Madan ' Undu Barik vs The State

R.N. Misra, J.—Appellant has sent this petition of appeal from jail challenging his conviction u/s 302 of the Indian Penal Code by the learned Additional Sessions Judge of Sambalpur and sentence of rigorous imprisonment for life.

Prosecution alleged that Lata (P.W. 9) was the wife of one Kastu Barik and through Kastu, she had a son Madan (Appellant) and a daughter Sumitra (P.W. 8). After Kastu''s death, Lata re-married Ghasia. Madan and Sumitra lived in village Gundruchuan in the house of their grand-parents. Their grand-parents'' house was in front of the house of the deceased, a goldsmith. This goldsmith was a chronic asthma patient and an opium addict. Appellant was engaged as a labourer by him and used to do petty errands for the deceased. He was also in the habit of carrying the deceased on the back of his bicycle to villages where the deceased went on professional business. On 25-7-1974, the deceased as also his sister (P.W. 7) required the Appellant to carry the deceased to village Laida. Then the Appellant pleaded that he had to go and collect fire-wood and so saying, he proceeded on the village path leading towards Laida with an axe in hand. A little later, the deceased proceeded behind in the same direction. The deceased, however, did not return home either that day or on the day following. P.W. 7 made anxious enquiries and requested the co-villagers to make a search for her brother. P. ws. 4 and 5 reported that on their way from Laida hospital to their village, they found a part of a deadbody mostly below the waist with a cloth covering it. P.W. 1, who heard the report of P.Ws. 4 and 5, came to the jungle and after verification, sent intimation to the police through P.W. 2 who lodged the first information report (Ext. 2). The body was alleged to have been identified as that of the deceased.

Prosecution alleged that on the date of occurrence, the Appellant had come to P.W. 9 riding the bicycle of the deceased and he was carrying a bag and an umbrella of the deceased. It was further alleged that on the next day he confessed before on Atmaram Barik of having killed the deceased. He also made an extra judicial confession before the villagers of Gundruchuan and while in custody gave recovery of a bag (M. O. VII) and a lungi (M. O. VIII) belonging to the deceased which were concealed in a neighbouring jungle. P.W. 18 had occasion to see the bicycle of the deceased some days after the occurrence and produced it at the police station. On the basis of the aforesaid evidence, the prosecution claimed that it was the Appellant who had killed the deceased.

The defence was one of complete denial. The Appellant claimed that he was never a casual labourer of the deceased and pleaded that he was working under P.W. 3. He denied to have gone with the deceased on the alleged date of occurrence and retracted from the supposed extra-judicial confession. He also denied to have given discovery of any article belonging to the deceased.

Prosecution examined 22 witnesses of whom, as already noted p. w. 7 happens to be the sister of the deceased while P.Ws. 8 and 9 happen to be the sister and mother respectively of the Appellant.

The learned Trial Judge discussed the oral evidence at some length and noticed that P.Ws. 8, 9 and 10 have been declared hostile and did not support the prosecution story. He was, however, prepared to accept the extra-judicial confession proved by P.Ws. 15, 16 and 21. P.W. 15 had admitted that the Grama Rakshi was present at the time of making of the extra judicial confession. The Trial Court, however, came to hold that there was no evidence to show that the Grama Rakshi was in a position to actually exercise any influence or coercion on the Appellant which might have prompted him to confess. Accordingly he accepted the extra-judicial confession to have been proved. The Trial Court further relied upon two circumstances, namely, that the Appellant and the deceased were seen on the morning of the alleged date of occurrence proceeding towards Laida - Appellant on foot and the deceased on bicycle. According to the Trial Court, the prosecution case also received support from the Appellant''s giving discovery of some to the material objects. Relying on these features, the learned Trial Judge has recorded the conviction.

We may first deal with the evidence admissible u/s 27 of the Evidence Act and the seizure of implicating materials. The learned Trial Judge has noticed that the Expert did not find any stain of blood in M. O. I. The recovery of umbrella (M.O. V) has not been given any weight in view of the evidence of p. w. 11, the seizure witness, that similar umbrellas are available in the market and M.O. V has no distinctive feature with reference to which it can be said to be the umbrella of the deceased. The circumstances under which the towel, the banian, the bag and the lungi were recovered do not at all impress us to be incriminating. In fact, there is variation regarding the situation of the place of concealment of M. Os. VII and VIII. Recovery was from a distance of more than 14 to 16 miles from the place where the deadbody was found. In these circumstances, we are not prepared to attach any importance to the recoveries. The fact that the deceased and the Appellant were going together on the date of occurrence is also not a very incriminating feature. As told by the prosecution, the Appellant was proceeding with an axe in hand for the purpose of collecting fire-wood while the deceased was going on bicycle on his own business. There is no clear evidence that the two were riding the same bicycle so as to place an obligation on the Appellant to explain the loss of the deceased.

The only feature which now remains for consideration is whether the extra-judicial confession referred to by p. ws. 15, 16 and 21 which has been relied upon as the main plank of the prosecution case should be accepted. P. w. 15 has categorically stated:

... The Grama Rakshi was present at the time the accused made the confession before us.

P.W. 16 and 21 do not refer to the presence of the Grama Rakshi at the time of making of the extra-judicial confession. In view of the positive evidence of p. w. 15, however, we see no justification to accept the contention of learned Government Advocate that the presence of the Grama Rakshi at the time of making of the extra-judicial confession need not be accepted; on the other hand, we are prepared to proceed on the footing that the extra-judicial confession had been made in presence of the Grama Rakshi.

The next question for examination is as to whether the presence of the Grama Rakshi would make the confession inadmissible Section 25 of the Evidence Act provides

No confession made to a police-officer shall be proved as against a person accused of any offence.

If the Grama Rakshi be a police officer, the ban imposed by Section 25 of the Evidence Act would apply. "Police Officer" has not been defined in the Evidence Act. Judicial opinion is almost unanimous that the phrase "police officer" should not be confined to police officers in terms of Section 1 of the Police Act but should be given liberal construction. In the case of The State of Punjab Vs. Barkat Ram, , while considering whether a Customs Officer was a Police Officer, the Court observed that the words "Police Officers" are not to be construed in a narrow way, but have to be construed in a wide and popular sense. The same view was reiterated, while examining the question whether an Excise Inspector came within the mischief of Section 25 of the Evidence Act, in the case of Raja Ram v. State of Bihar 1964 S.C.D. 611. There is direct authority of the Patna High Court in the case of Emperor Vs. Mt. Jagia, , that a Chaukidar is a police officer. The same view was expressed by a Bench of the Chief Court of Oudh in the case of Birja v. Emperor AIR 1941 Oudh 563. We have proceeded to examine the case of a Chaukidar because learned Counsel of both sides have accepted the position that the Grama Rakshi is a substitute of the Chaukidar. In Orissa, there is a special Act known as "Orissa Grama Rakshi Act 17 of 1967). Section 3 of that Act contemplates of the establishment of a Grama Rakshi Force and the administration of the Grama Rakshi within a district vests in the Magistrate of the district subject to the control and direction of the Revenue Divisional Commissioner. The Magistrate of the district is to appoint Grama Rakshi within his jurisdiction. Section 6 narrates the various powers and duties of the Grama Rakshi. Rules have been made u/s 9 of the said Act and Rules 16 to 23 under Chapter VI of these Rules known as "The Orissa Grama Rakshi Rules, 1969" supplement the duties and responsibilities of the Grama Rakshi. The powers and duties of a Grama Rakshi, as provided in the Act and Rules read together, are more or less similar to those of a Chaukidar.

There are two decisions of this Court where the question as to whether a Grama Rakshi is a Police Officer was examined.

In the case of Sanatan Bindhani v. The State 38 (1972) C.L.T. 428, Patra, J. dealt with this point when a criminal appeal was placed before him on difference between two Judges who initially heard it on the merit of the matter. At page 440 of the Reporter, the learned Judge observed:

It was argued on behalf of the State that as the Chowkidar system has been abolished, there are no Chowkidars at present and the person who has been loosely referred to by P.Ws. 1 and 2 as Chowkidar is infact the Grama Rakshi who, as is evident from the F.I.R. Ext. 8 had accompanied P.W. 4, the father of the deceased to the Thana to lodge information, and that although a Choukidar had been held to be a Police Officer, a Grama Rakshi is not so and consequently even if the extra-judicial confession had been made in presence of the Grama Rakshi, it is not inadmissible in Evidence. In support of this contention, elaborate reference was made to the provisions of the Orissa Grama Rakshi Act, 1967 and the Rules framed there-under and also to the provisions of the Village Chaukidary Act, 1870 (Bengal Act VI of 1870) and the Bihar and Orissa Village Administration Act, 1922, and it was pointed out that the provisions in the latter two Acts on the strength of which the Courts have held that a Chaukidar is a Police Officer within the meaning of Section 25 of the Evidence Act are absent from the Orissa Grama Rakshi Act and the Rules framed there-under and consequently a Grama Rakshi should not be deemed to be such a Police Officer. In the view I take that the Grama Rakshi was not present when the Appellant made the first of the two extra-judicial confession in presence of the villagers, it is unnecessary to decide in this case, whether a Grama Rakshi is or is not a Police Officer within the meaning of Section 25 of the Evidence Act.

The next one is the case of Bhaja v. State of Orissa 42 (1976) CLT 30, where both of us sitting in a Division Bench observed:

The definition of ''police officer'' occurring in the Indian Police Act, 5 of 1861, is not exhaustive and in the absence of a statutory definition and apart from all authority one would be tempted to say that a police officer is a person whom any statute or other provision of law calls such, or on whom it confers all or substantially all the powers and imposes on him the duties of police officer. If he is expressly called a police officer there is no difficulty whatsoever. If he is not so called, then the next step to ask is, what does the law require him to do? What are the duties imposed on him and what are the powers conferred on him?

Here again as in the earlier case, the question was left open. In the case of Raja Ram v. State of Bihar4, at page 833 of the Reporter, the Supreme Court indicated:

... The test for determining whether such a person is a ''police officer'' for the purpose of Section 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police station establish a direct or substantial relationship with the prohibition enacted by Section 25, that is, the recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys....

Tested by the guidelines indicated and keeping in view the fact that the powers of a Grama Rakshi in terms of the Orissa Grama Rakshi Act and the Rules made thereunder are analogous to that of a Chaukidar, we have no hesitation to hold that a Grama Rakshi is indeed a substitute of the Chaukidar in the relevant field and for the reasons that a Chaukidar has been found to be a Police Officer, a Grama Rakshi functioning under the Orissa Act must also be held to be a Police Officer. The Grama Rakshi being a Police Officer, the confession made to P.Ws. 15, 16 and 21 must be held to be inadmissible in evidence. Once this extra-judicial confession is ruled out, the otherwise doubtful case of the prosecution must be found to suffer from an irrecoverable set back. The only conclusion which we can reach is, the prosecution has failed to establish its case and the accused must, therefore, be acquitted.

We accordingly allow the appeal, set aside the conviction and sentence and direct the Appellant be set at liberty forthwith.

N.K. Das, J

I agree.

Appeal allowed.