B.K. Behera, J.
1. Challenge in this appeal is to the judgment and order of conviction recorded by the Additional Sessions Judge of Ganjam against the appellants Debiprasad Padhi and Ramachandra Choudhury, the former being the son-in-law of the latter, finding them guilty of the charge of murder of Niranjan Subudhi (hereinafter described as the deceased) committed, in furtherance of their common intention, on July 28, 1979, between 1.30 p.m. and 3.00 p.m., at Berhampur in the district of Ganjam. The two appellants and the deceased had partnership business in medicine having a firm under the name and style of 'Messrs Pratap Medical Stores' in the city of Berhampur. It was alleged that dissensions arose between the appellants on the one hand and the deceased on the other with claims and counter-claims and the matter had been referred to the Auditor (P. W. 3) of the firm on July 27, 1979. On the day following, the two appellants allegedly duped the deceased into believing that he would be paid his dues at the residence of the appellant Debiprasad and the three came and entered the house of the appellant Debiprasad at about l to 1.30 p.m. At 3.00 p.m., the two appellants came out, but the deceased did not. Binayak Subudhi (P. W.1), (he brother of the deceased, went in search of the deceased as he did not return home till the evening and on going to the house of the appellant Debiprasad, who had been staying with his parents, learnt from Raghunath, the father of the appellant Debiprasad, that the deceased had come to their house at about 1.30 to 2.00 p.m. and he did not know where he went thereafter. The chappals (M.O. II) and the bicycle (M.O. III) of the deceased were found there, the chappals lying on the verandah of the room of the appellant Debiprasad and the bicycle kept inside the compound of the house. Next morning, P. W. 1 again came to the house of the appellant Debiprasad looking for the deceased when he found M. Os. II and III at the same places as on the previous day and he got the same reply from Raghunath about the whereabouts of the deceased. P. W. 1 then went and lodged the first information report (Ext 1) suspecting that the two appellants had kidnapped his brother. A case under Sections 365, 385 and 342 read with Section 34 of the Indian Penal Code was registered by the Officer-in-charge (not examined) of the police station and under his direction, the Assistant Sub-Inspector of Police (P. W. 18) took up the investigation. On the same day, the appellant Debiprasad had lodged a report (Ext 2/1) at the police station stating therein that the deceased had come to his house on the previous day and had Left for some place leaving his bicycle and shoes and that in the morning of that day, i.e., July 29, 1979. his neighbours and outsiders had entered his house for the purpose of looting. P. W. 18 visited the house of 'he appellant Debiprasad seized M. Os. II and III, the slippers and the bicycle of the deceased, as Per Ext. 3, the seizure list dated 29-7-1979 and unsuccessfully searched for the deceased in the houses of the two appellants and found no trace of the deceased on looking into the wells in the houses of both the appellants. On getting information at 8.05 a.m. on 30-7-1979 from the Police Constable N. Bisoi that a dead body was floating inside the well of the house of the appellant Debiprasad. P. W. 18 requisitioned the services of a photographer and P. W. 12 Dr. Kiran Kumar Misra, Professor and Head of the Department of Forensic Medicine and Toxicology in the M.K.C.G. Medical College, Berhampur. The dead body was 'hat of the deceased and it was taken out from the well in a state of decomposition emitting foul smell. The photographer and P. W. 12 came to the spot and they took photographs, p. W. 18 held inquest over the dead body as per Ext. 12, the inquest report and sent the dead body for post-mortem examination which was conducted by P. W. 12 as per Ext. 9, the post-mortem report. According to the findings recorded therein, death was homicidal in nature owing to violent asphyxia brought about by compression of the chest and the neck. The gold ring (M.O. I) said to be belonging to the deceased was recovered from the house of the appellant Debiprasad and seized as per Ext. 4, the seizure list dated 30-7-1979. In the course of investigation, the appellants and the two other co-accused persons were arrested, the witnesses were examined and on the completion of investigation, a charge-sheet was placed. The two appellants along with the two other co-accused persons, namely, Raghunath Padhi and Manorama Padhi, the father and mother respectively of the appellant Debiprasad, stood charged under Section 302 read with Section 34 of the Indian Penal Code for having committed the murder of the deceased in furtherance of their common intention and under Section 201 of the Indian Penal Code for throwing the dead body of the deceased into the well with the intention of causing evidence of the offence of murder to disappear.
2. The two appellants and the co-accused persons, pleading not guilty to the charges, had denied the accusations made against them.
3. To bring home the charges to the appellants and their co-accused persons, the prosecution had examined eighteen witnesses. The appellants and their co-accused persons had not examined any witness on their behalf.
4. On a consideration of the evidence, the learned Additional Sessions Judge found the two appellants guilty of the charge of murder, while exonerating the two co-accused persons Raghunath Padhi and Manorama Padhi by holding that on account of their old age, they could not have taken any part in the commission of or abetting the commission of the offence of murder. None of the accused persons was found guilty of the charge of causing evidence of the commission of the murder to disappear.
5. Mr. Rath, the learned Counsel for 'he appellants, has taken us through the relevant evidence and has submitted that the evidence of P. W. 12, the Professor of Forensic Medicine and Toxicology, would exhibit his interestedness for the prosecution and it would not be reasonable and proper to accept his testimony and hold 'hat death in the instant case was homicidal in nature. The circumstantial evidence, on which reliance had been placed by the prosecution, it is submitted, was utterly untrustworthy and even if accepted, would not be incompatible with the innocence of the appellants. Mr. Das, the learned Additional Standing Counsel, has, however, submitted that the chain of circumstances against the appellants is complete and leaves no manner of doubt that they were the authors of the crime.
6. As the evidence of the Investigating Officer (P. W. 18) would clearly show, he had requisitioned the services of P. W. 12 and it could not, therefore, be reasonably contended that out of his own zeal or interestedness and On his own, P. W. 12 had visited the scene and had taken the photographs and that therefore, his evidence would not deserve credence. In our view, it would not be just and reasonable to attack the bona fides of P. W. 12. It is noticed from the impugned judgment that the defence had not challenged the fact that death in the instant case was homicidal in nature and, indeed, it could not, in view of the clear and categorical evidence of P. W. 12 who had conducted the autopsy over the dead body of the deceased on July 30, 1979 and had found seven external injuries and on dissection, noticed the following:
(1) Haematoma spreading over the whole of the front of the right chest wall over the sternum and the inner side of the left chest wall.
(2) On opening the chest, the heart was found to be flattened with contusion 1' x 1' over the front of the right ventricles and another contusion 3/4' x 2' over the side of the right ventricle and right atrium.
(3) There was diffused contusion of the muscles of the front of the neck. The thyroid gland was congested and of purplish colour. There was fracture of adduction type of both the corners of thyroid bone at the neck and there was fracture of the thyroid cartilege. The mucous membrane of the respiratory passage was congested and there was collection of haemorrhagic blood at the fractured areas of these bones. There was blood fluid in the respiratory passage.
He had testified that all the injuries were antemortem in nature and on further dissection, it revealed that both the lungs were congested and the right lung was engorged and congested. There was sub-pleural haemorrhagic area on the lung surfaces, more marked on the right side and there were also sub-epicordial haemorrhagic spots on the surface of the heart and large vessels were engorged with dark fluid blood. According to P. W. 12, there was no feature of drowning and death was proximately due to violent asphyxia brought about by compression of the chest and the neck and the injuries noticed by him were consistent with' repeated blunt force impact and those on the neck and the chest were due to repeated as well as sustained compressive force which could have been homicidal in nature. On the medical evidence, it must be found that the injuries were sufficient in the ordinary course of nature to cause death. P. W. 12 had conducted the post-mortem examination at 1.30 P.m. on July 30, 1979 and according to his estimation, death had taken place about 24 to 36 hours prior to the post-mortem examination and about 4 to 8 hours after taking of the last meal.
Nothing substantial had been brought out in the long-drawn out cross-examination of this witness and we would accept the contention raised on behalf of the State, accepting the evidence of P. W. 12 and the finding of the trial court in this regard, that death of the deceased was homicidal in nature.
7-8. This takes us to the most important question as to whether the appellants were the authors of the crime. There was no eye-witness to the occurrence and the case depended On some items of circumstantial evidence which were:
(a) the business rivalry between the appellants on the one hand and the deceased on the other giving rise to the motive for the commission of the crime;
(b) The fact of the deceased and the appellants being last seen together in that being called by the appellants, the deceased came with them to the house of the appellant Debiprasad and thereafter, did not come out of the house and was not seen alive;
(c) the recovery of the chappals (M.O. II) and bicycle (M. 0. III) of the deceased in the house and inner compound of the appellant Debiprasad;
(d) the recovery of the gold ring (M.O. I) belonging to the deceased during the search of the house of the appellant Debiprasad; and
(e) the recovery of the dead body of the murdered deceased from inside the well in the inner compound of the house of the appellant Debiprasad and his parents.
9. Of these items of evidence, the learned Additional Sessions Judge did not place reliance on the recovery of the gold ring (M.O. I) as a guilt-pointing circumstance in the absence of clear and acceptable evidence of ownership and identification of M.O. I and in our view, rightly so. At the hearing of this appeal, the learned Additional Standing Counsel has not pressed into service this circumstance.
10. In a case depending on circumstantial evidence, there is the danger of conjecture or suspicion taking, the place of legal proof. It has been a settled principle of law relating to the appreciation of circumstantial evidence that the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of conclusive nature and tendency and should be such as to exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence so far complete as to not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such that within al human probability, the act must have been done by the accused and no one else. Circumstantial evidence must be such that it cannot be explained on any other reasonable hypothesis except the guilt of the accused and it must be incompatible with his innocence see : 1979CriLJ655 Nathu Garam v. State of U.P. : 1979CriLJ566 , S.P. Bhatnagar v. State of Maharashtra : 1979CriLJ1125 , Jagish Prashad v. State : 1979CriLJ1310 , Pohalya Motya Valvi v. State of Maharashtra : 1980CriLJ920 , Naresh Kumar v. State of Maharashtra : 1980CriLJ965 , State (Delhi Admn.) v. V.C. Shukla and : 1981CriLJ325 , Shankarlal Gyarasilal Dixit v. State of Maharashtra)
11. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent arid not real; and even when the connection is real, the deduction may be erroneous. We may usefully quote and extract from Wills on Circumstantial Evidence, Seventh Edition (pages 38 to 39):
Many fallacies and some truisms are to be found in writings and judgments dealing with circumstantial evidence. It has been said, for instance, that 'circumstances are inflexible proofs. They will not bend to the inclinations of parties. Witnesses may be mistaken - may be corrupted; things can be neither; and therefore, so far as they go, deserve unlimited, unreserved faith (Burnett's Criminal Law of Scotland (1811), p. 523, footnote). 'Circumstances', says Paley, 'cannot lie' (Principles of Moral and Political Philosophy, b. vi. c. ix). It is astonishing that sophisms like these should have passed current without animadversion. The 'circumstances' are assumed to be in every case established beyond the possibility of mistake; and it is implied, that a circumstance established to be true possesses some mysterious force of its own, special in its nature and essence. Now, a circumstance is neither more nor less than a minor fact, and it may be admitted of all facts, that they cannot lie, for a fact cannot at the same time exist and not exist; so that in truth, the doctrine is merely the expression of a truism, that a fact is a fact. It may also be admitted that 'circumstances are inflexible proofs', but assuredly of nothing more than of their own existence: so that this assertion is only a- repetition of the same truism in different terms. It seems also to have been overlooked, that circumstances and facts of every kind must be proved by human testimony; that although circumstances cannot lie' the narrators of them may and often do lie; that like witnesses of all other facts, they may be biased or mistaken, and that the facts, even if indisputably true, may lead to erroneous inference. Thus far, then, circumstantial evidence possesses no advantage over direct evidence.
Keeping the aforesaid settled principles of law relating to the appreciation of circumstantial evidence in view and the fact that in cases of circumstantial evidence, the processes of inference and deduction are essentially involved which, often enough, are of a delicate and perplexing character liable to causes of fallacy, some of them inherent in the nature of the mind itself, while bearing in mind that a proof does not mean the proof to rigid mathematical demonstration because that is impossible and must mean such evidence as would induce a reasonable man to come to the conclusion as a fact, the circumstances on which reliance had been placed by the trial court are to be carefully considered to find out as to whether the charge had been brought home to the appellants beyond reasonable doubt.
12. Coming first to the question of the motive for the commission of the crime, we notice that the evidence adduced from the side of the prosecution was far from satisfactory and would, on the other hand, lead one to a conclusion that until the death of the deceased, he had cordial relationship with the members of the family of the appellant Debiprasad and had been treated just like a member of that family. P. W. 1 is no other person than the brother of the deceased and can thus be characterised as an interested witness not only because of his relationship with the deceased, but also because of the fact that he along with Banamali Nayak (P. W. 131 besides many other persons had been prosecuted on the basis of two charge-sheets, copies of which had been marked as Exts. C and D during the trial, one under Sections 147, 448 and 323 of the Indian Penal Code started on the first information report lodged by Raghunath Padhi, father of the appellant Debiprasad and the other under Sections 143, 448 and 427 of the Indian Penal Code started on the basis of the first information report lodged by the appellant Ramachandra Choudhury, both with regard to incidents said to have taken place on July 30, 1979 and Raghunath and his wife Manorama had been sent for medical examination which had been done by P. W. 12 who had noticed injuries on their persons. Testifying about the strained relationship consequent upon the dissensions which had allegedly arisen among the partners, namely, the deceased and the two appellants, with regard to their business, P. W. 1 had deposed:
Niranjan died on 30-7-1979, Prior to that, on 30-6-79 the accused persons forcibly took signature of the deceased on six blank papers on point of knife. With the intervention of the gentlemen like Sanyasi Sahu, Radha Senapati, Sanyasi Mahapatra, myself it was decided that the accused Debiprasad Padhi and Ramachandra Choudhury would pay Rs. 15,000/- to the deceased towards his share in the business. Though it was settled as stated above, accused Ramachandra Choudhury subsequently brought forward an account purporting to have shown a loss of Rs. 90,000/-(ninety thousand) and claimed that nothing was due from them and rather they were to get some amount from the accused. On 27-7-79 the matter was referred to the Auditor Tei Raj Pal of Bada Bazar. On that day myself, Sanyasi Sahu and Rama Choudhury and Niranjan (deceased) went to the Auditor Tei Rai Pal Accused Rama Choudhury showed certain paper but the auditor declined to give his opinion in the absence of the details of the account. At that time the accused Ramachandra Choudhury however promised the deceased to pay Rs. 15000/- to the latter, on 29-7-79 and thus we all came away.
This evidence of P. W. 1 had not been supported by any contemporaneous documentary evidence and on his own showing, the blank papers containing the signatures of the deceased which the appellants had allegedly taken forcibly from the deceased had not been recovered during the search of the houses of the appellants and if, indeed, such an incident had occurred, it was highly unlikely that no report would be lodged at the police station. There was no evidence of any such report having been made. P. W. 1 had admitted in his cross-examination that he had no personal knowledge about the forcible taking of the signatures of the deceased. He had further admitted that nothing was reduced to writing when the matter was settled and the two appellants promised to pay Rs. 15,000/- to the deceased. of the gentlemen who had allegedly intervened, Sanyasi Sahu and Radha Senapati had not been examined by the prosecution. P. W. 15 did give evidence supporting that of P. W. 1 that the two appellants first promised to pay Rs. 15,000/- to the deceased and later backed out and the appellant Ramachandra gave out that the firm had incurred a loss of Rupees 90,000/- but he had made no such statement to the Investigating Officer and on the facts and in the circumstances of the case, this could not be said to be an inconsequential omission. P. W. 15 had not stated to the Investigating Officer as testified in the trial court that the deceased wanted to dissolve the partnership. P. W. 16 had given evidence that the deceased had been assaulted by the two appellants 2 to 3 days prior to his marriage in connection with their business affairs and that the. deceased had disclosed to him saying that he had been having pain in his body. There was nothing to show that any report had been made or any case had been instituted in this regard and if such an incident had occurred, in the normal course of events, P. W. 1 must have had knowledge of it, P W. 1 had not whispered a word about any such incident. The evidence of P. W. 1 with regard to the motive for the commission of the crime extracted above would not get support from the evidence of P. W. 3 K. Tajeswar Rao, a Chartered Accountant to whom the two appellants and the deceased had referred their dispute over the dissolution of the partnership; his evidence, on the other hand, would demolish that of P. W. 1 with regard to the motive. According to P. W. 3, he had prepared a draft and had handed it over to the appellant Ramachandra who returned the same to him after approval of the partners and thereafter the same appellant took the typed dissolution deed. This witness further deposed:
(2) As far as I remember, in or about 271th July, 1979 deceased Niranjan Subudhi, accused Ramachandra Choudhury and Sanyasi Sahu and another person came to me to settle up further accounting between the parties. Sanyasi Sahu asked Ramachandra Choudhury to get all the documents and papers for accounting. Ramchandra Choudhury asked Sanyasi Sahu to stand as a surety for the deceased Niranjan Subudhi to which Sanyasi Sahu declined saying that he was only a mediator and that he had not come to srand as a surety for Niranjan. Ramachandra Choudhury on that day had only brought one piece of paper purporting to be some accounts. I saw that paper but I refused to give any opinion without verifying original documents. By 27th July, 1979 I had no origtnal documents of the firm with me except the copy of the income-tax return which Ramachandra Choudhury had taken it for preparation of the income-tax return for subsequent year 1 Or 2 days prior to 27-7-1979.
The evidence of P. W. 3 would undoubtedly show that nothing was settled and would belie the evidence of P. W. 1 about the promise made by the appellants to pay Rs. 15,000/- initially and their backing out. For all these reasons, we are of the view that the alleged motive ascribed to the two appellants for the commission of the offence of murder was but a myth and could not be accepted. It may not be out of place to mention here that even as deposed to by P. W. 1, the deceased was the sworn friend of the - appellant Debiprasad and had been frequently visiting the house of the appellant and he was being treated like a son by the appellants. This is what had been stated by P. W. 1 in his cross-examination. Pata Mahantiani (P. W. 11) who had been serving as a maid servant in the house of the appellant Debiprasad at the relevant time had given evidence that the deceased was being treated as a member of the family and at times, had been looking after the old parents of the appellant Debiprasad. There was, in addition, the evidence of Pratima Padhi (P. W. 17), the niece of the appellant Debiprasad, aged about 10 years at the time of her depositon at the trial, that the deceased was almost a member of the family of the appellant Debiprasad and during her stay in the house of her maternal uncle Debiprasad, the deceased was often nursing Raghu-nath, the ailing father of this appellant. True, this witness had been put leading questions by the prosecution and cross-examined by it under Section 154 of the Evidence Act, but the evidence of such a witness is not to be discarded altogether and is to be considered for what it is worth. Another striking feature in this regard is that according to P. W. 3, the appellant Ramachandra had asked Sanyasi to stand as surety for the deceased Niranjan and Sanyasi declined. This would give an indication as has been submitted before us by Mr. Rath for the appellants, that some amount was due to be paid by the deceased to the appellants in which case the appellants would certainly not take into their heads to do away with the life of the deceased and make realisation of their dues difficult, nay impossible.
13. The aforesaid facts, evidence and circumstances would clearly show that there was no motive on the part of the appellants which could have prompted them to commit, the ghastly offence of murder of the deceased who, as the evidence discussed above would show, had been pulling on well with the appellants and was being treated as a member of the family of the appellant Debiprasad. Evidently in view of all these infirmities in the evidence and improbability in the story of the prosecution ascribing motive for the commission of the offence, learned Additional Standing Counsel for the State, placing reliance on the principles laid down in the case of State of Haryana v. Sher Singh : 1981CriLJ714 , has submitted that the prosecution is not bound to establish motive in a criminal case; motive is known only to the perpetrator of the crime and may not be known to others. We do agree that in a criminal case, the prosecution is not bound to prove motive for the commission of the offence. Mysterious is the working of the human mind and often enough, it would not be possible for the prosecution to ascribe any motive for the commission of an offence. Motive, however adequate, cannot, by itself, sustain a criminal charge and conversely, a case is not thrown out for absence of motive if evidence establishes the guilt of the accused. As has been laid down in an earlier decision of the Supreme Court in the case of Atley v. State of Uttar Pradesh : 1955CriLJ1653 , where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty, but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this effect only that the other evidence bearing on the guilt of the accused has to be very closely examined. In the instant case, we have been called upon to judge the guilt or innocence of the two appellants on circumstantial evidence only and the prosecution has ascribed a motive which, in our view, is utterly false. In this background, the other evidence has to be examined with great care before the same is accepted.
14. We would next come to the evidence of P. Ws. 4, 5, 6 and 10 on which the prosecution had sought reliance to establish that the deceased came with the two appellants to the house of the appellant Debiprasad at about 1 to 1.30 p.m. and was not seen alive thereafter.
15. According to P. W. 4, while he was on his way towards Badabazar at about 1.00 p.m. on Saturday (corresponding to 28-7-1979), he met the deceased coming from the opposite direction and while both of them were talking on getting down from their bicycles, the two appellants came from the side of the Utkal Cinema and reached that place and the appellant Debiprasad asked the deceased to 'come to his house and take his money as decided earlier and the other appellant also told in the same manner. The appellant Debiprasad went ahead being followed by the appellant Ramachandra and the deceased who went together towards the house of the appellant Debiprasad. His evidence would show that he was not residing far away from the residence of the appellant Debiprasad. There was a commotion in the locality on the day following, i.e., on 29-7-1979, when the Police authorities also came to the scene. There is nothing to show that this witness had informed the Police authorities on that day about what he saw on the previous day when a search was going on to trace out the deceased. This witness claimed to have informed some ladies on the day following the day on which he saw the appellants and the deceased together, but there was no evidence in support of this, If as the prosecution sought to show, dissensions had arisen among the partners including the deceased, signatures of the deceased had forcibly been taken on some papers and nay, he had even been asaulted and thus if bitter blood was the ruling relationship between the parties and estrangement continued, the deceased would not certainly have glibly accepted the proposal of the two appellants to come to the house of the appellant Debiprasad to get his money as he would easily read some sinister motive behind such invitation. That apart, as indicated by us, there is no evidence of settlement of the accounts among the parties and, therefore, there was no question of the deceased accompanying the two appellants for receiving his dues. We have no doubt in our mind 1 hat the story of the two appellants asking the deceased to come with them and receive the money had falsely been introduced by the prosecution along with the claim of a settlement for a sum of Rs. 15,030/- which has to be discarded by us.
16. Dinabandhu Nayak (P. W. 5), having his house opposite to that of the appellant Debiprasad and Trinath Sena-pati (P. W. 6), who had been repairing his scooter in his house visible to that of the appellant Debiprasad, had testified that the appellant Debiprasad came on a bicycle to his house followed some time thereafter by the deceased and 'he appellant Ramachandra who came together walking to the house and according to both of them, the two appellants and the deceased went inside the house of the appellant Debiprasad. Both of them had testified that at about 3.00 p.m., the two appellants came out, but they did not see the deceased coming out of the house. There was no evidence that P. W. 5 had informed anyone even after the Police authorities came to the scene and a vigorous search was on to find out the deceased. P. W- 6 had stated that on the same day in the evening, he had informed Binayak (P. W. 1) and Batakrishna (P. W. 14) about what he had seen. But neither P. W. 1 nor P. W. 14 had spoken about this information having been given by this witness. On his own showing, P. W. 5 had not marked the movements of anyone else on that day. It is not understood as to how and why his eyes should be fixed on the movements of the two appellants and the deceased at the house of the appellant Debiprasad all the time from 1.00 p. m. to 3.00 p.m., so that he would be able to say about the movements of the three going inside the house, two of them coming out and the deceased not coming out of the house. The same criticism must be levelled against P. W. 6 who had stated at the stage of investigation that he had been cleaning his scooter, but had designedly made an improvement upon this at the stage of trial by saying that he had been repairing his scooter and this had evidently been done with a devilish design as it would not be believable that he would be cleaning the scooter all the time for which he came out with a theory at the stage of trial that he had been repairing the scooter. The evidence of P. Ws. 5 and 6 is too unreal and artificial to be accepted and apparently their evidence has been got up to fit in with the case of the prosecution that the deceased was murdered in the house of the appellant Debiprasad between 1.30 p.m. and 3.00 p.m. as stated in the charge.
17. Smt. Nilima Patra (P. W. 10) had been staying as a tenant in the house of the appellant Debiprasad. As her evidence would show, she had been staying with her husband and two sons at the relevant time. One of her sons was serving in the bank and another was having business. The evidence of p. W. 11 was that at the relevant time, P. W. 10 had been staying with her two sons and two daughters-in-law and the inmates of the house used to go to the well through the common courtyard. According to P. W. 10, at about 1.00 to 1.30 p.m. on Saturday, the appellant Debiprasad came and went inside his house and 10 to 15 minutes thereafter the appellant Ramachandra and the deceased came and went inside the house. It is important to note that on the same day, the brother of the deceased came in search of the latter and on the day following, the brother of the deceased again came in search of the deceased and some time thereafter, the Assistant Sub-Inspector of Police and other persons came to the scene. If this lady had seen what she had claimed to have, she would normally and naturally have informed the brother of the deceased and the police officer about the movements of the two appellants and the deceased about which she had testified in the court. She had not given evidence as to what happened after the two appellants and the deceased went inside the house nor did she Bay that she had heard any cry for help or any sound of beating. The dead body of the deceased was found floating in the well to which this lady and the inmates of her house had also access. As has been submitted before us on behalf of the appellants, it could be that she had some apprehension that she or some of the inmates of her house might be implicated in connection with the death of the deceased and the instinct of self-preservation might have propelled her to make a statement about the movements of the appellants and the deceased in the manner she had deposed to in the Court. For the aforesaid reasons, we have not been impressed with her evidence.
18. A striking suspicious feature in the evidence of P. Ws. 4 to 6 and 10 is that all these witnesses have fixed up the timings of the arrival of the two appellants and the deceased at the house of the appellant Debiprasad and some of them have deposed about the two appellants coming out of the house at 3 p.m. We notice from the evidence of P. W. 17 who, as earlier indicated, had been put leading questions by the prosecution that during her examination by the Investigating agency, she had also been attributed with a statement said to have been made by her that her uncle Debiprasad came to the house at 1.30 p. m. followed by the deceased. True, a statement recorded under Section 161 of the Criminal P.C. is not substantive evidence and P. W. 17 had denied to have made such a statement, but we would like to put this on record to show as to how the prosecution had made an attempt to bring through the mouths of all these witnesses the particular timings in order to fit in with the theory of the prosecution that the murder had been committed some time between 1.30 p.m. and 3.00 p.m. In the normal course of human conduct and action, all these witnesses were not supposed to mark the movements and that too, the timings of the movements from time to time and this, besides the other reasons indicated by us, would show as to how artificial was their evidence. We cannot help observing that these witnesses seem to have been made to speak in the same way rather than recounting events in their natural setting. It is not disputed that the deceased had gone to the house of the appellant Debiprasad on 28-7-1979, but certainly not in the manner and with the persons alleged by the prosecution.
19. As a matter of fact, as per the report (Ext. 2/1) made by the appellant Debiprasad himself on July 29, 1979. at the police station, the deceased had gone to his house and had left his chappals described in the report and shoes and his bicycle and the deceased had gone when this appellant was taking food and when he came out after taking food, he saw the bicycle and shoes of the deceased, but the deceased was not found there, Commenting heavily on this report attributing criminal conduct on the part of the appellant Debiprasad and giving undue emphasis on the fact that instead of mentioning chappals, the appellant used the expression 'shoes' in the report, the trial court observed thus:.The learned P. P. argued that this was because the accused was in a disturbed state of mind and therefore has committed this mistake. I agree with the contention of the learned P. P. I find that some other mistakes which can be attributed to have been committed because of the disturbed state of mind of the accused which is very relevant. Accused has mentioned that Niranjan was working in his shop. But in fact Niranjan was one of the partners. The important part of the report is that the same is written in past tense so far as it relates to Niranjan. This has occurred because the accused was sure that Niranjan was dead by the time he lodged Ext. 2/1. The learned P. P. argued that if in case accused and Niranjan were so close, the accused remained indifferent to search for the deceased. I think this conduct could not go against him because the prosecution comes forward with a case of strained relationship with the deceased. Therefore, there would be no reason for the accused to bother about the whereabout of the deceased Niranjan. But as I find - unconsciously in a disturbed mind he has mentioned about Niranjan because by then he positively knew that Niranjan was not living. Another mistake he has committed by mentioning that Niranjan left a pair of shoes but in fact the deceased left chappals which the accused have not disputed.
We are constrained to observe that even the innocuous acts of the appellant Debiprasad had been painted in suspicious colours. If English grammar required that past tense would be used because the deceased had gone to the house of this appellant on 28-7-1979 and the report was made by this appellant as per Ext. 2/l on the day following, no fault could be found with the appellant and it was too much to say that because the appellant knew about the death of the deceased, the report had been written out in the past tense nor could any comment be legitimate because the appellant stated in the report that the deceased had been working in his medicine shop instead of stating in clear terms that he was one of the partners. By the time this report was made, the dead body had not been recovered and as the evidence of P. W. 1 would show, the appellant had been at the police station by the time P. W. 1 went to the police station for making the report. The lodging of the report by the appellant admitting the presence of the deceased in his house on 28-7-1979 would certainly show his bona fides and it could not be said that with the intention of creating a false defence in his favour, the appellant had made a report at the police station.
20. The aforesaid discussion of the evidence would show that the evidence of P. Ws. 4 to 6 and 10 with regard to the movements of the two appellants and the deceased was not to be accepted and it could not thus be said that the deceased was last seen alive in the company of the two appellants. That apart, as the evidence of P. W. 12, who had conducted the autopsy, would show, the death had taken place 24 to 36 hours prior to his post mortem examination conducted at 1.30 p.m. on July 30, 1979. Thus giving the allowance for the maximum time of 36 hours death might have taken place in the early hours of July 29, 1979. It had not been brought out by the prosecution in 'he evidence of the Doctor that the time could still be stretched earlier. It would also be noticed from the evidence of P. W, 12 and the extracts from the authoritative text books about which mention has been made in the judgment of the trial could that at the relevant time, decomposition would set in and a dead body thrown into the well would float in about 24 hours' time. The dead body of the deceased was noticed floating in the well in the morning of the 30th and it was very likely that the dead body had been thrown into the well sometime during the early hours of July 29, 1979. All this would give an indication that the murder had taken place not between 1.30 p.m. and 3.00 p.m. as alleged by the prosecution but sometime in the early hours of July 29, 1979 after which the dead body might have been thrown into the well. In this state of the evidence, it could not be said that the deceased was last seen with the appellants before he was found dead as there was a very long interval after he had come to the house of the appellant Debiprasad and before he was murdered and his dead body was thrown into the well.
21. A question may arise as to why P. Ws. 4 to 6 and 10 have come forward to depose against the appellants. We have already indicated earlier that the instinct of self-preservation might have propelled P. W. 10 to speak out against the appellants. It is no part of the duty of the defence in a criminal case to satisfy the court as to why some witnesses have come forward and deposed against an accused person. If the evidence of some witnesses is inherently incredible, the fact that the witnesses are disinterested would not make any improvement in respect of the value of their evidence. If, on the other hand, the evidence of some witnesses has intrinsic value and is found to be credible and the court finds that they are natural and competent witnesses, the fact that they are interested for the prosecution by being the relations of the deceased or by being partisan witnesses would not, by itself, be sufficient to discredit their evidence.
22. It has been a settled principle of law that it is not for an accused person to say as to how and why a case has falsely been instituted against him, no has he a legal obligation to satisfy the court as to why some witnesses have come forward to depose against him. In this connection, the observations of the Supreme Court in the case of Shankarlal Gyarasilal Dixit v. State of Maharashtra 1981 Cri LJ 3251 (supra) may be kept in mind. Their Lordships have observed (Para 33):.Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions....
For the reasons already recorded by us we have found the evidence of P. Ws. 4 to 6 and 10 unreliable and unacceptable and their evidence cannot be accepted even if it is not shown by the defence as to why they have come forward to depose falsehood against the appellants.
23. It is admitted on all hands that the slippers (M.O. II) and the bicycle (M.O. III) did belong to the deceased and were found lying inside the compound of the house of the appellant Debiprasad, This had been admitted by the appellant Debiprasad in his report (Ext. 2/1) lodged at the police station. P. W. 1 had seen these articles in the evening of July 28, 1979 and also on the day following on which day the Assistant Sub-Inspector of Police seized these articles. The recovery of these two articles, in our view, would, far from supporting the case of the prosecution that this appellant was one of the two persons who had committed the murder, indicate that the appellants were not the authors of the crime. The prosecution had not presented the case of a murder on the spur of the moment. As the prosecution sought to establish, there had been a pre-plan for the commission of the offence of murder after which the two appellants led the deceased into believing that he would be paid his dues at the residence of the appellant Debiprasad and thereafter, he was brought to the house and murdered and his dead body was thrown into the well. If the two appellants had committed the murder which had been pre-planned and had taken the precaution of throwing the dead body into the well, it was highly unlikely that they would have left articles of the deceased inside the house of one of them and allowed the bicycle and the slippers to be seen by anyone coming to the house. They could easily have thrown the pair of chappals somewhere and the bicycle could be dismembered and the parts thrown or concealed at some convenient places and they had plenty of time for it before these articles were seen lying by P. W. 1. Instead articles such as, the bicycle and the slippers of the deceased, which could easily be noticed, unlike a small article like a handkerchief, remained where the articles had been left and this would lend some assurance to the case of the defence that having come to the house of the appellant Debiprasad, the deceased had left his bicycle and slippers and had gone somewhere which had not been unearthed by the investigating agency. We must at this stage point out that in a case of this nature, where a deeper forensic probe was necessary, the investigation ought not to have been left in the hands of an Assistant Sub-Inspector of Police (P. W. 18). Coming back to the circumstance under consideration, even assuming that two reasonable constructions are possible from the finding of the chap-pals and the bicycle of the deceased inside the compound of the appellant Debiprasad, the one favouring the defence is to be adopted. As has been laid down in the case of Ram Das v. State of Maharashtra : 1977CriLJ955 on which reliance has been placed by Mr. Rath, when in a case in which the circumstantial evidence does not prove the case against the accused conclusively and unerringly and at any rate, two reasonable views are possible and the circumstances are susceptible to two equally possible inferences, the courts should accept the inference which favours the accused rather than the inference which goes in favour of the prosecution. The circumstance1 must be of a conclusive nature and tendency so as to be totally inconsistent with the innocence of the accused and are not explainable on any other hypothesis except the guilt of the accused.
24. Coming to the next and the last item of evidence, viz., the recovery of the dead body from the well inside the compound of the house of the appellant Debiprasad, we must hold that in the absence of other evidence pointing to the guilt of this appellant, the recovery of the dead body of the deceased from the well, by itself, would not lead one to a conclusion that the appellant Debiprasad had committed the murder of the deceased. It would be seen from the evidence that besides the appellant Debiprasad, his parents, who also stood trial but were acquitted, had been staying with him at the relevant time and his wife had gone to the residence of his father-in-law. P. W. 10 with her husband and her two sons and two daughters-in-law had also been staying in a portion of the house on rent. The evidence would indicate that the well in question was accessible not only to the inmates of the house of the appellant Debiprasad, but also to the inmates of the tenanted house. The spot map would give an indication that there were a number of openings to the well. From the mere fact that the dead body of the murdered person was found floating in the well inside the compound of one of the appellants, it could not be said that he must have committed the offence of murder. As a matter of fact, two of the inmates of the house, namely, the father and the mother of the appellant Debiprasad, had been acquitted of the charge of murder with a finding that on account of their old age, they were not likely to have committed the offence of murder. The case of the defence was that the deceased used to come to the house of P. W.10 and had been cutting jokes with the young ladies in their house and had been staying there and taking food and he had only been showing off that he had been coming to the house of the appellant Debiprasad although in fact, he had been coming to the house of P.W. 10. P. W. 10 had denied a suggestion made in this regard by the defence. However, the fact remains that P. W. 10 and the inmates of the house in her occupation had also access to the well. On these facts and in these circumstances, this piece of circumstance of the recovery of the dead body from the well cannot saddle the responsibility on the appellants with having committed the murder of the deceased.
25. The learned Counsel for the appellants has invited our attention to the case of Shankarlal Gyarasilal Dixit 1981 Cri LJ 325 (SC) (supra) in which case besides the fact that the dead body of the deceased girl was found in the house of the appellant and the appellant was residing in the house all alone at the relevant time, the prosecution had placed reliance on a number of other circumstances, some of which had been established, but it was held that the circumstances were not incompatible with the innocence of the appellant and our Lord the Chief Justice of India, speaking for the court, observed (Para 31):
31. It causes us some surprise that the learned Additional Sessions Judge Akola, who tried the case, has not shown any awareness of the fundamental principle which governs the cases dependent solely on circumstantial evidence. Nowhere in his judgment has the learned Judge alluded, directly or indirectly to the principle that in a case of circumstantial evidence, the circumstance on which the prosecution relies must, be consistent with the sole hypothesis of the guilt of the accused. It is not expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantials evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.
32. The High Court, it must be said has referred to the recent decisions of this Court in Mahmood v. State of Uttar Pradesh : 1976CriLJ10 and Chandmal v. State of Rajasthan : 1976CriLJ679 in which the rule governing cases of circumstantial evidence is reiterated. But, while formulating its own view the High Court, with respect, fell into an error in stating the true legal position by saying that what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond a 'shadow of doubt'. In the first place, shadow of doubt', even in cases in which depend on direct evidence is shadow of 'reasonable' doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the text of proof beyond reasonable doubt.
26. On a careful consideration of the evidence on record, we have no hesitation in holding that the circumstances on which the prosecution had sought reliance to connect the appellants with the crime of murder or for causing the evidence of the offence to disappear in order to screen themselves from legal punishment had not been established and even assuming that, the circumstances on which reliance had been placed bad been established, the chain of circumstances would not be complete in order to fix up the criminal liability on the two appellants for either of the two offences and the circumstances would not conclusively show that they were the authors of murder or that they had thrown the dead body inside the well. The circumstances, taken together, were certainly not incompatible with the innocence of the appellants. We are, therefore, of the view, disagreeing with the trial court, that the charges against the appellants had not been established and they were entitled to an acquittal.
27. It might seem unfortunate that a cold blooded murder is going unpunished. But in the absence of legal proof of a crime, there can be no legal criminality. Even if on the basis of some of the circumstances on which reliance had been placed by prosecution, there would arise some suspicion regarding the complicity of the appellants or at least of the appellant Debiprased, suspicion however grave, cannot take the place of proof in a criminal trial. As has been laid down by the Supreme Court years ago in the wellknown case of Sarwan Singh Rattan Singh v. State of Punjab : 1957CriLJ1014 . there may be an element of truth in the prosecution story against the accused and considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true', there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before the accused can be convicted. In the instant case, the evidence falls far short of the mark and we must record an order of acquittal.
28. In the result, the appeal succeeds and the same is allowed. The order of conviction and sentence passed against the appellants under Section 302 of the Penal Code is set aside. They be set at liberty forthwith.
29. Before parting with this case, we would put on record one disquieting feature. The two appellants and the two co-accused were charged under Section 302 read with Sections 34 and 201 of the Penal Code. The two co-accused were acquitted and the appellants were convicted under Section 302 read with Section 34 of the Indian Penal Code. Nothing was said in the judgment specifically, as to whether they were convicted or acquitted of the charge under Section 201 of the Penal Code. When no order of conviction has been recorded in respect of that charge, acquittal therefor would be implied. Whenever charges are framed in respect of different offences, trial courts would do well to record their findings in respect of each of the charges and indicate as to whether the accused persons are found to be guilty or not guilty of the charges. In any view of the matter, we have found that neither of the two charges framed against the appellants had been brought home to them.
30. The learned Additional Sessions Judge has not passed any order regarding the disposal of the properties. Consequent upon this appeal being allowed, M.O. I. be returned to the appellant Debiprasad, M. Os. II and VI to VIII be destroyed and M. Os. III to V be returned to the heirs of the deceased. But this order regarding disposal of the seized properties is to be given effect to after the period for preferring an appeal against our judgment is over if no appeal is preferred; and if an appeal is preferred, after disposal of the same and in accordance with the directions, if any, made 'herein.
R.N. Misra, C.J.
31. I agree.