Ram Kumar Nag and Etc. Vs. State of Orissa - Court Judgment

A.K. Parichha, J.

1. Both the appeals are taken up for analogous disposal as they arise out of a common judgment passed by learned Addl. Sessions Judge, Titlagarh in S.C. No. 10(5/24 of 1994.

2. In S.C. No. 106/24 of 1999 three accused persons, namely, Laxman Panika, Ramesh Kumar Tandi, and Ramkumar Nag were prosecuted under Section 302/34, IPC for committing murder of one Gajendranath Chhuria, Junior Soil Conservation Officer stationed at Kantabanji in the night of 9-5-1994 at his official residence situated in the Soil Conservation campus in furtherance of the common intention.

Brief fact of the case, was, that on 9-5-2004 morning the deceased along with his staff went to village Bahabal area for making payment to the labourers, who were engaged in different projects of the Soil Conservation Department. After making payments, he returned to his residence situated inside the Soil Conservation office building at Kantabanji with the remaining cash at about 7.30 to 8.00 p.m. There, after taking dinner, he called accused Laxman Panika, (appellant in Jail Criminal Appeal No. 38 of 1996) who was working as his personal servant and watchman of the Soil Conservation Office, to give him massage and Laxman accordingly came to the residence of the deceased and massaged the legs of the deceased. In the following morning, the water carrier found the main gate of the Soil Conservation Office locked and Laxman Panika missing. He informed the office staff, who searched for Laxman in vain. Not finding Laxman the Staff broke the lock, entered inside the office campus and found the front door of the residence of the deceased closed from inside. They found back door leading to the courtyard open and entered through that back door to find the bed room door of the deceased closed with a lock hanging in the latch of the door in open condition. Suspecting foul play, they informed the Assistant Engineer, Soil Conservation, Titlagarh who was available at Bolangir over phone and on his advice, they lodged a report before the police authorities. Police authorities visited the spot, entered inside the room and found the deceased lying dead in a pool of blood with stab injuries on his body. Immediately, a murder case was registered and investigation was conducted. During investigation, inquest was held over the deadbody, the dead body was subjected to post-mortem examination, incriminating articles were seized from the spot. A search was made for accused Laxman Panika and he was arrested after a few days. He confessed to police in presence of independent witnesses that he committed murder of deceased and removed Rs. 16,000/- from the almirah of his bed room of the deceased and Rs. 70,000/- from the iron chest of the office. He also led the police party to the house of accused Ram Kumar Nag (appellant in Criminal Appeal No. 15 of 1996) and a cash of Rs. 35,000/-in an attache was seized from that house on production of the father of said Ram Kumar Nag. Laxman also led the police to a hotel room at Kesinga and gave recovery of weapon of offence, knife and the same was seized. Ram Kumar Nag while in police custody also confessed that he removed Rs. 30,000/- from the attache left at his home by Laxman Panika and kept that amount with three persons of Raipur who were known to him. Being led by Ram Kumar Nag the police authority recovered Rs. 20,000/-and Rs. 7,000/- from two persons residing in Railway colony, Raipur. The clothes of the deceased and accused and other incriminating articles were subjected to chemical examination and blood stains were found on the clothes of the deceased. The said blood matched with the blood group of the deceased. Basing on the above noted circumstances and the fact that accused Laxman and the deceased were last seen together, police booked Laxman Panika for the offence under Section 302/34, IPC along with other two accused named above, who helped him in committing the murder and concealing the stolen money and weapon of offence.

The plea of the respondents was one of denial and false implication.

3. To establish the charge, prosecution examined 17 witnesses and produced several documents. Defence also examined four witnesses in support of their plea.

4. Learned trial Court after perusing the evidence on record and after considering the submissions of the learned Counsel for the parties, recorded an order of conviction under Section 302, IPC against Laxman Panika and sentenced him to undergo imprisonment for life. Learned Sessions Judge, did not find any evidence to link other two accused persons with the charge of murder and therefore, exonerated them of the charge under Section 302/34, IPC. From the materials available on record, learned Sessions Judge however found that there was sufficient evidence to establish the charge under Section 411, IPC against Ram Kumar Nag and accordingly, he convicted the said accused and sentenced him to undergo R.I. for one year and to pay a fine of Rs. 500/-, in default to undergo R.I. for three months. Aggrieved by the aforesaid order of conviction and sentence, convict, Laxman Panika has preferred Jail Criminal Appeal No. 38 of 1996 and convict Ram Kumar Nag has filed Criminal Appeal No. 15 of 1996.

5. The main submission of the learned Counsel for the appellants in both the appeals is that in absence of any eye witnesses to the occurrence and in absence of cogent evidence to prove the circumstances propounded by the prosecution, order of conviction of the appellants was improper. learned Counsel for the appellants further indicated that the circumstantial evidence led by the prosecution do not form a complete chain to establish the guilt of the appellants beyond all reasonable doubt nor they exclude all the hypothesis of their innocence and so, in all fairness they should have been given the benefit of doubt.

6. Learned Standing Counsel, on the other hand, argued that the oral and documentary evidence on record clearly establish the circumstances, which form complete chain pointing firmly the guilt of the appellants. He supported the order of conviction and sentence recorded by the trial Court.

7. Defence never disputed that the deceased died a homicidal death due to stab injuries. The involvement of the accused persons in the murder of the deceased was only disputed. So, the only aspect which needs scrutiny is whether the evidence put forth by the prosecution are sufficient to link the appellants to the murder of the deceased and if such evidence are enough to warrant the conviction recorded by the trial Court. Admittedly, there is no eye-witness of the murder of the deceased and the prosecution has relied on the following circumstances to prove the charge against the appellants.

(i) Accused Laxman was last seen with the deceased and the time of death of the deceased co-relates with the time, accused Laxman was with the deceased;

(ii) Discovery of the weapon of offence on the information given by accused-Laxman under Section 27 of the Evidence Act.

(iii) Discovery of the stolen money under Section 27 of the Evidence Act;

(iv) Discovery of blood-stained wearing apparels and the conduct of the accused Laxman absconding soon after the occurrence.

8. The deceased and appellant Laxman were seen together in the night of 9-5-1994. It is supported by evidence of P.Ws. 1 to 3, who were staff of the Soil Conservation Office, Kantabanji at the relevant time. According to their evidence, P.Ws. 1, 2 Haris-chandra Bendkar and the deceased went on two motor cycles to village Bahabal in the morning of 9-5-1994 with heavy cash for making payment to the labourers and after making the payments they returned to the Soil Conservation colony at Kantabanji in the evening from which place, P.W. 2 and Harischandra Bendkar went to their common residence and the deceased with P.W. 1 went to the residence of the deceased. It is also revealed from their evidence that P.W. 1, who was working as a peon of the deceased went and brought some food and after taking that food, the deceased asked P.W. 1 to call the appellant Laxman who was there on the verandah of the office. When there was delay, deceased himself went and called appellant Laxman inside the bed room and asked to give him a massage. P.Ws. 1 to 3 made it clear that appellant Laxman and the deceased were only there in the residence of the deceased in the fateful night and no one else was present in that house and such statement has not been discredited in any manner. So there cannot be any doubt that appellant Laxman was there with the deceased in the fateful night and that no one else was there in that house. These witnesses have further stated that next morning, the water carrier called them as the main gate of the office campus was locked and the appellant Laxman who used to sleep on the office varanda and keep the key of that lock, was missing. They stated that finding no alternative, they broke open the lock and entered inside the office campus and found that the front door of the residence of the deceased was locked from inside, but the back door leading to the court-yard of the campus was open. They claim that they went inside the backyard and found the bedroom door closed with an open lock hanging from the latch. So, suspecting foul-play, they tried to inform the Assistant Engineer, Soil Conservation, Titlagarh, who was their controlling Officer, but the staff who went to Titlagarh found the said Assistant Engineer, P.W. 7 absent at Titlagarh as he was attending a meeting at Bolangir. According to P.Ws. 1 to 3, P.W. 7 was then informed over telephone and on his advice, the police people were called and when the police entered inside the room of the deceased, the deceased was found lying dead on the floor of the bed room in a pool of blood with stab injuries on his person.

9. P.W. 7 supported the statements of P.Ws. 1 to 3 and stated that while he was attending the D.P.A.P. meeting at Bolangir, he got a telephone message at about 5.00 p.m. of 10-5-1994 from P.W. 2 that the room of the deceased was closed and he was not responding to any call. He stated that he asked P.W. 2 to lodge a report before the police and immediately rushed to Kantabanji and there he also found the door of the bed room closed with a open lock hanging from the latch and after police arrived and opened the door, he found the deceased lying dead in pool of blood. P.W. 7 stated that the police officer held inquest over the dead body in his presence and prepared the inquest report, Ext. 5 and thereafter, sent the dead-body for post-mortem examination. P.W. 13 is a police constable, who was present at the time of inquest over the dead-body and who took the dead-body for post-mortem examination. P.W. 13 stated that he attended the inquest and took the dead body for postmortem examination and after the postmortem examination was over he brought back the blood stained wearing apparels of the deceased and produced before the I.I.C. who seized those articles under seizure list Ext. 19. P.W. 16 is the doctor, who conducted post-mortem examination over the dead-body of the deceased. According to his statement, and the post-mortem report, Ext. 27, there were several stab injuries on the chest, abdomen of the deceased and that one stab injury had cut the left ventricle of the heart and the death was due to shock and haemorrhage resulting to those injuries. The doctor has clearly opined that he conducted the post-mortem examination at about 11.45 a.m. of 11 -5-1994 and from the result of the post-mortem examination, he estimated that the death occurred between 36 to 48 hours from the time of post-mortem examination. In cross-examination also he clearly stated that the death of the deceased could not have occurred less than 35 hours before the time of post-mortem examination. The evidence of the doctor thus confirms that the death of the deceased occurred in the night of 9-5-1994. These above noted evidence, thus establish beyond doubt that the deceased was last seen alive in the company of the appellant Laxman in the night of 9-5-1994 and that the death of the deceased occurred in the same night.

10. The next circumstance put forth by the prosecution is the recovery of weapon of offence on the information of appellant Laxman. In this regard, the I.O., P.W. 17 says that he arrested the appellant Laxman at Kantabanji on 31st May, 1994 and the said appellant while in custody gave a statement in presence of witnesses that he concealed the weapon of offence in a room of Hotel Parijat at Kesinga and also gave information that he left Rs. 80,000/- in an attache in the house of Ram Kumar Nag of Belgaon. P.W. 17 stated that after recording the statement of appellant Laxman, Ext. 1, in presence of witnesses, he proceeded to Kesinga with accused Laxman and witnesses P.W. 6 and Jayakrishna and being led by Laxman, they all went to Hotel Parijat, where Laxman showed them the place of concealment of knife. According to the I.O., the knife was there in a cover concealed in the sky-light of room No. 204 and he seized that knife in presence of the hotel owner and witnesses. P.W. 6 and the owner of Hotal Parijat, P.W. 10 lend full support to the statement of the I.O. and stated specifically that in their presence appellant Laxman pointed out the skylight where the knife had been kept and the I.O. seized the knife in a cover under seizure list Ext. 3. P.W. 10 further confirmed that appellant Laxman had stayed in Room No. 204 from 13-5-1994 to 14-5-1994 under false name Anil Kumbhar. The customer register of that hotel was seized vide seizure list Ext. 7 and the entry in that register confirmed the fact. From the evidence of I.O. and witnesses, it is thus established that the knife, M.O.II was seized from the hotel room on the information of appellant Laxman few days after the incident.

11. The defence denied the link between the seized knife and the appellant Laxman on the plea that the other customers remained in Room No. 204 after it was left by Laxman. The hotel register shows that some other customers remained in that room after appellant Laxman checked out. In this regard, the defence relied on a decision of this Court in Makaradhwaja Bhoi v. State of Orissa 1984 (57) CLT 68 : 1984 Cri LJ 373. In the said case the statement of the accused leading to discovery of the weapon had not been proved and the place of recovery of the weapon was accessible to all. In the present case, the seized knife was not lying in open place but was found concealed in the sky-light of a hotel room, which is normally not accessible to one and all and the place of concealment was also not visible. So, the submission of the defence in this regard has no merit and the recovery of the weapon of offence is admissible under Section 27 of the Evidence Act. It was argued by learned Counsel for the appellant Laxman that no human blood was found on the weapon and so, the weapon could not be linked to the death of the deceased. The report of the Serologist, Ext. 40 shows that no human blood was found on the knife but that is natural as accused Laxman had plenty of time to wash the knife. The doctor, P.W. 16 in response to the query of the I.O. has clarified that stab injuries found on the deceased are possible by that knife, particularly, taking into account the dimension and nature of the injuries. The answers to the queries are Exts. 18 and 19. There is also evidence from the side of the prosecution that the accused had got the knife manufactured with a local black-smith but that aspect is of no consequence in view of the evidence regarding recovery under Section 27 of the Evidence Act and the report of the doctor. The above noted prosecution evidence in this regard are sufficient to establish that the knife which was possibly used for causing death of the deceased was recovered by the police authorities in presence of the witnesses on the information of the appellant Laxman.

12. The I.O., P.W. 17 stated that during the course of investigation of the case, the mother of appellant Laxman came to the police station on 18-5-1994 at about 4 p.m. and informed that while she was alone in the house at about 2.00 p.m. one Sanjeeb Tandi came to her house and gave Rs. 2,000/- in the shape of two bundles of 10 rupees currency notes telling her that Laxman gave that money to him some days back asking him to deliver that amount to her. According to P.W. 17, the lady further stated that she refused to receive that money, but Sanjeeb Tandi left that money in the verandah and so, she brought the money to the police station. The I.O. says that he seized those two bundles of 10 rupees currency notes under seizure list Ext. 16 and then went in search of Sanjeeb Tandi of Titlagarh. P.W. 5, Sanjeeb Tandi stated that he was a college mate of appellant Laxman in Kantabanji college and accordingly knew him. He stated that on 12-5-1994 evening Laxman came to his house and gave him Rs. 2,000/- and requested him to deliver that amount to his mother at Kantabanji on the pretext that he is required to go to Rayagada for some days on official visit. P.W. 5 further stated that Laxman told him that the money was his arrear pay for five months. P.W. 5 stated that he came to Kantabanji on 18-5-1994, and offered the money to the mother of Laxman, but the lady refused to keep the money so, he left the money on the verandah of her house and left. It is worthwhile to note that as per the evidence of P.Ws. 1 to 3, the stolen cash were mostly in the shape of 10 rupees currency notes. It is also to be taken note that the amount was handed over by Laxman to Sanjeeb Tandi on 12-5-1994, which was 2-3 days after the occurrence with a false pretext.

13. According to the I.O., it was revealed during investigation that appellant Laxman with the help of Ramesh Tandi took the stolen cash of Rs. 80,000/- in an attache to the house of Ram Kumar Nag and left the same with the appellant Ram Kumar Nag and basing on the information provided by appellant Laxman, he arrested Ramesh. Tandi and recovered part of the said cash with the attache from the house of Ram Kumar Nag. In this regard, the statements of the I.O., P.W. 4, P.W. 6, P.W. 14 are relevant. The statements of these witnesses, clearly show that while in police custody, both Ramesh Tandi and Laxman Panika gave information before the witnesses that they took the cash of Rs. 80,000/- in an attache and concealed the same in the house of Ram Kumar Nag. Ramesh Tandi in his statement under Section 313, Cr. P.C. also admitted this fact. The I.O. further stated that he went to the house of Ram Kumar Nag along with witnesses and the two accused named above and recovered the attache containing Rs. 35,000/- in the shape of 35 bundles of 10 rupees currency notes. It is evident from the statement of P.W. 14 and the I.O. that in their presence, appellant Ram Kumar Nag stated that out of greed, he opened the attache with a spoke and removed cash of Rs. 30,000/- from the same and gave Rs. 20,000/- to Chandra Kumar Deo, Rs. 7,000/- to Mansa Mahato and Rs. 3,000/- to Junus Nag of Raipur to retain the same on his behalf. It appears from the evidence of those witnesses that Ram Kumar Nag after giving this information led the police and the witnesses to the house of these persons at Raipur Railway Colony and the said cash of Rs. 20,000/- and Rs. 7,000/-were recovered from the houses of Chandra Kumar Das, and Mansa Mahato respectively but the remaining cash of Rs. 3,000/- could not be recovered from Junus Nag as he was absent. The seizure list Exts. 24 and 23 are there in this regard. The above noted statement and information given by the accused persons and the recovery of stolen cash which were all there in the shape of 10 rupees currency notes fortify the theory of the prosecution that appellant Laxman removed the cash from the residence of the deceased. Besides the above noted circumstances, the prosecution has also brought on record the conduct of appellant Laxman after the alleged incident. It is clear from the statement of P.Ws. 1 to 3 that appellant-Laxman was working as personal servant of the deceased and was also engaged as watchman on wage basis in the Soil Conservation Office and he was having the keys of the locks of the office building and used to stay in the office and guard the same. The homicidal death of the deceased occurred in the night of 9-5-1994 and in the following morning, appellant Laxman was found missing from the office and all efforts to trace him failed for a considerable time.

14. learned Counsel for appellant-Laxman Panika relying on the case of Matru alias Girish Chandra v. The State of U.P. AIR 1971 SC 1050 : 1971 Cri LJ 913 contended that absconding of an accused by itself does not necessarily lead to any definite conclusion of guilty mind. In the said judgment their Lordships have clearly observed that in case of murder so far as the motive is concerned, absconding of the accused by itself does not necessarily lead to a definite conclusion of guilty mind. But it was also observed that such conduct is a relevant piece of evidence to be considered along with the other evidence. Such being the legal position, absconding of appellant-Laxman Panika soon after the occurrence is a relevant piece of evidence which can be considered along with other evidence and circumstances of the case. The evidence of the hotel owner, entry in the guest entry register of the hotel and the evidence of P.Ws. 4 and 5 indicate that the appellant-Laxman moved from place to place giving false story and identity. No cogent reason was also assigned by him as to why he left his place of work suddenly without informing anybody and without even handing over the keys of the locks. Then, there is evidence regarding his statement, which led to recovery of stolen cash. All these factors raise a presumption that the appellant absconded from the place of occurrence in order to escape arrest and also to conceal the incriminating articles connected with the alleged offence.

15. learned Counsel for appellant-Laxman made a submission that in case of murder based on circumstantial evidence the accused is not to be convicted unless the circumstances propounded by the prosecution are clearly established through strong evidence and such circumstances form a complete chain without leaving any gap which may allow any hypothesis of innocence of the accused to creep-in. He claims that the circumstances put forth in the present case do not form any complete chain and there is scope for entertaining doubt about the guilty of the appellants. In support of the contentions learned Counsel relied on the case of Gambhir v. State of Maharashtra : 1982CriLJ1243 . In the case of Gambhir (supra) the Apex Court made the following observation (para 9) :

The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests; (1) the circumstances from which an interference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The ratio laid down by the Apex Court is beyond any dispute, but the standard of assessment regarding the formation of complete chain has not been explained in the case. The standard and avenue of such assessment was however laid down in the case of Dharam Das Wadhwani v. The State of Uttar Pradesh : 1974CriLJ1249 . The words used by their Lordships in that case are borrowed hereunder (Paras 12 & 13) :

Every evidentiary circumstance is a probative link, strong or weak and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that is insufficient.

The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy, Judges are made of sterner stuff and must take a practical view of legitimate interferences flowing from evidence circumstantial or direct.

Thus, while considering the circumstantial evidence and whether the circumstances form a complete chain, a broad and practical approach is to be made by the concerned Court and if on such approach the circumstances are found reliable and if they form a complete chain pointing the guilt of the accused then a conviction can be recorded.

16. The prosecution evidence in this case clearly establish that appellant-Laxman Panika was the only person who was last seen with the deceased in the night of occurrence and in the following morning he was suddenly found absconding taking the key of the locks with him and leaving his sleeping kit on the verandah of the office. Then on arrest he confessed his guilt and gave information about the concealment of the weapons of offence and stolen cash and led the police authority and witnesses to various places and gave recovery of the knife and part of the stolen cash. There was also the statement of Ramesh that on the request of appellant-Laxman he helped him in taking the stolen cash to the house of appellant-Ram Kumar Nag. The evidence of P.W. 5 is there to show that out of the stolen cash appellant-Laxman sent Rs. 2,000/- to his mother. There are also evidence that Ram Kumar Nag gave information that he took away Rs. 30,000/- from the attache given by appellant-Laxman and kept the said money with three persons of Raipur and basing on his information the police authorities seized a cash of Rs. 20,000/- and Rs. 7,000/- from two of those persons. No doubt those two persons of Raipur denied the fact of recovery, but their evidence was not at all creditworthy. There is further fact that appellant-Laxman moved from place to place after the date of occurrence giving false identity in hotels and other places. One can also gather from the evidence of P.Ws. 1 to 3, 7 & 14 that the appellant-Laxman was working as personal servant of the deceased and knew the places where the deceased used to keep the money. The napkin of appellant-Laxman has blood-stains of Group-B which matched with the blood group of the deceased. Once these circumstances are placed together they form a complete chain to bind the appellant-Laxman with the charge of murder of the deceased and the chain does not leave any gap which can lead to hypothesis of innocence of the appellant-Laxman. So, learned trial Court was justified in every respect to hold appellant Laxrnan guilty of the offence Under Section 302, IPC and convict him thereunder.

17. Learned trial Court after holding appellant-Laxman guilty Under Section 302, IPC awarded a sentence of imprisonment for life. This Court in exercise of suo motu power of revision issued notice to appellant-Laxman to show cause why the sentence shall not be enhanced. learned Counsel appearing for appellant-Laxman submitted that the case at hand does not come within the category of rarest of rare cases and so there is no scope of awarding capital punishment. Learned Standing Counsel on the other hand submitted that appellant Laxman being the personal servant of the deceased betrayed the trust and committed the murder of his master in a brutal manner and so the act should be viewed as rarest of the rare cases. In the cases of Bachan Singh v. State of Punjab : 1980CriLJ636 , Lehna v. State of Haryana (2002) 22 OCR (SC) 424 and Gyasuddin Khan alias Md. Gyasuddin Khan v. State of Bihar : 2004CriLJ395 , the Apex Court has laid down the criteria for deciding rarest of the rare case, Their lordships have clearly observed that when the act of the accused is so ghastly that the collective conscience of the society is shocked and existence of the culprit will be detrimental to the interest and existence, of the society, then only the case can be considered as rarest of the rare cases. In the present caae no doubt appellant-Laxman stabbed his own master in a brutal manner for committing theft of some money, but such act would not amount to an act which would revolt the conscience of the society or could be considered as the act which would threaten the existence of the society. It may at best amount to a cold blooded murder. Thus, in our opinion the present case does not come within the category of rarest of the rare cases demanding a capital punishment. In that situation, we feel that the sentence of imprisonment for life awarded by the trial Court would be just and proper for appellant-Laxman Panika.

18. Ramesh Kumar Tandi was acquitted of the charge as the evidence against him was highly insufficient. No one has challenged that finding. Therefore, no observation is necessary so far as the said accused is concerned. So far as Ram Kumar Nag, the appellant in Crl. Appeal No. 15 of 1996 is concerned, there is not an iota of evidence on record to indicate that he in any way participated in the murder of deceased or that he was even aware of the death of the deceased. The evidence of the witnesses discussed above simply show that appellant-Laxman kept the attache cash containing the cash with him and out of greed, he removed Rs. 30.000/- from that attache cash replacing the same by plain papers and kept that Rs. 30,000/- with three persons of Raipur. Basing on the recovery of the said money on the information given by the appellant learned trial Court convicted him Under Section 411, IPC. It is pertinent to note that no charge was framed against appellant Ram Kumar Nag Under Section 411 of the IPC or any Section relating to dishonest misappropriation or receiving of stolen property. In that situation, conviction of appellant-Ram Kumar Nag Under Section 411, IPC becomes illegal and unsustainable. No doubt, there is provision to remand the case for framing charge afresh and conducting a de novo trial, but one has to take note that the occurrence took place in the year 1994 and 11 years have passed in the mean time. Conducting a de novo trial after so many years would not be proper and would not be in the interest of justice. Therefore, we feel it proper to set aside the conviction and sentence awarded against Ram Kumar Nag.

19. In the result, therefore, the conviction and sentence against Laxxnan Panika awarded by the trial Court is confirmed, but the conviction and sentence passed against Ram Kumar Nag is set aside. Consequently Jail Criminal Appeal No. 38 of 1996 is dismissed and Cri Appeal No. 15 of 1996 is allowed.

P.K. Tripathy, J.

20. I agree.