Indra Kirsani vs State of Orissa

B. Panigrahi, J.—This appeal assails the conviction and sentence passed by the learned Additional Sessions Judge, Jeypore u/s 302, I.P.C. in Sessions Case No. 32 of 1994 directing the appellant to undergo imprisonment for life.

The skeletal picture of the prosecution story as portrayed in the lower Court judgment is as follows :

Informant Kandra Kirsani, Late Birsa Kirsani and the deceased Mangala Kirsani were three brothers. But the informant Kandra Kirsani was living in village Upparputa whereas Birsa and Mangala were living in separate houses in village Jhariaguda which was about 1/2 Kms. away from the village Upparputa. Birsa died 10 years before the date of occurrence leaving his wife Muni and three sons including the appellant. After the death of Birsa his other brother Mangala kept Muni as his wife. On 2.6.1993 Wednesday at about evening time P.W.2 followed by P.W.3 came to the informant''s house and reported that appellant had informed them to have killed Mahgala Kirsani with an axe sometime back. On receipt of such information, the informant along with others went to village Jhariaguda and noticed the deceased was lying dead on the verandah of his house with several bleeding injuries on different parts of his body. On the following day at about 8.30 P.M. the informant verbally explained the incident at the Out-post of Mundiguda and it was reduced to writing and thereafter it was treated as F.I.R. vide Ext. 1. On the basis of the said F.I.R. Station Diary No. 36 dated 3.6.1993 was entered whereupon investigation was started. Simultaneously, the A.S.I., Mundiguda Out-post sent the report for registration of the case to Mudulipada Police Station. During investigation, the O.I.C., Mudulipada visited the spot, held inquest over the dead body, arrested the appellant, despatched the dead body for post mortem examination, sent the weapon of offence and other incriminating materials for Serological test and after completion of investigation, placed charge-sheet against the appellant u/s 302, I.P.C.

The plea of the appellant was one of denial of the incident and claimed to have been falsely implicated.

There has been no eye witness to the incident. The prosecution case is based upon circumstantial evidence. Three circumstances were noticed by the trial Court to connect the appellant with the crime.

(1) The appellant was alleged to have made an extra judicial confession before P.Ws.3 and 4.

(2) The seizure of weapon of offence which was kept under a heap of straw inside the campus of the appellant''s house.

(3) The absconsion of the accused immediately after the occurrence.

P.W. 1 although had claimed to be a close relation of the accused as well as the deceased, but had neither testified to have seen the occurrence nor the extra judicial confession made by the appellant. According to him, he came to know about the incident from P.W.2 and explained the same to A.S.I. of Mundiguda Out-post. On examining the evidence of P.W.2 it appears that he only heard it from P.W.6. Undisputedly P.W.6 was treated as the wife of the deceased. But she did not support the prosecution story. Therefore, in the aforesaid situation the statement of P.W.2 that he heard it from P.W.6 about the incident is not above suspicion. On a careful examination of the evidence of P.Ws.3 and 4, who claimed that the appellant made an extra judicial confession before them, it does not however appear to be credible inasmuch as there is nothing in the evidence to establish as to why the appellant reposed so much confidence on P.Ws. 3 and 4 so that he would divulge the incident admitting his guilt before them. Their statements are not specific as to the actual words alleged to have been uttered by the appellant before them, In some cases if the extra judicial confession appears to be credible, then it may be relied upon to base a conviction, but rule of prudence demands, it must receive corroboration by some other evidence. The extra judicial confession by itself is a weak peace of evidence. From the discussions made above, we are of the view that the statement of P.Ws.3 and 4 as regards the extra Judicial confession alleged to have been made by the appellant appears to be suspicious. We are only left with the 3rd circumstance of ''absconsion'' of the appellant immediately after the occurrence. The absconding of the accused by itself will not be an incriminating material against him. But on a comprehensive consideration of the other materials, if it is found that accused committed the offence, then absconsion will become an additional link with regard to his complicity. In case the extra judicial confession becomes doubtful, then merely because the appellant alleged to have absconded after the incident, that by itself will not make him responsible for the commission of offence. Another circumstance which has been brought out against the appellant is the seizure of the weapon of offence from his premises. From the evidence of the prosecution witnesses it is established that besides the appellant, there were other inmates living in the said house. The weapon of offence was recovered from beneath a straw heap. Therefore, the recovery of the weapon of offence even assuming to be true then also it will not be treated as an incriminating material against the appellant.

On a careful consideration of the report of Serologist it appears that the lungi belonging to the appellant though seized did not contain any sign of blood. The tangia even though recovered from the premises of the appellant and had contained human blood, but the origin of the blood has not been detected. Fact remains that the tangia was not recovered from the exclusive possession of the appellant. The cumulative effect of all the circumstances appears to be not sufficient to hold that the prosecution has proved its case against the appellant beyond all reasonable doubt. We therefore, hold that the prosecution has utterly failed to prove unerringly and conclusively the circumstances so as to make him responsible for causing the death of the deceased Mangala Kirsani.

In the result, the appeal is allowed: The conviction and the sentence passed u/s 302, I.P.C. are hereby set aside. The appellant be set at liberty forthwith.

P.K. Misra, J.

I agree.