B.K. Behera, J.
1. The order of conviction under Section 302 of the Indian Penal Code, with the sentence to undergo imprisonment for life has been recorded by the trial Court against the appellant on the basis of the evidence of a solitary eye-witness (P. W. 2) coupled with the act of absconding by the appellant soon after the occurrence, after accepting the case of the prosecution that the appellant, having borne a grudge against Hadu Nahak (to be described hereinafter as the 'deceased') suspecting that he had played witch-craft and had killed his two ailing sons, killed the deceased in the early hours of November 28, 1978, at village Karapada in the district of Ganjam by stabbing him by means of a Kati while the deceased was coming out of the tea-shop of Indramani Raul (P. W. 3 ) near that of P. W. 2 and then took to his heels and absconded until December 16, 1978, before his surrender and arrest at the Chhatrapur Police Station on that day.
2. The finding that the deceased died a homicidal death has not been assailed. While Mr. Bohidar has urged on behalf of the appellant that no order of conviction could be based on the highly interested and untrustworthy evidence of P. W. 2 which had not been corroborated with regard to the complicity of the appellant and in the absence of other evidence pointing to his guilt, the allegation of absconding, even if accepted although it should not have been, would not lead to the conclusion of a guilty mind, Mr. Indrajit Ray, the learned Additional Government Advocate, has pressed for acceptance of the evidence of P. W. 2. as bad been done by the Court of trial as it is worthy of credence. He has, however, submitted that if the evidence of P. W. 2 is not accepted by this Court, the fact of absconding is of no consequence.
3. The fact of absconding of an accused person, by itself, would not lead to the proof of commission of a crime. Absconding, by itself, would not lead to a conclusion of a guilty mind. Even an innocent person may feel panicky and run away to avoid arrest when falsely suspected of a grave crime. Such is the instinct of self-preservation.
4. There was no acceptable evidence that the appellant had borne a grudge because two of his sons had died at the hands of the deceased by playing witch-craft on them.
5. To bring home the charge, the prosecution had examined P. Ws. 2 to 6 and 9 as witnesses to the occurrence. Of them, only P. W. 2, the nephew of the deceased, had testified regarding the complicity of the appellant. The other witnesses did not support the case of the prosecution and had been put leading questions by it under Section 154 of the Evidence Act and had been confronted with some statements implicating the appellant as the author of the crime said to have been made by them in the course of investigation and recorded under Section 161 of the Code of Criminal Procedure, which they had disowned.
6. When a witness is neither an accomplice nor a person analogous to an accomplice, but is an ordinary witness, the Court may, as a general rule, act on the testimony of such a solitary witness without corroboration unless the circumstances of a particular case necessitate it. [See AIR 1962 S.C. 424: 1962 (1) Cr. L. J. 473--Ramratan and Ors. v. State of Rajasthan]. The order of conviction can be based on the evidence of a solitary witness if such evidence is true and trustworthy and is above reproach. To carry conviction, such evidence should be of an unimpeachable character.
7. The evidence of P. W. 2 was that of a relation of the deceased. The evidence of a witness is not to be rejected merely on the ground of his relationship with the deceased, but such evidence is to be scrutinised with care. See AIR 1975 S. C. 216 Ravupali Kondaiah and Ors. v. State of Andhra Pradesh and AIR 1982 S.C. 1076--State of U. P. v. Suresh alias Chhavan and Ors. ). Prudence requires, as has been observed in AIR 1983 S. C. 810 ; 1983 Cr. L. J. 1105: 1983 (2) Crimes 237-- Ramil Surjya and Anr. v. State of Maharashtra, that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased.
8. P. W. 2 Krushna Chandra Naik had deposed :
'The incident took place on a Tuesday in the month of Margasira before last. I opened my shop at 5. 30 A. M. I noticed the deceased coming out of the hotel of indra Raul having a chadar on his body. Accused suddenly went to him with a kati and gave him stabbing injury on his neck and chest. The deceased fell down on the ground senseless. After he fell down, the accuced also gave him some more stabbing blows on his belly. There were 10 to 12 people at that place. Out of fear, I went inside the tea-shop of Indira Raul.'
On his own showing, P. W. 2 did not disclose the occurrence to any one after the occurrence. In She normal course of human conduct and action and particularly when P. W. 2 was related to the deceased, it was expected of him, if he had witnessed the occurrence, to have informed P. W. 1, the son of the deceased, about what he had seen immediately after the incident. If he had made a verbal report at the Police Station regarding the occurrence, as stated by him in his cross-examination, that would be a vital and important piece of document containing the incident as depicted by a witness to the occurrence in his first version. The Investigating Officer ( P. W. 11) had testified that no such report had been made to him. If P. W. 2 had made a report to any other Police Officer, that report ought to have been produced and proved.
9. The evidence of P. W. 2 was that there were 10 to 12 persons at the time of occurrence. P, Ws. 3 to 6 and 9 had not supported his version and none of the other persons said to have been present on the scene had been examined by the prosecution in support of the evidence of p. W. 2. Thus, the evidence of P. W. 2, which could be, had not been corroborated by any other evidence with regard to the complicity of the appellant.
10. The first information report (Ext. 1) had been lodged by P. W. 1, the son of the deceased. He had stated in his evidence and in his support at the Police Station that his grand mother had told him that his father had been killed. He had not testified in his evidence that his grand mother had informed him that the appellant had killed his father although he had stated so in the first information report which could not be treated as substantive evidence. The grand mother of P. W. I had not been examined by the prosecution.
11. The evidence of P. W, 2 was that at the time of occurrence, the deceased had a chadar on his person and the appellant had stabbed him by a Kati on his chest and neck. In that event and in the absence of any evidence that at the time of assault, the chadar was taken out by the appellant or had fallen down, there would have been cut marks on the chadar. No such chadar with any cut marks had been seized and produced.
12. In these circumstances, it would not be safe and proper to accept the sole testimony of P. W. 2 and hold that the appellant was the author of the crime.
13. For the reasons aforesaid, we would accept the contentions raised on behalf of the appellant and hold that the charge of murder against him had not been established by reliable and acceptable evidence.
14. The appeal is allowed and the order of conviction and the sentence passed against the appellant are set aside. The appellant be set at liberty forthwith.
G.B. Patnaik, J.
15. I agree.