Pravakar SwaIn Vs. State of Orissa - Court Judgment

Sujit Barman Roy, C.J.

1. This appeal at the instance of the sole appellant Pravakar Swain is directed against the judgment dated 2.3.1996 passed by the learned First Additional Sessions Judge, Berhampur 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 4.7.1991 at or about 6.05 A.M. P.W. 1 Anil Kumar Swain lodged a written complaint at Gangapur Police Station stating, inter alia that on 1.7.1991 his father Satyabadi Swain (since deceased) went to Bhanjanagar and at that time around 10 A.M. in the morning the appellant Pravakar Swain of village Dubalunda came to the house of P.W.I and enquired about the deceased as he wanted to purchase a motor-cycle from the deceased. P.W.I accordingly informed the appellant that the deceased had gone to Bhanjanagar. Despite the aforesaid, the appellant waited in the house of P.W. 1 on that day till 5 P.M. when the deceased returned back to his house and thereafter a discussion between the appellant and the deceased was held with regard to the vehicle (motor-cycle), and price for the same was ultimately settled at Rs. 16,500/-. However, the appellant stated that at that point of time he did not have the money with him and therefore, the appellant requested the deceased to go to his house on the next day (2.7.1991) in the morning when he would make the payment after withdrawing money from the bank. As it was already evening, on being requested by the appellant, the deceased on his motor-cycle carried the appellant to his village, and thereafter the deceased came back to his house at 8 P.M. However, on 2.7.1991 around 10.A.M. in the morning the deceased went to the house of the appellant. Since then, the deceased did not return home. On the next morning around 8 P.M. (3.7.1991), the appellant came to the house of P.W.I without the deceased on the motor-cycle which belonged to the deceased. Not seeing his father, when P.W.I asked the appellant, he was informed that the deceased slept last night in the house of the appellant and on the next morning he left his house. In these circumstances, the appellant came with the motor-cycle to the house of the informant. Hearing such news, P.W. 1 along with his cousin brother P.W.2 Sanjay Kumar Swain went to the house of Banamali Swain of village Vegiput on the same motor-cycle, but they returned there from as they failed to trace out the deceased. However, P.W.I remained at Konteikoli Chhak, while the appellant along with P.W.2 Sanjay Kumar Swain went to Luduludi village. Thereafter, they together came to village Sadara hoping that the deceased might have returned home meanwhile. Not finding the deceased, even at that time, all three together went to Dubalunda village on the motor-cycle. In the house of appellant at Dubalunda village they found a pair of leather boot of the deceased kept in front of the room. They also noticed bad smell coming from that house. Blood stains were seen on the walls of the room. Having seen this, the appellant told them to search for the deceased further and in course of such search they came to Kshetribarpur village through some other villages mentioned in the complaint, but they could not trace out the deceased. In these circumstances, the informant suspected that the appellant might have murdered the deceased and concealed his body in his house. On the basis of the aforesaid written report, an F.I.R. was registered at Gangapur 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 Session. On transfer, the case was ultimately tried before the learned trial Court.

3. On perusal of the materials on record, the learned trial Court framed a charge under Section 302, I.P.C. against the appellant to which he pleaded not guilty. The defence of the appellant was that of complete denial. Of course on his behalf, two D.Ws. were examined. On conclusion of trial, the appellant was convicted and sentenced as already stated.

4. The case is based entirely on circumstantial evidence. There is no direct evidence as to who committed the murder. P.W.I Anil Kumar Swain being the informant stated in his evidence before the trial Court that the deceased was his father. The appellant was related to them. On 1.7.1991, the appellant came to his house in the morning around 10 A.M. to discuss with the deceased for purchasing a motor-cycle. However, P.W. 1 informed the appellant that the deceased was not available in the house at that point of time as the deceased had gone to Bhanjanagar. Despite this, the appellant waited in the house of P.W.I till 5 P.M. in the afternoon on that day. At about 5 P.M. the deceased returned to his house and there was discussion between the appellant and the deceased and ultimately in course of such discussion price of the motor-cycle was settled at Rs. 16,5000/-. As it was already evening, on being requested by the appellant the deceased carried the appellant in his motor- cycle to his village and ultimately the deceased returned home around 8 P.M. It needs to be mentioned here that in course of examination of P.W.I no attempt was made on behalf of the prosecution to get the appellant identified by this witness. This witness made a bald statement in his examination-in- chief that he knew the accused-appellant. Except this, there is absolutely nothing in his evidence on record as to the indification of the appellant. He further stated in course of his examination- in-chief that next morning i.e. on 2.7.1991 the deceased went to the house of the appellant with that motor-cycle, but, the deceased did not return home. Next morning i.e., on 3.7.1991 at about 8 or 9 A.M. the appellant alone came to the house of P.W. 1 with the motor-cycle belonging to the deceased. However, the deceased did not accompany the appellant. On query, P.W.I could learn from the appellant that the deceased had slept last night in the house of the appellant and in the morning he left his house. Thereafter, P.W. 1 alongwith his cousin brother P.W. 2 Sanjay Kumar Swain and the appellant together went to village Vegiput on the same motor-cycle in search of his father, but his father could not be traced out While returning P.W. 1 remained at Konteikoli Chhak while the appellant along with P.W. 2 went to village Luduludi. Therefrom also, the appellant and P.W. 2 returned back to P.W. 1 and they together returned home. They could not trace out the deceased. Then again, all of them together went to the house of the appellant at village Dubalunda on the same motor-cycle. It was then evening. They reached the house of the appellant on 3.7.1991 around 5 P.M. The appellant opened the door of the house, when they could notice that a pair of leather boot belonging to the deceased was lying there. They further could notice bad smell coming from the house of the appellant, apart from blood stains on the wall of the house. The appellant further suggested P.W.I to go for further search. Then all of them proceeded for tracing out the deceased and in course of such search operation they visited several villages. P.W.I suspected that his father might have been killed by the appellant. On the next day, i.e, on 4.7.1991 around 6 A.M. in the morning P.W. 1 on his own came to Gangapur Police Station and lodged a written complaint as already stated. From the said Police Station he again came to the house of the appellant with the Police. They reached the house of the appellant on 4.7.1991 around 7 A.M. in the morning. The motor-cycle in question was seized by the Police under the seizure-memo being Ext. 2, which bears his signature. In course of search, Police recovered the dead body of the deceased from the granary of the house of the appellant. A blood stained sharp cutting weapon locally called 'Kati' was also recovered. Police also seized a 'Paita' which was also stained with blood. The appellant allegedly confessed before the Police in presence of this witness that he had killed the deceased. Police arrested the appellant after he made the confession. It must be mentioned here that this part of evidence, i.e., the confession made by the appellant before the Police, is inadmissible in evidence. This is in short the evidence of P.W.I. The most important omission on the part of the prosecution is that no attempt was made by it to get the appellant identified by P.W.I from the witness box. Therefore, there is not even an iota of substantive evidence on record as regards identity of the offender. It is seen that this witness made a bald statement at the beginning of his examination-in-chief that he knew the accused. But, such bald statement is not enough unless the accused in the dock is personally identified by the witness in question.

5. To appreciate the evidence of this witness otherwise, it is necessary to refer to the evidence of P.W. 2 Sanjay Kumar Swain, who accompanied P.W.I to the house of the appellant. Evidence of P.W. 2 as given in his examination-in-chief, is more or less identical with that of P.W.I. He also did not make any attempt to identify the offender in the dock from the witness box. He also made equally a bald statement in the beginning of his examination-in-chief that he knew the accused. This is not enough as regards the identification of the offender. We are, therefore, constrained to observe that there is not even an iota of substantive evidence on record from the witness box as regards identification of the offender. He also stated in his evidence that along with P.W.I and the appellant he came to the house of the appellant around 4.30/5.00 P.M. of 3.7.1991 and found blood stains on the walls of the house of the appellant apart from a pair of leather boot lying there, which belonged to the deceased. He also felt bad smell in the house. In course of cross-examination, however, this witness stated that 'Gangapur P.S. is at a distance of 1 K.Ms. from our village. Gangapur P.S. is at a distance of 3 to 4 K.Ms, from Khetribarpur, which is on the main road. Gangapur is also on the main road. My village is at the side of a rural road. We returned from Khetribarpur to our village via Gangapur. We could not inform police while returning via Gangapur. We returned to the home and after discussion between ourselves'. From the evidence of P.Ws.l and 2, it is apparent that when they visited the house of the appellant in the afternoon of 3.7.1991 they noticed number of incriminating circumstances, namely, they found a pair of leather boot belonging to the deceased lying there. They also found blood stains on the walls of the house of the appellant. They further noticed bad smell coming from the house of the appellant. Coupled with other circumstances of the case with the aforesaid circumstances which they had noticed in the house of the appellant in the afternoon of 3.7.1991 itself, they had strong suspicion on their mind that the appellant himself had killed the deceased. They returned to their village via Gangapur where the Police Station is situated. After noticing all the circumstances noted above, and even after entertaining suspicion that the appellant perhaps had killed the deceased, yet they did not lodge any F.I.R. on 3.7.1991 itself while returning to their village via Gangapur, the village where the Police Station is situated. This is an abnormal conduct on the part of P.Ws. 1 and 2. This is a circumstance creating serious doubt as to the veracity of their evidence apart from the fact that neither of the two witnesses had identified the offender from the witness box before the trial Court. They merely made a bald statement that they know the accused. But, there was no attempt on the part of the prosecution to get the offender identified in the dock by these two witnesses from the witnesses box.

That apart, we further find from the cross-examination part of evidence of P.W.2 that he did not state to the Investigating Officer that he went to the house of the appellant along with the Police where the deadbody in question was recovered in his presence or that the sharp-cutting weapon locally called 'Kati' was recovered in his presence. In these circumstances, it is very difficult for us to act upon the evidence of P.Ws.l and 2 to sustain the conviction and sentence of the appellant without entertaining serious doubt in our mind.

6. The next important witness is P.W.3 Lokanath Swain. He also mad equally a bald statement that he knew the accused without making any attempt to identify the accused in the dock personally from the witness box. He stated in his evidence that the deceased was his elder brother. On 3.7.1991 he returned to his house at 7 P.M. and learnt form P.W. 1 that the deceased had not returned to house. On the next day morning of 4.7.1991 around 7 A.M. along with P.W.I he went to Gangapur Police Station and lodged an F.I.R. Along with the Police and others, he came to village Dubalunda of the accused-appellant and found his house under lock and key. He also found the appellant in his house. He enquired from the appellant and learnt from his confession that the appellant had murdered the deceased and concealed the deadbody inside the granary of his house. However, this witness is clever enough to say that when the appellant made this confession, Police was standing at a little distance away from them. However, P.W.I does not support his story. P.W.I clearly stated in unambiguous terms that the appellant confessed before the Police. Hence, we hold that this part of evidence of P.W. 3 Regarding confession made by the appellant is totally inadmissible in evidence as same had been made in presence of Police. He further stated in his evidence that Police went inside the house of the appellant and recovered the deadbody of the deceased kept concealed in the granary of the appellant. A sharp cutting weapon locally called 'Kati' was also recovered from his house. The deadbody was found under a polythene bag covered with a gunny bag. Police then held inquest over the deadbody in presence of this witness and others. Thereafter, the appellant was arrested by the Police. He also stated in his evidence during cross-examination that he was not examined by the Investigating Officer in this case. It is not necessary for us to attempt an elaborate discussion about the evidence given by this witness during cross-examination. As he did not identity the offender in the dock before the trial Court, a bare statement that he knew the accused is not enough to fasten a charge of murder on the appellant on that basis alone. But, what is important is that there must be substantive evidence on oath from the witness box as regards identification of the offender. That evidence being totally absent, it is not possible for us to sustain the conviction and sentence of the appellant on the basis of evidence of P.W. 3. The reasons for which we are unable to rely upon the evidence of P.Ws.l and 2 are equally applicable to the evidence of this witness. Equally we find from the evidence of P.Ws.4 and 5 that no attempt was made on the part of the prosecution to identify the offender in the dock while these witnesses were giving evidence from the witness box before the trial Court. A bald statement was made that they all knew the accused. As we have already observed, such bald statement is not enough to convict the appellant unless there is substantive evidence on record to identify the offender. We need not go into other evidence on record. We have discussed the evidence of all the important witnesses in this judgment already. Due to failure of these witnesses to give evidence as regards identification of the accused, apart from other infirmities from which their evidence suffer already pointed out, it is not possible for us to sustain the impugned judgment of conviction and sentence without entertaining serious doubt as to the guilt of the accused. We are therefore of the view that the impugned judgment cannot be sustained. Benefit of such doubt must be given to the appellant.

7. In the result, we allow this appeal and set aside the impugned judgment of conviction and sentence. We further direct that if the appellant is still in jail, he shall be set at liberty forthwith.