B.K. Behera, J
1. The three appellants stand convicted under Section 302 read with Section 34 of the Indian Penal Code (for short, the 'Code') for having committed the murder of Champa (hereinafter referred to as the 'deceased') on June 1, 1982, in a jungle and under Section 201 read with Section 34 of the Code for removing the dead body of the deceased and throwing it elsewhere. Each of the appellants has been sentenced to undergo imprisonment for life for their conviction under Section 302 read with Section 34 of the Code and to undergo rigorous imprisonment for a period of three years for their conviction under Section 201 read with Section 34 of the Code.
2. To bring home the charges, the prosecution had examined eleven witnesses including Sukra Paiko (P.W. 5) who was said to be a witness to the occurrence. The plea of the appellants was one of denial. The appellant Mathura had claimed her ownership in respect of the ornaments (M. Os. I to VI) which, as the prosecution sought to establish, belonged to the deceased and had been recovered from the possession of this appellant in the course of investigation. The learned Sessions Judge accepted the prosecution case based on its evidence.
3. Mr. Y. S. N. Murty, appearing for the appellant Bhagaban Kirsani and Mr. Rangadhar Behera, appearing amicus curiae for the appellants Subaram Nag and Mathura Paikani, have challenged the findings recorded against the appellants as unfounded on the evidence on record and they have submitted that their conviction cannot legally be sustained. Mr. A. Rath, the learned Additional Standing Counsel, has not seriously pressed into service the highly unreliable evidence of the sole witness (P.W. 5) and in our view, rightly so, but has contended that as the appellant Mathura was last seen with the deceased and some ornaments belonging to the deceased had been recovered from her person, she could be held guilty of the charge of murder.
4. We may point out at the outset that the Order of conviction tinder Section 201 read with Section 34 of the Code was illegal and misconceived. Mere removal of the dead body of a murdered person from the place of occurrence to another place, by itself, would not amount to causing disappearance of the evidence of the offence of murder, as held by this Court in State of Orissa v. Trinath Das and Ors.-54 (1982) C.L.T. 83, relying on the principles laid down by the Supreme Court and some High Courts in the cases referred to therein.
5. The doctor (P.W. 2), who had conducted the autopsy, had not been able to record any opinion as to the cause of the death because the dead body of the deceased was in a high state of decomposition. The prosecution, therefore, had to bank upon the evidence of P.W. 5, the sole witness to the occurrence to establish a case of homicidal death.
6. We are of the view, for the reasons to follow, that no part of the evidence of P.W. 5 could be accepted by the trial Court as a reading of his evidence would show that ha was not a witness of truth and having made a false statement that he had witnessed the murder, he had made many more false statements to bolster up the case presented by him at the trial. This reminds us of the words of Alexander Pope:
'He who tells a lie is not sensible of how great a task he undertakes; for he must be forced to invent twenty more lies to maintain that one.'
This is what has happened in this case. If we discard the evidence of P.W. 5 as we must, there is no other evidence that the deceased died a homicidal death. This, by itself, would seal the fate of the prosecution. In the absence of proof of homicidal death, there can be no legal criminality. (See AIR 1954 S.C. 20-The State Government, Madhya Pradesh v. Ramkrishna Ganpatrao Limsey and Ors.)
7. P.W. 5 had testified about the occurrence thus:
'I know the deceased and the accused persons. About 13 months in the month of Jesto on a Tuesday, I was tending cattle in village Solomanguda. I was sitting on stone near the foot path at the outskjrt of the village at about 12 noon. The deceased, accused Mathura and Subaram were going on the foot-path from village Solomanguda towards the rivet. There after I went to tend my cattle. Then I sat in the mango-tope. That mango-tope is at a distance of about 100 cubits from the river Satigad. At that time I heard somebody shouting 'Morigoli, Morigali'. That sound was coming from the river side. So I went that side and stood behind a bush. From a distance of about 25 to 30 cubits I saw the deceased lying on the ground with face downwards. Accused Bhagaban was catching hold of his back side neck and the two female accused were pressing her back near the waist and they killed her. Then all the three accused persons carried the dead body of the deceased and threw the dead body under a bush. Since they were three in numbers I came away to the place where the cattle were grazing. I informed this fact to Sunadhar Paiko. I then informed this fact to S. I. of Police. Since I leave the village at 6 A. M. and return at 7 P. M. daily, I did not inform this fact to any one else. I do not know if there was any Panchayati in my village. I also do not know if any Police Officer came to my village.'
8. On his own showing, although he had taken the cattle of P. W. 1 for grazing which, according to him, he was doing every day, he had not informed P. W. 1 or his family members about what he had claimed to have seen. He had falsely asserted 'in his' evidence, evidently in order to probabilise it, that he himself,' Dhanu and Soda Paiko used to go to tend the cattle every day and on the day of occurrence also, they had gone together to tend cattle and they were together (from the morning till the evening. If P. W. 5 could see the occurrence, the other two persons could as well see it. There was no such evidence adduced by the prosecution. The occasion for him to see the occurrence was because a cry was raised by the deceased that she was dying. This fact, had not been stated by him in his statement to the Investigating Officer in the course of investigation. In the circumstances of the case and in the context, this must amount to a contradiction within the meaning of the Explanation to Section 162 of the Code of Criminal Procedure. This witness had not stated before the Investigating Officer that the appellants Mathura and Subaram had been pressing the person of the deceased, as had falsely been testified by him in the Court. He had, in Ms evidence, claimed to have informed Sunadhar Paiko about the occurrence. That person had not been examined as a witness for the prosecutions. As would clearly appear from the evidence of the Investigating Officer, this witness had been examined in the course of investigation as late as on June 6, 1982, i.e., six days after the occurrence which had allegedly taken place on June 1, 1982. He had not offered any plausible explanation in the course of the trial. The learned Sessions Judge, however, unjustifiably assumed that he must not have disclosed the occurrence to any one as he did not want to involve himself in the case.
9. As deposed to by P.W. I, in a meeting of the Panchayat after the unsuccessful search for the deceased in the village of P.W. 1, P.W. 5 was present and on being asked, be stated that he knew nothing. P. W 5 had falsely deposed that he did not know about any such meeting of the Panchayat. As admitted by him, he had falsely stated to the Investigating Officer that he had stated before the Panchayat that the villagers should search for the deceased near Papadasil Jangle and not in any other distant place.
10. The belated disclosure of P. VV. 5 about the occurrence had not satisfactorily been explained by him or by the Investigating Officer. In such circumstances, the evidence of P.W. 5 was not worthy of acceptance. In this connection, reference may be made to the principles laid down by the Supreme Court in AIR 1974 SC. 775-Babull v. The State of Orissa and 1983 S.C.C. (Cr.) 444-Sonia Behera v. State of Orissa.
11. For the aforesaid reasons, we find that the evidence of P.W. 5 was untruthful and untrustworthy and the learned Sessions Judge went wrong in relying on such tainted evidence.
12. The prosecution had adduced some evidence to show that the two lady appellants were seen with the deceased together in her house and that they had been moving together some time prior to the occurrence. It could not reasonably be said from this that the two appellants were lest seen with the deceased prior to her death. There was no other evidence, apart from that of P.W. 5, that the two appellants were found with the deceased near about the place of occurrence. In the first information report lodged by P.W. 1, the father of the deceased, nothing bad been stated about any suspicious movements on the part of the appellants Mathura and Subaram with the deceased although the co-villagers of P.W. 1 would have informed P.W. 1 about any such movements, if seen, when the search for the deceased went on. Even assuming that the appellants or any of them had been last seen with the deceased prior to her death, this circumstance, in the, absence of other evidence, would not establish their guilt. (See AIR 1979 S.C. 1620:1979 Cr.L.J. 1217 Lakhanpal v. The State of Madhya Pradesh and 1983 Cr.L.J. 1854 (Calcutta) Mahadev Ghosh v. The State.
13. The ornaments (M. Os. I to VI) had been recovered consequent upon a statement of the appellant Mathura, as had been established by the prosecution evidence although it could not definitely be said, as submitted on behalf of this appellant with reference to the evidence in this regard including that of the Investigating Officer (P.W. 11) that the statement of this appellant had led to the discovery of these articles. The ornaments had properly been identified as belonging to the deceased by her father (P. W. 1) and a close relation (P.W. 9). No evidence had been led by this appellant in support of her assertion that the articles belonged to her. But on the facts and in the circumstances of this case, the charge of murder could not be said to have been established against the appellant Mathura only from this circumstance appearing against her.
14. We thus find that neither of the two charges had been brought home to any of the appellants and they were entitled to an acquittal.
15. We would allow the appeals and set aside the order of conviction and sentences passed against the three appellants under Sections 302 and 201 read with Section 34 of the Indian Penal Code and direct that they be set at liberty forthwith.
K.P. Mohapatra, J.
16. I agree.