BEHERA, J. ( 1 ) THE order of conviction recorded by the learned Sessions Judge, Koraput, Jeypore, against the appellant under section 302 of the Indian Penal Code holding him guilty of the charge of murder and sentencing him to undergo imprisonment for life by accepting the case of the prosecution that during the night of the 13th 14th April. 1981, the appellant, nursing a belief that he bad been wronged by the deceased by practising witchcraft, assaulted him to death by means of an axe, is based on the extra judicial confessions said to have been made by the appellant first before P. W. 3 with whom the appellant was said to be residing and later before the Ward Member in the presence of P. Ws. 4 and 5 and on the recoveries of the appellants clothes (M. Os. II and III) and an axe (M. O. 1) from the thatch of his fathers house said to have been made on the basis of his statements. ( 2 ) WE have heard the learned counsel for both the sides. The order of conviction has been assailed as unfounded. ( 3 ) IT is not disputed at the Bar that the deceased had died homicidal death. The question for consideration is as to whether the appellant was the author of the crime. ( 4 ) IT would, not be necessary to examine in details the evidence with regard to the recoveries of M Os. I to III in the absence of evidence to show that these three articles said to have contained stains of blood had been kept sealed in separate packets after their seizures and as no human blood had been detected in any of these articles on chemical and serological tests. The learned Additional Government Advocate has very fairly submitted that in these circumstances. , the prosecution cannot press into service the recoveries of M. Os. I to III as guilt-pointing circumstances against the appellant. ( 5 ) ACCORDING to P. W. 3, the appellant had admitted before her in the night of occurrence itself that he had killed the deceased. On her own showing, she had informed none about what she has heard from the appellant during the night of occurrence.
I to III as guilt-pointing circumstances against the appellant. ( 5 ) ACCORDING to P. W. 3, the appellant had admitted before her in the night of occurrence itself that he had killed the deceased. On her own showing, she had informed none about what she has heard from the appellant during the night of occurrence. According to her she raised a cry in the morning when the appellant was about to leave her house with his belonging which attracted the attention of her co-villagers including P Ws. 4 and 5 who came and apprehended the appellant and produced him before the Ward Member. It is pertinent to bear in mind that there is no evidence that P. W. 3 had informed and P. Ws 4 and about the extra judicial confession aid to have been made by the appellant before her. According to P. Ws. 4 and 5, when the appellant was produced before the Ward Member, he admitted to have killed the deceased on being asked by the Ward Member. ( 6 ) IF the appellant had taken precautions to leave the village and to conceal the axe in order to screen himself from legal punishment, it is not understood as to why and how he would be blurting out extra-judicial confessions before different persons from time to time. In the First Information Report lodged by P. W. 1, the daughter of the deceased, there is no averment about the extra- judicial confessions having been made by the appellant. On the other hand, against the heading accusedt it bas been stated 'unknown'. If, as testified by P. Ws 3 to 5, the appellant had made extra judicial confessions before them, in the normal course of human conduct, they would have informed P. W. I about it and in that event, this important part would not have been conspicuous by its absence in the First Information Report. ( 7 ) THE contents of the First Information Report are not substantive evidence and can corroborate or contradict its maker. Bur it has been a settled principle of Jaw that omissions of important facts appearing in the evidence in the First Information Report would affect the bona fides of the prosecution case and are relevant under section 11 of the Evidence Act.
Bur it has been a settled principle of Jaw that omissions of important facts appearing in the evidence in the First Information Report would affect the bona fides of the prosecution case and are relevant under section 11 of the Evidence Act. ( 8 ) IN addition, the evidence of P. Ws 3 to 5 is not quite uniform about the exact words said to have been uttered by appellant. Thus the evidence with. regard to the extrat judicial confessions on which reliance has been placed by the prosecution does not stand the tests of reproduction of exact words, the motive for the appellant to make a confession and the persons in whom confidence was reposed by him. ( 9 ) AN order of conviction can legally be based solely on an extra judicial confession if the evidence in this regard is clear and cogent and is of an unimpeachable character, but as a rule of practice and prudence, a Court requires some corroboration of a retracted extra-judicial confession and in the instant case, there is none. ( 10 ) IN the result, the appeal succeeds and is allowed. The order of conviction passed against the appellant under section 302 of the Indian Penal Code and the sentence passed against him thereunder are set aside. The appellant be set at liberty forthwith. .