The conviction for murder cannot be sustained based solely on the evidence of a single unreliable witness in the absence of any other evidence to establish that the deceased died a homicidal death.

BEHERA, J.

( 1 ) THE three appellants stand convicted under S. 302 read with S. 34 of the I. P. C. (for short, the 'code') for having committed the murder of Champa (hereinafter referred to as the 'deceased') on June 1, 1982, in a jungle and under S. 201 read with S. 34 of the Code for removing the dead body of the deceased and throwing it elsewhere. Each of the appellants has been sentenced to undergo imprisonment for life for their conviction under S. 302 read with S. 34 of the Code and to undergo rigorous imprisonment for a period of three years for their conviction under S. 201 read with S. 34 of the Code.

( 2 ) TO bring home the charges, the prosecution had examined eleven witnesses including Sukra Paiko (P. W. 5) who was said to be a witness to the occurrence. The plea of the appellants was one of denial. The appellant Mathura had claimed her ownership in respect of the ornaments (M. Os. I to VI) which, as the prosecution sought to establish, belonged to the deceased and had been recovered from the possession of this appellant in the course of investigation. The learned Sessions Judge accepted the prosecution case based on its evidence.

( 3 ) MR. Y. S. N. Murty, appearing for the appellant Bhagaban Kirsani and Mr. Rangadhar Behera, appearing amicus curiae for the appellants Subaram Nag and Mathura Paikani, have challenged the findings recorded against the appellants as unfounded on the evidence on record and they have submitted that their conviction cannot legally be sustained. Mr. A. Rath, the learned Additional Standing Counsel, has not seriously pressed into service the highly unreliable evidence of the sole witness (P. W. 5) and in our view, rightly so, but has contended that as the appellant Mathura was last seen with the deceased and some ornaments belonging to the deceased had been recovered from her person, she could be held guilty of the charge of murder.

( 4 ) WE may point out at the outset that the order of conviction under S. 201 read with S. 34 of the Code was illegal and misconceived. Mere removal of the dead body of a murdered person from the place of occurrence to another place, by itself, would not amount to causing disappearance of the evidence of the murder, as held by this Court in State of Orissa v. Trinath Dash, (1982) 54 Cut LT 83 relying on the principles laid down by the Supreme Court and some High Courts in the cases referred to therein.

( 5 ) THE doctor (P. W. 2), who had conducted the autopsy, had not been able to record any opinion as to the cause of the death because the dead body of the deceased was in a high state of decomposition. The prosecution, therefore, had to bank upon the evidence of P. W. 5, the sole witness to the occurrence to establish a case of homicidal death.

( 6 ) WE are of the view, for the reasons to follow, that no part of the evidence of P. W. 5 could be accepted by the trial Court as a reading of his evidence would show that he was not a witness of truth and having made a false statement that he had witnessed the murder, he had made many more false statements to bolster up the case presented by him at the trial. This reminds us of the words of Alexander Pope : "he who tells a lie is not sensible of how great a task he undertakes; for he must be forced to invent twenty more lies to maintain that one. " this is what has happened in this case. If we discard the evidence of P. W. 5 as we must, there is no other evidence that the deceased died a homicidal death. This, by itself, would seal the fate of the prosecution. In the absence of proof of homicidal death, there can be no legal criminality.

( 7 ) P. W. 5 had testified about the occurrence thus:"i know the deceased and the accused persons. About 13 months in the month of Jesto on a Tuesday I was tending cattle in village Solomanguda. I was sitting on stone near the foot path at the outskirt of the Village at about 12 noon. The deceased, accused Mathura and Subarno were going on the footpath from village Solomangu