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1981 Supreme(Ori) 131
ORISSA HIGH COURT
P. K. MOHANTI AND B. K. BEHERA, JJ.
BISHNU DEO
VERSUS
THE STATE
Jail Criminal Appeal No. 110 of 1978,
Decided on : 28 -11 -1981.
In a criminal case, the prosecution must establish the guilt of the accused beyond a reasonable doubt. Inconsistent statements, unexplained delay in reporting the crime, and lack of corroborating evidence can weaken the prosecution's case and raise doubts about the reliability of eyewitness testimony.
Headnote:
CRIMINAL APPEAL - MURDER - S. 302, 201, 506 IPC - EVIDENCE OF SOLE EYE-WITNESS - DELAY IN LODGING FIR - INCONSISTENT STATEMENTS - NO BLOOD ON TANGI (WEAPON) - NO DEFINITE OPINION ON BONES RECOVERED - FALSE DEFENCE - NO BLOOD ON LUNGI SEIZED FROM APPELLANT - BLOOD DROPS IN LIQUOR SHOP - INSUFFICIENT EVIDENCE - CONVICTION SET ASIDE.
Fact of the Case:
Appellant, a Gadidar of a liquor shop, was convicted of murdering the shop's Manager, Shiva Bhagwan Sharma, on May 30, 1976. The prosecution relied on the testimony of Meta Harijan (PW 1), a laborer in the same shop, who claimed to have witnessed the murder and helped the appellant dispose of the body. The appellant denied the charges and pleaded false implication.
Finding of the Court:
The court found that the evidence against the appellant was insufficient to sustain the conviction. The sole eyewitness, PW 1, had made inconsistent statements and delayed reporting the incident for five days without a satisfactory explanation. The Tangi (weapon) did not have any blood on it, and the bones recovered from the alleged burning site could not be conclusively identified as human. The appellant's alleged false defense was not corroborated by any evidence. The court also noted that the Lungi seized from the appellant did not contain any blood, and the blood drops found in the liquor shop were not linked to the crime.
Issues: 1. Whether the evidence of the sole eyewitness, PW 1, was reliable and sufficient to establish the appellant's guilt. 2. Whether the delay in lodging the FIR and the inconsistent statements of PW 1 affected the credibility of his testimony. 3. Whether the absence of blood on the Tangi and the inconclusive nature of the bones recovered weakened the prosecution's case. 4. Whether the appellant's alleged false defense could be used against him in the absence of corroborating evidence.
Ratio Decidendi: 1. The court held that the evidence of PW 1 was unreliable due to his inconsistent statements, unexplained delay in reporting the incident, and failure to name the assailant immediately after the occurrence. 2. The court found that the delay in lodging the FIR and the inconsistent statements of PW 1 seriously affected the credibility of his testimony and raised doubts about the genuineness of the prosecution case. 3. The court noted that the absence of blood on the Tangi and the inconclusive nature of the bones recovered from the alleged burning site weakened the prosecution's case and raised reasonable doubt about the appellant's involvement in the crime. 4. The court held that the appellant's alleged false defense could not be used against him in the absence of corroborating evidence and that any stand taken by an accused person can only be considered as an additional link if other circumstances point unfailingly to their guilt.
Final Decision: The court allowed the appeal, set aside the appellant's conviction and sentences under Sections 302, 201, and 506 of the IPC, and directed his immediate release.
JUDGEMENT
Behera, J. :- This appeal arises out of the order of conviction passed against the appellant under Ss.302, 201 and 506 of the I.P.C. with sentences of imprisonment for life, rigorous imprisonment for two years and rigorous imprisonment for one year for the respective offences. The appellant, then working as the Gadidar of the liquor shop at village Dunga in the district of Kalahandi, had allegedly committed the murder of Shiva Bhagwan Sharma, then working as the Manager in that liquor shop (hereinafter described as the deceased) on the 30th May, 1976, at about 9 p.m., by means of the Tangi (M.O. I.), witnessed by Meta Harijan (PW 1), then working as a labourer also in the same liquor shop and had allegedly caused evidence of the commission of the offence of murder to disappear by carrying the dead body of the deceased with the help of PW 1, by intimidating and keeping him under grave threat to do away with his life in case he did not assist him and did not keep it a secret and burning it by the side of a Nala and burying the remnants thereof, burning the books of account and by cleaning M.O. I with water. The order of conviction of the appellant mainly rests on the evidence of PW 1, who did not disclose the occurrence to any one until the arrival of the Grama Rakshi (PW 2) of village Padadunga, on the 4th June, 1976, whereafter the first information report (Ext. 1) was got scribed on the information given by PW 1 and lodged at the police outpost at Jubarajapur, which was a little over two kilometres from the place of occurrence on the basis of which investigation was first taken up by the Assistant Sub-Inspector (not examined) attached to that police outpost and later by the Officer-in-Charge (PW 13) of the police station at Th. Rampur. Ultimately another police officer submitted charge-sheet against the appellant who, after commitment, stood trial, denying the charges made against him and pleading false implication in the case. The prosecution had examined fourteen witnesses to substantiate its case and the appellant had examined none in his defence.
2. While according to the learned counsel for appellant, the prosecution evidence was highly unsatisfactory and could not sustain any of the charges, the learned Additional Government Advocate has pressed into service the evidence of PW 1 and other circumstances in support of the order of conviction.
3. We have been taken through the evidence of PW 1 and the statements made by him in the first information report. PW 1 had testified that the appellant killed the deceased although he (PW 1) could not say by what weapon and then with his help by threatening him to be killed in case he did not obey him, the appellant carried the dead body and burnt it by the side of a Nala and buried the bones etc. of the deceased and cleaned the Tangi (MO I) and the cot on which the deceased fell and which had been stained with blood had also been thrown away by the appellant This witness had asserted that by being terrorised by the appellant, he did not disclose the occurrence to any one until the arrival of the Grama Rakshi (PW 2) and thereafter he lodged the written report. The Investigating Agency chose to get the statement of PW 1 recorded under S.164 of the Cr. P.C. As has been observed by the Supreme Court in the case of Balak Ram v. State of U.P. reported in AIR 1974 SC 2165 : (1974 Cri LJ 1486), relying on the principles laid down in the case of Ram Charan v. State of U.P. (AIR 1968 SC 1270) : (1968 Cri LJ 1473), the evidence of witnesses cannot be discarded merely because their statements were recorded under S.164, but their evidence must be approached with caution as such witnesses fell tried to their previous statements given on oath and have but a theoretical freedom to depart from the earlier version and a prosecution for perjury could be the price of that freedom. It is open to the court to accept the evidence of a witness whose statement was recorded under S.164, but the salie
