body and her condition was precarious. P.W. 2, a stranger to the family of the deceased and the appellants, had lodged the F.I.R,. Ext.1 on 06.03.2007 at 5.30 p.m. at Bolgarh P.S. after due deliberation with others in the village Masjid, as revealed from his evidence and by then the deceased had already died, as revealed from Ext. 6. 12. Besides the aforesaid witnesses, P.W. 1 also speaks about the dying declaration. But the P.W. 1 is not named in the F.I.R. by the P.W. 2 or any of the aforesaid witnesses to be present at the relevant point of time. This witness deposed that about nine months preceding that date at 5 p.m. he found the deceased standing in front of the house of appellant No.1 – Hosen Khan while the door of that house was found locked from the inside and deceased was not allowed entrance. On his query, the witness stated that the deceased divulged before him that she was not allowed to enter into the house. His evidence further discloses that around 6.30 p.m. when enroute market he found a large gathering in front of that house where a person told him that the appellants set ablaze the deceased inside that house. Of course, he has not named those persons nor that person was examined as prosecution witness. His evidence further discloses that around 6.30 p.m. when enroute market he found a large gathering in front of that house where a person told him that the appellants set ablaze the deceased inside that house. Of course, he has not named those persons nor that person was examined as prosecution witness. However, the witness added that in his presence, the Fire Brigade staff arrived, broke open the door and rescued the deceased with burn all over her body. Immediately thereafter she was taken to the hospital. Incidentally, this witness was never named in the F.I.R. nor was examined by the Investigating Officer (P.W. 11) at the outset. This witness has also added that on the next day of occurrence he had been to the District Headquarters Hospital, Nayagarh where the deceased disclosed before him that the appellants poured kerosene over her body and lit fire, as a result of which she sustained such extensive burn injuries. The same was disclosed between 2 p.m. to 3 p.m. The same was just before the death of the deceased which was at about 4.10 p.m. as revealed from Ext.6. 13. Evidence of the I.O. i.e. P.W. 11 falsifies the evidence of this witness and other witnesses i.e. P.Ws. 2 and 5 with regard to the arrival of the police in the spot that only on the direction of the police, the victim was taken to the hospital, rather, the deceased was taken to the hospital for treatment by the appellant Nos. 1 and 3 on their own soon after the occurrence. It is only after receipt of the report Ext.1, police came to know about the occurrence, registered the case and investigated the matter. The evidence of these witnesses that it is only when fire brigade staff came, the appellant No.1 opened the door/breaking open the door the fire was extinguished also appears to be false as P.W. 3 never deposed about the same. Evidence of the fire brigade staff i.e. P.W. 3 who immediately arrived there and entered into the house would go to show that by the time the fire was extinguished and on his query, the deceased did not disclose anything before them about the cause of fire. These witnesses i.e. P.Ws. Evidence of the fire brigade staff i.e. P.W. 3 who immediately arrived there and entered into the house would go to show that by the time the fire was extinguished and on his query, the deceased did not disclose anything before them about the cause of fire. These witnesses i.e. P.Ws. 1, 2, 4, 5 and 13 though remained present at the spot soon after the occurrence, but did not ask anything to the deceased how she sustained the burn injuries there. P.W. 10 who happens to the treating physician deposed that the deceased when admitted was in confused state and she was not able to say anything about the burn injuries and she sustained 100 per cent burn injuries. Bed-head ticket Ext.6, inquest report Ext. 13 post mortem examination report Ext. 12 reveal that the deceased sustained 100 per cent burn injuries there. From the evidence of doctor D.W. 1 it also reveals that the deceased was in gasping condition, her pulse was not palpable, B.P. was not recordable, her heart sound was irregular and 40 per minute. At the cost of repetition, the post mortem examination report reveals that the deceased was sustained severe burn injuries. This being the condition of the deceased, when she admitted in the hospital, the medical officer did not record any dying declaration. From the aforesaid, it appears that the deceased was not in a position to speak anything soon after the burn and till she was admitted in the hospital. 14. But, from the aforesaid, it appears that the deceased appears to have made a dying declaration before P.W. 1 at one point of time and another before P.Ws. 2, 4, 5 and 13. All the witnesses belong to Sunni community and the appellants belong to Ahamadia community and they were not in good term as revealed from the evidence of P.Ws. 1, 2, 4, 5 and 13. As revealed from the evidence of P.Ws. 1 the F.I.R. was lodged after due deliberation in the village Masjid on the next day. It also appears that P.Ws. 2, 4, 5 and 13 are not consistent in their version as to when they reached at the hospital and when the dying declaration was made. According to P.W. 2, in between 10 a.m. to 11 a.m. they reached at the hospital and the dying declaration was made. It also appears that P.Ws. 2, 4, 5 and 13 are not consistent in their version as to when they reached at the hospital and when the dying declaration was made. According to P.W. 2, in between 10 a.m. to 11 a.m. they reached at the hospital and the dying declaration was made. But P.W. 4 disclosed that they reached at the hospital at 7 a.m. P.W. 5 did not say when they reached the hospital and dying declaration was made. P.W. 13 deposed that they went to the hospital at 8 a.m. Furthermore, this witness did not whisper about the deceased telling the P.W. 2 that the accused persons gagged her mouth and when she tried to come away, they caught hold of her hands. If in their presence the deceased made the declaration implicating all the appellants, how could some of them forget to speak about this important declaration of the deceased on the query of P.W. 2. P.W. 1 again stated that at about 2 p.m. or 3 p.m. another dying declaration was made i.e. just 1 to 2 hour before her death. Furthermore,these witness admitted that they did not disclose anything before any doctor or medical staff and neither the doctor nor any staff was there near the deceased when the dying declaration was made. The aforesaid as stated earlier indicates that though all of them were present when the dying declaration was made, but no one had reported the matter to police at Nayagarh or on their immediate return, but the report was made after due deliberation in the village Masjid. No corroborative evidence is also there indicating that these persons had ever visited the hospital and had conversation with the deceased. It is also quite unacceptable that these persons who are not in good term with the appellants belong to Ahamadia community could have visited the hospital for the purpose and if at all they had visited and any dying declaration was made in their presence, could not have disclosed the same to the doctor or any other staff there. All those factors, especially the discrepancy and inconsistency in the version of the witnesses, coupled with the medical evidence as well as the evidence of the fire brigade officer, militate against the version of these witnesses that the deceased made a dying declaration before them implicating the appellants. All those factors, especially the discrepancy and inconsistency in the version of the witnesses, coupled with the medical evidence as well as the evidence of the fire brigade officer, militate against the version of these witnesses that the deceased made a dying declaration before them implicating the appellants. Their version as such is not wholly dependable one. This being the nature of the evidence of the dying declaration, the trial Court should have taken the same with a pinch of salt and should not have recorded a conviction basing on the same when there was absolutely no corroboration to the same from any other source, more particularly the medical evidence which militate against the same. 15. In such premises, in our considered opinion, the aforesaid dying declaration stated to have been made by the deceased twice at two different occasions before two groups at different time, does not pass the test of credibility and, as such, it would not be legal to come to a conclusion as to the guilt of the appellants. 16. Accordingly, the criminal appeal is allowed. The impugned judgment of conviction dated 07.11.2008 and order of sentence dated 12.11.2008 passed by the learned Adhoc Additional Sessions Judge (F.T.C.), Khurda in Sessions Trial No.61/126 of 2007 convicting the appellants for commission of offence under Section 302 read with Section 34 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for five months, are set aside. The appellants are acquitted of the said charge. Thus, the appellant No.2, namely Sahana Begum who is on bail pursuant to the order of this Court dated 16.11.2009 stands discharged of her bail bond. Since the appellant No.1, namely, Hosen Khan is in jail custody, he be set at liberty forthwith, if he is not otherwise required to be incarcerated in any other case. 17. L.C.R. received be sent back forthwith along with a copy of this judgment. S. PANDA, J. I agree. Appeal allowed.