Rabi @ Maguni @ Mangulu Mahakud vs State of Orissa

Sujit Barman Roy,C. J.

This appeal at the instance of the sole Appellant Rabi @ Maguni @ Mangulu Mahakud is directed against the judgment dtd. 18.3.1994 passed by the Sessions Judge, Keonjhar at Champua in Sessions Trial Case No. 45/1992 convicting the Appellant u/s 302 of the Indian Penal Code and sentencing him there under to suffer imprisonment for life.

The story in brief is that P.W. 2-Padma Lochan Sahu being the father of the deceased Biswanath Sahu lodged a complaint on 2.1.1992 at 4.40 P.M. before the Joda Police Station alleging, inter alia, that he had a grocery shop in the super market of Joda. His son Babu @ Biswanath Sahoo (deceased) aged about 22 years used to sleep in the shop room every day. The day before the report was submitted, it is alleged, the deceased had gone to Gourabeda with some of his friends and came back in the evening. At about 11.30 P.M. in the night he went to the shop to sleep. Since he did not return home in the morning the informant went to the shop room and opened the shop room with other key which was in his possession and found his son lying dead in a pool of blood. He heard at the spot that while coming back with his friend from Gourabeda the deceased had altercations with some people and he suspected that those people killed his son. On the basis of the said oral complaint a case u/s 302, Indian Penal Code was registered at the said P.S. against unknown accused. On conclusion of the investigation, Police submitted charge sheet against the present Appellant u/s 302 of the Indian Penal Code. In usual course, the case was committed to the court of the learned Sessions Judge, Keonjhar. On perusal of the materials on record, learned trial Court framed charge u/s 302, Indian Penal Code against the Appellant to which he pleaded not guilty. In course of the trial in all 8 witnesses were examined on behalf of the prosecution. No evidence was adduced on behalf of the Appellant. In course of trial the plea of the Appellant was a complete denial of the prosecution case as alleged.

Apart from the evidence of the P.W. 7, there is absolutely no other evidence to connect the Appellant with the commission of the crime. of course trial court also relied upon one more circumstance, namely, that Appellant was absconding since the incident occurred.

We do not refer to other evidence on record as they do not have much bearing upon this case apart from what has been stated by P.W. 7 in his evidence. P.W. 7-Nirmal Kumar Sahu Barma stated in his evidence that about 2 years before his deposition was recorded he was living at Joda where he had a Torch repairing shop. He knew the Appellant. At that time the Appellant was also living in Joda and he used to collect fees from shop keepers. The barber''s shop of one Srinibas Barik was the adjacent shop of the Torch repairing shop of this witness. In the night, this witness used to sleep in the shop of the barber, Srinibas Barik. The grocery shop of Madan Sahu, the father of the deceased, was situated in front of this witness shop. During the night of occurrence around 2.00 A.M. when this witness was sleeping in the barber shop of Srinibas Barik, he heard the voice "MOTE ATA DIA" meaning thereby to "give me Ata". Immediately after that this witness heard the cry "save me, I am being killed". On hearing this cry when this witness came out of the barber''s shop where he was sleeping he could see the Appellant handing over a knife to one person. That knife was stained with blood. The person who collected the knife from the hand of the Appellant asked the Appellant to take the life of this witness as this witness saw the occurrence. Immediately on this the Appellant rushed at P.W. 7 and gave him two slaps on his cheek and cautioned that in case he disclosed the incident to anybody, he would be killed. After the Appellant locked up the grocery shop of the deceased, being accompanied by two other boys, proceeded towards Hanuman Temple. The Appellant and other two persons who accompanied him, covered their head and face with monkey caps. He could identify the Appellant by his voice. The Hanuman Temple towards which the accused and his companions proceeded was at a distance of about 20/25 feet from the grocery shop of the deceased. When they were so proceeding towards the Hanuman Temple, a white vehicle came from that side. On the number plate of the vehicle it was written "BR-41". The Appellant and his companions left in that vehicle towards Barbil road. On seeing this incident, P.W. 7 was frightened and out of fear he left for Ranchi in the very next morning apprehending danger to his life. His statement was also recorded before the Magistrate u/s 164, Code of Criminal Procedure This is in short the evidence given by this witness.

As it appears from the evidence of this witness, the entire prosecution case rests on the identification of the Appellant by voice. The perpetrator of the crime had their heads and faces covered with monkey caps. A question arises whether in such circumstances it will be safe to found the conviction on a grave charge like that of murder on the basis of identification by voice only ? Without laying down any hard and fast proposition on this issue, we may say that if the evidence of this witness does not appear to be trustworthy for some other reason, it may not be safe to act upon such evidence of identification of the culprits by voice alone. We are not laying down any such proposition that in no case identification by voice can be a foundation for conviction. However, it requires a close scrutiny of the evidence of such witness. He stated that he used to sleep in a barber''s shop belonging to Srinibas Barik instead of sleeping in his own Torch repairing shop. Said Srinibas Barik has been examined for the prosecution as P.W. 4. P.W. 4 has been declared hostile by the prosecution as he did not support the prosecution case. In his examination in chief, P.W. 4-Srinibas Barik admits that he had a hair cutting saloon at Joda, Super Market. He also stated that the grocery shop situated at the same market was adjacent to the saloon of this witness. At this stage this witness was declared hostile by the prosecution and was cross-examined by it after obtaining permission from the trial court. During his cross-examination on behalf of the Appellant he stated that none slept in his saloon during the relevant period. This part of the evidence given by P.W. 4 has remained unchallenged by the prosecution. The prosecution did not challenge this part of the evidence when this witness was cross-examined by the prosecution itself after declaring him hostile nor any clarification was sought from this witness by the prosecution either during the examination in chief or during cross-examination by the prosecution itself as to whether in the night of occurrence or during night in those days P.W. 7 used to sleep in his saloon at Super Market, Joda. In these circumstances, we are not able to accept the evidence of P.W. 7 without entertaining serious doubt as to the veracity of the claim that he used to sleep in the saloon of P.W. 4 at night during those dates or that he had slept in the very same saloon in the night of occurrence.

In view of the aforesaid circumstance since P.W. 4 declined to support the claim of P.W. 7 on this important issue, we are constrained to hold that the charge against the Appellant of having committed the murder of the deceased solely on the basis of identification of the Appellant by voice has not been established beyond all reasonable doubt and it would be rather risky to sustain the conviction of the Appellant on that basis alone.

In view of the aforesaid, we allow this appeal and set aside the impugned judgment of conviction and sentence.

L. Mohapatra, J.

I agree.