Kartika Ram alias Bilai vs The State

S.K. Ray, J.—The Appellant was convicted u/s 302, Indian Penal Code for having committed murder by intentionally causing the death of one Tirtha Ganda in the early hours of the morning, i.e. 3 a. m. on 13/14-5-55 at village Machhida, and sentenced to imprisonment for life by the Sessions Judge, sambalpur-Sundargarh. He has, therefore, preferred this appeal from jail.

Prior to the date of occurrence the Appellant was residing in village Badajha with his wife (P.W.7) and daughter. Adjoining this village is the village Machhida where the occurrence took place. The Bastis of these two villages are situated at a distance of about half a mile. There is a water reservoir known as Badajha Kata situated at a distance of about 60 yards from the village of occurrence inside a forest. That Kata is the only water source for the villagers of Machhida and is also used at times by the villagers of Badajha. Due to scarcity of water in the month fishing in such water would make the water muddy and unfit for drinking purpose, the Makadam of village Machhida (P.W.2) had prohibited fishing in that Kata. Despite this prohibition, it was found that the water of the said Kata was getting muddy. Machhida villagers suspected that some people were surreptitiously carrying on fishing in the said Kata during the night. So villagers of Machhida including P.W. 1 guarded the Kata during the night of one Wednesday preceding the date of occurrence and found that the Appellant along with some others were fishing therein. Villagers of Machhida attempted to apprehend them and all escaped except the Appellant who was apprehended by P.W. 1. When asked to come to village Machhida quietly the Appellant had refused and then been slapped by P.W. 2. The Appellant was then brought to village Machhida where a Panchayat was held on the following day i. e. Thursday where he gave an undertaking in writing not to fish in that Kata again. He was, therefore, let off and asked to leave the village. The Appellant, however, refused to return back to his village and stayed on at Machhida, first in the Dhenkisal and when driven out by force therefrom slept on the pinda of P.W. 2. The persistent determination of the Appellant to remain on the pinda of P.W. 2 apparently raised an apprehension in the latter''s mind that the former intended to cause some harm to him and was abiding his time. So, on the Friday evening P.W. 2 finding the Appellant sleeping on his pinda and refusing to have the place asked the Chawkidar (P.W.6) and another villager (P.W.1) to sleep nearby and keep an eye on the Appellant. P. ws. 1 and 6, therefore, slept on two cots in the Khuli, that is, the village road adjoining his pinda where the accused was sleeping. Some time later, P.W. 1 left the place being required to watch over the grains in a nearby house. Seeing this P.W. 2 asked P.W. 9 to replace P.W. 1. But P.W. 9 sent his father-in-law, the deceased, instead who came and slept on the cot previously occupied by P.W. 1. During early hours of that night P.W. 6 heard a groaning sound and found that the Appellant was trying to pull out a Tangari which had got stuck on the lower half of the deceased''s head. He, therefore, raised a hulla shouting that the Appellant had killed the deceased. Having faded to extricate the Tangari left embedded in the head of the deceased, and hearing this hulla, the Appellant ran away. P.w. 6 then chased the Appellant but could not find him. On return, P.W. 6 found the deceased dead. Subsequently, other villagers came to the spot and also found the deceased dead. P.w. 6 lodged F.I.R. on 14-5-1955 at Mura Police station (Rengali) in the district of Sambalpur. P.w. 13, the I.O., after recording the F.I.R. took up investigation, reached the spot at 4 p. m. the same day and held inquest over the dead body. He seized a cot and clothes along with other materials as per seizure list Ext. 2/1 and noted therein that a Tangari was sticking to the lower side of the back of the deceased''s head. He despatched the dead body with the Tangari still sticking to the head to the District Head quarters Hospital, Sambalpur for postmortem examination. P.w. 11 conducted autopsy, but the postmortem report is not forthcoming. The I.O., however, submitted a final report in the case as the Appellant absconded and could not be arrested. The case was entered in the absconders'' register and some of the prosecution witnesses were examined and their evidence recorded in the absence of the accused u/s 512 of the Code of Criminal Procedure, 1898. The accused was arrested about 16 years later on 27-9-1971 and thereafter charge-sheet was submitted by P.W. 12. Committal proceedings followed in due course and the Appellant was committed to the Court of session to stand his trial. Ultimately he was convicted and sentenced as aforesaid.

The defence plea is one of total denial of his alleged complicity in the crime. He also denies his identify as Bilai Gardia who is alleged by the prosecution to have committed the murder.

There is no clear cut motive proved in this case. It transpires from the evidence that P.W. 1 apprehended him at Badajha Kata and P.W. 2 had slapped him there. If that is true, the Appellant would have some cause for anger against these two people. His persistence in staying in the house of P.W. 2 and refusing to leave village Machhida and, as appears from the evidence of P.W. 7, his determination to wreak vengeance on those who humiliated him, specially P.W. 2, provide some sort of moth-e, however weak, against PWs. 1 and 2. But there is no evidence of motive at all against the deceased. Motive or no motive, if the prosecution evidence is clear, cogent and categorical implicating the Appellant to the full conviction is bound to follow. Absence of proof of clear motive, however; will benefit the accused if the prosecution evidence is otherwise weak.

Due to lapse of more than 16 years between the commission of the crime and the trial, medical evidence has disappeared. P.w. 11, the doctor, who conducted the postmortem examination candidly admits that he remembers nothing of the result of his postmortem examination over the dead body of the deceased and he cannot say what were his findings without the postmortem report which appears to have been lost. There is, therefore, no medical evidence proving homicidal death of the deceased. Necessarily, therefore, reliance has been placed entirely on oral testimony as to the nature of death and the identity of the weapon used in killing the deceased. The murder weapon, i. e., the Tangari has not been produced in Court. There is, therefore, no evidence as to the nature of the murder weapon and its ownership of the accused. Thus, corroboration of oral testimony from those sources is absent.

Prosecution, therefore; has examined 10 witnesses to prove its case excluding the doctor; the I.O. who conducted the investigation and the C.S.I. (P.W.12) who on receiving the repeat of the apprehension of the Appellant on 27-9-1971 submitted charge-sheet on 9-4-1972. P.w. 1 deposes that on Wednesday night prior to, the occurrence he and a few of his co-villagers kept watch over the village Kata to catch surreptitious fishers, if any, therein. They found the Appellant and some others fishing and apprehended the former and brought him to village Machhida where a ''Panchayat was held. After taking a written undertaking from the Appellant not to fish in the Kata again he was let off and asked to leave the village. Finding the Appellant still sleeping on his pinda in, the following Friday evening P.W. 2. asked him (P.W.1) and P.W. 6 to sleep nearby and keep a watch over the accused. P. ws. 1 and 6. therefore, slept on two cots placed on the Khuli (village road) adjoining the pinda of P.W. 2. Subsequently, P.W. 1 left the place to. keep watch over paddy grains near his house. Knowing this P.W. 2 asked P.W. 9 to come and sleep there. P.w. 9, however, instead of himself coming sent his father-in-law the deceased. At about 3 a. m. on the following morning he heard P.W. 6 shouting that the Appellant had killed the deceased. He went to the spot and found the deceased lying with his face down on the cot in a pool of blood with a Tangari sticking out from the lower side of his head. P.w. 6 then told him that the accused tried to pull out the axe, from the head of the deceased and having failed to do so ran away. He has admitted in cross-examination that he had told the I.O. that P.W. 2 had slapped and given fist blows to the Appellant during the preceding Wednesday night when he was apprehended while catching fish in'' Badajha Kata. P.w. 2 fully corroborates every phase of the prosecution story narrated by P.W. 1. He is also a witness to the seizure of Tangari and other articles by the 1. O.P. ws. 3 and 4 testify that on hearing the shouts of p w. 6 that the accused had killed the deceased, they came to the spot of occurrence and found the deceased lying dead on a cot with a Tangari sticking on the lower side of the back of his head. P.w. 4 further states that he and others searched for the accused but could not find any trace of him. Similarly, PWs. 5 and 10 also visited the spot early on Saturday morning on hearing the shouts of P.W. 6 that the accused had killed the deceased and found the deceased lying dead in a pool of blood on a cot with a Tangari sticking out from the lower side of his head. P. ws. 1 to 5 and 10, therefore, prove that after the occurrence. P.w. 7, Appellant''s wife, has deposed that the she had come to village Machhida to persuade her husband to go back with her to his own village, but all her persuasions had gone waste. Prosecution evidence is, thus, quite clear that the Appellant after the Panchayati was over obstinately continued to remain on the Pinda of P.W. 2 despite all attempts to persuade him to go away from the village and to return to his own village.

P.w. 6 is the star witness in the prosecution case. If his testimony is discarded for any reason, the evidence of PWs. 1 to 5 and 13 cannot advance the prosecution case. It is, therefore, necessary to scrutinise his evidence very carefully. He was the Chawkidar of village Machhida in 1955. He went to P.W. 2''s house at about 8 p. m. in the Friday evening preceding the occurrence being called by the latter. He found the Appellant sleeping on P.W. 2''s Pinda and P.W. 1 sleeping on a cot, on the adjoining Khuli. P.w. 2 asked him to fetch the Gauntia from village Badajha with the hope that the latter might persuade the accused to leave Machhida and go back to his own village. On return, he found that P.W. 1 had already left the place but the accused was still sleeping on the floor of the Pinda of P.W. 2. On the request from P.W. 2 he and the deceased slept in the Khuli separately on two cots. Then he fell asleep. He does not know how and in what circumstances the deceased had come there to sleep on the Khuli. At about 3 a. m. he heard a groaning sound, woke up and saw the Appellant trying to pull out a Tangari which had got stuck inside the lower half of the deceased''s head. The Appellant was using both his hands to do so.. Failing to extricate it he fled away. P.w. 6 then raised a hulla shouting that the accused had killed the deceased and chased the accused to some distance but could not find him. On return he found the deceased already dead. He lodged F.I.R. on 14.5.1955 at 1 p. m. If this evidence is found to be unimpeachable and believable, there is no scope for the Appellant. In his statement recorded u/s 512, Code of Criminal Procedure he had not stated that on waking up he had seen the accused trying to pull out the Tangari from the deceased''s head, but, on the con tray, had made a positive statement that he had seen the accused running away with the Tangari in his hand. That was patently a false statement inconsistent with F.I.R. story. That statement had been made under case 16 years ago when the events were very fresh in his mind. Sixteen years later he has resiled from that statement and has now confirmed to F.I.R. story though not fully. Now he does not depose that he along with another had chased the accused but states that he alone did so. The variation in those two depositions are in respect of material particulars having a direct bearing on the culpability of the Appellant. One is, therefore, faced with the dilemma as to which of the two versions, both under oath, reflect the truth. The learned Sessions Judge has discarded the earlier statement as having been made due to confusion and that the later statement is acceptable as being corroborated by F.I.R.. If the trial had taken place 16 years age, P.W. 6''s credibility as a reliable witness would have been open to doubt in view of the irreconcilable'' inconsistency between his statements recorded u/s 512, Code of Criminal Procedure and statements recorded in the F.I.R. and made to I.O. and no finding could reasonably have been rendered on the basis of such testimony that the accused was actually seen by him trying to pull out the Tangari from the head of the deceased. He probably implicated the accused out of suspicion. The result cannot be different after lapse of 16 years by relying upon his evidence fully conflicting with his earlier statement with regard to vital matters. It is, therefore, difficult to concur in the conclusion of the learned Sessions Judge that P.W. 6 has proved beyond all reasonable doubt that it was the Appellant who was seen by him trying to pull out the Tangari from the head of the deceased and that his statement recorded u/s 512, Code of Criminal Procedure is to be brushed away on the ground of confusion.. It will also be seen that P.W. 6 has admitted that he did not state in the F.I.R. that the accused''s wife had pleaded with the accused for the latter to return home and that the accused refused to go saying that he would either kill or be killed and that the accused''s wife thereafter left the Tangari with the accused and went back. Therefore, admittedly, F.I.R. story contains false statements having serious incriminating implications regarding motive and the murder weapon. P.w. 7 gives a lie direct to this part of F.I.R. story. The prosecution has also led no evidence as to how the accused came into possession of a Tangari and there is equally no evidence that the Tangari, the murder weapon, belonged to the Appellant. P.w. 2 deposes that he saw the accused on Friday night but did not notice any Tangari with him. P.w. 6 similarly deposes that he did not see any Tangari with the accused during Friday night while be was sleeping on the Pinda of P.W. 2, even though he was sleeping on a cot about 5 to 6 feet from the accused. P.w. 7, wife of the deceased, does not support P.W. 6''s statement in the F.I.R. that she had supplied the Tangari to the accused. In the light of the evidence of P.W. 7 and that of P.W. 6 recorded u/s 512, Code of Criminal Procedure a part of the story given in the F.I.R. is completely demolished. In the circumstances, the learned Sessions Judge was in error in relying upon F.I.R. as corroborating P.W. 6. Another suspicious circumstance which inevitably intrudes into one''s mind is the curious inactivity of P.W. 2 who was primarily the person afraid of presence of the Appellant on his Pinda. Strangely enough when other people of the village living at a greater distance from the place of murder reached the scene of occurrence on hearing the hulla of P.W. 6, he did not come but waited till the next morning. He is completely silent as to whether he heard the shouts of P.W. 6 or not. It thus appears that all relevant circumstances bearing on the issues involved have not been unfurled as should have been done to dispel all reasonable doubts as to the culpability of the Appellant.

In the aforesaid circumstances, it is difficult to accept P.W. 6''s testimony in Court at its face value. There is absolutely no corroboration of his evidence in Court. Of his two contradictory statements made on oath it will be dangerous to accept one on the footing that it receives corroboration from his own statement in the F.I.R., specially when he has admitted that a part of the story narrated there is not his own. Keeping in the back of the mind that the accused is to be presumed to be innocent until he is proved guilty beyond reasonable doubt, and having regard to our conclusion that P.W. 6''s evidence is not acceptable without strong corroboration, the implication of the Appellant in the crime has to be established on the basis of circumstantial evidence alone, in which case it must be borne in mind that there is always the danger that conjecture or suspicion may take the place of legal proof. The rule in such cases is that where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilty is to be drawn should, in the first instance, be fully established and all the facts so established should always be of a conclusive nature and tendency so as to exclude every reasonable hypothesis of innocence except the one proposed to be proved. In the absence of evidence of any motive, in the absence of any medical evidence as to the homicidal character of death of the deceased, in the absence of production of the murder weapon and proof of its ownership or possession by the accused or of circumstances in which the accused could have armed himself with it, the test of circumstantial evidence fully implicating the Appellant cannot, in the instant case, be said to have been satisfied. The mind is, thus not assured that it is the Appellant who must have committed the offence. A mere strong suspicion arises against him that he may have committed the crime, but, as is well known, there is a long distance to travel between ''may have committed the crime'' and ''must have committed the offence''. We do not think that the prosecution has abridged this gap. The Appellant is, therefore, entitled to benefit of doubt.

In result, therefore, the appeal is allowed, the judgment of conviction and sentence is set aside and the Appellant is acquitted. He be set at liberty forthwith.

K.B. Panda, J.

I agree.