Sambaru Sabar vs State of Orissa

C.R. Pal, J.—The appellant Sambaru Sabar in this appeal assails the order of conviction and sentence dated 26-7-1994 passed by the learned Addl. Sessions Judge, Parlakhemundi in Sessions Trial Case No. 8/ 94 i.e. Sessions Trial Case No. 150/94 GDC convicting him u/s 325, IPC and sentencing him thereunder to undergo rigorous imprisonment for seven years.

The prosecution case, in brief, is that on 25-1-1994 the appellant and his wife returned to their house from Garabandha market at 3.00 p.m. after making some purchase. In that night at about 10.00 p.m. they quarrelled with each other. At about mid-night Mangada Sabar (PW 2) came to Lachhumuda Sabar (PW 1), the father-in-law of the appellant and informed him that the appellant assaulted Raibari to death by means of a lathi. Hearing about the incident from PW 2 the informant (PW 1) along with PW 2 and his son Rama Sabar, son''s wife Champa, sister Gurubari, sister''s husband Sanku Sabar and some other villagers went to the house of the appellant and found the deceased lying dead in the kitchen. Blood was oozing out from her ear, nose and mouth. The appellant was found in a drunken state. When asked by the informant (PW 1), the appellant told him that as the deceased refused to give him money to purchase liquor, he assaulted her and pushed her for which she fell down on a stone and sustained bleeding injuries whereafter dragging her into the kitchen the killed her by tramping over her neck. On the next day PW 1 orally reported about the occurrence in the police station which was reduced into writing and a case was registered. In course of investigation, police arrested the appellant and finally charge-sheet was submitted against the appellant for an offence u/s 302, IPC. The case ultimately came to the Court of the learned Addl. Sessions Judge, Parlakhemundi for trial where the appellant stood charged u/s 302. IPC for committing murder of his wife Raibari to which the appellant pleaded not guilty and claimed to be tried.

The case of the appellant was a complete denial of the allegations levelled against him. According to him, his wife who was drunk fell down on a stone and died.

The prosecution examined as many as eleven witnesses and exhibited the documents; such as the FIR seizure list inquest report, post mortem examination report spot map etc. The learned Addl. Sessions Judge, as it appears, believing the evidence relating to extra-judicial confession said to have been made by the appellant before the PWs 1, 2, 3, 4 and 6, convicted and sentenced appellant as aforesaid.

As the learned counsel M/s N.K. Singh. P.K. Jena and A. Kanungo engaged through the Legal Aid and Advice Board did not turn up to argue the case on behalf of the appellant, the impugned judgment, depositions of witnesses and exhibits were perused and on hearing the learned Addl. Standing Counsel Sri S.K. Nayak, this judgment is passed.

In this case there is no dispute about the death of the deceased Raibari. It is also not in dispute that she died due to the injuries sustained by her. The question is--who is responsible for those injuries? From the record, it is noticed that there is no eye-witness to the alleged assault by the appellant. The materials available against the appellant to connect him with the alleged murder is the extra-judicial confession made by him which is retracted and the recovery of a blood-stained cloth from his possession. Another circumstance against him is that he quarrelled with his wife in the night of occurrence.

Conviction is based mainly on the extra-judicial confession made by the appellant. There is no doubt that on the basis of extra-judicial confession conviction can be maintained. But in order to sustain a conviction solely on the basis of extra-judicial confession, the evidence relating to extra-judicial confession must be clear, cogent, true and trustworthy. In Bhanu Dei and Joginath Pradhan Vs. The State, , it is held that extra-judicial confession, to afford a piece of reliable evidence, must pass the test of reproduction of exact words, the reason or motive for confession and the person selected in whom confidence is reposed. Keeping in view the above principle, when the evidence on record is scrutinised, the same fails to inspire any confidence to sustain the order of conviction and sentence. In this context, it may be seen that the alleged extra-judicial confession is said to have been made by the appellant at different places at different time. According to PW 3, the first such confession was made before her in her house in the night of occurrence. For the second time the confession was made by the appellant in his own house before PWs 2 and 3 and then again before PWs 1, 2, 3, 6 and other villagers after arrival of PW 1 in the place of occurrence. Confession is also said to have been made before PW 4, a Constable of Police inside the police station. Now coming to the extra-judicial confession said to have been made before the PW 3 in her house it is noticed from the evidence of PW 3 that at about mid-night the appellant went to her house and called her husband to see the dead body of Raibari. Immediately, PW 2 and his wife, the PW 3, came to the house of the appellant and saw Raibari lying dead. PW 2 does not say about any confession made by the appellant in their house when the accused went there to call them. PW 3 in her evidence has stated that the appellant made the extra-judicial confession in her house while asking them to come to his house and see the dead body of Raibari. But PW 2 is silent about the confession. There is no other evidence to corroborate the version of PW 3 about the confession said to have been made in her house. The PW 3 has also been contradicted with her statement recorded u/s 161, Cr PC where she did not state about the confession. Regarding the confession said to have been made by the appellant in his own house before the PWs 2 and 3, the PW 2 has deposed that after coming to the house of the appellant on being asked the appellant told that he asked Raibari for move for taking liquor and when she did not give any money he killed her by means of an axe. From the evidence of PW 2, it appears that his wife PW 3 was also with him, but the PW 3 does not support the version of PW 2 relating to the extra-judicial confession made by the appellant in his own house. The PW 2 has also been confronted with his statement recorded u/s 161, Cr PC where he did not state that the appellant confessed before them (PWs 2 and 3) when they came to the house of the appellant. Attention of the Investigating Officer (PW 11) was also drawn to the statements. PW 1 in connection with the extra-judicial confession has stated that when he came to the house of the appellant being called by PW 2, the appellant being asked by him confessed to have killed Raibari by means of a stone being enraged by her refusal to give any money to purchase liquor. This witness has also been contradicted with his statement made to the police u/s 161, Cr PC where he did not state that the appellant confessed before him that he assaulted Raibari by means of a stone. PW 2 in this context has stated that in his presence the appellant confessed his guilt before PW 1 stating that he killed the deceased by means of an axe. The PW 3 has simply stated that the appellant confessed his guilt. The PW 6 in this context has stated that the appellant told him that he killed his wife without mentioning about the weapon of offence used by him. All these witnesses have also been confronted with their statements recorded by the I. O. u/s 161, Cr PC and the attention of the I. O. has also been drawn to the same. The evidence adduced by PWs 1, 2, 3 and 6 are not in conformity about the exact words uttered by the appellant while making the alleged confession. From the evidence of PW 4 who is a police Constable, it appears that while he was in the police station the I. O. (PW 11) came to the Police Station with the appellant and at that time while the appellant was in custody he confessed to have killed his wife. This witness has also been contradicted with his previous statement where he did not state that the appellant made any extra-judicial confession before him. The evidence of PW 4 relating to the confession made by the appellant is also inadmissible as it appears that the alleged confession was made in presence of the I. O. From the discussion made above, it is clear that the evidence of PWs 1, 2, 3 and 6 are not consistent and they vary from each other about tie exact words uttered by the appellant while making the extra-judicial confession. Their evidence also differs from each other relating to the weapon, said to have been used by the appellant. The omissions made by the PWs 1, 2, 3, 4 and 6 to state about the extra-judicial confession in their statement to the I. O. during investigation are vital omissions and as such, the same amount to contradictions. In the above circumstances, no reliance can be placed on the evidence of these witnesses to come to a conclusion that the appellant made any extra-judicial confession before them. Therefore, the finding of the learned Additional Sessions Judge to the contrary cannot be sustained and no reliance can be placed on the evidence of these witnesses.

Now coming to the recovery of blood-stained Dhoti said to have been seized from the possession of the appellant it is noticed that there is no evidence of any other witness excepting PWs 4, 8 and 11. PWs 4 and 8 are two police Constables and the PW 11 is the Investigating Officer. From the evidence of these witnesses it appears that the said cloth was seized under Ext. 1. The P W 4 has clearly stated that in his presence the cloth of the deceased were seized vide seizure list Ext. 1. PW 11 though has deposed that he seized the cloth from the possession of the accused he has not deposed in Court about the other particulars as to the place from where it was seized. The evidence of PW 4 and the evidence of the I. O. (PW 11) contradicts each other. One says it is the cloth of the deceased and the other says it belongs to the appellant. PW 6, another police Constable says that the Dhoti stained with blood was seized on production by the appellant. But he is unable to say in what connection the said Dhoti was seized. From the evidence of PWs 2 and 3 it appears that when they came to the house of the appellant to see the dead body they found the dead body covered with cloth. There is no evidence on record to show as to what happened to that cloth. That might be the cloth seized under Ext. 1. This fits into the evidence adduced by PW 4 who has deposed that the cloth seized under Ext. 1 was that of the deceased as well as to evidence adduced by PW 8 who says that the cloth was seized on production by the appellant. None of the other witnesses has deposed to have seen the appellant wearing that cloth. None of them has also come forward to say that they saw any blood stains in the wearing apparels of the appellant in that night In the above circumstances it is difficult to hold that the Dhoti M.O. 11 (as deposed by PW 8) is seized from the appellant and as such the appellant cannot be linked with the alleged assault because of the presence of human blood stains on the said cloth.

Coming to the other circumstance, it is noticed that there is absolutely no evidence to show that the accused and the deceased quarrelled with each other in the night of occurrence. Of course in the FIR it has been mentioned that in that night there was exchange of words between the appellant and his wife. But none of the prosecution witnesses not even the informant (PW 1), the father of the deceased, has whispered a word about the altercation in his testimony. On the other hand, the PW 1 in his testimony has stated "Prior to the occurrence there was no dispute between Raibari and accused". The house of this witness is two houses apart from the house of the appellant as has been deposed by him. He has also deposed that he was regularly taking his meals in the house of the appellant. So, if there was any quarrel between the deceased and the appellant the same would not have escaped his notice. PW 3, who is a sister of the deceased and her husband, the PW 2 who are also co-villagers of the appellant have not also whispered a word about any altercation between the appellant and the deceased. PWs 5 and 6, the other two co-villagers are also totally silent about the same. In the above premises, relying on the FIR which is not a substantive piece of evidence no conclusion can be drawn that the appellant quarrelled with his wife in the night of occurrence. Hence, the finding of the learned Additional Sessions Judge to the contrary cannot be supported.

For the discussions made above, the appeal is allowed. The order of conviction and sentence passed against the appellant by the learned Addl. Sessions Judge is set aside. He is acquitted of the charge u/s 325, IPC. The appellant be set at liberty forthwith, if his detention is not required in connection with any other case.