Sujit Barman Roy, C.J.
1. This appeal at the instance of the appellant Chinta @ Prafulla Dehury is directed against the judgment dated 30.9.1994 passed by the learned Sessions Judge, Balasore in Sessions Trial No. 13 of 1994 convicting the appellant under Section 302, IPC and sentencing him thereunder to suffer rigorous imprisonment for life.
2. Prosecution case in brief is that on 9.7.1993 at about 10 P.M. an F.I.R. was registered at Basta Police Station, Eiasta. Balasore on the basis of a complaint lodged by P.W. 1. Taramani Sethi. The said complaint was initially received at the spot at about 4 P.M. on 9.7.1993 which was subsequently registered at the said police station on 9.7.1993 at about 10 P.M. in the said complaint, it was alleged that the informant was working as a maid servant: in the house of Panalal Jojodia (since deceased) since the preceding two and half years on monthly pay of Rs. 300/-. The informant used to go to the house of the deceased everyday at 7.30 A.M. in the morning and return home at about 5 P.M. The deceased used to reside alone in the premises of the old rice mill. One Phagala Bindhani used to work as a watchman at night in the said old rice mill of the deceased and two boys namely, Kageswar and Anna used to reside on rent in a part of the premises of the said old rice mill of the deceased. In that part of the rice mill, the aforesaid two boys installed a 'leaf pressing machine'. However, due to her illness she did not go to the house of the deceased for the last three preceding days. During her absence, the deceased used to bring his food from the market for his own consumption. On the date of the incident, she came to the house of the deceased at about 9. A.M. in the morning when the night watchman Phagala Bindhani was sitting outside and he told the informant that the deceased had gone to the bank for bringing money. At that time, the machine room was closed and the two boys were not there. However, the deceased returned to his aforesaid rice mill at about 11 A.M. and after taking meal he slept in his room. When the informant was washing utensils her son Maheswar came and both of them went to the bank for bringing Rs. 100/- for her son's admission in the school. After returning from the bank, she could see that the deceased went outside for attending the call of nature. When she was driving out some cattle which were grazing in the field in front of the house of the deceased, she saw a person came out from a nearby jungle and stood silently near the T.V. Room. He was the appellant. On 4/6 earlier occasions the appellant came to meet the deceased. The deceased asked the appellant for arranging a watchman. After driving out the cattle, the informant went towards the appellant. When the appellant asked her to go towards him, on seeing the activities of the appellant when she did not go near the appellant, he chased her by abusing in filthy language. He was then wearing a banian and a check lungi and his head was covered with napkin (Indian gamuchha). When her son went near the appellant, he pressed the neck of her son. However her son ran away from there. Thereafter, the appellant came near the informant and gave her blows on her face with fist. She also ran away out of fear and entered into the room of Gandiram and closed the door. The appellant then sat outside in the verandah and abuse her. However, Gandhibudha and his two sons namely, Suruja and Raghu dissuaded the appellant and thereafter the appellant went way from that place. At that time her son also returned to that place. She could see from the window that the accused stood under a date tree. Thereafter, she came out from the room and could see that the appellant was proceeding towards the house of Jojodia (within rice mill premises). She reported all these facts to Suruja and Raghu and asked them to take care of the deceased as the appellant might kill him. But nobody paid any heed to her request. Immediately after that she could hear 'dumdum' sound from inside the house of deceased for about half.an hour. Out of fear, she could not enter the house. Little thereafter, Khageswar and Anna came to the mill on a cycle and five minutes later, said Khageswar and Anna came out from the house of the deceased with their cycle and appellant Chinta was also with them. Around 10/15 minutes later on. after their departure, Narayan Master with 7/8 persons went inside the mill being accompanied by the informant and found that the deceased was lying in a pool of blood on the floor of the room. She noticed that blood was coming out from the mouth of the deceased. Blood, broken bricks and glasses of bottle were lying scattered in the room. At that time, the deceased was in a critical condition and he was unable to speak out. People shifted the deceased to the hospital. She further claimed in the said complaint that the appellant had murdered the deceased by means of bricks, stones and glasses of bottle.
3. On the basis of the said complaint, as already stated above, a case under Section 302, IPC was registered at the said police station against the appellant. After usual investigation, police submitted charge sheet against the appellant under Section 302, I.P.C. In course of time, the case was committed to the Court of learned Sessions Judge. On perusal of the materials on record, learned trial Court framed a charge under Section 302, IPC against the appellant to which he pleaded not guilty. In course of trial, in all twelve witnesses were examined on behalf of the prosecution. None was examined on behalf of the appellant. The defence of the appellant was of simple denial of the prosecution case.
4. We have heard learned counsel for both sides.They have taken us through the evidence on record.-Of the twelve witnesses, we find P.Ws.l and 4 turned hostile and did not support the prosecution case. They resiled from the previous statement recorded by the police and therefore, there is no need to discuss the evidence of those two witnesses. In this case, there is no eye witness. The only evidence relied on by the trial Court is of P.Ws. 2,3,11 and 7 and also Exhibits 2 1 and 22. They proved certain circumstantial evidence on which the impugned judgment is founded. P.W.2, Khageswar Das stated in his evidence that he did not: know the appellant and therefore, failed to identify him. Despite his failure to identify the appellant, he proceeded to state before the trial Court that this witness along with Sasikanta Sahu @ Anna had installed a leaf pressing machine in a room taken on rent by them from the deceased situated within the rice mill. On the date of occurrence, he came to Balasore in connection with his business along with partner Anna and returned back at about 3.00 P.M. on that day. As they reached near the machine room, he found the appellant inside the mill premises near the bed room of the deceased. At that time, the appellant disclosed that the condition of the deceased was serious and that a message should be sent to his son. After learning this, this witness went inside the house of the deceased along with the said Anna and the appellant. At that time, the appellant told them that the condition of the old man was serious and he was unable to take care of himself as he was drunk. On coming to the spot along with co-villagers he found the deceased was lying in a pool of blood and broken bricks, bottles and glasses were lying scattered on the floor. They, then carried the deceased to the hospital. This is in brief the evidence given by this witness. But as this witness claims that he did not know the accused and failed to identify him, there is no purpose to go into further details of his evidence. For his failure to identify the accused and because he admitted that he did not know the appellant, his evidence cannot be a foundation for conviction of the appellant. The evidence of P.W.3 Satyanarayan Ghose @ Kati Babu in brief is that he knew the accused. He was working as a labourer. He also knew the deceased. On 9.7.93 at about 3 P.M., when he was in his house, the appellant came with P.W.2 and Anna. On being asked, the appellant told him that the condition of the deceased was serious and therefore, a message should be sent to his family members. The appellant was then wearing a lungi and a banian. This witness went inside the mill to ascertain the condition of the deceased and found that the deceased was lying in a very critical condition in a coma. The deceased had sustained the multiple bleeding injuries. Some broken bricks and broken, bottles were lying scattered at the spot. On returning home, he informed the matter to the police station over phone. He also informed the relations of the deceased at Calcutta over phone. Later on, he could learn that the deceased succumbed to injuries on the way to the hospital. Apart from the aforesaid, this witness states nothing important. This is the circumstance heavily relied on by the trial Court for convicting the appellant. The circumstances are that the appellant reported the witness that the condition of the deceased was very serious. Mere disclosure of the fact that the condition of the deceased was serious by itself cannot be the basis that the appellant had any connection with the murder of the deceased. This witness also did not claim that the lungi and banian which the appellant was wearing were stained with blood. The blood stained lungi and banian proved in course of the trial as material exhibits for the prosecution were also not shown to this witness for identification.
5. As already stated P.W.4 was declared hostile by the prosecution and accordingly after obtaining leave from the trial Court, prosecution cross-examined this witness.
6. P.Ws. 5 and 6 are not at all important witnesses so far as complicity of the appellant with the murder in question is concerned.
7. However, P.W.7, Pradyut Kumar Mohanty stated in his evidence that in his presence blood stained lungi and a banian were seized by the police on 9.7.1992 at the police station. He was a witness to the seizure. Accordingly, he put his signature on the seizure list. During examination-in-chief he stated that 'a blood stained lungi and a blood stained ganji was seized in my presence from the accused on 9.7.92 in Basta Police Station on production.' But during cross- examination, this witness stated that occasionally he visits the police station and his house was situated about 2 K.M. away from the police station. There were several shops and houses on road side near the police station. As he reached the police station, the banian and the lungi were kept in front of the hazat. He further stated that he did not know wherefrom the banian and lungi were brought. Now the question is whether this witness did not see the appellant producing lungi and banian as he admitted during cross-examination that the lungi and banian were lying in front of the hazat. What was the occasion for this witness to visit the police station is not very clear. Why he came to the police station at that particular moment when seizure was about to be made is a disturbing feature of the evidence of this witness for which we are unable to place much reliance on the same. None of the other witnesses examined in this case, have stated in their evidence that the appellant disclosed to them that the deceased was in a serious condition. None claimed that the wearing apparels bore any marks of blood. In this circumstance, the evidence that the lungi and banian of the appellant were stained with blood cannot be accepted without entertaining serious doubt as to the veracity of such evidence. It is true that the forensic laboratory found blood marks in the banian and lungi to be of human origin and blood group thereof and the blood group of the deceased matched. But as we are unable to accept the prosecution story that the lungi and banian were seized on being produced by the appellant for the reasons already stated above, or that those were the wearing apparels of the appellant, we cannot attach any importance to this evidence or to find on that basis that the appellant had any complicity whatsoever with the alleged murder of the deceased. In the circumstances, we are constrained to hold that the most important circumstances sought to be proved on behalf of the prosecution that the blood stained banian and lungi were the wearing apparels of the appellant have not been proved beyond reasonable doubt. Equally, the disclosure by the appellant that the deceased was in a serious condition by itself cannot constitute evidence or proof of any complicity of the appellant with the murder of the deceased. These aspects have not been duly considered by the trial Court and therefore, according to us, the conclusions arrived at by the learned trial Court are not tenable in the facts of the case and it is not possible to sustain the conviction of the appellant on that basis.
8. We, therefore, hold that the prosecution has failed to prove its case that, the appellant was responsible for the murder of the deceased beyond reasonable doubt and accordingly, we allow this appeal and set aside the impugned judgment of conviction and sentence. We further direct that the appellant, if in jail shall be set at liberty forthwith.
L. Mohapatra, J.
9. I agree.