Raju Mellaka vs State of Orissa

Pradip Mohanty, J.—This jail criminal appeal is directed against the Judgment & Order Dated 12.09.2003 passed by the Learned Additional Sessions Judge, Rayagada in Sessions Case No. 6 of 2002/Sessions Case No. 364 of 2001 convicting the Appellant for commission of offence u/s 302, I.P.C. & sentencing him to undergo imprisonment for life. The prosecution case in brief is that on 20.09.2001 around 2 P.M. the accused came to the house of the deceased & requested him to accompany him to village Khairaguda to get dues from the liquor vendor. Accused was distilling liquor & the deceased was working under him as casual labourer & transporting liquor to the liquor Bhati. Prior to this incident on 16.9.2001 the younger brother of accused, namely, Raja Rao Mellaka had expired & the accused suspected the deceased to have practiced sorcery on his brother. At village Khairaguda accused consumed liquor in the house of liquor vendor Laxman Behera & thereafter accused & the deceased while returning home on the way in an isolated place accused suddenly pushed the deceased, as a result of which he fell down hitting against the ridge of the road. Thereafter, accused gave successive kicks & blows on the head of the deceased & dragged him to the non-metal portion of the road & twisted his neck as a result of which the deceased died at the spot. At this juncture, Kereda & K. Singhpur bound private bus known as "Vijayalaxmi Bus" passing through the road, arrived there & seeing the incident, the bus stopped. The bus staff & the passengers also got down from the bus & being confronted the accused disclosed before them to have killed the deceased as he was responsible for death of his younger brother Raja Rao Mellaka. Thereafter, the bus proceed to the village Pitamahal, where some passengers informed the fact to the informant, who was the husband of the Sarpanch of Patamahal Grama Panchayat. The informant made a telephonic call to Rayagada Hospital for sending the Ambulance & proceeded to village Khairaguda in his motorcycle & in between Khairaguda & Jagannathpur found the deceased lying dead by the side of the road & blood coming out through his mouth. The informant found the accused near the spot & being asked he confessed to have killed the deceased as he was responsible for the untimely death of his younger brother. The informant immediately came to Rayagada Police Station & lodged a report. The OIC, Rayagada Police Station after registering a case directed S.I. of Seskhal Outpost to take up investigation. The I.O. visited the spot, conducted inquest, sent the dead body for post-mortem examination, seized the wearing apparels of the deceased & sent the same for chemical examination & after completion of investigation submitted charge-sheet against the accused.

The plea of the Appellant is complete denial of the prosecution case.

The prosecution, in order to prove the charge, examined as many as 11 witnesses including the I.O. & the doctor & exhibited 11 documents. Defence examined none.

The Learned Additional Sessions Judge on conclusion of the trial convicted the accused u/s 302 I.P.C. & sentenced him to undergo imprisonment for life basing upon the last seen theory & the extra judicial confession made by the accused before P.W. 1.

Mr. Mohanty, Learned Counsel for the Appellant assails the impugned Judgment on the following grounds:

(i) The evidence of P.W. 1 with regard to extra judicial confession is not reliable & trustworthy in view of his statement in the examination-in-chief that on being asked by him the accused told that as the deceased had killed his brother by practising witchcraft he killed the deceased & further in view of his admission in cross-examination that three to four days prior to the date of occurrence there was a quarrel between his wife & the Appellant in connection with the construction of Badakhal village road & that the passengers of the bus who came to inform him about the assault did not tell the name of either the victim or the assailant & that when he saw the Appellant near the spot where the dead body was lying he was in a drunken state.

(ii) P.W. 10, the wife of the deceased, is the only witness to the last seen theory. But, in view of her admission in cross-examination that she had not disclosed before anybody that on being called by the Appellant the deceased proceeded with him to village Khairaguda, & that when the Appellant called her husband at that time she was working in her backyard, no reliance can be placed on such last seen theory.

Mr. S.K. Zafuralla, Learned Additional Standing Counsel, on the other hand, contends that the evidence of P.W. 1 with regard to extra judicial confession is very clear, cogent & trust-worthy. There is nothing on record to show that he had animosity with the Appellant. He being a responsible person his evidence cannot be thrown out of consideration on flimsy grounds. P.W. 10 is the widow of the deceased who specifically stated that the Appellant called her husband & both of them went together at 2 P.M. Within three hours of departure of the deceased with the accused, the deceased was found dead by the side of the road. Therefore, there is no material before this Court to interfere with the impugned Judgment.

Keeping the above rival submissions in view, this Court carefully perused the L.C.R. & went through the oral & documentary evidence available therein. P.W. 1 is the informant of this case. He deposed that on getting information about the death of the deceased from the passengers of "Vijayalaxmi" bus plying from Kerada to Rayagada he proceeded to the spot & found the deceased lying by the side of the road & blood was oozing out of his mouth. At some distance he found the Appellant standing. On being asked the Appellant told him that as the deceased had kilted his brother by practising witchcraft he killed the deceased. Then he reported the matter at the police station. He proved the F.I.R marked as Ext. 1 & his signature as Ext. 1/1. In cross-examination he admitted that the passengers of the bus did not tell him the name of either the victim or the assailant. These passengers did not disclose their identities to him. They told him that while they were travelling in the bus, they saw the assault. The Appellant was in a drunken state when he saw him near the spot where dead body of the deceased was lying. He further admitted that three to four days prior to the date of occurrence there was a quarrel between his wife & the Appellant in connection with the construction of Badakhal village road. P.W. 2 is a witness to the inquest & a co-villager. P.W. 3 has not supported the prosecution case. P.W. 4, who was working as a Checker in "Vijayalaxmi" bus, has also not supported the prosecution case. In cross-examination he has stated that the passengers who boarded the bus at Khairaguda stoppage did not tell them anything about any incident. P.W. 5 is a police constable who guarded the dead body of the deceased. P.W. 6 is the doctor who conducted autopsy over the dead body & found the following external injuries:

(1) Swelling of 3" diameter over right temporal region.

(2) Lacerated wound of size 1/2'' x 1/4" x 1/8" present at middle of a swelling situated over temporal region.

(3) Abrasion with swelling over maxillary region of 3" diameter & swelling was of 2" diameter.

(4) An abrasion of size 1/2'' x 1/2'' present inside the mucus membrane of the oral cavity through which blood was oozing out.

(5) There was fracture of right maxillary bone.

(6) Pigmented irregular patches over the area of size 3" x 2" on the right side of the neck.

(7) Three irregular pigmented patches of size 1" x 1/2 each on the left side of the neck.

On dissection, he found the following injuries.

(1) Contusion of deep tissue of scalp with haemorrhagic spot on the right side of the scalp.

(2) Bluish pink contusion was situated from left cheek to upper part of the left side of the neck covering an area of 4" in diameter.

(3) There was subdural haemorrhage over the right temporal & parietal regions of scalp & brain.

(4) Spinal cord was contused below the brain-stem of size 1" diameter.

(5) There is crack fracture of temporal bone on the left side with crack fracture of the base of the skull.

(6) There was fracture of maxillary bone of the right side. He opined that the death of the deceased was due to head injury. The injuries were ante mortem in nature. The time of death was since 48 hours prior to the post mortem examination. He further opine that injury Nos. (1) to (5) are possible by dealing of kicks & list blows. All the six injuries are possible by fall on the edge of the pitch road. He proved the post mortem report marked as Ext. 4 & opinion report marked as Ext. 5. In cross-examination he admitted that external injuries are possible by fall.

P.Ws. 7 & 8, who are respectively the driver & the conductor of "Vijayalaxmi" bus, have not supported the prosecution case & have turned hostile. P.W. 9 is a witness to the seizure one bloodstained shirt under Ext. 6. He proved his signature as Ext. 6/1. In cross-examination he stated that at the time of seizure the accused was not present. He also stated that he got information about the death of the deceased from police.

P.W. 10 is the widow of the deceased. She specifically stated in her examination-in-chief that on the day of incident around 2 P.M. the Appellant came to their house & called her husband. Her husband told that he was proceeding to Khairaguda to get the dues of the-accused from the liquor vendor. Both the accused & the deceased proceeded to Khairaguda from her house. The accused & the deceased did not return home. On the very night Sesikhal Police came to her house & informed that her husband lying dead near village Khairaguda under a Nim tree by the side of the road. In cross-examination she stated that her husband had good terms with the accused. Two to three days prior to the incident, brother of the accused had died. After death of his brother, the accused, who is a habitual drunkard, was moving in the village being drunk. She had not disclosed before anybody regarding accused calling her husband & her husband proceeding with him to village Khairaguda. When the accused called her husband at that time she was working in her backyard.

P.W. 11 is the I.O. of this case. He stated that on the direction of I.I.C., Rayagada Police Station he took up investigation, examined the informant, visited the spot, seized the wearing apparels of the accused, conducted inquest over the dead body & sent the dead body for post-mortem examination. He arrested the accused on 21.09.2001 & forwarded him to the Court. He also seized the wearing apparels of the deceased. In cross-examination he admitted that on arrival he found the accused detained by the informant (P.W. 1) in his house.

In the instant case, there is no direct evidence to implicate the Appellant in the crime. The prosecution in order to bring home the charge against the Appellant has heavily relied upon the extrajudicial confession said to have been made by the accused before P.W. 1 & the last seen theory, introduced by P.W. 10. In Ram Singh Vs. State of Uttar Pradesh, it has been ruled by the Apex Court that extra judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely & to whom it is made in circumstances which tend to support his statement, should not be believed. Similar question again came up for consideration before the Apex Court in Baldev Raj Vs. State of Haryana, & their Lordships held that when the Court believes the witness before victim the confession is made & it is satisfied that the confession was voluntary, conviction can be founded on such evidence. With this touchstone this Court examined the evidence of P.W. 1. He stated that hearing about the incident from the passengers of "Vijayalaxmi" bus he made a telephonic call to Rayagada hospital for sending the Ambulance & proceeded to the spot, since his wife was the Sarpanch of that Panchayat. Reaching at the spot he found the dead body of the deceased lying there & the accused was standing at some distance. On being asked by him, the accused disclosed that as the deceased had killed his brother by practising witchcraft he killed him. In cross-examination he admitted that the passengers of "Vijayalaxmi" bus did hot tell him the names of either the victim or the assailant. If that is so, then how P.W. 1 could know the identity of the accused & challenged him as to why he killed the deceased, particularly when he was standing at some distance from the spot. In cross-examination he also admitted that three to four days prior to the date of incident there was a quarrel between his wife & the accused in connection with the construction of Badakhal village road. This shows that there was animosity between P.W. 1 & the accused. He also admitted that the accused was in a drunken state of mind when he saw him near the spot. This being the evidence of P.W. 1, it is unsafe to rely upon his evidence that the accused had confessed his guilt before him, particularly when his evidence is not corroborated by any other witness.

As regards last seen theory the prosecution banks upon the evidence of P.W. 10, the widow of the deceased. As noted above, this P.W. 10 admitted in cross-examination that she did not disclose before anybody that on being called by the accused her husband proceeded with him to village Khairaguda & that when the accused called her husband at that time she was working in her backyard. In face of this admission of P.W. 10, it is difficult to believe that the Appellant & the deceased were last seen together by her. Be that as it may, the Apex Court in Inderjit Singh and another Vs. State of Punjab, has held that the sole circumstance that deceased was last seen in company of accused is not sufficient to convict the accused.

Law is well settled that in a case of circumstantial evidence, there should be no missing link in the chain of circumstances. Conviction should not be made if there is any scope for entertaining a reasonable doubt about innocence of the accused. For all the above reasons, this Court arrives at a conclusion that the circumstances have not been proved fully & conclusively by the prosecution & all the links in the chain have not been established beyond reasonable doubt. Therefore, it is difficult to sustain the conviction of the Appellant. In view of the discussions made above, the JCRLA is allowed & the Judgment dated 12.09.2003 passed by the Learned Additional Sessions Judge, Rayagada in Sessions Case No. 6 of 2002 convicting the Appellant u/s 302 I.P.C. & sentencing him to undergo imprisonment for life is set aside. The Appellant Raju Mellaka be set at liberty forthwith unless his detention is required otherwise.