Sukra Killa vs The State

J.M. Mahapatra, J.—The appeal is directed against the judgment and order of learned Sessions Judge, Koraput, Jeypore convicting the Appellant under Sections 302 and 201, Indian Penal Code and sentencing him to imprisonment for life.

Prosecution case may be briefly stated thus on 11-4-82, P.W. 1. accompanied by P.W. 2, the Grams Rakhi and two others reported at Orkel Police Station that on the previous day (10.4.82) at about 9 a.m. while he (P.W. 1) along with Munda Muduli, Dhokulu Sisa and P.W. 3 Kandra Chalan ware sitting together, the Appellant being in a drunken state told them that he had killed his "Bhanaja" by name Kandra Chalan about 15 days back. Hearing this P.W. 1 sent for P.Ws. 4. 5 and a few others, and thereafter they convened a Panchayati which was also attended by the Appellant. The Appellant stated there that the deceased Kandra quarrelled with him regarding wages end threatened to burn down his house and to assault him about one and half months back and absconded about eight days thereafter. His house was actually gutted by fire. He suspected the deceased and tried to trace him out, but could not find him. About 15 days thereafter as he met the deceased accidentally inside the village jungle, he dealt four Tangia blows on his head as a result of which the deceased died whereafter he buried him inside a ditch and came away. The A.S.I. of Police, Orkel P.S. recorded the F.I.R. and registered a case against the Appellant u/s 302 and 201 I.P.C. and rook up investigation. He arrested the Appellant and made seizure of some burnt bone, hairs and cloth said to be of the deceased (MOs. I, II and III). He also made seizure of a Tangi being produced by the accused-Appellant and some cloth said to be worn by the deceased at the material time. In course of investigation as the Appellant gave out the name of another accused by name Guda, P.W. 7 also arrested him. P.W. 8, the Officer-in-charge of the P.S. took charge of the investigation of the case from P.W. 7, on 6.5.82. He re-examined the witnesses, continued the investigation, took steps in forwarding the material objects for chemical examination and serological test, On completion of investigation, he submitted charge-sheet against the Appellant and the other accused Guda Muduli (since acquitted by the trial Court).

The plea of the Appellant is one of total denial. He has denied to have made any extrajudicial confession before the witnesses P.Ws. 2 to 6. He has also stated that he did not give recovery of any of the material objects said to have been recovered at his instance.

In order to prove its case, prosecution has examined as many as nine witnesses of whom P.W. 1 is the informant, P.W. 9, the medical officer conducting the post mortem examination on the dead body of the deceased; P.Ws. 7 and 8 are the two Investigating Officers, P.Ws. 2 to 4 are the witnesses who have testified to the factum of extrajudicial confession and recovery of certain items like remnants of the deceased and the weapon of offence, The prosecution case rests mainly on the evidence of extrajudicial confession said to have been made by the accused-Appellant before the P.Ws. It is pertinent to mention here that the evidence as to the recovery of material objects such as weapon of offence and the remnants of the deceased, such as, bone, hair and cloth, as rightly conceded to by the learned Additional Government Advocate appearing for the State, are not sufficient to connect the Appellant with the alleged crime. We, therefore, propose to discuss the evidence on the question of extrajudicial confession and find out whether it can sustain the conviction of the Appellant.

In this case, the extrajudicial confession has been retracted by the Appellant. If would, therefore, be necessary to examine whether the retracted confession of the accused alone can form the basis of conviction. It has been held on high authorities that such confession is a weak piece of evidence. In other words, in the absence of any corroboration from independent source conviction cannot be based solely on the retracted extrajudicial confession of the accused. That apart, as held by their Lordships of the Supreme Court in Heramba Brahma and Another Vs. State of Assam, , the extrajudicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words the reason or motive for the confession and the person selected in whom confidence is reposed.

On a perusal of the facts and circumstances of the case and the evidence on record, we find that not only the prosecution has failed to corroborate the extrajudicial confession by any other independent evidence, but also it has failed to satisfy the tests as referred to above. To start with the evidence that the accused-Appellant quite long after the alleged date of incident voluntarily went to P.W. 1 in a drunken state and gave the confession is very difficult to believe. This is because, there is no material to show that P.W. 1 and the accused, had any relationship whatsoever prior to this. It is common knowledge, and it is also held by a catena of decisions that a person intending to confess his guilt on account of some reason like repentance etc. would like to confide only in a person with whom he is deeply connected, such as a close friend or a relation. It is highly unlikely that the accused would draw himself up before a person like P.W. 1, who was unknown to him or at least had no previous relationship. The starting point of extra-judicial confession therefore falls to the ground, Further there is nothing on record to show as to what prompted the accused to confess his guilt before an unknown person like P.W. 1. Therefore, there is nothing on record to show the motive for or a reason of making extrajudicial confession. It would be further noticed that the story of confession in this case consisting of three stages namely, first before P.W. 1 and next before P.Ws. 2 to a and finally before the Panchayat are not consistent with one another. Besides, the exact words said to have been stated by the accused have also not been deposed to by P.Ws. 1 to a who have in a parrot like manner given the account of extrajudicial confession of the accused said to have been made before them.

From the foregoing discussions we are inclined to hold that the extrajudicial confession of the Appellant said to have been made before P.Ws. 1 to a cannot be relied upon to form the basis of conviction of the Appellant. As already noticed Earlier, prosecution has led no other evidence pointing to the guilt of the Appellant. The seizures said to have been made at the instance of the Appellant have not been legally proved, nor do such seizures at all connect the accused with the alleged crime.

In the result, therefore, we would hold that prosecution has utterly failed to prove its case against the accused-Appellant beyond all reasonable doubts. The conviction of the Appellant cannot, therefore, be sustained. The appeal is, therefore allowed and the order of conviction and sentence passed against the Appellant are set aside. The Appellant is directed to be set at liberty forthwith.

G.B. Patnaik, J.

I agree.