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2001 DIGILAW 382 (ORI)

INDRAMANI SAHU ALIAS INDRAJITA v. STATE OF ORISSA

2001-09-05

B.PANIGRAHI, L.MOHAPATRA

body2001
B. PANIGRAHI, J. ( 1 ) THE appellant has assailed the order judgment of conviction and sentence passed by the Second Additional Sessions Judge. Berhampur, dated 27th July, 1995 under Sections 302/201, I. P. C. where-under the appellant has been sentenced to undergo R. I. for life and R. I. for 2 years respectively. The sentences were directed to run concurrently. ( 2 ) THE skeletal picture of the prosecution story as presented before the learned Sessions Judge is as follows: that on 15-6-1994 in the night, deceased Mukuta Sahu had slept on the verandah of one of her neighbours as usual. On the following morning she was found missing and could not be traced and finally on 17-6-1994 at about 1 p. m. her dead body was exhumed from inside a nearby compost pit. After the dead body was recovered it was noticed that some of the gold ornaments, which were worn by the deceased were missing. During investigation, it came to light that some days prior to the disappearance of the deceased Mukuta Sahu, the appellant. Indramani Sahu had attempted to snatch away her gold ornaments, but when the old lady woke-up, he ran away. Indramani Sahu, the appellant, is alleged to have made extra judicial confession before the son-in-law of Mukuta Sahu who has been examined as P. W. 1 and also another co-villager (P. W. 2 ). The appellant 3 and other accused Khalli Mohapatra (since acquitted) have allegedly confessed their guilt before P. Ws. 1 and 2 and other villagers. During investigation, it also came to light that the appellant Indramani pledged those articles with P. W. 4 and borrowed Rs. 900/- from her. They distributed between themselves the pledge and in the process, the appellant took Rs. 400/- and paid Rs. 500/- to Khalli Mohapatra. ( 3 ) ON 17-6-1994 a missing report was diarised, on the basis of such missing report P. W. 6 started making enquiry. In course of enquiry, the accused and his associate Khalli Mohapatra made extra judicial confession. Thereafter a case under Section 302, I. P. C. was registered against them and accordingly, the investigation proceeded. The dead body of the deceased Mukuta Sahu was sent for post mortem examination to M. K. C. G. Medical College and Hospital, Berhampur. In course of enquiry, the accused and his associate Khalli Mohapatra made extra judicial confession. Thereafter a case under Section 302, I. P. C. was registered against them and accordingly, the investigation proceeded. The dead body of the deceased Mukuta Sahu was sent for post mortem examination to M. K. C. G. Medical College and Hospital, Berhampur. The Doctor (P. W. 7) who conducted the post mortem examination however, opined that Mukuta Sahu met a homicidal death. During investigation, it further appeared that the gold ornaments alleged to have been stolen from the person of Mukuta Sahu, were pledged with P.W. 4 but subsequently released by accused Indramani after taking Rs. 900/- from the P. W. 1. After closure of investigation, charge sheet was placed against both the accused namely the appellant and Khalli Mohapatra. ( 4 ) IN order to bring home the charge against the appellant and other accused Khalli, the prosecution has examined 8 witnesses in toto. P. W. 1 and P. W. 2 are said to be the witnesses to the extra judicial confession. P. W. 3 was the daughter-in-law of the deceased. P. W. 4 is the lady with whom the stolen articles were kept on pledge. P. W. 5 is a co-villager who alleged to have seen the appellant and other accused in the night of occurrence. P. W. 6 is the A. S. I. who registered the D. D. Case and during investigation after getting a cue from the accused about the extra judicial confession, registered a case under Section 302, I. P. C. against the appellant and other acquitted accused. P. W. 7 is the Medical Officer, who conducted the autopsy over the dead body of Mukuta Sahu. P. W. 8 is the 1. 0. who submitted charge sheet against both the accused. ( 5 ) THE learned Addi. Sessions Judge on a brief resume of the evidence placed before him, however, was inclined to convict the appellant under Sections 302/201, I. P. C. and sentenced him thereunder as already stated. But in his opinion, the prosecution could not bring home the charge against other accused Khalli Mohapatra. Accordingly he recorded an order of acquittal of Khalli Therefore, being aggrieved by the order of conviction and sentence, this appeal has been filed. ( 6 ) MR. But in his opinion, the prosecution could not bring home the charge against other accused Khalli Mohapatra. Accordingly he recorded an order of acquittal of Khalli Therefore, being aggrieved by the order of conviction and sentence, this appeal has been filed. ( 6 ) MR. Samantaray, learned counsel appearing for the appellant, has submitted that the case is more or less based on circumstantial evidence and in this particular case, the prosecution has utterly failed to prove each and every circumstance to connect the appellant with the crime. The prosecution, in order to sustain a conviction, had mainly relied upon motive of murder. It has been contended that the prosecution has completely failed to lead evidence with regard to motive. According to the prosecution story, although previously the appellant was alleged to have attempted to snatch the gold ornaments from the person of the deceased, till the date of the incident there was no report lodged at the Police Station, nor it was revealed to any other person by P. W. 3. It has been further submitted that even P. W. 3 did not disclose the fact till 19/6/1994 even though the occurrence had taken place in the midnight of 15/6/1994 and no explanation is offered by the prosecution as to why P. W. 3 maintained stoic silence with regard to past conduct of the appellant. ( 7 ) SO far as the second stand of the prosecution is concerned, it has attempted to prove the extra judicial confession said to have been made by the appellant. In this particular case, the prosecution mainly rely upon the evidence of P. Ws. 1 and 2. P. W. 1 was the son-in-law of deceased Mukuta. The incident had taken place in the midnight of 15-6-1994 and on 17/6/1994 a D. D. case was registered after P. W. 1 reached the house on getting information from P. W. 3. Even in the D. D. Case nothing was spelt out that there was an occurrence of attempt to commit theft prior to this incident, nor there was any such talk with the accused on 17/6/1994 and on 18/6/1994. Even in the D. D. Case nothing was spelt out that there was an occurrence of attempt to commit theft prior to this incident, nor there was any such talk with the accused on 17/6/1994 and on 18/6/1994. All of a sudden, the story of extra judicial confession was brought forth on 19/6/1994 implicating the appellant as well as his other associate Khalli It has been contended that in order to convict the accused on the basis of an extra judicial confession, the prosecution has led evidence of the extra- judicial confession of the accused as far as possible. In this particular case, P. Ws. 1 and 2 only made a general statement that before them the accused had confessed their guilt without speaking the exact words used by them. It is true that it was not expected to reproduce the words uttered by the accused like a tape recorder, but at the same time it cannot be lost sight of the fact that on the basis of the statement of the accused if credible, he shall be convicted. In this connection we may rely upon a judgment of the Supreme Court reported in the case of Rahim Beg v. State of u. p. There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances it seems highly improbable that the two accused would go to Mohd. Nasim Khan and blurt out a confession. ( 8 ) THE evidence of extra judicial confession in the very nature of allegation is a weak piece of evidence. In order to accept such evidence it must be plausible and must arouse the confidence of the Court. Since P. Ws. 1 and 2 have not uttered the words alleged to have been spoken by the appellant and his associate we are therefore, unable to place reliance on such extra judicial confession. In this case on the basis of same set of evidence, the appellant as well as the other accused Khalli faced the trial. The learned Sessions Judge has conspicuously recorded an order of acquittal of the accused Khalli without assigning any good or sufficient reasons. In that event we fail to understand how he can adopt a different standard while weighing with the evidence of prosecution. The learned Sessions Judge has conspicuously recorded an order of acquittal of the accused Khalli without assigning any good or sufficient reasons. In that event we fail to understand how he can adopt a different standard while weighing with the evidence of prosecution. In so far as the appellant is concerned, he also stood on the same footing as that of Kh all ( 9 ) IT is alleged by the prosecution that gold ornaments marked as M. Os. I and II belonged to Mukuta Sahu which the appellant snatched away at. the time of commission of offence and pledged with P. W. 4. It has been further stated that P. W. 1 advanced Rs. 900/- to Indramani who got them back from P. W. 4. Thus M. Os. I and II were seized and immediately, thereafter delivered to P. W. 1. Till the conclusion of trial, the gold ornaments did not see the light of the day and only during trial P. W. 1 produced the M. Os. I and II in Court, Undisptitedly the M. Os. 1 and II had never been placed in T. I. Parade. Now turning to the evidence of P. W. 4 it appears that she could to positively say that those had been pledged with her by the appellant Indramani. Moreover, it has been elicited in the cross- examination that the appellant never claimed the ownership of M. Os. I and II. In that view of the matter, even recovery of M. Os. 1 and II from the possession of P. W. 4 world not be treated as an incriminating circumstance against the appellant. ( 10 ) IT is true that deceased Mukuta met a homicidal death. Since the case is based on circumstantial evidence, on a resume of evidence we find that the prosecution could not connect the appellant with the crime. Moreover, there has been no clinching evidence to indicate that it is the appellant who has committed such dastardly act. ( 11 ) IN view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the appellant and other leading to his innocence the accused is entitled to have the benefit of the one, which is favourable to him. ( 11 ) IN view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the appellant and other leading to his innocence the accused is entitled to have the benefit of the one, which is favourable to him. Since in this case, the prosecution could not prove all the circumstances against the appellant, accordingly we hereby set aside the order of conviction and sentence passed under Sections 302/201. I. P. C. and allow the appeal. The appellant, if in custody, be set at liberty forthwith, if his detention is not required in any other case. Appeal allowed.