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2008 DIGILAW 398 (ORI)

Subash Chandra Bag v. State of Orissa

2008-05-09

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT L. MOHAPATRA, J. — The appellant having been convicted by the learned Additional Sessions Judge, Bargarh in Sessions Trial No.170/32 of 1996 for commission of offence under Section 302 of the Indian Penal Code and sentenced to imprisonment for life has preferred this appeal against the order of conviction and sen¬tence. 2. P.W.6 is the father of the informant and also the informant in this case. It is the case of the prosecution that 15 days prior to the date of occurrence, the appellant, his wife and two children, one of whom is alleged to have been murdered by the appellant, came to the house of the informant in village Talmunda and stayed there. Three to four days prior to the date of occur¬rence, the appellant in absence of other inmates of the house went to his village along with his minor son Rajeeb Bag (deceased) and returned home alone and on being asked he did not disclose anything and thereafter started making prevaricating statements which created suspicion in the mind of the family of the inform¬ant. They searched of the deceased but could not trace him. On further query the appellant admitted to have killed the deceased and thrown the dead body at Bhaludungri hillock. Pursuant to such extra-judicial confession made by the appellant, P.Ws.7 and 8 went in search of the dead body and found the same lying in the said hillock. Thereafter P.W.6 lodged an F.I.R. on the basis of which investigation was taken up and charge-sheet was filed on completion of investigation. 3. Plea of defence is complete denial of the case of prosecution. 4. Prosecution in order to prove the charge examined 13 witnesses. Out of the 13 witnesses examined by the prosecution, P.W.1 is the doctor who conducted post-mortem examination. P.W.2 is a witness to the inquest and seizure. P.W.3 is a witness who had seen the appellant and the deceased before the occurrence. P.W.4 is the brother of the appellant who turned hostile. P.W.5 is the wife of the appellant who has stated about the extra-judicial confession and P.W.6 is the informant who is father-in-law of the appellant and has stated about the extra-judicial confessions. P.Ws.7 and 8 had gone in search of the dead body and found the dead body. P.W.9 claims to have seen the appellant and the deceased prior to the date of occurrence. P.Ws.7 and 8 had gone in search of the dead body and found the dead body. P.W.9 claims to have seen the appellant and the deceased prior to the date of occurrence. P.W.10 is a police officer who conducted a part of the investigation. P.W.11 is a witness to the inquest and P.W.12 is the I.O. P.W.13 is also a police officer who conducted part of the investigation. Trial Court on the basis of the extra-judicial confession deposed to by the P.Ws. 5 and 6, evidence of P.Ws.3 and 9 that they had seen the deceased and the appellant prior to the date of occurrence corroborated by the evidence of P.Ws.7 and 8 who found the dead body of the deceased in the hillock as well as the evidence of P.W.1 who conducted post-mortem examination, found the appellant guilty of the charge and convicted him thereunder. 5. Learned counsel appearing for the appellant assails the impugned judgment on the ground there being no eye-witness to the occurrence, the prosecution case is entirely based on circumstan¬tial evidence. The circumstances the prosecution has tried to prove against the appellant are extra-judicial confession before the P.Ws. 5 and 6, last seen with the deceased as deposed to by P.Ws.3 and 9, recovery of the dead body of the deceased from hillock on the basis of extra-judicial confession made by the appellant and the post-mortem report. According to the learned counsel for the appellant extra-judicial confession claimed to have been made before P.Ws.5 and 6 the recovery of the dead body on the basis of such confession cannot be accepted since the said extra-judicial confession is not voluntary. Referring to the evidence of P.Ws.3 and 9 it was contended by the learned counsel that these witnesses had stated nothing before the police in course of investigation and therefore they cannot also be relied upon. If these two circumstances are not accepted by the Court, according to the learned counsel for the appellant, there being no other evidence, the order of conviction has to be set aside. Learned counsel for the State referring to the evidence of P.W.5 submitted that she being wife of the appellant, extra judicial confession made before her has to be treated as voluntary and therefore such extra-judicial confession even though retracted can be acted upon. Learned counsel for the State referring to the evidence of P.W.5 submitted that she being wife of the appellant, extra judicial confession made before her has to be treated as voluntary and therefore such extra-judicial confession even though retracted can be acted upon. It was also contended by the learned counsel for the State that P.Ws.3 and 9 claim to have seen the appellant with the deceased prior to the occurrence and there is nothing in their evidence to disbelieve them. Injuries found on the dead body of the deceased by P.Ws.7 and 8 is also corroborated by P.W.1 who conducted post-mortem examination and taking all the circumstances into consideration, one can find that there is complete chain of circumstances pointing at the guilty of the appellant and therefore this Court may not inter¬fere with the impugned judgment. 6. Admittedly there is no eye-witness to the occurrence and the prosecution relies on the circumstantial evidence. The circumstances on which the prosecution relies are as follows : (i) There was ill-feeling between the appellant and his wife (P.W.5) and the appellant was disowning the two children to be of his out of whom one was killed; (ii) Appellant made extra-judicial confession before P.Ws. 5 and 6 who are wife and father-in-law respectively. (iii) P.Ws.3 and 9 had seen the appellant with the deceased prior to the occurrence; and (iv) On the basis of the extra-judicial confession made by the appellant, a search was made and the dead body of the deceased was found from the place where the appellant claimed to have thrown. According to the prosecution, these circumstances clearly point at the guilt of the appellant. 7. Admittedly, extra-judicial confession has been retracted by the appellant in his statement made under Section 313 Cr.P.C. Law is well settled that in case of a retracted extra-judicial confession, the Court as a matter of prudence, should look for corroboration from other sources. We, therefore, first proceed to examine as to whether extra-judicial confession claimed to have been made before P.Ws.5 and 6 can be accepted or not. P.W.5 is the wife of the appellant and mother of the de¬ceased. She in her deposition has stated that prior to the date of occurrence on a Saturday she along with her parents had gone for work and after return they found the appellant and the de¬ceased absent in the house. P.W.5 is the wife of the appellant and mother of the de¬ceased. She in her deposition has stated that prior to the date of occurrence on a Saturday she along with her parents had gone for work and after return they found the appellant and the de¬ceased absent in the house. From one Suresh Mahananda P.W.9, they came to know that the appellant and the deceased had gone to Sohella. Three to four days thereafter on a Wednesday the appel¬lant returned alone and at that time she was sleeping with her daughter. She found the appellant pressing throat of her daughter Jamuna Bag. She shouted and called her parents and they came and separated the daughter from the clutches of the appellant. There¬after she asked the appellant regarding whereabouts of the de¬ceased and the appellant stated that he had left the deceased at Sohella. Accordingly, she sent her father to Sohella in search of the deceased, but her father returned back and informed that he did not get Rajib at Sohella. Thereafter P.W.4, brother of the appellant, was called and she along with P.W.4 again asked the appellant regarding whereabouts of the deceased and the appellant confessed to have killed the deceased and thrown him to Bhaludun¬grigarjanpatpahad. At that time her father P.W.6 was present at the entrance room. In cross-examination this witness has stated that when the appellant attempted to murder her daughter, they suspected and accordingly kept him in confinement in a room of their house. Only after arrival of P.W.4 when she along with her father were sitting with him in the house, the appellant knocked the door where he had been confined. Thereafter she and P.W.4 went inside and on being asked the appellant admitted to have murdered the deceased. P.W.6 is the informant and father-in-law of the appellant. He in his deposition has stated that at the time the appellant made an extra-judicial confession before P.W.5 he was present at the entrance room. P.W.4 in whose presence such extra-judicial confession is stated to have been made turned hos¬tile and did not support the case of the prosecution. On consid¬eration of the evidence of P.Ws.5 and 6, we find that prior to such extra-judicial confession the appellant had been kept in confinement. P.W.4 in whose presence such extra-judicial confession is stated to have been made turned hos¬tile and did not support the case of the prosecution. On consid¬eration of the evidence of P.Ws.5 and 6, we find that prior to such extra-judicial confession the appellant had been kept in confinement. The appellant had also initially not confessed to have killed the deceased and only after he was kept in confine¬ment, it is alleged that he made such a statement before the P.W.5 in the room which is claimed to have been heard by P.W.6. Under these circumstances, we are of the considered view that the appellant having been kept in confinement and having not made any extra-judicial confession prior to confinement, such an extra-judicial confession made before P.W.5 cannot be treated as volun¬tary. Moreover, as deposed by P.W.5 the appellant was not pulling on well with her and there is no reason why the appellant would have confidence in P.W.5 to make an extra judicial confession. 8. P.Ws.3 and 9 claim to have seen the deceased along with the appellant prior to the occurrence. Though P.W.3 in examina¬tion-in-chief stated that prior to the occurrence at about 4 P.M. while returning from field he had seen a boy aged about 3 to 4 years weeping and the appellant following him, but in cross-examination he admitted that he had not stated anything before the I.O. Similarly, P.W. 9 who also claims to have seen the deceased along with the appellant prior to the occurrence has stated that he was not summoned to attend the Court and on being requested by P.W.6 he had deposed in the Court. He has also stated that he was not examined by the police nor he had given any statement. Therefore, this witness for the first time was produced before the Court for deposing in the case even though he was not examined by the I.O. nor he was a charge-sheet witness. We are of the view that no reliance can be placed on the evidence of P.Ws.3 and 9 as they were not examined by police during investigation. Only other evidence available in the record is recovery of dead body from the hillock by P.Ws.7 and 8 and the evidence of P.W.1 who conducted post-mortem examination. We are of the view that no reliance can be placed on the evidence of P.Ws.3 and 9 as they were not examined by police during investigation. Only other evidence available in the record is recovery of dead body from the hillock by P.Ws.7 and 8 and the evidence of P.W.1 who conducted post-mortem examination. Even accepting the case of the prosecution that the dead body of the deceased was found by P.Ws.7 and 8 in the hillock, that by itself will not be sufficient to convict the appellant for commission of the offence. When the prosecution relies on circumstantial evi¬dence alone, it must prove all those circumstances which complete a chain pointing at the guilt of the appellant leaving no room to entertain a doubt. The prosecution having miserably failed in its efforts to prove the charge because of the reasons stated above, we have no hesitation to set aside the impugned judgment. 9. We, accordingly, allow the appeal and set aside the impugned judgment. It is stated that the appellant is in custody. If that be so, he be set at liberty forthwith, if his detention is not required in connection with any other case. B.K. PATEL, J. I agree. Appeal allowed.