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2011 DIGILAW 270 (ORI)

Sukun Kissan v. State of Orissa

2011-05-04

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT S.K. MISHRA, J. — The appellant assails her conviction under Section 302 of the Indian INDIAN PENAL CODE, 1860, hereinafter referred to as the ‘IPC’ for brevity, in S.T. Case No.94/11 of 2000 of the Court of Additional Sessions Judge, Jharsuguda. 2.The case of the prosecution, bereft of all unnecessary details, is that the deceased Dutia Kissan was working in the house of Goura Kishore Patel at the time of occurrence. It is alleged that on 21.10.1999 around 12 p.m. the wife of P.W.5 sent the deceased to Jharsuguda for procuring ‘Mudhi’ and other sundry articles. Since thereafter the deceased did not return to the house of the informant. Niranjan Kissan and others started enquiring regarding whereabouts of the deceased. In curse of such search, they found the dead body of the deceased lying in Dalki forest near village Kumudapalli with cut injuries on his head. The bi-cycle and other articles were lying nearby. Thereafter, P.W.1 submitted an FIR in the Jharsuguda Police Station in writing. The investigation of the case was taken up and upon completion of investigation, the Investigating Officer laid charge-sheet against the present appellant for the offence under Section 302 of the IPC. The plea of the accused is that of complete denial of the entire occurrence. 3.The prosecution, in order to prove its case, examined 10 witnesses. P.W.1 is the informant of the case. P.Ws. 2 and 3 are the two witnesses before whom the accused had allegedly made extra-judicial confession regarding murder of Dutia Kissan. P.W.4 is another witness, who deposed to have seen the deceased leaving the house of the accused on a cycle being followed by the accused with a ‘Budia’. P.W.5 is the person, in whose house, Dutia Kissan was working. P.W.6 is a seizure witness and P.W.7 is a witness regarding the conduct of the deceased on that day. Rest of witnesses are official witnesses. P.W.8 is the doctor, who conducted post-mortem examination on the dead body of the deceased Dutia Kissan and P.Ws. 9 and 10 are the two Investigating Officers. The defence, on the other hand, has not examined any witness on its behalf to substantiate its plea. 4.Admittedly, the prosecution has not led any direct evidence regarding the complicity of the appellant in commission of the crime. It bases its case on the following components of evidence. i.extra-judicial confession allegedly made before P.Ws. 2 and 3. The defence, on the other hand, has not examined any witness on its behalf to substantiate its plea. 4.Admittedly, the prosecution has not led any direct evidence regarding the complicity of the appellant in commission of the crime. It bases its case on the following components of evidence. i.extra-judicial confession allegedly made before P.Ws. 2 and 3. ii.the incident where P.W.4 saw the deceased being followed by the accused with a ‘Budia’ towards the forest and iii.the evident of the doctor, who on post-mortem examination came to the conclusion that the deceased died, as a result of several incised injuries on his head and his death was homicidal in nature. 5.The learned counsel for the appellant did not challenge the findings of the trial Court regarding the homicidal death of the deceased but argued that the evidence on record is not sufficient to come to the conclusion that the appellant has committed murder of the deceased. She further submitted that the evidence of extra-judicial confession is a weak piece of evidence and it cannot be relied upon without independent corroboration and in her opinion the last seen theory as relied upon by the trial Court is not sufficiently corroborating the statement of the witnesses regarding the extra-judicial confession. The learned Addl. Government Advocate, on the other hand, supported the findings recorded by the trial Court and prayed to dismiss the appeal. 6.Since it is not disputed that the death of the deceased was homicidal in nature, it is not necessary to examine the evidence on that score. It is accepted that the deceased died due to the injuries found on his person, which can be caused by sharp cutting weapon as deposed by the P.W.8 and the death was homicidal in nature. The only question remains to be decided in this case is whether there are sufficient evidence on record to come to the conclusion that the appellant did the deceased to death by inflicting the blows by means of a ‘Budia’ on his person. 7.In this regard, the prosecution relies heavily on the evidence of P.Ws. 2 and 3. The only question remains to be decided in this case is whether there are sufficient evidence on record to come to the conclusion that the appellant did the deceased to death by inflicting the blows by means of a ‘Budia’ on his person. 7.In this regard, the prosecution relies heavily on the evidence of P.Ws. 2 and 3. P.W.2, Ashok Sahariya has stated on oath that on 22.10.1999, at about 4 p.m., the accused came to him and confessed to have killed Dutia Kissan by giving four to five blows with a ‘Budia’ and abandoned the dead body of the deceased in the jungle and further disclosed to have thrown the ‘Budia’ at the spot. It is further stated by this witness on oath that the accused Sukun Kissan also disclosed before him that the deceased Dutia Kissan was in her house in the morning of 21.10.1999 and at that time Bhaskar Patel @ Thuntha of Ainlamal also arrived at her house and on seeing that Thuntha, Dutia Kissan told her ‘Ja to Ghaita Ashigala’ for which she got annoyed. It is further stated by this witness that the appellant confessed before him that Dutia Kissan used to come and stay with her and had physical relationship with her prior to occurrence and she had also confessed that on 21.10.1999 around 2.30 p.m. Dutia Kissan came to her house again and she asked Dutia Kissan to procure liquor and after Dutia Kissan came with liquor he and the appellant consumed liquor and proceeded to Dalki Jungle to bring fire wood. It is further stated by this witness that the appellant further confessed before him that she directed the deceased Dutia Kissan to have physical relationship at that place but Dutia Kissan was unable to cohabit with her. Hence, the appellant got enraged and brought out the ‘Budia’ with which she assaulted on the head of the deceased causing his death and thereafter took away Rs.350/- from the person of the deceased. This witness admits he belongs to ‘Ganda’ caste whereas the accused belongs to ‘Kisan’ caste. He further stated that he has the acquaintance with the appellant and that the appellant is a lady of easy virtue having very bad reputation. In cross-examination he has also admitted that when the appellant made extra-judicial confession before him, P.W.3 Fakira Bhainsa was present. This witness admits he belongs to ‘Ganda’ caste whereas the accused belongs to ‘Kisan’ caste. He further stated that he has the acquaintance with the appellant and that the appellant is a lady of easy virtue having very bad reputation. In cross-examination he has also admitted that when the appellant made extra-judicial confession before him, P.W.3 Fakira Bhainsa was present. 8.P.W.3, Fakira Bhainsa has stated on oath that on 22.10.1999, at about 4 p.m., after finishing Durga Puja he and Ashok Sahariya were returning from Puja Mandap and were discussing about the missing of Dutia. He further stated that while they were crossing the house of the accused, the appellant called them and confessed before them that she has killed Dutia Kissan with a ‘Budia’ in Dalki Jungle and directed them to go to Dalki Jungle and see the dead body of the deceased lying there. Then, he has gone to describe the confessional statement made by the appellant in presence of P.W.2 and himself. 9.Reading the entire evidence of P.Ws. 2 and 3, it is clear that as far as the place of confession is concerned, there is a contradiction between these two witnesses. P.W.2 stated that while he himself and Fakira Bhainsa were talking, the appellant came and confessed before them but P.W.3 has stated while they were crossing the house of the accused, the accused came and confessed before them. Further more, the prosecution has not led evidence to show that the appellant has any special reason of making confessional statement before these two witnesses. Section 24 of the Indian Evidence Act, 1872 reads as follows:- “Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. Further more, the prosecution has not led evidence to show that the appellant has any special reason of making confessional statement before these two witnesses. Section 24 of the Indian Evidence Act, 1872 reads as follows:- “Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused persons grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.” A plain reading of the provision makes it abundantly clear that confessions shall not be relevant if it is caused by inducement, threat, promise etc. But mere absence of inducement, threat, promise etc. is not enough to make the confessions admissible. Any extra-judicial confession to be admissible and relevant requires that the person making confession would gain any advantage or avoid any evil of a temporal nature. In simple words, prosecution must establish the reasons for the accused to repose confidence in him. In this case no evidence is forthcoming on that aspect of the extra-judicial confession. 10.The learned counsel for the appellant relying on the reported case of Jura Purty vs. State of Orissa, (2009) 44 OCR-page-3 submits that extra-judicial confession is essentially a weak piece of evidence. Conviction can be based on such evidence if it is found to be trustworthy, but as a matter of prudence, the Courts always look for corroboration from independent source. In the said case, it is also decided that the prosecution must also establish the reason why the accused reposed confidence on the person before whom such confession was made. The observation made in the said decisions is relevant to the case in hand as pointed earlier there is certain contradictions between P.Ws. 2 and 3. Moreover evidence of P.W.10 shows that P.W.2 had not stated before him under Section 161 Cr.P.C. whether the accused Sukun Kissan made extra-judicial confession before him and P.W.2 nor the exact time was stated before him. 2 and 3. Moreover evidence of P.W.10 shows that P.W.2 had not stated before him under Section 161 Cr.P.C. whether the accused Sukun Kissan made extra-judicial confession before him and P.W.2 nor the exact time was stated before him. On the contrary, P.W.3 has stated before the I.O. that the accused made such extra-judicial confession in the evening. Thus, these being the salient features of the extra-judicial confession available in this case, we are of the opinion that it is not wholly trustworthy and it cannot be acted upon without independent corroboration. 11.The next component of evidence which comes forth in this case is the last seen theory as stated by P.W.4. P.W.4 has stated that a year, prior to his deposition, in the court on the date of Durga Puja he found Dutia Ping leaving the house of the accused on his bi-cycle being followed by the accused, who was armed with a ‘Budia’. Last seen theory can be placed into service only when the accused and the deceased were seen together and immediately thereafter the deceased was found to be dead. In other words, a time gap between the last seen together as well as death of the deceased should be so short that there should be no chance of any other person intervening in the meantime and committing murder of the deceased. In this case, the death of the deceased was disclosure only on 22.10.1999, i.e. about 24 hours after P.W.4 saw the deceased and the accused together. Therefore, the last seen theory cannot be pressed into service in this case. 12.Accordingly having found that the extra-judicial confession allegedly made by the appellant to be untrustworthy and the only other component of evidence, i.e. last seen theory not being applicable to this case, we are of the opinion that the prosecution failed to prove its case by leading clear and convincing evidence. Hence, we are unable to concur the findings recorded by the learned trial Judge and accordingly set aside the same. In the result, the appeal is allowed. The Judgment of conviction and the order of sentence are hereby set aside. The accused, who is in jail custody be set at liberty forthwith if her detention is not required in any other case. L. MOHAPATRA, J.I agree. Appeal allowed.