Mandangi Raju vs State of Orissa

A. Pasayat, J.—Alleging that the Appellant Mandangi Raju (hereinafter referred to as the ''accused'') was responsible for the homicidal death of Mandangi Bhaskar (hereinafter referred to as the ''deceased'') law was set into motion, trial was conducted and judgment of conviction was passed by the learned Additional Sessions Judge. Rayagada holding that he was guilty of offence punishable u/s 302 of the Indian Penal Code. 1860 (in short. ''I.P.G'') and sentence of imprisonment for life was imposed.

The accused faced trial along with another named Palaka Jayaram, who has been acquitted. Originaly both the accused persons were prosecuted for commission of offence punishable u/s 302 read with Section 34. I.P. C. and under Sections 25(1)(a), 26 and 27 of the Arms Act. (in short the''Arms Act'').

Prosecution version in a nut-shell is as follows:

One Mandangi Tuinta, father of the deceased went to cultivate some land on 14-6-1997 at 6 a.m. and returned around'' 9 a.m.. He, thereafter, went with the cattle to the'' grazing field. At that time his elder son Mandangi Narsu and younger son Mandangi Bhaskar (the deceased) went with Palaka Jayaram and Mandangi Raju to Ghadakuti danger, a hill side forest for the purpose of hunting. Some co-villagers, namely, Palaka Budu,'' Palaka Raina and Ors. went with them to the said forest. Deceased and Mandangi Narsu were holding katis. Each of the accused persons was carying a gun while going to the forest. In the evening at 6p. m., the elder son Mandangi Narsu informedpis tather that the deceased was shot dead inside the forest. It was stated that one pellet pierced into his right side abdomen,and an injury was also caused to the left side neck of the deceased by another pellet. Each of the accused persons had fired the gun once, by mistake and the deceased suffered injuries. It was further stated that the accused persons had fired the guns thinking that a tiger was behind the bushes and by accident the pellets hit the deceased. Father of the deceased. his wife, daughter-in-law (deceased''s wife) Gouri. eldor son Narsu and one Saranga Mutika went to the hill-side forest to brin''g the dead body. The corpse was shifted from the forest to the house. When those who haq accompanied the deceased were asked by the father, they stated that the accused persons used their unlicensed guns. Information was lodged in the Police Station and investigation was undertaken. The guns used ''by the accused persons were seized on being produced by the wife. and mother of the accused persons. One dozen pellets and some materials used for preparation of gun powder were also seized from the back side of the house of accused persons. It was alleged that with a view to take revenge for some earlier differences the murder was committed.

Eleven witnesses were examined to further the prosecution case. The accused persons pleaded innocence and two witnesses were examined by them. Learned trial Judge found the accused-appellant guilty primarily relying on the sircumstantial evidence including the extra-judicial confession stated to have made by ilccused persons. Learned trial Judge did not, accept the plea of accused, persons that the case is covered under illustration (c) to Section 299, I.P.C. However, acquittal of co-accused Palaka Jayaram was directed.

In support of the appeal, it has been stated that there is no material whatsoever to link the accused with the alleged offence. Further the extra-judicial confession stated to have been made is not worthy of acceptance and in any event on the basis of alleged extra-judicial confession, the conviction should not have been made. Additionally it is submitted that the case is not punishable u/s 302, I.P.C. and clearly illustration (c) to Section 299 applies to the facts af this case. Alternatively, it was pleaded that at the most a case u/s 304 Part-II is made out, as only one shot was fired.

Learned Additional Government Advocate with reference to the injuries caused submitted that the accused has been rightly convicted u/s 302, 1. P.C.

It is necessary to first deal with the plea as to whether extra-judicial confession alone is sufficient for a conviction. The extra-judicial confession alleged to have been made before p.w.2 has been found to be credible by the learned trial Judge. It is wrong to start with the presumption that extra-judicial confession is a weak piece of evidence. Where the confession is made voluntarily.and is also found to be true, but is subsequently retracted by the accused, there is no legal bar on basing a conviction on such retracted confession. Retracted confession may form the legal basis of conviction if the Court is satisfied that it was true and was voluntarily made. The requirement for corroboration is'' a ''rule of prudence and not a rule of law''. The proper approach is to consider the confession as a whole on it merit and use it against maker thereof, if the Court unhesitatingly comes to the conclusion that it was made voluntarily, and the reasons for making the confession and its retraction must be wighed and if the retraction is found to be an afterthought, the retraction should not weigh with the Court. An extra-judicial confession,.if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The same is to be proved like any other fact. Where there is nothing to show that a witness had any motive to implicate the accused falsely, the evidence relating to extra-judicial confession can be relied upon. If the witness examined to prove such confession is found to be dependable and trustworthy, the extra-judicial confession alone can form the basis of conviction. In Narayan Singh and Others Vs. State of M.P., it was observed that it is not open to any Court to start with a presumption,that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witness who speaks to such a confession. Court has to find out whether the person who claims that a confession was, made before him is a person on whom accused could repose confidence. It can not be called a weak piece of evidence if it withstands the following tests:

(i) is the witness proving the confession generally credible?

(ii) is his relation with accused of such nature that the latter could confine in him?

(iii) is there any motive for the witness to implicate the accused falsely (the witness might be trying to save himself or someone else by laying the blame on the accused) and

(iv) is the confessional statement consistent with other facts and circumstances brought on record?

Such cinfession can be reIied upon arid conviction can be founded thereon, if the evidence about the extra-judicial confession comes from the mouth of a witness, who appears to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. The evidence furnished by the extra-judicial confession made by the accused to a witness or witnesses cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant caution or prudence. If the Court believes the witness or witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be founded on such evidence also. (See Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, , Maghar Singh Vs. State of Punjab, ). The plea that exact words having not been indicated and therefore, the witness should not have been believed has no substance. The value of the evidence like any other evidence depends upon the veracity of the witness to whom it is made. It is true that, the Court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. If the rule is inflexible that the Courts should insist only on the exact words more often as not, this kind of evidence sometimes most reliable and useful, will have to be excluded for, except perhaps in the case of a person of good memory, many witnesses cannot report the exact words of the accused. It is for the Court having regard to the credibility of the witnesses to accept the evidence or not. (See Mulk Raj v. The State of U.P.: A.I.R 1959 S.C. 902).

In view of the aforesaid legal position, we shall deal with the factual position later.

The next question is whether the illustration (c) to Section 299 has any application to the facts of the case. For this purpose it is necessary to deal with homicide in different for Ms. Homicide is the killing of a human being by a human being. It may be (i) lawful, or (ii) unlawful. Lawful homicide may be classified as follows:

A. Excusable homicide (a) Where death is caused by accident or misfortune in the doing of a lawful act in a lawful manner by lawful means with proper care and caution, without any criminal intention or knowledge (Section 80).

(b) Where an act is done in good faith for a person''s benefit (Section 92).

(c) Where it is done by a person with deranged or immature mind (Sections 82-85).

B. Justifiable homicide:

(a) By a person who is bound or, by a mistake or fact, in good faith, believes himself bound, by law (Section 76).

(b) By a person who justified or, by a mistake or fact, in good faith, believes himself to be justified, by law (Section 79).

(c) By a Judge acting judicially in the exercise of any power which he possesses or, in good faith he believes to possess, under law (Section 77).

(d) By a person acting in good faith and pursuant to the judgment or order of a court (Section 78)

(e) By a person acting without any criminal intention to cause harm ''and in good faith to avert other harm to person or property (Section 81).

(f) By a person exercising his right of private defence (Section 100).

Unlawful homicide may be divided into three categories:

(1) Culpable homicide.

(2) Causing death by rash or negligent act not amounting to culpable homicide (Section 304-A).

(3) Suicide (Sections 305. 306).

The cases covered by illustration (c) to Section 299 do not fall within any of the aforesaid categories. The illustration can be brought into operation only when killing of a human being is not intended. Question whether the case is covered by illustration (c) would depend upon the factual Position, and the Court has to scrutinise the evidence to find out whether there is any material to accept the plea homicide was not intended, and as a result of mistaken impression death of a human being was caused.

The mental element in culpable homicide i. e.,the mental attitude of the agent towards the consequences of his conduct, is one of intention or knowledge. Motive is immaterial so far as the offence is concerned, and need not be established.The intention refers to either tne death Itself or a bodily injury which is likely to cause death i. e., an injury dangerous to life, whilst the knowledge refers to the death itself. There are thus three species of mens rea in culpable homicide. (1) An intention to cause death. (2) An intention to cause a dangerous injury (3) Knowledge that death is likely to happen. Illustrations (a) and (b) to Section 299, 1. P.C. give example of culpable homicide accompanied by the first or third species and Illustration (c) shows that unless,one or other of the three species is present there can be no culpable homicide.

On the factual position highlighted above, in the case at hand, application of Illustration (c) to Section 299, I.P.C. is clearly ruled out.

Coming back to the question of extra-judicial confession, evidence of p.ws. 1 and 2 have significance. Relying upon the evidence of p.ws. 1 and 2, the trial court has found that accused Raju only fired at the deceased. It was observed:

...This may be due e to mistake, malobservation or intentional killing is to be discussed later looking to the nature of the evidence available in the case...

Though the trial court has haltingly referred to the alleged misunderstanding between accused Raju and deceased over cultivation of a land, in view of the evidence of p. w. 1 that the previous quarrel over property was three years back for the landed property and the parties were living happily after that dispute, it is apparent, that there was absence of any motive. The F 1. R. was lodged by the father of '' the deceased after ascertaining the facts from p. w. 1. Though the father of the deceased was not available to be examined as a witness as he had expired before the commencement of the trial, the F.I.R. has been proved through other witnesses. In the F. 1. R, it is categorically indicated that after ascertaining the facts from his son, he came to know that the deceased has expired due to shooting by mistake. P.W. 2 in whose presence, the alleged extra-judicial confession has been made has deposed:

...Being asked by me, accused Raju told that he fired at the deceased thinking him to be a tiger If such statement in examination-in-chief given by p.w. 2 is to accepted, there cannot be any doubt that the shooting was not intentional, but was obviously due to a mistake. As a matter of fact, as already indicated, in the F.I. R. also there was recital that the death was due to mistaken shooting. Though ordinarily, F. I R. can be used for the purpose of corroborating or contradicting the maker thereof, it can also be used to find out that the subsequent implication of an accused is not an afterthought. From the evidence of p. w. 2 as well as,the F.I.R., a doubt is raised as to the actual background of the shooting incident. P. w. 1 is the only other witness who states about the alleged extra-judicial confession. He has stated:

Being asked, by me accused Raju told that he had already fired to my brother Bhaskar with help of gun. Sitaram was also present at that place. (Sitaram is p. w. 2)...

Thus, it appears that there is slight discrepancy in the evidence of p, ws. 1 and 2 ''relating to the extra-judicial confession. While according to p. w. 2, the accused stated about the mistaken shooting, p. w. 1 has simply stated about the shooting. However, it appears that the evidence of p. w. 1 is not wholly trustworthy. Though p. w. 1 has denied'' the suggestion of the defence that he had not stated to the 1. O. regarding the alleged extra-judicial confession of accused Raju, such omission has been proved though p. w. 11, the 1. 0., who has stated.

I have examined p. w. 1, who has stated before me that the accused persons have not killed his brother. He has not stated before me that accused Raju confessed before him about his killing to the deceased..."

Such omission on the part of p. w. 1 which is on a material aspect relating to alleged extra-judicial confession of the accused is definitely a contradiction within the meaning of Section 162, Cr.P.C. Moreover, as already indicated, there is discrepancy in the evidence of p. ws. 1 and 2 regarding the extra-judicial confession. If p. w. 2''s version is to be accepted, then is no doubt that the shooting was by mistake as the accused thought that he was shooting at a tiger. As a matter of fact, as already noticed, even in the F. 1. R. it was alleged by the father of the deceased after ascertaining from the witnesses indicated that the death was due to mistaken shooting. For the aforesaid reasons there is sufficient doubt regarding the culpability of the Appellant. That being the position the question whether Illustration (c) has application is really of academic interest.

In view of the position indicated above, the order of conviction and sentence cannot be sustained and is set aside.The accused-appellant be set at ''liberty forthwith unless he is required to be in custody in connection with any other case.

The appeal is allowed.

P.K. Misra. J.

I agree.