B.K. Behera, J.
1. The appellant Kanthia Singh stood charged under Section 302 of the Indian Penal Code (for short, 'the Code') for committing the murder of Tikaya Mnduli (to be described hereinafter as' the deceased') by assaulting him to death by means of a Tabla at village Godaplasuni in the district of Dhenkanal in the morning of November 12, 1979.The two appellants along with five co-accused persons stood charged under Section 148 of the code for having committed the offence of rioting being armed with deadly weapons, such as, Tablas, bows and arrows, with the common object to kill the deceased and they also stood charged under Section 302 read with Section 149 of the Code for committing the murder of the deceased in furtherance of their common object.
2. Lochan Sahu (P.W.1) had purchased a piece of land from appellant Banshidhar by an unregistered sale deed (Ex.1) in 1975 and was said to be in cultivating possession thereof. In the year of occurrence, he had raised paddy crop. On the day of occurrence, it was alleged, while he had gone to the land with a number of labourers having taken the deceased with him as a Bhadralok (gentleman of the locality) apprehending trouble from the side of the appellants and the co-accused persons, the appellants with the co-accused persons, being armed with Tablas, Tangias, bows and arrows and lathis, ran to that land, surrounded the deceased and assaulted him to death. The fatal blow on the neck was attributed to the assault on the deceased by the appellant Kanthia by means of Tabla and the other appellant, it was alleged, had dealt a blow on the back of the deceased by means of Tangia, both being sharp cutting instruments, On the first information report being lodged by P. W. 2, the son of , P. W. 1, investigation followed and on its completion, a charge-sheet was placed and the appellants with the co-accused persons were prosecuted. They had denied the charges. To bring home the charges to the appellants and the co-accused persons, the prosecution had examined thirteen witnesses. Of them, P. Ws. 1, 3, 4 and 5 had figured as the witnesses to the occurrence and P. W. 2 was the first-informant. P. W. 13 was the doctor who had conducted the autopsy and had opined that death was homicidal in nature. The appellants and the co-accused persons had not examined any witness on their behalf.
3. On a consideration of the evidence, the learned trial Judge found that the death of the deceased was homicidal in nature. Of this, there can be no dispute in view of the clear and categorical evidence of P.W.13. As a matter of fact, the learned counsel for the appellants has not challenged this finding recorded by the trial Court. The learned trial Judge did not accept the evidence of P.W.5, but basing on the evidence of P. Ws. 1, 3 and 4 and that of the doctor, held that the appellant Kanthia was liable to be convicted for commission of murder of the deceased under Section 302 of the Code and that the other appellant was liable to be convicted for the same offence by the application of Section 34 of the Code. The learned Judge held that no case had been made out against the other co-accused persons and the other charges had not been substantiated. The appellant Kanthia has accordingly been convicted under Section 302 of the Code and the other appellant Banshidhar has been convicted under Section 302 read with Section 34 of the Code and each of them has bean sentenced to undergo imprisonment for life.
4. Mr. P.K. Misra, appearing for the appellants, has taken us through the evidence and in particular, that of P. Ws.1, 3 and 4 has submitted that in view of the prevaricating and inconsistent statements made by them with regard to the occurrence and taking into consideration the fact than P. W. 4 had been examined two days after the occurrence in the course of investigation although the police officer had come to the scene on the day of the occurrence itself, their evidence did not deserve credence and ought not to have been accepted. Inviting our attention to the observations made by this Court in the case of Patel v. Dungdung State 59 (1985) C.L.T 311, it has been submitted on behalf of the appellants that P. Ws. 1, 3 and 4 could not have witnessed the occurrence in the manner they claimed to have and could not have identified the appellants regard being had to the distances from which they had claimed to have seen the occurrence. As regards the recovery of a Tangia (M. O. I) from the residence of the appellant Banshidhar, not much reliance can be placed by the prosecution, as has been submitted by the learned counsel for both the sides, as there was no evidence that M. O. I was one of the weapons of attack and in addition, on chemical test, no blood was detected in it. Mr. Sahoo, the learned Standing Counsel, has, however, submitted that although the evidence of P. Ws. 1, 3 and 4 was not quite consistent, their evidence, read as a whole, did deserve credence. According to him, these witnesses did not have much idea about the distances. He has, however, fairly submitted that if the distances from which they had claimed to have seen the occurrence would be taken as correct, it would not be possible for them to mark the actual assailants of the deceased who, as the prosecution case itself, indicated, had been surrounded by a number of persons when the assault was said to have been made on his person by the two appellants.
5. Regard being had to the submissions made at the Bar, the sole question for consideration is as to whether the evidence of P. Ws. 1, 3 and 4 could be accepted and made the foundation of an order of conviction. P. W. 1 is an aggrieved person and P. W. 3 was his Kothia and P. W. 4 was one of the labourers taken by him on the day of occurrence. Of these three eye-witnesses, P. W. 4 had been examined two day after the occurrence by the Investigating Officer (P. W. 9) who had made halting and hesitating statements as to the reason for the delay. Having first said that he could not say as to why he examined P. W. 4 two days after the occurrence, he made a statement that as far as he remembered, there was delay in the examination of P. W. 4 because of want of time. It might be as stated by him, that he had simultaneously been taking up investigations of two cases of murder, but that could not he a ground for the delayed examination of a principal witness like P. W. 4. According to him, P. Ws. 4 and 5 were also not available to him easily, but P. W. 4 had not said so. The belated examination of P. W. 4 in the course of investigation without any reasonable explanation coupled with the fact that ha had not disclosed about the occurrence to any one in the village after he had claimed to have seen the murderous assault would seriously effect his testimony and it would not be safe and proper to accept his evidence with regard to the assault on the person of the deceased by the two appellants.
6. The appellants and the co-accused persons could not have any motive to do away with the life of the deceased. After all, as the prosecution sought to establish, he had been called by P. W. 1 to the spot to remain on the scence as P. W. 1 apprehended trouble. The appellants and the other accused persons could have a grievance against P. W. 1 if he had been in unlawful cultivating possession of the land in question. Absence of proof of motive should have put the trial Court on its guard to examine the evidence of the witnesses to the occurrence with great care before its acceptance. As we see from the impugned judgment, this rule of caution had not been kept in mind by the learned trial Judge.
7. P. W. 1 had claimed to have informed the Sarpanch Basudev Samal and three other persons named by him regarding the assault by the appellants soon thereafter. This version of P. W. 1 had not been supported by Basudev Samal (P. W. 6) and the other persons named by him had not been examined by the prosecution. While according to P. W. 1, the appellants Kanthia and Banshidhar and the co-accused Sankar had gone with Tangias, co-accused Jahar had gone with a Barchha, co-accused Jaladhar and Gurudev had been armed with lathis and the co-accused Bira had been armed with bow and arrows, P. W. 3 had testified that the appellants Kanthia and Banshi had been armed with Tangia and the other co-accused persons were armed with lathis, bows and arrows and according to P. W. 4, the appellant Kanthia was holding a Tabla, the appellant Banshi was armed with an axe and others had been armed with Barchhas and lathis. Tabla and Taogias, are not the same instruments as would be clear from the evidence and as has been submitsed at the Bar. The evidence of P. Ws. 1, 3 and 4 was not consistent as to whether the appellant Kanthia had dealt a blow by means of a Tabla or by means of a Tangia. P. W. 4 has testified that Tabla is a cutting weapon having a wider iron blade than a Tangia. He had stated in the course of investigation that the appellant Kanthia was armed with a Tangia while in the Court, he had testified that he had been armed with a Tabla.
8. Each of the three witnesses, namely, P. Ws. 1, 3 and 4, has given evidence that the appellant Kanthia dealt a blow on the neck of the deceased and the other appellant Banshi dealt a blow on his back and both these persons had been armed with sharp cutting instruments. It was, however, not the case of the prosecution that all the accused persons who had gone to the spot, only these two appellants had been armed with cutting instruments. The prosecution wanted to build up a case that after the two appellants and the co-accused persons arrived on the scene raising a hulla, they surrounded the deceased and assaulted him. In the circumstances in which the witnesses had been placed, it would have been certainly difficult for them to identify the assailants and say as to who had been armed with what instrument and on which portion of the person of the deceased, assault had been made by any particular accused person.
9. P. W. 1 had claimed to have seen the occurrence while standing at a distance of about 500 cubits from the place where the deceased was standing and was done to death. P. W. 3 had testified that he was at a distance of about 300 cubits from the place of assault at the time of the occurrence. In his statement in the course of investigation, he had stated that he was at a distance of about one furlong from the place of occurrence. No doubt, he had stated in his evidence that he had no idea about a furlong but it could be, as has been submitted on behalf of the appellants, that this witness bad pointed out the distance and the Investigating Officer had recorded it to be one furlong. P. W. 4 had stated that he was at a distance of about 25 or 30 cubits from the place of assault, but he had admitted in his cross-examination that P. W. 1 was standing near him and as deposed to by P. W. 1, he was at a distance of about 500 cubits from the spot. The evidence of P. Ws. 1, 3 and 4 with regard to the identification of the appellants from these distances would not stand a scientific test. We would quote an extract from Gross.
Criminal Investigation, 5th Edition at page 159 :
'It is appropriate here to call attention to what has been said about the distance at which we can recognise persons. Presuming the eyesight to be normal and the light good, one is able in broad daylight to recognise :
(a) Persons whom one knows very well, at a distance of from fifty to ninety ylards ; when there are particular and very characteristic signs, 110 yards; in exceptional cases upto 165 yards.
(b) Persons one does not know very well and has not often seen, from twenty-eight to thirty-three yards.
(c) People one has only seen once, sixteen years.
These are approximate indications dependent upon the facts and circumstances of each case and there may be variations. This Court bad taken note of this scientific observation in 59(1985) C. L. T. 311(supra). In the instant case in the absence of any evidence that the two appellants had any particular or characteristic features, P. Ws. 1, 3 and 4 could not have been in a position to identify them properly as the assailants from a distance of more than 50 to 90 yards. Even it a long margin is given with regard to the distance from which a person can very well identify a person very well known to him, it would not be possible to accept the evidence of P. Ws. 1, 3 and 4 and hold chat they had properly identified the two appellants as the assailants of the deceased who, according to the prosecution, had been surrounded by the appellants and the co-accused persons. Apart from the other discrepancies and improbabilities in the evidence of P. Ws. 1, 3 and 4, their evidence would not stand the scientific test with regard to proper identification of the assailants and therefore, it would be utterly unsafe and hazardous to accept the evidence of P. Ws. 1, 3, and 4 and hold that the two appellants ware the assailants of the deceased.
10. For the foregoing reasons, we would accept the submissions made on behalf of the appellants and hold that the orders of conviction recorded against the two appellants cannot be maintained.
11. We would allow the appeal, set aside the orders of conviction and sentences passed against the appellants and direct that they be set at liberty forthwith.
R.C. Patnaik, J.
12. I agree that having regard to the discrepancies and improbabilities in the evidence of P. Ws. 1, 3 and 4 the conviction of the appellants cannot be sustained. I would, therefore, accept the appeal and acquit the appellants.