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2012 DIGILAW 382 (ORI)

Adiga Kondagiri v. State of Orissa

2012-08-29

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT PRADIP MOHANTY, J. : This jail criminal appeal is directed against the judgment and order dated 27.09.2003 passed by the learned Additional Sessions Judge, Rayagada in Sessions Case No.15 of 2002 convicting the appellant under Sections 302/392/34, I.P.C. and sentencing him to undergo imprisonment for life for the offence under Section 302/34, IPC and rigorous imprisonment for three year for the offence under Section 392/34, IPC with the direction that both the sentences shall run concurrently. 2.The prosecution case is that on 26.10.2001 at about 12 noon the deceased, son of the informant, taking Rs.5000/- from his mother went to the house of accused Siva (since dead) of village Gotiguda. Since the deceased did not return home, on 28.10.2001 the informant along with his nephew proceeded to village Gotiguda in search of his son and got information from the villagers that they had seen his son (deceased) moving with Siva and the present appellant Adiga in the village on 26.10.2001. The informant did not find Siva in his house and returned to the village Mukundapur and while making enquiry one Gopi Gouda identified Siva, who arrived there along with a person. The informant asked Siva about his son (deceased) and to which he replied that his son (deceased) had come to him on 26.10.2001 but went away in a Trekker. Since the informant was not satisfied with the explanation of Siva, he brought both the accused persons (Siva and the present appellant Adiga) to village Debadala. When the villagers interrogated Siva, initially he denied but later admitted that on 26.10.2001 at 2.00 P.M. the deceased arrived before him and told him to have brought money for purchase of wooden plans and he along with the present appellant brought the deceased to Bada Danger Hill. Siva further admitted before the villagers that in a lonely place, he pressed the neck of the deceased by means of a rope which he was holding and as the deceased fell down, the present appellant picked up a piece of stone lying nearby and crushed it on the chest of the deceased, as a result of which, the deceased died at the spot. Thereafter, he brought out Rs.5000/- from the pocket of the deceased and removed the leather belt of the deceased whereas the present appellant removed the wrist watch from the hand of the deceased. Thereafter, he brought out Rs.5000/- from the pocket of the deceased and removed the leather belt of the deceased whereas the present appellant removed the wrist watch from the hand of the deceased. After hearing the incident, the informant along with other villagers proceeded to the spot and accused Siva showed them the place of incident where they found the dead body of the deceased. Thereafter, the informant and other villagers brought both the accused persons to Chandili Police Station and lodged a written report. The O.I.C. after registration of the case took up investigation and proceeded to the spot, conducted inquest over the dead body, sent it for post mortem examination, seized the stone, which was concealed under a tree, proceeded to the house of the present appellant and recovered the H.M.T. wrist watch of the deceased and the proceeded to the house of the accused Siva and recovered the leather belt of the deceased. After completion of investigation he submitted charge-sheet against both the accused persons under Sections 302/201/34 of the IPC. 3.On receipt of the charge-sheet, the learned Magistrate took cognizance of the offences and committed the case to the Court of Session. The learned Additional Sessions Judge, Rayagada framed charge against the present appellant as well as accused Siva under Sections 302/34, 201/34, 392/34, IPC read with Section 397, IPC. Both of the accused persons pleaded not guilty and claimed to be tried. From the side of the prosecution, ten witnesses were examined including the doctor and the investigating officer and eight documents were exhibited. The accused persons in their statements recorded under Section 313, Cr.P.C. took the plea of denial of prosecution allegation but did not choose to adduced any oral or documentary evidence in support thereof. During trial (after recording of the accused statement) as accused Siva died inside Sub-Jail, Rayagada, the case against him abated and the trial proceeded only against the present appellant. The learned Additional Sessions Judge taking into consideration the evidence adduced before him convicted and sentenced the present appellant as already stated hereinbefore and acquitted him of the charges under 201,397/34, IPC. 4.Mrs. Mohanty, learned counsel for the appellant assails the impugned judgment of conviction and sentence on the following grounds :- (i)Conviction of the present appellant cannot be made by utilising the extra judicial confession said to have been made by co-accused Siva (since dead). 4.Mrs. Mohanty, learned counsel for the appellant assails the impugned judgment of conviction and sentence on the following grounds :- (i)Conviction of the present appellant cannot be made by utilising the extra judicial confession said to have been made by co-accused Siva (since dead). (ii)Recovery of wrist watch of the deceased from the house of the present appellant is doubtful. (iii)The evidence of P.W.6, who stated to have seen the deceased moving with the present appellant and accused Siva, is not believable. (iv)There are major contradictions in the evidence of P.Ws.1 to 6, for which no reliance can be placed on their testimony. (v)There was unexplained delay in lodging the FIR, for which prosecution case is to be viewed with suspicion. (vi)No motive has been proved by the prosecution behind commission of the crime. 5.Mr. Sk. Zafuralla, learned Addl.Standing Counsel vehemently contends that P.W.1, who is the father of the deceased and informant of this case, in his evidence has categorically stated that while searching for his missing son (deceased) he located the present appellant and co-accused Siva (since dead) and brought them to village Debadala where in presence of the witnesses (P.Ws.2 and 4) accused-Siva confessed his guilt and also disclosed that he removed money from the waist pocket of the deceased and also one leather belt and the present appellant removed the wrist watch of the deceased. P.Ws.2 and 4 have corroborated the evidence of P.W.1. Seizure of the wrist watch of the deceased from the house of the present appellant, which has been implicitly proved by the I.O. (P.W.10) and P.W.5, directly implicates the present appellant with the crime. P.W.6 stated that he had seen the deceased moving with the present appellant and co-accused Siva on the Dasahara day. The above evidence forms a complete chain of circumstances which clearly proves the guilt of the present appellant and co-accused Siva (since dead). Therefore, there is no scope for this Court to interfere with the impugned judgment and order passed by the trial Court convicting the present appellant under Sections 302/392/34 of the IPC. 6.Perused the record and gone through the evidence of the witnesses minutely. P.W.1 is the informant and father of the deceased. Therefore, there is no scope for this Court to interfere with the impugned judgment and order passed by the trial Court convicting the present appellant under Sections 302/392/34 of the IPC. 6.Perused the record and gone through the evidence of the witnesses minutely. P.W.1 is the informant and father of the deceased. In his examination in Chief he stated that on 26.10.2001 his son (deceased) went to village Gotiguda by taking Rs.5000/- from his wife to meet accused Siva for purchase of wooden plants, but he did not return home. On the next day, coming back from the factory he learned that his son had not returned home. He searched for his son but could not trace him out. So, he along with his nephew (P.W.4) proceeded to village Gotiguda in search of his son. After making an enquiry, he went to the house of accused Siva but then he was not available. On further enquiry he came to learned from P.W.6 and another person that they had seen a boy aged about 20 years was moving in the company of accused Siva and the present appellant, but he could not trace out his son and accused Siva. Then he went to village Mukundapur and while he was enquiring about accused Siva and his son, one Gopi Gouda pointed out accused Siva and the present appellant to him who were standing on the road of Mukundapur. Then he asked accused Siva whereabouts of his son. First, accused Siva denied coming of his son to him but on his further asking accused-Siva told him that he arranged wooden planks for his son and made him to board a truck for return of J.K. Pur. On his request, both the accused persons came with him in search of his son. Then all of them including his nephew returned to his village Debadola. After reaching the village, he called some important villagers and narrating the entire matter he requested them to ascertain the whereabouts of his son from accused Siva. On being asked by the villagers although accused Siva initially pleaded lack of his knowledge but later he confessed that for lust of money he pressed the neck of the deceased by means of a rope and when the deceased fell down the present appellant struck stone on his chest, as a result of which the deceased died at the spot. He further confessed that after the death of the deceased, he removed cash of Rs.5000/- from his waist pocket along with the belt and the present appellant-Adiga removed the wrist watch from the hand of the deceased. This witness further stated that at the time of such confession by accused Siva, P.W.2-Suresh Chandra Panigrahi, Ashok Patro, Suresh Mishra, Gopi Patro and Amena Huika were present. On the next day morning, i.e., 29.10.2001 to locate the dead body of the deceased, he along with Ashok Patro, P.W.2 and other villagers went to Bada Danger taking accused Siva with them. Accused Siva then took them to the place of occurrence and showed the dead body of the deceased lying in the Bada Dangar. There he noticed a rope being tied the neck of the deceased. After seeing the dead body of the deceased, they came back to the village along with accused Siva. Thereafter, they took both accused Siva and the present appellant Adiga to Chandili Police Station and lodged the FIR. He proved the FIR (Ext.1) and his signature (Ext.1/1). In cross-examination he admitted that he had not seen the actual payment of Rs.5000/- by his wife to his son (deceased). He also admitted that he did not know accused Siva before he was identified to him by Gopi Gouda. Besides this, nothing has been elicited from this witness to discard his evidence completely. P.W.2 is a co-villager of the informant. In his examination in chief he stated that on 28.10.2001 at about 8.30 PM he went to village ‘Danda’ on being called by the informant. By that time, many others were assembled there. Both the accused persons were also present there. They asked the accused persons whereabouts of the deceased initially, accused persons denied their knowledge but on their further asking accused Siva confessed before them that the deceased had come to him on 26.10.2001 around 4.00 P.M. and he took him to Bada Danger along with the present appellant-Adiga to provide him planks. At Bada Dangar accused Siva pressed the neck of the deceased by means of a rope and when the deceased fell down the present appellant Adiga struck him by means of a stone, as a result of which the deceased died at the spot. After the death of the deceased, accused Siva removed Rs.5000/- from this person and the present appellant removed the wrist watch. After the death of the deceased, accused Siva removed Rs.5000/- from this person and the present appellant removed the wrist watch. He also proved the FIR (Ext.1), which was scribed by him, and his signature (Ext.1/2). He further proved the discovery statement (Ext.2) of accused Siva recorded by the police and his signature (Ext.2/1) as well as the seizure list (Ext.3) by which the stone (M.O.II) was seized and his signature (Ext.3/1). In cross-examination he denied the suggestion that accused Siva did not confess his guilt in his presence in the village. But, however, admitted that at the place where M.O.II was lying, other big and small stones were also lying scattered. Except this, nothing has been stated in favour of the accused. P.W.3 is a co-villager of the informant. He is a witness to the disclosure made by accused Siva before the police and also a witness to the leading to discovery and seizure of the stone (M.O.II) vide seizure list (Ext.3). He proved the seizure (Ext.3) and his signature (Ext.3/2). P.W.4 is an another co-villager of the informant who corroborated the statement of P.W.2 with regard to the confession made by the accused Siva in presence of the present appellant. P.W.5 is a co-villager of accused appellant and a witness to the seizure of wrist watch fro the house of accused appellant at his instance. In his examination in chief he stated that the present appellant led the I.O. to his house, brought out a wrist watch from his house and produced the same before the I.O., who seized the same under Ext.5 in his presence. He proved the seizure (Ext.5) and his signature (Ext.5/1). In cross-examination, he admitted that while he was standing in front of the house of the present appellant, the police officer came out from inside the house of the present appellant with the seized wrist watch in his hand. He also admitted that prior to the seizure, he had never seen the present appellant wearing the wrist watch at any point of time. P.W.6 is a co-villager of accused Siva who disclosed before the informant (P.W.1) and P.W.4 about the deceased moving in the company of accused Siva and present accused and identified both the accused persons to them. In Court this witness identified both P.Ws.1 and 4, who asked him about their missing boy. P.W.6 is a co-villager of accused Siva who disclosed before the informant (P.W.1) and P.W.4 about the deceased moving in the company of accused Siva and present accused and identified both the accused persons to them. In Court this witness identified both P.Ws.1 and 4, who asked him about their missing boy. P.W.7 is the doctor who conducted post-mortem over the dead body of the deceased. He opined that the cause of death was due to asphyxia as a result of strangulation. He had also examined the stone (M.O.II) and rope (M.O.IV) and opined that the death of the deceased could be caused by the said instruments. He has proved the post-mortem report (Ext.7) and opinion report (Ext.8). P.W.8 is the police constable who was commanded to guard the dead body of the deceased and carry the same to Rayagada hospital for post-mortem. P.W.9 is the police constable in whose presence the I.O. seized the waring apparels of the deceased and a piece of rope under Ext.9 on production by P.W.8 to whom the same were handed over by the doctor after post-mortem. P.W.10 is the O.I.C., Chandili P.S., who registered the case by drawing formal F.I.R. and took up investigation. During investigation, he examined the informant and other witnesses, sent the dead body for post mortem examination, recorded the disclosure statement made by accused Siva under Section 27 of the Evidence Act and seized the leather belt of the deceased from the house of accused Siva and the wrist watch of the deceased from the house of the present accused-appellant. In cross-examination he admitted that after recording the statement of the witnesses under Section 161 Cr.P.C., he had recorded the statement of accused Siva under Section 27 of the Evidence Act. 7.From the above scrutiny of evidence, it is crystal clear that the death of the deceased was homicidal. But, there is no eyewitness to the death of the deceased and the prosecution wholly depends upon the circumstantial evidence, such as, extra judicial confession and leading to discovery. P.Ws.1, 2 and 4 are witnesses to the extra judicial confession made by accused Siva, who having been died during the course of trial the case against him stood abated. But, there is no eyewitness to the death of the deceased and the prosecution wholly depends upon the circumstantial evidence, such as, extra judicial confession and leading to discovery. P.Ws.1, 2 and 4 are witnesses to the extra judicial confession made by accused Siva, who having been died during the course of trial the case against him stood abated. From the evidence of P.Ws.1, 2 and 4 it appears that accused Siva in presence of the present appellant confessed before them that at Bada Dangar he pressed the neck of the deceased by putting a rope around his neck and when the deceased fell down the present appellant struck him by means of a stone on his chest, as a result of which the deceased died. Then, he took away Rs.5000/- from the waist pocket of the deceased and the present appellant removed the wristwatch worn by the deceased. After making such confession accused Siva led them to Bada Dangar where they found the dead body of the deceased lying. Their testimony gets ample corroboration from the medical evidence, according to which the death of the deceased was due to asphyxia as a result of strangulation and at the time of post-mortem a jute-rope was found tied around the middle of the neck in four rounds with knot over the middle of the neck. The evidence of P.Ws.1, 2 and 4 with regard to the extra judicial confession of accused Siva, which clearly implicates the present appellant with the murder of the deceased, inspires confidence and is worthy of credence. But the fact remains whether, as contended by the learned counsel for the appellant, liability of the present appellant can be fastened basing on the extra judicial confession of co-accused Siva. The apex Court in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 held as follows :- “It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. The apex Court in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 held as follows :- “It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary, and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true; and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. As we have already indicated, it has been a recognised principle of the administration of criminal law in this Country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclied to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.”. That is precisely what has happened in these appeals.”. This Court in Bhasala Singh v. State of Orissa, 1987 (II) OLR 317 came to hold that the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. From the decisions referred to above it follows that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion. The Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt. Therefore, it is not correct to say that the present appellant cannot be convicted by utilising the extra judicial confession made by co-accused Siva, if other materials pointing to his guilt are available on record. 8.The above settled position of law, now it is to be seen apart from the confession of co-accused Siva whether there are any other materials on record implicating the present appellant with the murder of the deceased. It is the evidence of the I.O. (P.W.10) that after seizure of stone (M.O.II) at the instance of accused Siva, he proceeded to village Sarabuguda and searched the dwelling house of the present appellant and recovered one H.M.T. wristwatch belonging to the deceased. This is evident from the seizure list (Ext.5). P.W.5, who is a co-villager of the appellant, deposed that on 29.01.2001 at about 3.00 PM in his presence appellant went inside his house, brought out a wristwatch bearing make name “H.M.T. Dipti” and produced the same before the O.I.C., who seized the same under Ext.5. He proved the seizure list (Ext.5) and his signature (Ext.5/1). P.W.5, who is a co-villager of the appellant, deposed that on 29.01.2001 at about 3.00 PM in his presence appellant went inside his house, brought out a wristwatch bearing make name “H.M.T. Dipti” and produced the same before the O.I.C., who seized the same under Ext.5. He proved the seizure list (Ext.5) and his signature (Ext.5/1). This apart, P.W.6 deposed that he had seen the deceased moving with the appellant and accused Siva on Dasahara day, i.e., just prior to his death. These circumstances, which are clearly incriminating the appellant, corroborated by the evidence of P.Ws.1, 2 and 4 with regard to extrajudicial confession of co-accused Siva form a complete chain of circumstances. 9.Coming to the contention of the learned counsel for the appellant with regard to delay in lodging the FIR, it is seen that the deceased left his house and went to the house of accused Siva on 26.10.2001. When deceased did not return home till 27.10.2001, on 28.10.2001 P.W.1 and his nephew (P.W.4) went to the village of accused Siva. In the night of 28.10.2001, P.Ws.1 and 4 traced out both the accused persons and brought them to their village. In the said night, accused Siva confessed about the incident before their villagers. On the next day, i.e., 29.10.2001 they went along with accused Siva to Bada Dangar, located the dead body and thereafter lodged the F.I.R. In this view of the matter, it cannot be said that there was delay in lodging the FIR. As regards motive, it clearly reveals from the evidence of P.Ws.1, 2 and 4 that accused Siva confessed before them that for money he pressed the neck of the deceased using a rope and when the deceased fell down the present appellant struck a stone on his chest as a result of which the deceased died. Their evidence gets corroboration from the fact of recovery of the wristwatch, belt, etc. from the houses of the present appellant and accused Siva. Therefore, it cannot be said that the motive behind the murder has not been proved by the prosecution. 10.For all the above reasons, this Court holds that the trial Court has rightly convicted the appellant under Sections 302, 392/34, IPC and there is no scope for this Court to interfere with the impugned judgment of conviction and sentence passed by the trial Court. 11.In the result, the Jail Criminal Appeal is dismissed. 10.For all the above reasons, this Court holds that the trial Court has rightly convicted the appellant under Sections 302, 392/34, IPC and there is no scope for this Court to interfere with the impugned judgment of conviction and sentence passed by the trial Court. 11.In the result, the Jail Criminal Appeal is dismissed. B.K. MISRA, J.I agree. Appeal dismissed.