Sambhu Patra vs Emperor

Scroope, J.—This is a reference u/s 3/4, Criminal P.C., in respect of one Sambhu Patra who has been found guilty u/s 302, I.P.C. and has been sentenced to death in disagreement with the four assessors by the Sessions Judge of Cuttack. He also filed an appeal, and along with him has been convicted in the same trial and for the same offence his brother-in-law Upendra De who has been sentenced to transportation for life by the Sessions Judge in disagreement with the four assessors.

Appellant Sambhu Patra has married Upendra''s sister; Upendra is cousin of the murdered man Gopal and the latter, with his brother Bhagwat, lived in a house on the same site in the village as did Upendra; Upendra, Gopal De and Bhagwat held a tank jointly and all are residents of village Nepura within the police station of Baliapal in Balasore District. The prosecution case is that there was bitter enmity between Sambhu, Upendra and Upendra''s father Sanatan De on the one side and Gopal De and Bhagwat De on the other and that this culminated in the murder of Gopal by Sambhu and Upendra on the night of Friday, 5th April last, when Gopal was returning from Mandhata Hat where he had gone to sell tobacco.

The evidence on the case against the appellant is entirely circumstantial and I may say at once that the prosecution has satisfactorily proved that there was enmity between the parties; a quarrel took place between them on Sunday 31st March, relating to fishing in the ijmali tank, and on Monday 1st April, because the accused had dug a pit near Bhagwat''s house, and there was also a quarrel on 5th April, the day of the murder, in the course of which Sambhu threatened Gopal. It is also stated by the prosecution witnesses who have deposed to the quarrel of 1st April that Gopal, in the course of it, taxed Sambhu with carrying on an intrigue with his own mother-in-law, the wife of Sanatan. It is when we come to the circumstantial evidence by which the prosecution would fix the guilt of the murder absolutely on to these two accused that the case breaks down. This evidence, if believed, works out in the following way: On 3rd or 4th April Sambhu had an axe sharpened in the house of one Agani Jena of Nepura; on Friday morning, 5th there was a quarrel referred to above in the course of which Samhhu threatened Gopal. On the Friday evening Raghunath De (P.W. 25) had gone to the house of Sanatan De, the father of the accused Upendra, to borrow a fishing net. Upendra and Sambhu were there; they were talking among themselves and he heard Sambhu saying:

The sala is accusing me without any sin on my part. We must kill him.

Arjun Patra (P.W. 18), just after sunset on Friday, saw Sambhu going towards Upendra''s house with an axe in his hand. The same evening the two accused went out after their evening meal which they took at Upendra''s house and returned late at night, vide the deposition of Dali Bewa (P.W. 24). Both of them were seen by Krishna Dutta (P.W. 30) at above 6 or 7 gharis of night in the vicinity of the Basta Baliapal Road and he had a short conversation with them, both men giving him their names in reply to his query as to who they were. They were also seen in the same neighbourhood at about 2 gharis of night by Bhagwan Dalai (P.W. 7) and Bauli Raut (P.W. 21), Sambhu with an axe and Upendra with a, stick. Lastly, Sama Padhan (P.W. 9) saw them at about 7 gharis on the Friday night at the Ijnali tank and in reply to his question Upendra gave his name and said that he was catching fish. If the evidence of Raghunath De (P.W. 25), who states that the accused announced to him their intention definitely of killing Gopal, be accepted this is undoubtedly sufficient along with the rest of the circumstantial evidence in the case to bring home the guilt to the accused, for it is not disputed that Gopal De was murdered late on Friday might when returning from Mandhata Hat. This we get from witnesses who accompanied him back late that evening from the Hat, and left him going in the direction of Nepura, and from the circumstances attending the discovery of the body on Saturday morning in the track through the fields leading up to Nepura. The learned Sessions Judge has accepted this witness'' evidence because no special connexion between him and Bhagwat De has been established and because he is corroborated by Rama Bewa, for this last-mentioned witness states that it is a fact that Raghunath De came to Upendra''s house to borrow a fishing net on Friday evening. But another test must be applied to this witness'' evidence, namely ordinary human experience, and it is incredible that the accused would openly announce their intention of killing a man to a casual visitor to their house. It is clear from the circumstances of the case, namely the fact that the man was murdered on his return from the Hat in a lonely spot at night and that his stick, lantern, umbrella and bundle were made away with, that the murder was a deliberate and a planned one and that the murderers acted with some degree of circumspection in order to cover their tracks.

It is contrary to common sense therefore that they would be such simpletons as to announce their intention in this fashion a couple of hours before they committed this cold blooded murder. Raghunath may have gone to Upendra''s to borrow a fishing net, but that he heard the conversation which ho says he heard I do not believe. It is perhaps expecting a standard of conduct not usual in a witness of this class to note that Raghunath appears to have done nothing further and to have taken no steps to warn the intended victim. The same remark as to the evidence being contrary to the ordinary course of human conduct applies to the evidence of Bhagwan Dalai (P.W. 7) and Bauli Raut (P.W. 21). If their evidence is believed this meeting must have taken place when the two accused were hanging about waiting for the return of Gopal just before they murdered him. They are both chance witnesses and, in my opinion, if the accused had been the murderers they would have taken care to avoid any such meeting much less any conversation. Not only are we to believe that they met and conversed with these two witnesses just before the murder, but that they met and conversed also with Krishna Datta either just before or just after the murder and finally we have the extraordinary evidence of Sama Padhan (P.W. 9). If this witness'' evidence as to the splashing in the tank is to be believed the two accused must have been hiding the murdered man''s belongings in the tank or else washing off blood-stains from themselves. It must have been pitch dark when Sama Padhan heard the splashing in the tank, yet Upendra, in reply to his question, said: "I am Upendra, I am catching fish," All this behaviour on the part of the accused is contrary to ordinary human conduct and undoubtedly the very suspicious circumstance against the accused are causing the witnesses to try to supplement the circumstance by evidence which will clinch the case absolutely against them.

The learned Sessions Judge relied to some extent also on the evidence of Dali Bewa and Rama Bewa when they stated that Sita, Upendra''s mother, late on the night in question, drew their attention to a light approaching from the direction of Mandhata Hat which all of a sudden went out. The learned Sessions Judge believes this evidence and thinks that it suggests that Sita was aware of the purpose for which the accused had gone out and was on the look-out for the return (sic) of Gopal De. According to Raghunath De (P.W. 25) Sita was present when Upendra and Sambhu announced their tension on the Friday afternoon of killing Gopal and must therefore have been a party to the plot. Therefore the evidence requires one to believe that this woman Sita, an accomplice, deliberately drew the attention of Dali Bewa to the moment at which the murderers must have attacked Gopal, so that they would mark it in their minds and thus have suspicion against herself. Such evidence needs no comment. As regards Dali Bewa (P.W. 24) she is an important witness in the case as I nave shown above but her evidence is undoubtedly prejudiced.

According to her evidence Upendra sleeps in Rama Bewa''s house; she was sleeping at Rama Bewa''s house that night. The learned Sessions Judge thinks that this shows that she cannot be hostile to Upendra but there are other reasons for discrediting her evidence. Suspicion must have fallen on all the close associates of Upendra and one probability is that this woman may have been trying to give away the whole case against Upendra and Sambhu to save herself from suspicion as an accomplice. Ordinarily she lives in her nephew Barju Da''s house, but she accounts for her presence in Rama Bewa''s house on the night in question by saying that she stopped for a few nights with Rama as she had a quarrel with her nephew She his gone back now, but my point is that she had to be in Rama''s house that night if she was to be a witness as to accused''s movements, as Rama''s house, is only separated from a fence by Upendra''s and the latter sleeps at Rama''s houses and feeds at his own. I am not satisfied that she has accounted satisfactorily for her residence on the night in question in Rama''s house. As to Rama Bewa, she went back on her statement before the committing Magistrate when she said that Upendra came home late. She is Upendra''s grand aunt. I do not think any reliance can be placed on her. In my opinion Krishna Datta''s evidence also is wholly unreliable. He is a chance witness who went out to answer a call of nature and thus by an extraordinary stroke of luck two human beings caught his sight who happened to be the murderers. He asked their names and they replied. As regards the sharpening of the axe on Thursday, proved by Sadanand Sahu (P.W. 29), this witness'' evidence, in my opinion, is also quite unreliable. He works with then sister of the murdered man. As to Arjun Patra he saw Sambhu going towards Upendra''s house with an axe in his hand after sunset on Friday. I also disbelieve this witness. He is cousin of the accuseds Sambhu and it appears that Sambhu and he are disputing about their uncle Bhagwan''s property and that Sambhu did file a dispute before the Settlement authority in respect of it claiming as cosharer with Arjun; while Arjun alleges that he and his uncle were separate from Sambhu.

It is clear that there is a considerable party feeling in the village; there was a civil suit about a village road which was compromised just alter this murder and apparently Kinaram De, who was a distant relation of Gopal De, was looking after this case. It appears also to be established that Sanatan De is not living with his wife and that she is living with Sambhu. Sanatan''s daughter had apparently been married against his will to Sambhu, this is common ground; but whereas Bhagwat De states that it was Sita, Sanatan''s wife who settled this marriage Sanatan says that it was the villagers who were annoyed with him for not subscribing to a band; if Sanatan comes at all to village Nepura he comes very seldom. He is clearly not on the best of terms with Sambhu or Upendra. Even the evidence of the prosecution witnesses points to that, yet he has been charged in the first information with the murder jointly with Upendra and Sambhu. It seems very unlikely that he combined with Sambhu and Upendra to commit this murder.

Taking the whole case, it is one of extreme suspicion against the accused, but, in my opinion, the separate pieces of circumstantial evidence relating to their movements on the Friday evening and which thus converge on their guilt bear palpable signs of concoction and do not fit in with the conduct of rational persons and, in my opinion, it would be most unsale to accept them. For these reasons the appeal must succeed and I would direct that the accused be acquitted and released at once.

Adami, J.

I agree.