LAKSHMI JANI v. STATE — 1985 DIGILAW 283 (ORI)

BEHERA, J. ( 1 ) A tribal lady from an interior village in the district of Koraput, the appellant stands convicted under S. 302 of the I. P. C. and sentenced to undergo imprisonment for life for murdering her husband Jagannath Jani (to be described hereinafter as the 'deceased') in their dwelling house at Bagra on or about the 26th December, 1980 and under S. 201 of the Penal Code having been sentenced thereunder to undergo rigorous imprisonment for one year for causing evidence of the commission of murder to disappear in order to screen herself from legal punishment by burying the dead body of the deceased whose head had been severed from the trunk portion at Chuagada where there had been storage of water for use by the villagers. ( 2 ) IT is not disputed that the deceased had died a homicidal death and the head portion could be severed by means of M. O. I, (an axe) and M. O. II (a Katari ). According to the prosecution, these two instruments had been seized in the course of investigation on production by the appellant from her house. There was no witness to the commission of murder or with regard to the other offence of causing the evidence of the commission of murder to disappear. The prosecution has relied on an extra-judicial confession said to have been made by the appellant before P. W. 1, the first informant and other two co-villagers (P. Ws. 2 and 3) which, as laid down by the Supreme Court in AIR 1962 SC 605 , K. M. Nanavati v. State of Maharashtra, is direct evidence of the guilt of an accused and not merely a piece of circumstantial evidence, a statement said to have been made by the appellant before her co-villagers that she would show the place where she laid the dead body of the deceased and her showing them the place where the dead body was found, the recoveries of M. Os. I and II suspected to be the weapons of attack on production by her from her house in the course of investigation and the recovery of blood-stained earth from inside her house. The learned trial Judge has accepted the prosecution case, dispelled the theory of the innocence of the appellant as untrue and convicted her in respect of the two offences. The learned trial Judge has accepted the prosecution case, dispelled the theory of the innocence of the appellant as untrue and convicted her in respect of the two offences. ( 3 ) APPEARING on behalf of the appellant, Mr. Routray has contended that the evidence with regard to the extra-judicial confession is unworthy of credence and could not have been accepted and the other evidence of a circumstantial nature is of no better character and even if accepted, would not warrant the conviction of the appellant in respect of either of the two charges. It has been submitted on behalf of the State that the order of conviction is well-founded. ( 4 ) THERE was no evidence worth the name of any motive on the part of the appellant to commit the dastardly act of murder of her husband. Occasional quarrels over trivial matters between the deceased in a drunken state and the appellant of which there was some vague evidence would not prompt the appellant to commit the murder of no other person than her husband. No doubt, mysterious is the working of the human mind and at times, the reason for commission of murder would be known to the perpetrator of the crime and to no one else. But the absence of proof of motive would put the court on its guard to examine the evidence led by the prosecution to bring home the charge to an accused with great care before its acceptance. ( 5 ) COMING to the extra-judicial confession about which evidence had been led by the prosecution through P. Ws. 1 to 3, it may be kept in mind that P. W. 1, on his own showing, is the 'chalan' of the village whose duty it is to entertain visiting officials and provide labour and comforts to them. In the course of investigation, statements of the two other witnesses, namely, P. Ws. 2 and 3, had been got recorded by the investigating agency by a Magistrate under section 164 of the Code of Criminal Procedure. This would lead to an inference that there was a time when the investigating agency thought that these two witnesses might change their versions and were not witnesses on whom implicit reliance could be placed. 2 and 3, had been got recorded by the investigating agency by a Magistrate under section 164 of the Code of Criminal Procedure. This would lead to an inference that there was a time when the investigating agency thought that these two witnesses might change their versions and were not witnesses on whom implicit reliance could be placed. The evidence of such witnesses at the trial ought to be received with caution and their evidence requires very careful scrutiny as they feel tied down to their previous statements made on oath and they have but a theoretical freedom to depart from such statements as a prosecution for perjury can be the price of such freedom. [see AIR 1968 SC 1270 Ram Charan v. State of U. P. and AIR 1974 SC 2165 Balak Ram v. State of U. P. ] The learned Sessions Judge had not kept these aspects in mind while judging the evidence of these witnesses. ( 6 ) IN order to be acted upon, a retracted extra-judicial confession must be shown to be perfectly voluntary and true and trustworthy. While as a proposition of law, it is not necessary that it must receive corroboration in order to be the basis of an order of conviction, as a rule of practice and prudence, there should be some general corroboration, especially in a case of the present type where an aboriginal lady is alleged to have killed her husband without any apparent motive. ( 7 ) IT would be seen from the evidence of P. Ws. 1 to 3 that the appellant had brought to the notice of the villagers three days after the alleged day of occurrence that the deceased was missing from the house. There was, no doubt, evidence that the deceased and the appellant had been seen on Friday, the 26th December, 1980, in their house, but there was no direct evidence of any witness that the appellant had done to death her husband. On Tuesday following the day from which the deceased was not found, there was a meeting of the panchayat attended among others by P. Ws. 1 to 3 and their evidence was that the appellant gave out that her deceased husband had not been found out and she left the meeting of the Panchayat. Some time thereafter, P. Ws. On Tuesday following the day from which the deceased was not found, there was a meeting of the panchayat attended among others by P. Ws. 1 to 3 and their evidence was that the appellant gave out that her deceased husband had not been found out and she left the meeting of the Panchayat. Some time thereafter, P. Ws. 4 and 5, it was alleged brought back the appellant to the meeting place having found her on the way in the outskirts of the village after knowing from her that meeting of the Panchayat was going on regarding the missing of her husband and after they left the meeting place, the appellant is said to have made a statement before her co-villagers including P. Ws. 1 to 3 that after a quarrel which the deceased had with her in a drunken state, she first hit the neck of the deceased with an axe and then cut it through with a Katari while he was sleeping in their dwelling house and that she would show the place where the dead body of the deceased had been kept inside the waters. ( 8 ) THE evidence led by the prosecution itself would give an indication that the appellant, an unsophisticated and illiterate lady, had been threatened whereafter she had allegedly made a confessional statement. The evidence of P. Ws. 4 and 5 was that when asked as to why she had left the meeting place, the appellant told them that she apprehended assault and ill-treatment at the hands of the villagers holding the meeting. After she was brought, she had been threatened by the villagers as would be evident from the cross-examination of P. W. 3 of which no due notice had been taken by the trial Court. If a few moments ago, the appellant had taken a plea that her husband was missing, it is not understood as to how she would blurt out an extra-judicial confession voluntarily sometime thereafter admitting her guilt. The materials would not warrant a conclusion that the appellant had made a statement out of repentence or remorse. ( 9 ) THERE was no evidence of close association of the appellant with P. Ws. The materials would not warrant a conclusion that the appellant had made a statement out of repentence or remorse. ( 9 ) THERE was no evidence of close association of the appellant with P. Ws. 1 to 3 and the other persons before whom the extra-judicial confession was said to have been made, Extra-judicial confession, in order 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. [see AIR 1973 SC 343 Rahim Beg v. State of U. P. and AIR 1982 SC 1595 , Heramba Brahma v. State of Assam]. The evidence in the instant case was far short of the mark. We are not at one with the trial Court that the appellant had made an extra-judicial confession admitting her guilt. ( 10 ) THERE is evidence that in the course of investigation, M. Os. I and II with suspected stains of blood had been seized on production by the appellant from her house and that some mud stained with blood had also been seized from inside her house. On chemical and serological test, no blood was detected in M. O. I, blood insufficient for test was found in M. O. II for which no opinion could be rendered as to whether it was of human origin and human blood was detected in the mud scrap. It is, indeed, unfortunate that the learned Sessions Judge has mentioned in the body of the judgment that M. O. I. had been stained with human blood as found on chemical examination. This is a serious error of record which a Court of Session must scrupulously avoid. We are led to believe that this impression in the mind of the learned Sessions Judge must have weighed heavily with him while holding the appellant to be guilty of the charges. A Court of Session should be very careful in examining such scientific reports. ( 11 ) SOME stains of blood found on the knife whose origin could not be determined can be of no avail to prosecution. Nor can the finding of human blood in the mud scrap seized from inside the house of the appellant lead to a conclusion of her guilt if there be no other evidence in respect of either of the two charges. Nor can the finding of human blood in the mud scrap seized from inside the house of the appellant lead to a conclusion of her guilt if there be no other evidence in respect of either of the two charges. Finding of some article from the person or possession of an accused or from the house stained with human blood, by itself, canot lead one to a reasonable conclusion that the accused was the author of the crime of murder. Such a circumstance can lend assurance to the other evidence in support of the charge of murder. [see (1985) 1 Crimes 455 , Manju v. State. ] ( 12 ) ANOTHER highly suspicious feature cannot be lost sight of. The occurrence had taken place, as alleged, on or about the 26th December, 1980. The seizures of M. Os. I and II and mud with suspected stains of blood had been effected on the 31st December, 1980, as per Exts. 8 and 9. There was no evidence that these articles had been kept separately in sealed packets in the presence of the witnesses to the seizures. It would be seen from the forwarding letter (Ext. 11) of the learned Sub-Divisional Judicial Magistrate, Jeypore, that these articles with other articles had been sent for chemical examination in a sealed packet more than two-and-a-half months after the seizures on the 16th March, 1981. As observed and held by this Court in (1985) 1 Crimes 593 , (1985) Orissa LR 281, Nimai Murmu v. State, seized articles containing suspected stains of blood should invariably be sent for chemical examination immediately after their seizures. It is necessary and desirable that the police officer recovering articles with suspected stains of blood should immediately take steps to seal them and evidence should be produced that the seals were not tampered with till the articles were sent to the Chemical Examiner for analysis. If such precautions are not taken, the Court may not place the same reliance on the discovery of blood-stains on the seized articles as it would have done if necessary precautions had been taken. ( 13 ) FOR the foregoing reasons, we would not attach any importance to the finding of blood on M. O. II and human blood in the earth seized from the house of the appellant. ( 13 ) FOR the foregoing reasons, we would not attach any importance to the finding of blood on M. O. II and human blood in the earth seized from the house of the appellant. ( 14 ) THE only other evidence against the appellant was that after she made an extra-judicial confession and had been kept detained thereafter in the house of Moti Parajani (P. W. 5) for the night, she took her co-villagers including P. Ws. 1 to 3 to a place where there had been storage of water which was being used by the villagers and it was noticed that the stomach of a dead person had bulged out besmeared with mud and thereafter the first information report was lodged by P. W. 1 and the trunk and head portions of the deceased were found on the spot over which inquest was made. ( 15 ) IT is highly unlikely, as has rightly been submitted on behalf of the appellant, that she could have carried the dead body of her murdered husband from her house situated in the outskirts of the village to a distance without the help of anyone. No marks of dragging nor blood-marks had been found in between the house of the appellant and the place where the dead body lay. There was no evidence of anyone that the appellant had been seen in the process of dragging or carrying the dead body of her deceased husband. If the occurrence, as alleged, had taken place on or about the 26th December, 1980, it was likely that the dead body would be floating in the water much prior to the time when the appellant had allegedly led her co-villagers to the spot on Wednesday falling on the 31st December, 1980. The prosecution evidence would itself indicate that the co-villagers of the appellant would be going to the spot for bringing water for use in which case the dead body of the deceased was likely to have been seen much prior to the time when the appellant had taken her co-villagers to that spot. The prosecution evidence would itself indicate that the co-villagers of the appellant would be going to the spot for bringing water for use in which case the dead body of the deceased was likely to have been seen much prior to the time when the appellant had taken her co-villagers to that spot. ( 16 ) APART from the aforesaid considerations, the mere fact that the dead body was pointed out by the accused or was discovered as a result of a statement made by the accused would not necessarily lead to the conclusion of the commission of murder by the accused, ( AIR 1966 SC 821 Kanbi Karsan Jadev v. State of Gujarat ). ( 17 ) WE thus find that the evidence led by the prosecution with regard to the extra-judicial confession said to have been made by the appellant did not deserve credence and ought not to have been accepted. The other circumstances relied on by the prosecution bearing on the guilt of the appellant had not been established by clear and clinching evidence and even assuming that they had been, the same could not lead a court to the conclusion that the appellant was the author of either of the two crimes. When the prosecution seeks to bring home a charge to the accused on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established and the facts so established should be consistent only with the hypothesis of the guilt of the accused and should exclude every possible hypothesis except the one to be proved. The circumstances should be of a conclusive nature and tendency and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Keeping in mind these well-settled principles with regard to the appreciation of circumstantial evidence, we are of the view that the circumstances against the appellant had not been established and even assuming that the circumstances had been established, it cannot be said that they were of conclusive nature and tendency and that the circumstances would lead to but one conclusion, viz. , the guilt of the appellant. The order of conviction in respect of both the charges cannot be sustained. ( 18 ) IN the result, the appeal succeeds and is allowed. The order of conviction and sentences passed against the appellant under sections 302 and 201 of the Penal Code are set aside. The appellant be set at liberty forthwith. R. C. PATNAIK, J. :- I agree. Appeal allowed.