Hikoka Sibana vs State of Orissa

M.M. Das, J.—The convict Appellant has preferred this appeal from the prison against the judgment and order dated 11.1.1996 passed by the learned Sessions Judge, Koraput in Sessions Case No. 368 of 1994 convicting him u/s 302, Indian Penal Code and sentencing to undergo R.I. for life for committing murder of one Maniaka Pagu.

The prosecution case in brief is that the brother of the deceased, namely, Maniaka Lachhana (P.W. 2) lodged an oral report at Sashikhal police out-post at about 2 a.m. in the night of 23/24.6.1964 stating that while he was returning with his wife to his village from Mandanguiguda, at about 4.30 p.m. on 23.6.94, they met the accused-appellant, who is the brother-in-law of his elder brother (deceased), near Hitibara Dangar and the accused stated before them that he has finished his brother (deceased) and stating this the accused went away. Thereafter, P.W. 2 along with his wife, after travelling for a short distance found his elder brother lying on the road. There was bleeding injury on the neck and he was still bleeding. He, thereafter, went to the Ward Member and told him about the incident. At that time, the wife of the deceased who is the sister of the accused-appellant, told P.W. 2 that the accused has killed his elder brother. They went to the spot and found the deceased dead. Thereafter, they went to the Sarpanch who also expressed that the accused came to him short while ago and told him that he killed the deceased. The Sarpanch also advised him to report the matter to police.

The oral information of the brother of the deceased was given in tribal language which was translated and reduced to writing in Oriya by the Grama Rakhi- Karkaria Gangadhar (P.W. 4) and the informant gave his L.T.I. on the said written FIR. The FIR was sent to Rayagada Police station for registration and was registered. Thereafter, the police took up the investigation, apprehended the accused on the same night, who is in custody since then and on completion of investigation, submitted charge sheet against the accused u/s 302, Indian Penal Code, After the case was committed to the court of session, charge was framed against the Appellant u/s 302, Indian Penal Code. The defence of the Appellant was one of complete denial.

In course of investigation, the I.O. (P.W. 7) examined witnesses, seized the weapon of offence i.e. the Kati marked as M.O.I, blood stained earth from the spot, wearing apparels of the deceased and the accused. The Kati, wearing apparels and the seized earth were sent for chemical examination upon which the chemical report was submitted which was marked as Ext.-13.

To prove its case, the prosecution examined as many as eight witnesses and has relied upon the extra judicial confession stated to have been made by the accused before the informant (P.W. 2) i.e. the brother of the deceased, P.W. 3 who is the wife of the deceased and the sister of the accused and the Sarpanch who is stated to be dead. The prosecution also relied upon the evidence of P.W. 4, who is the Grama Rakhi, regarding production of the weapon of offence i.e. the Kati by the accused. There was no eye-witness to the occurrence. It is, therefore, necessary to scrutinize the evidence of the above prosecution witnesses to find out as to whether the so called extra judicial confession made by the Appellant before P. Ws. 2 & 3 coupled with the evidence of Grama Rakhi (P.W. 4) can be held to be sufficient to conclude that the prosecution has proved its case beyond reasonable doubt against the Appellant regarding commission of the alleged offence u/s 302, Indian Penal Code.

We would, therefore, like to discuss the evidence of the informant (P.W. 2), namely, Miniaka Lachhana who is the younger brother of the deceased. The said witness in his examination in chief before the Trial Court stated that the deceased Miniaka Pagu was married to the sister of the Appellant about ten years back from the date when he gave his evidence. The deceased was separately living from this witness. The deceased asked for some land previously from the Appellant for which there was a quarrel between them and a village Panchayat was convened, where both, the deceased and the Appellant were advised to live peacefully and not to quarrel again. Regarding the occurrence, he stated that on a Wednesday about a year and four months back from the date of his deposition, he along with his wife had gone to the village Mandanguiguda. They returned on the next day and on the way near Hitunara Dongar, they met the Appellant who told this witness that he killed the elder brother of this witness and stating this he went away. This witness further stated that after covering a distance of about 100 yards, he along with his wife found the dead body of his elder brother lying on the road. There was stab injury on his neck and he was still bleeding from the wound. He thereafter came to the village and intimated this fact to the Ward Member and others. He also brought them to the spot to show them the dead body of his brother. This witness stated that after taking their meals, they went to the Sarpanch to tell him about the incident, but the Sarpanch informed them that the accused-appellant also told him about killing of the deceased. Being advised by the Sarpanch, he along with the Ward Member went to the police out-post and reported this fact in Koy language which was translated by the Grama Rakhi to Oriya and the A.S.I. scribed the report. The report was read over and explained to him after which he gave his thumb impression on it. During the cross-examination, this witness has stated that the accused and the deceased were in visiting terms. The Panchayat was convened three to four months before the occurrence and after that Panchayat, there was never any quarrel between the accused and the deceased and they were living together as close friends.

P.W. 3 who is the widow of the deceased and the sister of the accused-appellant, in her deposition before the court, stated that about 2 p.m. on that day, the accused came to their house and told her that he has killed her husband in Hitubari jungle. She has further stated that she informed this fact to one Jani, Samta and the Ward Member. She further stated that the accused told her as to where the dead body was lying and she went to the spot where the dead body of her husband was lying being accompanied by some of the villagers. During the cross-examination, she has stated that P.W. 2 was not present when the accused told her that he has killed her husband. She also stated in her cross-examination that the dead body was lying at a long distance from their land and when the accused told her that he killed her husband she was alone there. She has admitted in her cross-examination that the accused was unmarried and was giving them paddy, clothes etc. and they were in visiting terms to the accused.

The other person before whom the prosecution alleged that the accused-appellant made extra judicial confession was the Sarpanch who is stated to have already expired. P.W. 4, namely, Karkaria Gangadhar, who accompanied the accused allegedly with the weapon of offence i.e. Kati, in his evidence before the court stated that he was called by Erana who was the Sarpanch, to his house at about 5 p.m. on a Thursday about one year and six months back. On reaching his house, he found the accused present there holding a Kati. The Sarpanch told him that the accused has confessed about committing murder of a man, namely Pagu and he was asked by the Sarpanch to take the accused to police station. He, accordingly, took the accused to Sashikhal out-post and produced the accused before the police at about 2 a.m. in the night. He further stated that the accused confessed before the police officer about committing murder of Pagu in Kandha language. He translated the same as an interpreter to Oriya on the basis of which a station diary entry was made. The accused produced the Kati before the said police officer which was seized and a seizure list was prepared. Subsequently, one Pulaka Dada and some others came to the out-post. P.W. 2, who also came along with others lodged a report orally in Kandha language which was translated to Oriya by this witness and the A.S.I. drew up the FIR. The same was read over and explained to P.W. 2 who admitted the same to be correct and put his L.T.I. on the same. During the cross-examination this witness has stated that in the house of the Sarpanch, he found only the Sarpanch and the accused and none else was present there. He has further stated that while going to the out-post with the accused, he did not tell any body about the incident nor he told anything to the accused. This witness also stated that the accused was putting on white Lungi and a black-blue striped shirt those were blood-stained. The A.S.I. seized those blood-stained clothes. During the cross-examination, this witness further stated that when he was taking the accused to the out-post, he took the Kati from the accused out of fear. The kati was having a cover and it was blood-stained which he marked when it was brought out from the cover. He also stated that he produced the Kati before the A.S.I.

P.W. 1 is the doctor who conducted the Post mortem. He has stated regarding the injuries found on the neck of the deceased and opined that the injuries can cause instantaneous death. He has also stated that to a query made by the police as to whether the injuries can be caused by the weapon produced by the police before him, he answered that the said injury is possible by that weapon (knife). However, he stated that at present that injury is not possible by M.O.I. (Kati) since it is rusted. P.W. 5 is an outsider who stated in his evidence that in the night when the accused along with P.W. 4 came to the police out-post, as no sentry was present at the post, on being called by the A.S.I. he was sleeping in the out-post. He also stated that the Choukidar, namely, Tirupati Rao was also present in the out-post. In cross-examination, he has stated that he does not know the contents of the paper where he put his L.T.I. and when the accused narrated the incident before the police, the A.S.I., Tirupati Rao, himself and P.W. 4 were present there. He further stated that when the accused was narrating the incident, the A.S.I. wrote down the same. P.W. 7 is the A.S.I. who stated in his examination that one hour before lodging the FIR, the accused and P.W. 4 arrived at the out-post. The accused produced the knife which was seized by him and he made a station diary entry. Subsequently, P.W. 2 along with others came to the out-post and orally reported the case in Tribal language which was translated to Oriya by the Grama Rakhi (P.W. 4) and explained to P.W. 2. After understanding the same, P.W. 2, put his L.T.I. on the FIR. He visited the spot and examined the informant and other witnesses. He held inquest over the dead body, prepared the inquest report and spot map, seized sample earth and blood-stained earth and sent the dead body to Rayagada hospital for Post mortem examination. He has stated that subsequently on 25.6.1994, he seized one blood-stained Dhoti from the accused, arrested the accused and also seized the clothes of the deceased on production by the constable Nos. 51 & 55. He further stated that after receipt of the post mortem report, he made a query on 14.7.1994 to the medical officer as to whether the injury on the deceased is possible by the Kati (M.O. No. 1). Thereafter, he made over the charge of the investigation to the Sub-Inspector of police on 8.8.1994. P.W. 8 was the S.I. of police who in his evidence has stated that after taking charge of the investigation and going through the records of the investigation made by P.W. 7, he visited the spot and examined the witnesses on 11.8.1994. He made a prayer to the S.D.J.M. on 27.8.1994 to send the seized articles for chemical examination. After completion of the investigation, he submitted the charge sheet.

Ext-13 is the report of the chemical examiner. From the said report it appears that the blood found in the seized earth marked ''A'' was human blood and of ''A'' group. The blood found on the Lungi marked ''B'' which was of the deceased though was human blood, no opinion regarding the group of blood has been given. Similarly, the shirt marked ''C'' stated to be of the deceased though stained with human blood, but no opinion was given regarding the group of the blood. Most important fact is that the alleged weapon of offence (Kati) marked ''D'', on being chemically examined, no opinion was rendered regarding the nature of the blood existing on the said Kati and also the group of the blood.

The learned Counsel for the Appellant vehemently argued that in absence of any direct evidence inasmuch as any circumstantial evidence against the Appellant, implicating him with the alleged murder of the deceased, the prosecution has utterly failed in proving its case beyond all reasonable doubt against the Appellant and the learned Sessions Judge has done wrong in inferring from the statement made by the witnesses that the Appellant is guilty of commission of the offence u/s 302, Indian Penal Code. He further submitted that the entire case of the prosecution is based on the so called extra judicial confession made by the Appellant before P.W. 2, the brother of the deceased and P.W. 3, the widow of the deceased who is also the sister of the accused-appellant. He further contends that the above two witnesses i.e. P. Ws. 2 & 3 have contradicted each other regarding the sequence of events as to whether the accused-appellant first came to his sister (P.W. 3) or before coming to her, he met P.W. 2 and his wife on the way. He also contended that non-examination of the wife of P.W. 2 who was admittedly present along with P.W. 2 when the alleged confession was made by the accused, is fatal to the prosecution. On these submissions, he contends that the Appellant in the facts of the case, is entitled to be acquitted of the charge u/s 302, Indian Penal Code.

Learned Addl. Government Advocate per contra submitted that the evidence of the witnesses examined on behalf of the prosecution establishes the case against the accused beyond any reasonable doubt and according to him, the conviction can be sustained on extra judicial confession made by the accused coupled with the circumstances under which he made such confession. His argument was mainly directed towards the fact that there was material brought out from the examination of witnesses that the deceased was demanding land from the accused for which there was a motive for the offence and the learned Sessions Judge has rightly convicted the accused-appellant u/s 302, Indian Penal Code.

From the analysis of evidence of the relevant prosecution witnesses and the submissions made by the respective counsel for the parties, we find that the learned Sessions Judge has lost sight of some of the salient features of the case, such as the material contradictions between the statements of P. Ws. 2 & 3 before whom it is alleged that the accused-appellant made extra judicial confession, the act of the prosecution in withholding the wife of P.W. 2 from coming to the dock, assigning no reasons for the delay in sending the Kati which is the alleged weapon of offence and other seized materials for chemical examination and the chemical examiner rendering no opinion in his report on the nature and group of blood found on the said Kati.

On further analysis of the evidence adduced by the prosecution, it is clear that except the so-called extra judicial confession made by the accused-appellant before P. Ws. 2 & 3 there is no other cogent material connecting the accused-appellant with the offence u/s 302, Indian Penal Code. It also appears that it is admitted by the prosecution that on arrival of the Grama Rakhi-P.W. 4 along with the accused-appellant in the police out-post, a report was lodged by the said Grama Rakhi-P.W. 4 on the basis of which a Station Diary entry was made. It is, however, strange that the said Station Diary entry has not seen the light of the day. Whether on ordinary indictment for crime, extra judicial confessions uncorroborated by any other proof and the corpus delicate are of themselves sufficient to justify a conviction of the accused, has been gravely doubted. In almost all the cases usually cited in favour of sufficiency of this evidence, some corroborative circumstances will be found.

In case, where the only evidence available against an accused is extra judicial confession made by him before any or some of the witnesses, if the same is not corroborated by other prevailing circumstances, a great degree of caution is required to be applied in receiving and weighing such evidence of confession for concluding the guilt of the accused. Though in a given case where the witnesses giving evidence about the extra judicial confession are reliable and the words spoken by them are clear, unambiguous, such evidence is sufficient to convict the accused, but in our view, the nature and quality of evidence regarding extra judicial confession produced in the instant case is not of such nature.

As we find from the facts of the present case that substantially there exists material contradictions between the evidence adduced by the P. Ws. 2 & 3 with regard to the nature of alleged confession made by the accused-appellant before each of them separately and further non-production of the Station Diary Entry in which the Grama Rakhi-P.W. 4 alleges that the confession of the accused-appellant was recorded by the A.S.I. in the police out-post, non-examination of the wife of P.W. 2 who according to P.W. 2 was present along with him when the accused-appellant stated before him that he has finished the deceased, we are of the view that the conviction of the accused-appellant as recorded by the learned Sessions Judge is unsustainable in the absence of any corroborative evidence to the alleged extra judicial confession made by the accused-appellant. Thus, according to us, the benefit of doubt must be extended to the accused-appellant and the accused-appellant is not liable to be convicted for the alleged offence u/s 302, Indian Penal Code since the prosecution has failed to prove its case beyond all reasonable doubt.

In conclusion, therefore, the Appellant is acquitted of the charge u/s 302, Indian Penal Code and we direct that he be set at liberty forthwith.

The Jail Criminal Appeal is, accordingly, allowed.

Sujit Barman Roy, C.J.

I agree.

Appeal allowed.