S. Acharya, J.
1. The appellant stands convicted under Section 302, IPC and has been sentenced thereunder to undergo R. I. for life. He is also convicted under Section 201, IPC but no separate sentence has been awarded against him on this count.
2. The alleged occurrence took place in the year 1952. The accused was arrested in connection with the case in December, 1969, and after commitment he was tried for charges under Sections 302 and 201, IPC in the Court below, and is convicted and sentenced as stated above.
3. The prosecution case is that on 9-1-1952 Hadia Soura, the deceased, drank the Salap liquor belonging to the accused. The accused therefore assaulted Hadia with an axe in the forest, as a result of which he died at the spot soon thereafter. After the death of Hadia, the accused took the dead-body to a crevice in the near about hillock with the assistance of P. Ws. 5 and 6 who 1427 were working in their own fields in the vicinity. After placing the deadbody in the crevice, the accused and P. Ws. 5 and 6 covered the same with stones. P. Ws. 5 and 6 state that they assisted the accused in the above-mentioned act due to the threat held out to them by the accused. Later on, P. W. 3, a cousin of the deceased, while in search of the deceased, was informed by P. Ws. 5 and 6 that the accused killed the deceased and the accused with the help of P. Ws. 5 and 6 concealed the deadbody in a crevice in the hillock. P. Ws. 5 and 6 thereafter took P. W. 3 to the hillock and showed him the place where the deadbody had been concealed. Thereafter the matter was reported to the Karji. The Karji sent a report to the police which was treated as the F. I. R. (Ext. 3/4). The police came to the village and P. Ws. 5 and 6 took the Karji and the police to the place where the deadbody was concealed. The police recovered the deadbody and proceeded with the investigation. The accused could not be apprehended as he was found absconding from the village. In December, 1969 the accused was arrested and the commitment proceeding and the trial started thereafter.
4. The accused in his Section 342 statement has completely denied the prosecution case in all its aspects. Both in the committing Court as also in the trial Court he has completely denied the prosecution allegation that he was absconding from the village after the occurrence. To this effect he has stated that he was staying in his maternal grandfather's house.
5. The prosecution has examined seven witnesses in this case. P. Ws. 5 and 6, as stated above, were the two persons before whom the accused made the alleged extra-judicial confession that he killed Hadia Soura, the deceased, with an axe as he drank the liquor belonging to the accused. These two persons thereafter assisted the accused in carrying and concealing the deadbody in a crevice in the hillock nearby. P. W. 3 is the cousin of the deceased who later on received information from P. Ws. 5 and 6 about the death of the deceased and the concealment of the deadbody in the hillock. P. W. 1 was the officer-in-charge of the Parla-khemundi police station in December, 1969. He arrested the accused on 9-12-1969 from a hut in a jungle. P. W. 2 was the second officer of the Parlakhemundi Police station in 1970. After the arrest of the accused he made further investigation into the matter on the basis of a copy of the case diary which was with the Superintendent of Police. P. W. 4 is the son of the Karji who lodged the F. I. R. in this case in 1952. As the Karji was said to be ill at the time of the trial of the case P. W. 4 was examined to prove the handwriting and signature of the Karji in the F. I. R. P. W. 7 was the A. S. I. who partly investigated into the case in 1952 and made some seizures. According to him, he went to the spot with P. Ws. 5 and 6, who showed him the crevice in the hillock where the deadbody was kept concealed. He dug out the deadbody which was in a highly decomposed state; held inquest over the same and sent the deadbody to Gunupur for postmortem examination. The post-mortem report has not been exhibited in the Sessions Court, and the doctor who held the postmortem examination has not been examined.
6. From the above it is quite evident that there is no eye witness to the occurrence. The prosecution, in order to bring home the aforesaid charges against the accused, depends mainly on the evidence of P. Ws. 3, 5 and 6.
7. P. Ws. 5 and 6. on their own evidence, are in the position of approvers so far as the offence under Section 201, IPC is concerned, as they, on the asking of the accused, helped him in carrying the deadbody from the place where it was lying to the nearby hillock and there they concealed the deadbody in a crevice by covering it with stones.
8. Law is well settled that the approver's evidence must receive sufficient corroboration. In order to accept approver's evidence it must satisfy the following two tests as laid down by their Lordships of the Supreme Court in Lachhi Ram's case : 1967CriLJ671 :
The first test to be applied is that his evidence must show that he is a reliable witness, and that is a test which is common to all witnesses. The test obviously means that the Court should find that there is nothing inherent or improbable in the evidence given by the approver, and that there is no finding that the approver has given false evidence. The second test which thereafter still remains to be applied in the case of an approver, and which is not always necessary when judging the evidence of other witnesses, is that his evidence must receive sufficient corroboration.
Their Lordships of the Supreme Court in Sarwan Singh's case : 1957CriLJ1014 have also held to the above effect and have further stated as follows:
An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.
It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corrobora-tion does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.
But it must never be forgotten that before the Court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.
9. The evidence of P. Ws. 5 and 6 has to be viewed in the light of the above pronouncements made by the Supreme Court. On a careful perusal of the evidence of P. Ws. 5 and 6 I am unable to place reliance on these two witnesses. According to the prosecution, these two witnesses were the first two persons to meet the accused after the alleged occurrence on 9-1-52. According to them, they were working in their own fields on the date of occurrence. The accused came there and told them that he killed the deceased with an axe because the deceased drank the liquor belonging to the accused. After telling this he, by holding out threats asked both these witnesses to help him in concealing the deadbody, and so out of fear these witnesses carried the deadbody along with the accused to the nearby hillock and there they put the deadbody in a crevice and covered the same with stones.
There are lot of discrepancies in the evidence of these two witnesses on material particulars. While P. W. 5 states that the accused, in asking these two witnesses to help him in concealing the deadbody, threatened them by saying that they would be killed if they refused to help him in that direction, P. W. 6 in this connection states that the accused told them that if they would not help him in concealing the deadbody he would keep the deadbody in their fields and thereby implicate them in the offence of murder. According to P. W. 5, they informed P. W. 3 all that they knew about the incident sometime before they informed the Karji about the same, which was 4 days after they concealed the deadbody in the hillock, but P. W. 6 says that they informed all that to P. W. 3 only two months thereafter and not before that. Again though P. W. 5 states that they informed one D. Appa Rao about the occurrence on the day they concealed the deadbody in the hillock, according to P. W. 6, D. Appa Rao was informed about the same only one month after the occurrence. P. W. 5 at one stage of his cross-examination says that they informed the Karji about the concealment of the dead-body after 4 days of the occurrence, but at another stage he states that he and P. W. 6 informed the villagers about the same on the very day they concealed the deadbody and on the same day they along with the villagers went to the Karji and informed him all that they knew about the occurrence. P. W. 6 directly contradicts P. W. 5 to the above effect. According to the P. W. 6 on the day they concealed the deadbody they did not tell anything about it to anybody in the village, but on the day when the report to the police was sent (i.e. on 6-2-52, 29 days after the occurrence) they informed the villagers all that they knew about the incident.
Apart from the above-mentioned frailties and deficiencies in the evidence of P. Ws. 5 and 6 the deposition of P. W. 3, instead of lending any support to the evidence of the above two witnesses, creates further doubt about the trustworthiness of these two witnesses and the truth of their evidence. According to P. W. 3, he and one Parsu, on the request of the mother of the deceased, went out in search of the deceased as he did not return from the jungle where he had gone to cut straw for thatching his house. In course of their search they met the accused in the jungle while he was worshipping under a Salap tree. They asked the accused about the deceased, but he pleaded ignorance about him (the deceased). While coming away from that place they met P. Ws. 5 and 6 in their respective fields, and asked them if they had seen the deceased. As they did not give any answer to their query, P. W. gave a blow with a stick on P. W. 5 and then he told them that the accused killed the deceased with an axe as the latter drank the Salap liquor from his (accused's) Salap tree. P. W. 6 also told them the same thing. Both P. Ws. 5 and 6 then took P. W. 3 and the said Parsu to the crevice of the hill where the deadbody of the deceased was kept concealed, and they told him (P. W. 3) that on being threatened by the accused they helped him in carrying the deadbody to the place of concealment. He saw the deadbody in the crevice as pointed out by P. Ws. 5 and 6. Thus according to this witness he got the aforesaid information about the occurrence from P. Ws. 5 and 6 on the very day of the occurrence. But according to P. W. 5, both P. Ws. 5 and 6 informed P. W. 3 about the occurrence after two or three days of the occurrence, and according to P. W. 6, they informed P. W. 3 about the same about a month thereafter. It is also difficult to place any reliance on the evidence of P. W. 3 as all that he stated in examination-in-chief has been completely falsified by his own statement in cross-examination that he saw the deadbody of the deceased two or three months after he last saw him living, and he was searching for him during that period.
Because of the above deficiencies and incongruities in the evidence of P. Ws. 3, 5 and 6, it becomes extremely difficult for me to place any reliance on them.
10. Besides the above, the prosecution has failed to establish beyond reasonable doubt that the deadbody which was taken out from the crevice of the hillock was that of the deceased Hadia Soura. The witnesses have made extremely incongruous and self-contradictory statements in this connection. P. W. 3 in his examination-in-chief stated that when he saw the deadbody in the crevice, he found that the hands of the deadbody were tied with a piece of cloth, it had a Panchi and a banian on its body, and there was a cut injury at the back of the neck. He identified the deadbody to be that of Hadia from the white mark on the skull of the deadbody and the cloth on its body. But in cross-examination he stated that when he saw the deadbody of the deceased there was no flesh, skin or hair on the deadbody. He saw a mere skeleton of bones. There was no magot or worm on the deadbody. The eyes, ears and nose were not visible. There was no cloth or banian on that skeleton. Fragments of a Panchi and a banian, which had been eaten away by white ants and reduced to pieces, were lying near about that place and had become black in colour and were in such a condition that it was not possible for anybody to say if they were the wearing apparels of a male or a female. He also stated that he thought that the skeleton in the crevice was that of the deceased as P. Ws. 5 and 6 told him that that was the deadbody of the deceased. His above statements in cross-examination, besides rendering him a thoroughly unreliable witness when considered in the context of his statements in examination-in-chief, do not in any way show that the skeleton in the crevice was that of the deceased.
The evidence of P. Ws. 5, 6 and 7 to this effect does not also establish the above fact. According to P. W. 5 (in cross-examination) when they took the police to the place where the deadbody was concealed, the deadbody consisted of only bones and there was no flesh on it. The skeleton from head to foot looked white. P. W. 6 also said in his cross-examination that when the police went to see the deadbody it was a mere skeleton. P. W. 7, who investigated into the matter and drew up the inquest report after the deadbody was brought out from the crevice, states in his cross-examination that it was not possible for him to say if the said deadbody was that of a male or of a female. It was also not possible for them to guess the age of the deceased. There is no other evidence to connect the dead-body of the deceased with the skeleton which was taken out from the crevice. On the above evidence it becomes extremely difficult for me to say with certainty that tha skeleton of a deadbody taken out from the crevice of the hillock was that of the deceased.
11. The prosecution is also guilty of not examining material witnesses. Both P. Ws. 5 and 6 state that they for the first time informed one D. Appa Rao about the incident. There are of course serious and substantial discrepancies in their evidence as to when if at all, these P. Ws. met D. Appa Rao and informed him about the incident. Moreover, according to P. W. 6, when the accused, after killing the deceased, met P. Ws. 5 and 6 in their fields and made the aforesaid extra-judicial confession before them, the wife and children of both these witnesses were present at that place. P. W. 5 has stated in his cross-examination that on the date of occurrence after concealing the deadbody, he and P. W. 6 informed the villagers about -the occurrence, and on the same day they along with some of the villagers went to the Karji and informed him about the incident. There is nothing on record to show that D. Appa Rao or the wife and childen of P. Ws. 5 and 6 or the villagers to whom these witnesses informed about the incident, as stated above, have all died or were not available to be examined in this case. Non-examination of D. Appa Rao and some of the other above-mentioned persons is a serious infirmity in the prosecution case.
12. It is also difficult to say from the materials on record that the accused was actually absconding from the village after the date of occurrence, as alleged by the prosecution. P. W. 6 has stated in his cross-examination that the accused went away with his wife and children to the house of his maternal grandfather after the police came to the village. The F. I. R. Ext. 3/4 was lodged on 7-2-52, i. e. after 29 days of the alleged occurrence. P. W. 7, the I. O., states that he went to the village after he recorded the F. I. R. There is nothing on record to show that any other policeman went to the village earlier than P. W. 7 in connection with this case. From the above it is quite evident that the accused did not go away from the village very soon after the occurrence. Moreover, from the above evidence of P. W. 6 it is quite clear that people of the village knew that the accused was staying in the house of his maternal grandfather. P. W. 5 has stated that the house of the maternal grandfather of the accused was at the top of the hill near village Gunupur. On the above evidence it is quite clear that the whereabouts of the accused were known to the villagers and it cannot be said that as the accused was absconding very soon after the occurrence he could not be arrested in connection with this case.
13. There is nothing else on record to connect the accused in any convincing manner with the aforesaid offences.
14. On hearing the counsel appearing for both the parties and on a careful perusal of the evidence on record I find that the prosecution has utterly failed to establish its case against the accused beyond reasonable doubt and accordingly the accused is entitled to the benefit of doubt and is liable to be acquitted of both the offences of which he stands convicted by the trial court, Thus the conviction and the sentence of the accused under Sections 302 and 201, IPC are hereby set aside and he is acquitted of both the said offences. I accordingly direct that the accused, if in custody, be set at liberty forthwith.
15. The appeal accordingly is allowed.
G.K. Misra, C.J.
16. I agree.