Judgment:
A. Pasayat, J.
1. These two appeals arise out of a common Judgment passed by the learned Second Additional Sessions Judge, Bhubaneswar. The three appellants in these two appeals (hereinafter referred to as 'accused' by their respective names) faced trial for allegedly having committed an offence under Section 302/34 of the Indian Penal Code. 1860 (in short 'IPC'), by intentionally causing death of Surendra Nayak (hereinafter referred to as 'deceased') in furtherance of their common intention,
2. Sans unnecessary details, the prosecution case as unfolded during trial is as follows :
The deceased was serving as a Sweeper in the S. C. B. Medical College, Cuttack and was residing at Kedarpali of Bhubaneswar in the house of his mother-in-law. Labanya Bewa (PW 7), along with his wife Rama Dei (PW 1). He used to come daily from Bhubaneswar to attend his work at Cuttack. On 4-5-1989, he left his house to catch the morning train for coming to Cuttack. He had to carry some clothes of his wife (PW 1) to get them stitched at Cuttack. Since the deceased left the home without carrying the clothes, PW 1 carried them and ran after him to hand over and near the shop of one Prakash, she made over her few pieces of cloth (M. O. Ill) and her old blouse (M. O. IV). While standing on the road looking at her husband, she suddenly found that her husband, who was then proceeding towards Bhubaneswar Railway Station being attacked by the accused Bapi Nayak, Braja Nayak and Kalia Nayak with a Bhalla (M. O. I.), a Katari (M. O. II) and a sword respectively. Her husband was running for life on the road. Immediately PW 1 rushed towards her house to inform about the incident to her mother (PW 7), whereafter both of them ran towards the place where PW 1 had seen the deceased running. As they reached near Hotel Venus-Inn they found the accused persons coming out of the hotel with weapons in hands stained with blood. Entering inside the hotel, they found marks of blood stains on the steps of the hotel and following the marks of blood they went upstair and found the deceased lying dead on the roof in a pool of blood. At that point of time PW 8, the Inspector of Police of Capital Police Station having come to know about the incident from some source, came to hotel and the informant (P W 1) orally reported the incident which was scribed, treated as FIR (Ext. 1/1) and investigation was undertaken. During the course of investigation witnesses were examined, certain recoveries were made on the basis of information given by the accused persons while in custody. It came to light that PW 4 Prasanna Behera had also witnessed a part of the occurrence. On completion of investigation, charge-sheet was placed against the accused persons.
3. The accused persons pleaded their innocence and took the plea of false implication.
4. In order to establish the accusations, nine witnesses were examined by the prosecution out of whom PWs 1, 4 and 7 were stated to be eye witnesses. Placting reliance on their evidence and the factum of recovery on the basis of information given by the accused persons while in custody, the learned trial Judge found the accused persons guilty of offence punishable under Section 302/34 IPC, convicted and sentenced each one of them to undergo imprisonment for life.
5. In support of the appeal, learned counsel for the appellants submitted that in a case where prosecution relies on circumstantial evidence, there has to be a complete chain of circumstances with no missing link so as to rule out the possibility of innocence of accused persons, and to establish the guilt beyond reasonable doubt. It is stated that PWs 1 and 7 are the interested witnesses and their evidence lacks credibility and cogency. So far as PW 4 is concerned, it is submitted that he was a chance witness who was not able to throw light as to how he could be at the spot of occurrence. Additionally he submitted that the factum of recovery alleged to have been made on the basis of information given by the accused has not been established and, therefore, that should not have been taken as a piece of material to fasten the guilt on accused persons. Mr. N Prusty, learned counsel for the State, on the other hand, submitted that the order of conviction and sentence is in order.
6. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused but also it must be such as to rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation, and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive.
7. In the case at hand evidence of P Ws 1, 4 and 7 provide the complete link. PW 1 had seen the starting point of the assault and when she came back along with her mother (PW 7), she found blood marks up to the roof where the deceased was found lying dead. Prior to that the accused persons were seen coming from the hotel with their weapons stained with blood. PW 4 came in an intermediate stage. He has seen the accused Bapi making assault from the backside of the deceased while he was running towards hotel. Gap between the time PW 1 left mid-way and came back with her mother to see the accused persons leaving the hotel, almost immediately prior to their finding the dead body is so small that there is not even a shadow of doubt that none else than the accused persons caused the injuries which resulted in the death of the deceased. The question of any other person interposing in between does not arise. The prosecution has established complete chain of circumstances which rules out beyond any shadow of doubt involvement of any other person and the inevitable conclusion as has been rightly done by the learned trial Judge is the accused persons were authors of the crime.
8. Coming to the plea of the accused that PW 4 was a 'chance witness' who has not explained how he happened to be at the alleged place of occurence it has to be noted that the said witness is an independent witness. There was not even a suggestion to the witness that he had any animesity towards any of the accused. In a murder trial by describing the independent witness as 'chance witness' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual. In the case at hand, PW 1 has stated that he was going to the Railway Station to receive a friend. It has not been shown as to how the statement was false. The presence of PW 4 cannot be said to be unusual.
9. Considering the nature of the injuries, the weapons used and the places where the injuries were noticed, conviction under Section 302, PC has been rightly made. We find no merit in these appeals, which are accordingly dismissed. It appears that the accused-appellant Kali Nayak was granted bail by this Court. In view of dismissal of the appeal, he is to surrender to custody. In case he does not do so forthwith, trial Court shall take appropriate steps for taking him to custody.
P. Ray, J.
10. I agree.