NATABAR AUNRIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) ONE of the accused in S.T. Case No. 96 of 1998 of the Court of learned Addl. District & Sessions Judge, Jagatsinghpur charged under Section 302, I.P.C. is the appellant.

(2.) THE essential facts leading to this appeal are as follows :

(3.) TEN witnesses have been examined in this case in order to fasten the charge against the appellant. There has been no eye witness examined by the prosecution to sustain a conviction against the appellant. Only a minor daughter of the appellant who was examined as P.W. 8 did not also support the prosecution case. Even the informant turned hostile, besides the official witnesses, the doctor who had examined the dead -body of Gangadhar found that the deceased met a homicidal death on account of injury on his person. The learned trial Court relied upon a judgment in Satpal v. Delhi Administration reported in and in Bhagaban v. State of Haryana reported in Mr. Patnaik, learned counsel appearing for the appellant has highlighted that on a plain reading of both the judgments it is emerged that it would not support the prosecution in any manner rather supports the defence plea. But, the learned Additional Sessions Judge has misread the judgment and held the appellant guilty of having committed the offence. There can be no controversy about the legal position that even the testimony of a hostile witness does not completely efface to the ground and such evidence is admissible in the trial and there can be no legal bar to base a conviction upon the testimony if corroborated by any other reliable witness. In this connection, our attention has been brought to the testimony of P.Ws. 1 to 8. On a brief resume of their evidence nowhere we could gather that they deposed anything which can implicate the appellant in the crime. Even the alleged extra judicial confession made to P.W. 1 did not also receive any corroboration from other witnesses. P.W. 1 also did not support the prosecution case. It is the settled position of law that the statement of witnesses recorded during investigation under Section 161, Cr.P.C. cannot be treated as substantive evidence save and except that can be used for the purpose of omission or contradiction. In this case, it is true that the deceased Gangadhar met a homicidal death which is evident from the testimony of P.W. 9 who had conducted the post -mortem examination. Since the prosecution has failed to produce any further material to connect the appellant with the crime, we are constrained to allow the appeal and set aside the order of conviction.