Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 452 (JHR)

DUBRAJ ORAON v. STATE OF BIHAR

2007-06-12

AMARESHWAR SAHAY, D.P.SINGH

body2007
Judgment : AMARESHWAR SAHA, J. ( 1 ) THE instant appeal has been filed against the Judgment dated 21-4-1997 passed by 1st Additional sessions Judge, Gumla in Sessions Trial No. 9 of 1997 whereby, the sole appellant has been convicted for committing offence under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. ( 2 ) THE prosecution case in short is that on 10-7-1996 at about 7:00 A. M. , the informant Somla Oraon (P. W.-1) came back his home after attending the call of nature. He saw that his wife Bandhwa Orain, (P. W.-10)was weeping in the room of his son. When he entered in the room, he saw the appellant coming out of the room and then he fled away without uttering a word. The informant found that his daughter-in-law Saro orain was lying dead. On enquiry, his wife (P. W.-10) told that the appellant had stabbed saro Orain to death. The informant, thereafter, called the villagers and told them about the occurrence. The further case of the prosecution is that on the previous night, all the family members of the informant were sleeping and the deceased was also sleeping with the appellant in her room and there was no dispute whatsoever in the family and they were leading happy married life. It was further alleged that the said occurrence took place in between 4:00 A. M. to 6:00 A. M. on 10-7-1996. ( 3 ) THE appellant pleaded not guilty and claimed to be tried. ( 4 ) IN order to establish the charge, altogether 10 (ten) witnesses were examined on behalf of the prosecution, out of them. P. W.-1 the informant Somla Oraon. P. W.-4 Ghamru Oraon and P. W.-10 Bandhwa orain were declared hostile witnesses. P. W-2 Julfan Ansari, P. W.-3 Mahabir sahu, P. W.-5 Binod Oraon and P. W.-6 pohanu Oraon are the formal witnesses and p. W.-7 Mangeshwar Oraon and P. W.-8 mali Oraon are the hearsay witnesses who only stated that they came to know about the death of the deceased from the villagers and they could not say as to who killed her. P. W.-9 Bartu Oraon was tendered. ( 5 ) IT appears that after the evidence of the prosecution was closed and when the statements of the accused was being recorded under section 313 Cr. P. W.-9 Bartu Oraon was tendered. ( 5 ) IT appears that after the evidence of the prosecution was closed and when the statements of the accused was being recorded under section 313 Cr. P. C. , he admitted in his examination under Section 313 cr. P. C. that he had killed his wife since she was having illicit connection with another boy. ( 6 ) THOUGH there was no other legal evidence at all on the record against the appellant to establish the charge but, the learned trial Court convicted and sentenced the appellant for committing offence of murder of his wife, solely relying on the so-called confessional statements of the appellant made at the stage of recording of his statements under Section 313 Cr. P. C. ( 7 ) THE question to be decided in the present appeal is as to whether in absence of any other evidence on record for his conviction, can a person be convicted for an offence only on the basis of his admission of commission of offence made under Section 313 Cr. P. C. ? ( 8 ) MR. A. K. Kashyap, learned counsel appearing for the appellant submitted that save and except the confessional statements of the appellant recorded under Section 313 cr. P. C. , there is absolutely nothing on the record against the appellant to prove his guilt and therefore, the conviction and sentence passed against the appellant by the trial Court solely on the basis of the statements recorded under Section 313 Cr. P. C. wherein the appellant admitted his guilt, is illegal and as such, the same is liable to be set aside. ( 9 ) IN the present case, it further appears that neither the Investigating Officer nor the doctor who held the Post-mortem of the dead body of the deceased, has been examined on behalf of the prosecution. ( 10 ) FROM the record, it appears that the material witnesses i. e. the informant (P. W.-1) and his wife (P. W.-10), the alleged eye witness have been declared hostile and the statements of the other remaining witnesses of the prosecution are of no value since they are either formal or hearsay witnesses. Therefore, there is no legal evidence available on the record to prove the charge against the accused/appellant. Therefore, there is no legal evidence available on the record to prove the charge against the accused/appellant. ( 11 ) NOW the question to be considered is as to whether the trial Court has convicted the appellant only on the alleged confessional statements of the appellant made under Section 313 Cr. P. C. ? ( 12 ) SECTION 313 of the Cr. P. C. speaks about the power to examine the accused, which reads as under:- "313. Power to examine the accused. (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court: (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b ). (2) No oath shall be administered to the accused when he is examined under subsection (1 ). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. ( 13 ) FROM bare perusal of Section 313 Cr. P. C quoted above, it appears that this Section is intended to secure the accused an opportunity to explain the evidence against him. It is for the benefit of the accused and not to operate as to his detriment. The purpose for examination of the accused under section 313 Cr. P. C. and to put question to the accused by the Court is to enable the accused to explain the circumstances appearing against him in the evidence. The examination of the accused under Section 313 Cr. P. C. and putting question to the accused by the Court at that stage is obligatory after the evidence of the prosecution is closed and the accused is called on for defence. The examination of the accused under Section 313 Cr. P. C. and putting question to the accused by the Court at that stage is obligatory after the evidence of the prosecution is closed and the accused is called on for defence. This Section casts a duty on the Court to place the accused the facts and circumstances appearing against him in the evidence in order to furnish him an opportunity to explain them and thus, help him in showing his innocence and that is the main object of this Section. ( 14 ) IN a case where there is no other evidence available on the record to connect the accused with the crime and to establish the charge against him beyond all reasonable doubts, then it can very well be said that there is nothing in the prosecution evidence which requires to be explained by the accused and therefore, in my view, the need for the examination of the accused under section 313 Cr. P. C. does not and cannot arise. The statements of the accused, even his confessional statements, if any, made by him under Section 313 Cr. P. C. cannot be regarded as evidence against that accused since such statements are not made after administering oath and the accused cannot be convicted for the offence only on the basis of his statements made under Section 313 Cr. P. C. even though he may have admitted his guilt in his such statement. Reference in this regard may be made to the case of Vijendrajit Ayodhya Prasad Goel v. State of Bombay reported in AIR 1953 SC 247 . ( 15 ) IN the present case, we find that except the statements of the appellant made under Section 313 Cr. P. C. wherein he admitted his guilt, there is no other evidence at all on the record to establish the charge against the appellant. ( 16 ) IN such a situation, in our view, the learned trial Court could not have convicted and sentenced the appellant for the offence under Section 302 Indian Penal Code solely on the basis of the statements of the appellant made at the stage of examination under Section 313 Cr. P. C. Consequently, this appeal is allowed. The conviction and sentence passed by the Trial court against the appellant is hereby set aside. P. C. Consequently, this appeal is allowed. The conviction and sentence passed by the Trial court against the appellant is hereby set aside. The appellant who is in custody is directed to be set at liberty forthwith if not wanted in any other case. Appeal allowed. --- *** --- .