D. Pathak, C.J.
1. This appeal from jail is directed against the judgment and order passed by the learned Additional Sessions Judge, Bhawanipatna, convicting the appellant Under Section 302, I.P.C. for causing the death of one Gobinda Prasad Dubey and sentencing him to R.I. for life.
2. A brief narration of the prosecution case leading to the present appeal is that on the night of September 20/21, 1978 while the deceased was sleeping on his Thela (push-cart) in Junagarh, the appellant killed him by inflicting injuries on his person with a Tangia. It is further alleged that towards the small hours of 21st September, 1978, Saraswati, the concubine of the deceased, came out of her house and saw that her parmour who was asleep on his Thela just in front of her house was lying dead. She went near him and found blood-stains on his clothings which were lying disturbed. Thereafter she brought a lamp from her house and on examining the deceased she found numerous injuries on the left part of the upper body, on the left arm an on the left side of the head. Immediately thereafter she came to the house of Madan Sethi which is to the east of the place of occurrence and reported the matter to him. Madan in turn advised her to lodge the F.I.R. in the police station, Saraswati also informed about the occurrence to P.W. 5, her neighbour, and both of them went to the police station where the F.I.R. was lodged by Saraswati. On receipt of the F.I.R., the police started investigation and on conclusion of the investigation, the appellant was charge-sheeted Under Section 302, I.P.C. and put on trial.
3. The appellant took a plea of denial.
4. The prosecution examined as many as thirteen witnesses including the official witnesses P.Ws. 9 to 13. Two witnesses have been examined for the defence. The learned trial court on appreciation of the evidence on record returned a verdict of guilty against the appellant and convicted and sentenced him as aforesaid.
5. As the appellant is not represented by an counsel, we have engaged Mr. Narendra Kumar Behera, Advocate, to represent him at the State expense.
6. Mr. Behera, the learned Counsel for the appellant, submits that the conviction of the appellant is solely based on the uncorroborated evidence of P.W. 5. He has further submitted that the evidence of P.W. 5 is so shaky and of such halting nature that it should not have inspired the confidence of the learned trial court so as to place implicit reliance on his evidence. In view of the submissions made' by the learned Counsel for the appellant, we have ourselves gone through the entire gamut of the evidence adduced on behalf of the prosecution.
On an examination of the evidence of P.W. 5, we find that he is a married young man of about 26 years. His evidence is to the effect that in the night of occurrence he was preparing food in his house. At about 9 p.m. when he came out to throw some waste water, he found that the appellant dealt a Tangia blow on the deceased. Seeing the occurrence, he came inside and reported the matter to his wife Chandrika Dei, P.W. 4. We have very carefully scanned his evidence. The evidence given by him is of such a startling nature that it is difficult to place any reliance on his testimony. On going through his evidence we find that as if the appellant was waiting for him to come out of his house to see the dealing of the Tangia blows on the deceased. It is almost like a fantasy. He has stated that some (time) after the occurrence he along with his wife (P.W. 4) came to the hostel to narrate the incident to his mother (P.W. 7). According to this witness, P.W. 7 has been remarried to P.W. 6, his uncle, and both P.Ws. 6 and 7 were working as cooks in the hostel. He has stated that he narrated the incident to P.Ws. 6 and 7 in the hostel where a teacher of the school was also present. The teacher whose name he does not know advised them to go home. Thereafter he, his wife (P.W. 4) and his mother (P.W. 7) came home and slept quietly. It is surprising that although the occurrence took place at about 9 p.m. in a busy national highway near a bus stand where the shops are kept open till about 11.12 p.m. and buses continue to ply till late at night, nobody other than P.W. 5 could witness the incident. Not a single outsider nor any of the shop-keepers who are support to be present near the place of occurrence has been examined in this case, P.W. 5 has further stated that previously there was a quarrel between the appellant and the deceased regarding the thatched house constructed by the deceased on a plot of land alleged to be in the possession of the appellant. It is also found from his evidence that some time earlier, this witness was in the employ of the appellant in his cycle shop and he was driven out by the appellant as he was found to have stolen some cycle parts and that he was ultimately convicted in the said theft case. It appears that the witness was not in good terms with the appellant as he was driven out from his employment and also subsequently convicted being found guilty of theft of some cycle parts from the shop of the appellant. There is yet another suspicious circumstance unfolded from the evidence of this witness. P.W. 5 has stated that he came away from the house of his parents due to quarrel between him and his parents. But it is surprising that he would have gone to his mother (P.W. 7) and uncle (P.W. 6) to report about the incident soon after witnessing the occurrence. Therefore, the veracity of the evidence of this witness on the face of it becomes doubtful.
P.W. 6, Unas Sagadia, has given a very revealing evidence which we may notice. He has stated that at about 8-9 p.m. in the night of occurrence which he was in the hostel with his wife P.W. 7 and a teacher belonging to Khariar, whose name he does not know, was present, P.W. 5 came and told him that the appellant murdered the Gupchupwala Gobinda Prasad Dubey, the deceased. He has also stated that soon after reporting the matter to him, P.W. 5 and his wife (P.W. 4) and the wife of this witness (P.W. 7) went back home. He did not accompany them and slept in the. hostel. It was only in the next morning that he went home and found the dead body of the deceased on a Thela near the crossing. In his cross-examination he has stated that he did not accompany P.Ws. 5, 4 and 7 out of fear and he did not know as to why he sent P.Ws. 5, 4 and 7 to his house to sleep while he himself stayed back in the hostel. It is found from his evidence that though the police station is at a distance of less than half a furlong from the hostel, he did not inform the matter to the police and he had not assigned any reason therefor. He has further stated that he and the teacher heard everything that was narrated to them by P.W. 5. It is a matter of great surprise that the teacher, even after he came to know about the incident, would keep quiet would not come to the place of occurrence to inform the matter either to the people in the neighbourhood or the police. It is found from his evidence that his nephew P.W. 5 did not have any quarrel with him at any time as alleged and that they are in good terms. This testimony of P.W. 6 gives a lie to the statement of P.W. 5 that on account of quarrel he came away from the house of his parents.
We have already observed that the veracity of the evidence of P.W. 5 is of doubtful nature. It is also found from the evidence of P.W. 6 that P.W. 5 is a man of quarrelsome nature. We do not see any reason as to why at about 9 P.M. P.W. 5 would have gone out to become a chance witness to the occurrence. That the area in which the occurrence took place is a very busy area is also testified by P.W. 6 when he says that in the bus stand people use to pass till 11p.m. and the place of occurrence is at a distance of only 500 cubits from the hostel where he was working as a cook. The evidence of P.Ws. 5 and 6 is of such character that as if it is part of a novel in which these two witnesses, being shorn of all normal behavioural human conduct, even after witnessing such a ghastly occurrence, did not report the matter to anybody and slept quietly and cozily without any prick of conscience. P.W. 7 states that the appellant used to work in his bicycle shop situate near the hut of the deceased at Junagarh till evening and then went to his native village Jharbandh.
P.W. 7 is the mother of P.W. 5. She has stated almost the same thing as has been stated by P.W. 6 to the effect that P.W. 5 accompanied by P.W. 4 came to the hostel where she was working with her husband P.W. 6 and reported the matter to her and at that time P.W. 6 and a teacher were present. But she does not know the name of the teacher. In Cross-examination she has stated that they have their house constructed on a government land by encroaching upon it and that the appellant has also encroached upon the government land and constructed a hut. She has given a narrative that Saraswati, the concubine of the deceased, was in inimical terms with her and that they were not in talking terms. It is also found from her evidence that the deceased falsely accused he/son P.W. 5 of committing theft. She has stated in her evidence that at the time when P.W. 5 and P.W. 4 were narrating the incident to her, her husband P.W. 6 and a teacher were present there and some students residing in the hostel were also present. But P.W. 6 has stated that there was no student present at that time as all the students had gone to sleep by that time. This seems to be quite an irreconcilable discrepancy.
The prosecution evidence does not end there. Even the alleged recovery of certain articles from the appellant's house and their seizure by the police becomes doubtful. It is found from the evidence of P.W. 2 that he accompanied the appellant from Junagarh where he (appellant) was arrested to Jharbandh wherefrom the house of the appellant the police recovered a Tangia (M.O. II), a broken handle of a Tangia (M.O. III) and a Lungi (M.O. I.) and they were seized as per seizure lists Exts. 2 and 3 to which this witness subscribed his signature as a seizure witness. But the Investigating Officer (P.W. 12) states that P.W. 2 was found at Jharabandha and did not come from Junagarh. The further malady to this aspect of the matter is that P.W. 3 has stated that some articles were recovered by the police from the house of the appellant and it was only after this recovery that the appellant was arrested. Therefore, it would not be a case covered by Section 27 of the Indian Evidence Act that the appellant while in custody made some statements leading to the discovery of certain articles.
P.W. 4, the wife of P.W. 5, has stated in her evidence that at about 9-10 p.m. in the night of occurrence she was in her kitchen and her husband P.W. 5 was cooking food. At that time the deceased was sleeping on his Thela. It is in her evidence that P.W. 5 told her that the appellant killed the deceased and therefore out of fear she along with her husband (P.W. 5) left the house and went to the school and after about one hour they returned home. She has also stated that P.W. 5 narrated the incident to P.W. 7. This witness does not have any personal knowledge about the occurrence and whatever she has stated is only as reported to her by her husband P.W. 5.
From the evidence of P.Ws. 4 and 5 it is found that they did not raise any alarm nor did they report the matter to anybody even after seeing the ghastly occurrence. It is also beyond comprehension that P.Ws. 6 and 7 and the teacher who all came to know about the matter immediately after the occurrence did not inform the matter either to the police or to anybody. The entire thing seems to be shrouded in the enigma of mystery.
Now where is this Saraswati who is alleged to have lodged the F.I.R. and reported to be the concubine of the deceased? She has almost disappeared in the thin air. No explanation has been offered by the prosecution as to why she has not been examined. The learned trial court has simply stated that her whereabouts are not known. We do not find any material on record for the learned trial court to make this observation. Further, where is Madan Sethi to whom Sataswati is alleged to have contacted immediately after seeing the dead body of the deceased? This Madan has not been put in the witness box, nor any explanation is forthcoming for his non-examination by the prosecution. As we have already said, the entire story seems to be a mystery.
7. It is true that there is no dispute about the factum of the death of the deceased. P.W. 13, the doctor who conducted the post-mortem examination on the dead body of the deceased, found the following injuries:
(1) Incised wound 3' 2' 3' on the left side of the cheek obliquely from the outer angle of the left eye.
(2) Incised wound 3' 2' 1' on the left cheek, vertically.
(31 Incised wound 4' 1' 5' on the upper part of the left side neck. transversely, injuring all the muscles, vessels and nerves of the neck.
(4) Incised wound 4' 2' 6' on the lower part of the neck (left side) Vi' above the supra-sternal space, transversely.
(5) Incised wound 4' 2' ' over the left arm, vertically.
(6) Incised wound 3' 1' 2' on the front of the neck, 1' above the supra-cervical space. The wind-pipe back of (sic.) and visible.
(7) Incised wound 3' 1' ' on the back of the left palm.
(8) The fingers of the left hand except the thumb removed by incised injuries from first inter-phalangial tip.
In the opinion of P.W. 13, all the injuries were ante-mortem in nature and the death was due to shock and haemorrhage resulting from the injuries. It is found from his evidence that on 30.10.78 a query was made as to whether the injuries could possibly be caused by the Tangia, M.O. II and he opined that the blood-stained Tangia (M.O. II) produced for examination could have caused the injuries on the deceased. But in cross-examination he has stated that in the muscular region the length of the injury is lesser than the width of the blade if the blow is given vertically or straight. Therefore, he could not say as to whether the injuries had been caused by blows given straight, vertically or otherwise. In the latter part of his cross-examination he has said that the weapon produced before him could not have caused the injuries straight or vertically. Be that as it may, the injuries were there on the dead body of the deceased and the deceased died. The only question is as to whether the appellant is the author of the crime.
8. As we have already noticed, the evidence adduced on behalf of the prosecution is of such nature and character that it is difficult to bring home the charge against the appellant on the basis of such evidence. Moreover, the evidence discussed above does not inspire any confidence so as to form the basis of conviction.
9. On an overall consideration of the entire evidence on record and on going through the impugned judgment and order, we are firmly of the opinion that the conviction of the appellant is not sustainable in law in view of the suspicious nature of the prosecution evidence scanned by us.
10. In the result, the appeal is allowed and the order of conviction and sentence passed by the learned trial court against the appellant is set aside. The appellant be set at liberty forthwith if his detention is not required in connection with some other case.
S.C. Mohapatra, J.