Podyami Joga v. State of M. P. — 1962 DIGILAW 164 (MP)

Judgement SHIV DAYAL, J. : Podyami Joga has been condemned to death by the Additional Sessions Judge, Jagdalpur, for having caused the death of one Tati Hidma who was killed on the night between the 23rd and the 24th November, 1961. 2. The case for the prosecution was that the accused struck two or three blows on the head of Tati Hidma with a Tangia (a sharp cutting weapon which is commonly carried by men in Jagdalpur) which caused fractures and as a result of which he died on the spot. The conviction is based on the ocular evidence of Tati Dora (P.W. 1), a child witness (10 or 11 years of age), and on the extrajudicial confession alleged to have been made by the accused before Podyami Suhu (P.W. 3), Madvi Hadma (P.W. 4) and Podyami Pandu (P.W. 5). It was also said that at one time the accused was in the employment of the deceased for agricultural operations but one day he caught hold of the hands of Mst. Jogi, wife of the deceased, and when she raised an alarm, the accused made good his escape. 3. Tati Dora (P.W. 1) says that he was sleeping by the side of Tati Hidma, the deceased. He heard some sound like "Phut Phut" which awoke, him. He saw the accused giving two blows with his Tangia on the head of Tati Hidma. Seeing this the witness ran away to another Hadma in a nearby field (a distance of about 200 yards.) Then both of them returned to the "scene" of the occurrence and found that Tati Hidma had died and the accused had made good his escape. According to this witness, it was dark, yet he was able to recognise the accused. Tati Raju (P.W. 2) is the father of this eye witness. He says that on the morning following the murder his son Dora told him that Joga had killed Hidma. Then he went to the field and saw the dead body of Hidma. Thereafter a Panchayat was held and the Patel said in the Panchayat that on the information given by Dora that Joga had killed Hidma a report should accordingly be lodged in the police Station. Then he went to the field and saw the dead body of Hidma. Thereafter a Panchayat was held and the Patel said in the Panchayat that on the information given by Dora that Joga had killed Hidma a report should accordingly be lodged in the police Station. He adds that the Patel also said that it should not be stated in the report that Dora was sleeping with Hidma, but it should be stated in the report that Hidma was sleeping alone. The Kotwar accompanied him to the Police Station and the first information report (Ex. P-1) was lodged. It is difficult to rely on the testimony of Tati Dora because although the first information report was lodged by Tati Raju (father of the witness and elder brother of the deceased) on the next day of the occurrence, that is, on the 25th November at 17-30 hours, there is no mention of the fact that Tati Dora had related this matter to his own father, that is the informant. 4. In the first information report it was said that it was his youngest brother who informed him that some body had killed Hidma. To reproduce the words of the first information report : and again at the and the same thing is reiterated : It is significant that in this report there is no mention of Tati Dora at all. It is abundantly clear that upto the time when the first information report was lodged it was not known who had killed Tati Hidma. This leads to the irresistible conclusion that the story was subsequently improved and the accused was implicated by the introduction of Tati Dora on the scene of the occurrence, The evidence of Tati Dora that ha was sleeping by the side of the deceased and that he reported the matter to his father the next morning is clearly an afterthought. In the first information, report Tati Raju did express his suspicion against Podyami Joga (the accused). There he said that Podyami Joga had been working in his fields as a labourer, but this year one day he attempted to molest the wife of the deceased Hidma. Hidma rushed towards Podyami Joga whereupon the latter ran away for his life. Hidma threatened Joga to kill him. Hidma was thus inimical with Joga and with no one else in the village. Hidma rushed towards Podyami Joga whereupon the latter ran away for his life. Hidma threatened Joga to kill him. Hidma was thus inimical with Joga and with no one else in the village. It seems to us that on this suspicion the story was developed and, "by the process of padding," Tati Dora was set up as an eye witness. 5. Tati Hadma (P.W. 8) (the youngest brother) also says to have related to the Patel the happenings of the previous night and to have specifically named Joga as the murderer of the deceased Hidma. The omission in the first information report of a clear accusation against Joga that he had killed Hidma demolishes completely the testimony of Tati Dora. If Tati Dora was supported by the youngest Hadma that he had mentioned the name of the murderer it is inconceivable that the eldest brother, that is, Tati Raju, would not include it in his report. As a counterblast to this most significant omission, Tati Raju said if the sessions court that the Patel had asked him not to mention the fact of Dora having slept with the deceased in the report to the Police. This explanation must be rejected outright. In the first place it is not at all intelligible that the Patel would so advise. Secondly, the. statement of Tati Raju cannot be taken as a gospel truth. It is not easily understandable that on this advice of the patel he would net mention the fact of Tati Dora having slept the previous night in the field and to have reported the matter to the informant on the following morning. Thirdly, the Patel has not been produced to corroborate this explanation, which, on the face of it, is unbelievable. Fourthly, even Raju does not say that he had been advised by the Patel not to name Joga as the murderer. In the first information report even this fact has not been mentioned that the murderer was really Joga. 6. Thirdly, the Patel has not been produced to corroborate this explanation, which, on the face of it, is unbelievable. Fourthly, even Raju does not say that he had been advised by the Patel not to name Joga as the murderer. In the first information report even this fact has not been mentioned that the murderer was really Joga. 6. It is urged by the learned Deputy Government Advocate that those particular portions of the first information report which I have quoted above having not been put to Raju under Sec. 145 of the Evidence Act, the omissions (1) that Tati Hadma was killed by Joga, (2) that Tati Dora informed Raju on the morning after the murder that it was Joga who had killed Hidma and (3) that Tati Dora slept in the night by the side of the deceased, cannot be taken into consideration for disbelieving Tati Dora. In our judgement this objection is without substance. The first Information report was not only proved in the examination-in-chief of Raju (P.W. 2), but there was a calculated and studious endeavour to explain away those remarkable omissions by laying the blame on the Patel. There was, therefore, a substantial compliance with Sec. 145 of the Evidence Act. It is really a matter of substance and not of form that the conditions of Sec. 145 must be complied with. The whole purpose of the second part of Sec. 145 is that before the credit of a witness is set aside and his testimony is overthrown because of repugnancy of his evidence, every circumstance intended to be used as a contradiction must be put to him in order that his attention may be drawn separately to every part of his previous statement which is intended to be used for the purpose of contradiction. This is required in fairness to the witness so that a reasonable opportunity of explaining the contradiction may be afforded to him in a reasonable manner. (But there cannot be a hard and fast rule about this matter land the Court must see whether there has been a substantial compliance. It cannot be said that a contradiction brought on record is inadmissible just because there has occurred a slight deviation from the usual procedure, that is, marking the statements as 'A to A' or 'B to B'. It cannot be said that a contradiction brought on record is inadmissible just because there has occurred a slight deviation from the usual procedure, that is, marking the statements as 'A to A' or 'B to B'. if it can be gathered from the answers given by the witness in the particular context of the portions sought to abused for the purpose of contradiction that those portions were in the mind of the witness and he tried to explain them, it cannot be said that there is want of compliance with Sec. 145 of the Evidence Act. In Bhagwansingh v. State of Punjab, 1952 SCR 812 : ( AIR 1952 SC 214 ) their lordships had an occasion to consider a case where, the previous statement was a short one and the witness had seen questioned about every material passage in it point by point and then the whole statement had been read out to the witness. It was held that there had been substantial compliance with Sec. 145 and the use of the contradictions brought out for the purpose of condemning the evidence of the witness could not be objected to tin a perusal of the entire statement of Raju, we have not the slightest doubt that the prosecution itself was he an enough to seek explanation from the witness. If in the cross-examination those portions of the first information report had been put to the witness and he had been asked to explain them, the explanation could not be any different than the one which he had already given in the examination-in-chief. Thus the conditions of Sec. 145 of the Evidence Act were fulfilled for all intents and purposes. In Wilayat Khan v. State of U.P., AIR 1953 SC 122 a telegram about murder had been sent almost immediately after the offence was committed, but it did not mention the names of the assailants. This was considered as a, prominent circumstance which could be said to tilt the scale in favour of the accused. 7. The second piece of evidence against the accused is that of the recovery of a Tangia (Ex. P/A) at his instance. No human blood was found on it by the Serologist. 8. This brings us to the extra-judicial contention of the accused. Three witnesses were produced from Niyanar village to prove it. 7. The second piece of evidence against the accused is that of the recovery of a Tangia (Ex. P/A) at his instance. No human blood was found on it by the Serologist. 8. This brings us to the extra-judicial contention of the accused. Three witnesses were produced from Niyanar village to prove it. It is said that when there was a row about the murder of Tati Hidma, these witnesses interrogated the accused whether if was he who had killed the deceased and the accused answered in the affirmative- This is neither natural nor reliable. Madvi Hadma (P.W. 4) says that the Kotwar had told him that Joga had hilled Tati Hidma in Pratapgiri and on this information he interrogated the accused. The Kotwar Podyami Sufcu (P.W. 3) says that the accused had newly come to his village so that he asked the accused in the presence of his brother Pandu and others whereupon the accused said that he had killed Hidma in Pratapgiri. A great deal of stress is laid on the statement of Podyami Pandu, who is the step-brother of the accused. He too says that the accused confessed to him to have killed Tati Hadma. According to this witness it was widely said that some body from Metapar had killed Hidma in Pratapgiri, whereupon the Kotwar interrogated the accused and the latter confessed. This statement cannot be believed inasmuch as it was not said either in the first information report or by any other witness of Pratapgiri that in his village it was said that somebody from Metapur had killed Hidma. 9. In Ratan Gond v. State of Bihar, 1959 SCR 1336 ( AIR 1959 SC 18 ), their Lordships said : "It is enough to state usually and as a matter of caution, courts require some material corroborate to such a confessional statement, corroboration which connects the accused person with the crime in question, and the real question which fails for decision in the present case is if the circumstances proved against the appellant afford sufficient corporation to the confessional statement of the appellant, in case we hold that the confessional statement is voluntary and true." 10. All this leads us to the inescapable conclusion, that this was a case of a mere suspicion against the accused and on its basis the evidence was made up. All this leads us to the inescapable conclusion, that this was a case of a mere suspicion against the accused and on its basis the evidence was made up. Admitted by the relations between the accused and the deceased were strained. However grave the suspicion may be, it cannot take the place of proof of guilt. 11. Before we part with this case, we must point out that in this case the investigating officer was not examined at all. Such an omission is serious. The accused was arrested on the 29th November, but it is not known on what basis was he arrested. 12. In the result, Criminal Appeal No. 363 of 1962 is allowed. The conviction of the appellant is set aside. The appellant is given the benefit of doubt and ha is acquitted. Criminal Reference No. 3 of 1962 is rejected. We thank Mr. A.N. Mukerji for his useful assistance.