Sonya Muduli vs State of Orissa

Misra, J.—The Appellant has been convicted u/s 302, T.P.C. and sentenced to imprisonment for life, for having caused the death of his father Ghasi Muduli, in the first quarter of the night of 22-2-1959.

An admitted fact in the case is that Ghasi Muduli, the deceased, had four sons including the Appellant, P.Ws. 1 and 2 and another, and these brothers were staying separately, the deceased staying with P.W. 2. The Appellant and P.W. 2 had joint cultivation and two days prior to the occurrence, P.W. 2 had sold some produce of the land for Rs. 9/-, out of which while he appropriated Rs.5/-, he gave to the Appellant Rs. 4/-. Another admitted fact in the case is that in the evening of the date of occurrence, which coincided with Magha Parba, the Appellant and P.W. 2 took Landa (a sort of intoxicating liquor) at the house of P.W. 1. By the by, the house of the Appellant is about 20 yards from the house of P.W. 1, whereas the house of P.W. 2 is about 15 yards from the house of P.W. 1 and is almost of the same distance from the house of the Appellant.

The prosecution case is that at about 8 p.m. on the night of the occurrence, while the Appellant and his brothers were drunken, the Appellant quarrelled with P.W. 3 for giving him a lesser share from the sale proceeds of their joint produce and in course of that quarrel, he chased P.W. 2 with an axe. P.W. 2 ran inside his house out of fear, and at that stage the father of the Appellant who was on the verandah of P.W. 2 seeking to interfere, the Appellant gave him a blow with his Tangi on the left side of his chest, as a result of which he fell down and died almost instantaneously. P.W. 2, hearing his father''s cries, came out of his house, by which time the Appellant is said to have run away with his axe. P.W. 2 contacted his brother P.W. 1 and informed him of the situation. P.W. 1 came to the place of P.W. 2 and finding his father dead, went back to his house. Apparently none of the brothers informed the other villagers that night as to what had occurred. The next morning P.W. 1 called some of the village Punch members and told them of what he had heard from P.W. 2. The Punch members sent for the Appellant and he was found absent from home. Then, some of those Punch members and P.W. 2 immediately went to the local outpost, which is about one fur long from their village bustee. P.W. 8, the A.S.I., recorded a station diary on the statement of P.W. 2 and came to the scene. He also did not find the Appellant at his place that morning. After making the inquest, he sent the dead body for post-mortem examination and referred the matter to the parent Police Station, which was 20 miles away, and there a regular F.I.R. was recorded on the basis of the copy of the station diary entry despatched by P.W. 8. The Officer-in-charge of the Police Station came to the village of occurrence on 24-2-1959, and that day in the afternoon he arrested the Appellant. On the information of the Appellant that he had kept an axe in the thatch of his house, the same was recovered. This axe was later on forwarded for chemical examination and blood of human origin was found therein by the Serologist. It is further the prosecution case that on the night of 23-2-1959, the Appellant had made certain extra judicial confession before P.W. 4, one of his co-villagers.

In the trial stage, P.W. 1 resiled .from his story in the F.I.R. and sought to say that he had no information from P.W. 2 about the Appellant having killed his father. P.W. 2 also completely exculpated the Appellant in saying that there was no quarrel between him and the Appellant far from any chase by the Appellant with an axe, and his story was that while he was taking his meal inside his house, he heard his father''s groanings and coming out he found that his father had been murdered by somebody. The trial court did not accept the truth of the alleged extra-judicial confession sought to be established through P.W. 4. The medical evidence was that M.O.I. the axe recovered from the thatch of the Appellant on a clue given by the Appellant, was a likely instrument in respect of the fatal injury of the deceased. The chemical examiner''s report established that the axe had stains of human blood. The Appellant admitted at the trial that on a clue given by him, the said axe had been recovered from his thatch by the police, and he also admitted to have kept that axe there. According to his defence, on hearing the cries of his father, he ran to the scene to find that his father was in a dying condition and the axe was lying near him, and he went a way with that axe and kept it concealed in his thatch with a view to produce the same before the police. Thus, the medical evidence, the serologist''s opinion and the admission of the Appellant make it clear that the weapon, with which the murder was most likely committed, was recovered from the possession of the Appellant and his explanation for such possession is as I have indicated above. This is one of the strong circumstantial finks of evidence in the case.

The other link of circumstantial evidence that the trial court had taken into consideration, is the absence of the Appellant from the village after the occurrence. This aspect of the matter, the trial court has considered only broadly and not very minutely. There is no evidence whatsoever that the Appellant was absent from his house on the night of occurrence. The next morning he was absent when sent for by the Punch members and soon thereafter when P.W. 8, the A.S.I., came to the inquest. Nobody apparently wanted to contact the Appellant in the afternoon of 23-2-1959. In the night of 23-2-1939 definitely he was present in the village'' as deposed by P.Ws. 4 and 7 apart from the Appellant''s brothers P.Ws. 1 and 2, who have even stated that the Appellant was lying drunken in his house in the morning following the night of the occurrence. Some of the P.Ws. also stated that the Appellant was present in his house in the morning of 24-2-1959, and it is the admitted case for the prosecution that the Appellant was at his house where he was arrested by P.W. 10 in the afternoon of 24-2-1959. So the only noticeable absence of the Appellant from his house was for a short period in the morning of 23-2-1959, and without any question being put to the Appellant about his whereabouts for that short period he had been questioned by the trial court for his absconding from the village after the occurrence, when in fact there was no such absconding. If the Appellant was absent from his house in the morning of 23-2-1959 for a few hours when be was sent for by the village Punch or when P.W. 8 came to his place, be could have possibly given an explanation for that short absence, if so asked for, and apart from that such a short-absence was not an incriminating circumstance to call for any explanation from the Appellant.

A part from the circumstances above referred to, the trial court took into consideration the false answers given by the Appellant to some of the questions put to him. One of such answers was that the Appellant claimed to have attended the village Punch in the morning, though the fact was otherwise. If the Appellant''s absence from the house at the particular time when he was sent for by the village Punch was by itself an incriminating circumstance, then his false statement on that account could be taken into consideration and not otherwise. The other false answer by the Appellant, considered by the trial court, is that though according to the Appellant both he and his brother P.W. 2 ran to the place of P.W. 2 hearing the cries of his father, according to P.W. 2, P.W. 2 was inside the house and be came out of his house to the scene hearing his father''s cries. The aforesaid answer of the Appellant was in respect of the following question by the court. "The evidence shows that your father Ghasi Muduli died in the Pinda of Sana Sukra''s (P.W. 2) house as a result of a cut injury on the left side of his chest. Have you anything to say about this?" Such a question is not, in the words of Section 34 Code of Criminal Procedure, a circumstance against the Appellant, and all questions u/s 312, whether put specifically or generally, must be with a view to give an opportunity to an accused to explain incriminating circumstances in the case against him. If a false statement is made by an accused as a result of a question improperly put to him, such a false statement should not be taken into consideration against an accused under the intendment of Section 342 Code of Criminal Procedure AIR 1943 Madras 408 may be referred to in this connection Again, in view of the fact that the trial court did not rely on the evidence of P.W. 2, on the basis of P.W. 2''s story, it could not be definitely said that the Appellant''s I story as to his coming to the scene with P.W. 2 was necessarily a false one.

The resulting position is that the only and a very strong link of circumstantial evidence against the Appellant was that the weapon, which was most likely used in the murder of the deceased, was found out from the possession of the Appellant. There is no evidence on the prosecution side whatsoever that the said weapon M.O.I. belonged to the Appellant. If the explanation given by the Appellant as to how he came by that weapon after the murder was a plausible one, then that link of evidence is well explained. The trial court did not consider at all how far the explanation of the Appellant was plausible. Taking into consideration the possession of the weapon by the Appellant, his being absent from the village soon after the occurrence, and his giving some false answers, the trial court felt that the facts of the present case were parallel to the case reported in Pershadi Vs. State of Uttar Pradesh, . In that case it had been established that there was a motive for murder and it had further been established that the accused in that case had threatened to retaliate against the father of the deceased. In the present case neither of those two elements was present and on the contrary it has been established by the prosecution evidence that the Appellant and his father had very good terms. The trial court felt that absence of proof of motive was not very material; but in cases depending on circumstantial evidence, motive, one way or the other, is highly relevant. Further in the Supreme Court case above referred to, the wearing apparels of the deceased were found out from a hidden place on information given by the Appellant, and the Appellant bad no explanation over the matter. On the contrary, here was the case where the instrument of murder was found in the possession of the son of the deceased, who could innocently preserve it, In cases depending on circumstantial evidence, no one case can be exactly parallel to another and the trial court was rather misled in holding that the present case was parallel to that decided in Pershadi Vs. State of Uttar Pradesh, , though most important glaring features in that case were absent here.

The learned Counsel for the State sought to urge that since the Appellant took no steps in that night or next morning to acquaint others about the murder of his father, if it was by somebody else, his explanation about the possession of the axe should not be accepted as a plausible one if this silent conduct of the Appellant was incriminating, the Appellant ought to have been given an opportunity in his examination to offer his explanation. Apart from that, it is established in the case that not only the Appellant, but his brothers P.Ws. 1 and 2, all kept silent over the matter in the night, and that possibly explained by the fact that all of them were heavily drunken. Apparently at that stage P.Ws. 1 and 2 had no intention of screening the Appellant. The next morning while the Appellant was absent from home for a short period, the matter was brought to light by P.W. 1 and information was given at the outpost. So, nothing has been definitely indicated in the circumstances of the case that the explanation of the Appellant is not a plausible one.

The learned Counsel for the State wanted further to urge that the extra judicial confession which was ruled out by the trial court as unreliable was in fact reliable. In this connection, the two witnesses are P.W. 4 and his father P.W. 7 who are villagers of the Appellant, and according to them, the Appellant went to their place in the night of 22-2-1959. Though, according to P.W. 4, the Appellant made an extra judicial confession at their place, P.W. 7 definitely denied that position. Apart from that, the version of P.W. 4 before the police and also in the committing court was that the Appellant, when going to their place, had gone there with a blood stained axe with which he claimed to have murdered his father, whereas in the trial stage P.W. 4 is definite that the Appellant did not go with any such axe to their place and had gone with a bow and an arrow. So, the trial court has rightly discredited this link of evidence.

The learned Counsel for the State further sought to urge that the statement of the Appellant in the committing court, which should be treated as evidence against him, involved the Appellant with the crime. To the question put to the Appellant in the committing court "as to if he had killed his father with an axe" his reply was, "That day the Magha Parba was being celebrated in our village. Everybody in the village had taken Landa and so too 1. Under intoxication, I struck my fence with an axe. I did not know that my father was standing on the other side and I did not know if my axe struck him." This is no admission of the fact that the axe of the Appellant caused the death of his father and it does not fit in with any part of the prosecution case.

In the result, I find that the explanation offered by the Appellant regarding the possession of the axe, which was the most likely weapon of the murder, is a plausible one, and even if it is not so, that link alone, and with no other incriminating circumstance, cannot be definitely taken to be a conclusive link to establish the case against the Appellant. So, the appeal is allowed, the conviction of the Appellant on the charge of murder is set aside. The Appellant is acquitted of the offence u/s 302 I.P.C. and is directed to be set at liberty forthwith:

Barman, J.

I agree.