JUDGMENT
Sujit Barman Roy, C.J.
1. This appeal is directed against the judgment dated 7.8.1992 passed by the learned Sessions Judge, Phulbani in Sessions Case No. 4 of 1992 convicting the appellant Santosh Kumar Bhukta under Section 302, IPC and sentencing him thereunder to rigorous imprisonment for life.
2. The prosecution story, in brief, is that P.W. 1 Pradeep Kumar Negi lodged a complaint at Subalaya Out Post alleging, inter alia, that on 12.7.1991 around 1 P.M. he came to learn that Budhia Bagh (since deceased) and P.W. 3 Ramesh Behera were working in Telibandha Ferry Ghat and they went to the other side of the river. At that time, P.W.3 Ramesh Behera was obstructed by the appellant and two others, and the appellant being armed with a Tangia was chasing the deceased Budhia Bagh. As a result of this, the whereabouts of Budhia Bagh was not known till then. It was therefore suspected that the life of Budhia Bagh was in danger. It was also stated in the said complaint that the appellant was a notorious person. The said complaint was forwarded to Boudh Police Station where an F.I.R. under Sections 341/506/34, IPC was registered against the appellant and two others. After usual investigation, Police submitted a charge sheet under Section 302/34, IPC against the appellant and three others.
3. In usual course the ease was committed to the learned trial Court. On perusal of the materials on record, the learned trial Court framed charge under Section 302. IPC against the appellant to which he pleaded not guilty. The trial Court also framed another charge under Section 302/34, IPC against three other accused persons. In course of trial, in all, 19 witnesses were examined on behalf of the prosecution. On behalf of the appellant two D.Ws., namely, Parama Naga and Bidyadhar Das were examined. Defence of the appellant in course of the trial was a simple denial of the prosecution case as alleged. However, the two D.Ws. examined on behalf of the accused persons stated in their defence about the enmity that the appellant had with P.W. 2, Bhuban Meher. On conclusion of trial, the appellant was convicted and sentenced as already stated. The other three accused persons were acquitted. Hence, the appellant preferred this appeal in this Court.
4. We have heard learned counsel for the appellant as well as Mr. M.R. Dhal, learned Additional Standing Counsel for the State of Orissa. They have both taken us through the evidence on record. All important eye-witnesses except P.W.2 Bhuban Meher turned hostile and did not support the prosecution case at all. Even the informant Pradeep Kumar Negi turned hostile and resiled from his earlier statement recorded by the Police. It appears that the judgment is based on the testimony of the only eye-witness P.W.2 Bhuban Meher. Little analysis of the evidence of P.W.2, Bhuban Meher is, therefore, necessary for disposal of this appeal.
5. P.W.2 Bhuban Meher stated in his evidence before the trial Court that he knew the deceased who belonged to his village. The deceased died on 12.7.1991. On that day at about 8 A.M. in the morning along with 20 other passengers he boarded the boat at Amara Ghat of village Subalaya for crossing the river. The boatmen of the said boat were Ramesh Behera and deceased Budhia Bagh. After they crossed the river and arrived at Rampur Ghat this witness went to attend the call of nature. While he was so answering the call of nature, P.W.2 Bhuban Meher could see the appellant being armed with an axe chasing late Budhia Bagh and inflicting one below on his neck and another below on the left side of his chest with an axe, the deceased fell down in the water and the appellant stood over him. Tow other miscreants caught hold of the other boatman Ramesh Behera (P.W.3). This witness further claimed that he saw the occurrence from a short distance of 20/30 cubits. This is evidence given by this witness during his examination in chief.
6. The fate of the appellant in this appeal rests entirely on the evidence of P.W.2. It is well settled that a Court of law is not so much concerned with the quantity or volume of evidence. It is concerned with quality of the evidence. If the quality of evidence is such as to inspire confidence and appears to be fully reliable and trustworthy, there is nothing in law that prevents a Court of law to give its decision on the basis of such evidence. Therefore, the conviction on a grave charge like that of murder could very well be founded on the testimony of a single witness provided the same is found to be fully trustworthy, and does not suffer from any infirmity whatsoever. This witness further stated in course of his cross-examination that after the incident he came to village Subarnapur, the village of his in-laws, but he did not divulge this incident of brutal murder of the deceased to anybody of that village. On that very day he returned back to his village and yet he did not divulge the incident to anybody of his own village until he was examined by the Investigating Officer about four or five days after the occurrence. However, from the evidence of the Investigating Officer (P.W. 19), we find that he examined P.W.2 on 22.7.1991. The incident in question occurred on 12.7.1991, and the statement of this witness was recorded by the Investigating Officer in course of investigation about ten days later. However, the Investigating Officer tried to explain the inordinate delay by stating in course of his examination before the trial Court that he visited the village on 13.7.1991 and also on 14.7.1991 and yet he could not examine P.W.2 as he was not available in the village on those two days. But, from the evidence of P.W.2, we find that though after the incident he went to the house of his in-laws yet he returned to the village on that very day of the incident, and thereafter, there is nothing in his evidence that P.W.2 was not available in the village. This inordinate delay in recording the statement of this important witness for the prosecution case suffers from serious doubt as to the veracity of his testimony. We also find certain admission made by P.W.2 himself in course of his cross-examination that he kept mum and he did not divulge anything about the incident to anybody of his village or the village of his in-laws. This was a strange behaviour. A truthful witness is not expected to behave in this inherently improbable manner. This is quite abnormal. Apart from that, he did not divulge anything about the incident for long ten days until he was examined by the Investigating Officer. As defined in Section 3 of the Indian Evidence Act, a fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the case to act upon the supposition that it exists. Therefore, testing the evidence of P.W.2 in the totality of the circumstances of the case on the anvil of probability, his abnormal behaviour in not divulging the incident for long ten days until he was examined by the Investigating Officer makes his evidence highly improbable and we are of the view that it would be dangerous and immensely risky to act upon such evidence and hold the appellant guilty of a grave charge like that of murder. Greater is the charge stricter is the standard of proof expected from the prosecution.
7. In view of the aforesaid circumstances, we are constrained to observe that the trial Court did not take into consideration the aforesaid aspects of the case and accordingly, we are further constrained to hold that the impugned judgment cannot be sustained. We, accordingly, allow this appeal and set aside the impugned judgment of conviction and sentence. We further direct that the appellant Santosh Kumar Bhukta shall be set at liberty forthwith.