Lala alias Lalbehari Meher vs The State

N.K. Das, J.—This appeal is directed against an order of conviction u/s 302, Indian Penal Code and a sentence of R.I. for life.

The prosecution case runs thus:

The accused and the deceased are first cousins. The deceased lost his father when he was aged about 21 years. He was brought up by p.w. 2, the father of the accused. When he became major, p.w. 2 handed over his properties to him. The deceased then lived separately. On the night of 4th April, 1972, p.w. 2, his wife and children slept inside the house while the accused slept on a cot in the Khuli adjoining the house. The deceased slept on the outside pinda adjoining the Khuli at a distance of about 15 to 16 cubits from the accused. Late in the night, wife of p.w. 2 took one of her children for attending to call of nature. Shortly thereafter p.w. 2 woke up and found the deceased lying dead in a pool of blood with bleading injuries on his forehead and face. He also noticed a pick-axe lying near the dead body being stained with blood. P.w. 2 raised an alarm which brought the villagers to the spot. It is alleged that the accused had disappeared from the village by then.

F.I.R. was lodged by p.w. 6 on 5-4-1972 at 1 A.M. and the Investigating Officer arrived at the spot at 8 A.M. He arrested the accused on 7-4-1972 and after due investigation submitted charge sheet u/s 302, Indian Penal Code.

The accused denied his guilt and pleaded alibi.

The doctor (p.w. 1) who held post-mortem examination over the dead body on 5-4.1972 found one punctured wound at the frontal area of the scalp. On dissection he found the following internal injuries:

(i) Skull bone at the frontal area had been fractured.

(ii) Membranes were ruptured.

(ii) Brain substance had come out; and

(iv) Corresponding muscles at the site of the injury were cut.

According to him, death was due to shock. The injury was antemortem in nature and was sufficient in the ordinary course of nature to cause death. The doctor also opined that the injury on the head could be caused by the pick axe (M.O. I). Thus, there is no doubt that the death was due to assault by means of M.O. I.

There is no eye witness to the occurrence. The order of conviction is based on the following circumstances:

(i) The accused had differences with the deceased.

(ii) The accused was sleeping on a cot near the place where the deceased was sleeping and he disappeared from the village in the night of occurrence.

(iii) The accused was informed by p.w. 3 about the occurrence on the next morning at Ambapali and was asked to return to village but he declined to do so.

From the evidence of p.w. 2 it appears that the accused had some quarrel with the deceased about 10 years before the occurrence and that they were not inimically disposed towards each other though they had some difference at times. A quarrel which took place 10 years before the occurrence cannot be said to have provided the motive for the murder. There is nothing on record to show that there was any immediate motive for the murder.

The next circumstance relied upon by the prosecution is about disappearance of the accused from the village in the night of occurrence. The evidence on record does not show when actually the accused left the village. That apart, this circumstance by itself does not, in our opinion, fix the guilt on the accused. The possibility of somebody else having killed the deceased cannot be ruled out. In this connection it is significant to note that the pick-axe which is said to be the weapon of offence does not belong to the accused, as deposed to by p.w. 2. In Matru alias Girish Chandra v. The State of U.P. AIR 1971 S.C. 1050, it has been held:

Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation.

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Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.

It has also been held in the case of Digendra Kumar Dey v. State of Assam 1668 S.C.D. 887, where the accused absconded for seven weeks from the date of occurrence that:

circumstance may raise a serious suspicion against the Appellant, but would not by itself justify his conviction for the offence of murder.

The next circumstance relied upon by the learned Sessions Judge is that the accused being informed about the murder on the next morning and being asked by p.w. 3 to return to the village declined to do so. Several alternative theories can be advanced as to why the accused did not agree to return to the village. According to p.w. 3, the accused said that he had to go to Bargarh for marketing and it is in evidence that he returned to village two days after the occurrence. It is, therefore difficult to hold that the accused had left the village with a view to evading arrest.

Thus, the circumstances proved in the case do not establish beyond doubt that none else but the accused is responsible for the murder. No doubt, there is a strong suspicion against the accused, but suspicion cannot take the place of legal proof. Accordingly, we hold that the prosecution has failed to establish its case beyond all reasonable doubts.

In the result, the appeal is allowed and the conviction and the sentence are set aside. The Appellant be set at liberty forthwith.

P.K. Mohanti, J.

I agree.