Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 437 (ORI)

Hari Dehury v. State of Odisha

2014-07-23

R.DASH, S.PANDA

body2014
JUDGMENT S. PANDA, J. : This appeal has been filed by the appellant challenging the judgment dated 12.7.2004 passed by the learned Sessions Judge, Sundargarh in S.T. Case No.106 of 1998 convicting the appellant under Section 302 I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for one year. The Court below further directed that the period of detention as U.T.P. be set off under Section 428 of Cr.P.C. 2.The case of the prosecution is that on 26.12.1997 due to some dispute one Hadu Naik came to assault the appellant by means of a lathi but the appellant on a heat of passion assaulted Hadu Naik on his head by means of an axe causing his instantaneous death. The appellant disclosed the said fact before the Ward Member of Tilkala Village on 27.12.1997 at about 7.00 A.M. in the morning. On hearing the said fact, the Ward Member came to the spot and found that the deceased was lying under the Jackfruit Tree in between the house of the appellant and the deceased. Thereafter the Ward Member called upon the Villagers namely Sukadev Nayak, Kamar Dehury and Sukutu Nayak to the spot. There the appellant confessed his guilty before all of them that as the deceased attempted to attack him being angry by the said act of the deceased, he has killed the deceased. On 27.12.1997 the Ward Member of Tilkala Village lodged an F.I.R. before the Officer-in-Charge of Mahulpada Police Station at 5.00 P.M., which was registered as Mahulpada P.S. Case No.15 of 1997 for commission of offences under Section 302 of I.P.C. and investigation commenced. The appellant also surrendered before the Officer-in-Charge of the concerned Police Station. In course of Investigation the Investigating Officer examined the informant and other witnesses and sent the dead body for postmortem examination, seized the weapon of offence, blood stained earth from the spot and wearing apparels of the appellant as well as the deceased and forwarded all the material objects for chemical examination. After completion of investigation, charge sheet was submitted against the appellant under Section 302 of I.P.C. 3.The prosecution in order to establish the charges examined as many as eight witnesses and exhibited several documents which were marked as Exts.1 to 13. After completion of investigation, charge sheet was submitted against the appellant under Section 302 of I.P.C. 3.The prosecution in order to establish the charges examined as many as eight witnesses and exhibited several documents which were marked as Exts.1 to 13. Out of the witnesses examined by the prosecution P.W.1 is the seizure witness of weapon of offence. P.Ws.2 and 3 are the Co-villagers of the appellant before whom he made extra judicial confession that he has killed the deceased. P.W.4 is a post occurrence witness. P.W.5 is the Doctor, who has conducted postmortem examination on the dead body. P.W.6 is a witness to the seizure of wearing apparels of the deceased. P.W. 7 is the wife of the deceased, who turned hostile in course of trial and P.W. 8 is the Investigating Officer. However, the prosecution has not examined the informant on the plea that he has left the village after enquiry and his whereabouts was not known. The plea of the appellant was complete denial of the prosecution case and no witness was examined on his behalf. 4.The trial Court on analyzing the evidence and on the basis of extra judicial confession made by the appellant before P.Ws.2 and 3 and the circumstantial evidence i.e. chemical examination report of the weapon of offence and other seized articles held that the prosecution was able to prove its case beyond all reasonable doubt. On such finding the trial Court found the appellant guilty under Section 302 of I.P.C. and convicted him thereunder. 5.Learned counsel appearing for the appellant submitted that the so called extra judicial confession made by the appellant before P.Ws.2 and 3 as held by the learned trial Court is not sustainable as it is a weak piece of evidence and the same should not be accepted as an evidence as per the materials available on record. Therefore, the impugned judgment of conviction and sentence need be interfered with. In support of his contention he has relied on the decisions reported in (2014) 58 OCR 392 and (2011) 49 OCR (SC) 684. 5.1In the case of State of Orissa v. Minaketan @ Tekaru Seth reported in (2014) 58 OCR 392 this Court held that while dealing with a circumstance of extra-judicial confession the Court must keep in mind that it is a very weak type of evidence and require appreciation with great concern. 5.1In the case of State of Orissa v. Minaketan @ Tekaru Seth reported in (2014) 58 OCR 392 this Court held that while dealing with a circumstance of extra-judicial confession the Court must keep in mind that it is a very weak type of evidence and require appreciation with great concern. Extra judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility’. 5.2In the case of Ranjit Singh v. State of Punjab reported in (2011) 49 OCR (SC) 684 the apex Court held that extra judicial confession is an extremely weak kind of evidence and conviction on its basis alone is rarely recorded. 6.Mr. Sk. Zafarulla, learned Addl.Standing Counsel submitted that on the basis of extra judicial confession conviction can be upheld as held by the apex Court in the case reported in (2013) 3 SCC 322 . Therefore, the impugned judgment of conviction and sentence need be confirmed. 7.Considering the rival submissions of the parties and after going through the materials available on record, it appears that as per the prosecution case the appellant has confessed his guilty before P.W.2. However, the appellant has specifically stated in the cross-examination that it is a fact that he has not stated anything before him regarding the death of the deceased and on being asked by the Court he has also stated that the said statement made by him was correct. Therefore, it cannot be held that the appellant has made extra judicial confession before P.W.2. 7.1Similarly P.W.3 is another witness before whom the appellant has made extra judicial confession. However, on cross-examination on the suggestion of the defence he has admitted that the Ward Member of his Village acts as the Village Headman and generally they obey his instructions. He further stated that he cannot say if a meeting was convened by the Ward Member in the night about this occurrence as he had been to jungle. However, on cross-examination on the suggestion of the defence he has admitted that the Ward Member of his Village acts as the Village Headman and generally they obey his instructions. He further stated that he cannot say if a meeting was convened by the Ward Member in the night about this occurrence as he had been to jungle. He has also stated that the Ward Member frightened the Villagers as there was no eyewitness to the occurrence and if the Villagers will not implicate some person, then the Police shall implicate all the Villagers in this case. 7.2P.W. 4 also in his cross-examination has stated that the Ward Member and the Investigating Officer have created a false case against the appellant and the appellant had not committed any murder. He has also stated that the Ward Member had stated that as no eyewitnesses are available, unless a person is named to be the assailant, the Police may arrest the villagers in connection with the murder of the deceased. From the F.I.R.-Ext.5 it appears that P.W.4 was present along with other villagers at the spot being called by the Ward Member in the morning of 27.12.1997, the next day of the occurrence. 7.3P.W.5 is the Doctor who conducted postmortem examination, in his examination has saved that he has found the axe was struck to the back of the head with its metal portion inside the head of the deceased. There was bleeding from nose and mouth and presence of rigor mortis. He also found the following external injuries :- (i)An incised wound of 3” x ½” x 1 c.m. size situated over the back side of the head. The injury was a clean-cut averted well defined one. The width of the wound was bigger than the width of the weapon. The length was greater than the width and breadth of the wound. The shape of the wound was spindle shaped. (ii)Incised wound of 8 ½ x 1 C.m. x 7 c.m. situated over occipital region of right side of the head. (iii)Abrasion of 2 x ½ c.m. situated below the right axilla. (iv)Abrasion of the size 1 x ½ c.m. situated over the right side of the neck. The Doctor also found the following internal injuries :- (i)One depressed fracture situated over the right occipital part of the skull. (iii)Abrasion of 2 x ½ c.m. situated below the right axilla. (iv)Abrasion of the size 1 x ½ c.m. situated over the right side of the neck. The Doctor also found the following internal injuries :- (i)One depressed fracture situated over the right occipital part of the skull. Membrane was congested and had ruptured the right occipital lobe of the brain. The spinal cord was congested. (ii)The chambers of the heart were empty. The stomach contained undigested food particles like rice and semi liquid food. He has also stated that all the injuries were ante mortem in nature and were sufficient to cause to death in the ordinary course of nature. 8.The settled position of law with regard to extra-judicial confession is well known as a weak piece of evidence, although in given situations reliance thereupon can be placed. It is a rule of caution where the Court would generally look for an independent reliable corroboration before placing any reliance upon such extra judicial confession. It is no doubt true that extra-judicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is cast upon the Court to look for corroboration from other reliable evidence on record. Such evidence requires appreciation with a great deal of care and caution. if such an extra-judicial confession is surrounded by suspicious circumstances, needless to state that its credibility becomes doubtful and consequently it loses its importance. 8.1The apex Court in the case of State of Andhra Pradesh v. Kanda Gopaludu reported in (2005) 13 SCC 116 held that extra-judicial confession is admissible if it inspired confidence and made voluntarily. 8.2The apex Court in the case of Kavita v. State of Tamil Nadu reported in (1998) 6 SCC 108 held as follows :- “There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses.” 8.3In the case of Maghar Singh v. State of Punjab reported in (1975) 4 SCC 234 the apex Court held that if the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be founded on such evidence alone. 9.In view of the above settled position of law, the evidentiary value of the extra-judicial confession must be judged in the facts and circumstances of each individual case. Extra-judicial confession, if voluntarily made and fully consistent with the circumstantial evidence, no doubt, establishes the guilt of the accused. The extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. However, the extra-judicial confession cannot ipso facto be termed to be tainted. Before the Court proceeds to act on the basis of an extra-judic ial confession, the circumstances under which it is made, the manner in which it is made and the persons to whom it is made must be considered along with the two rules of caution; (i) whether the evidence of confession is reliable and (ii) whether it finds corroboration. 10.In the case at hand the evidence of P.W.3, before whom the appellant has confessed regarding commission of offence cannot be accepted as reliable as the same do not inspire confidence. The said extra-judicial confession was also not corroborated by any other witnesses. Therefore, the authenticity of the extra-judicial confession is not free from doubts. In so far as the chemical examination report of the seized articles are concerned, it appears that the Napkin, which was marked as Ext.A is the wearing apparels of the appellant, which contained human blood few small patches and is deteriorated and its group was not known. Therefore, the said chemical examination report is of no assistance to the prosecution case. Therefore, the said chemical examination report is of no assistance to the prosecution case. 11.In view of the above discussion of the evidence, this Court holds that prosecution has not been able to establish the charges beyond reasonable doubt against the appellant and the links in the chain of circumstances were not completed. Hence, the evidence adduced by the prosection against the appellant is not sufficient to justify his conviction under Section 302 of I.P.C. 12.On the above conclusion, this Court sets aside the impugned judgment dated 12.7.2004 passed by the learned Sessions Judge, Sundargarh in S.T. Case No.106 of 1998 convicting the appellant for commission of offence under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life as well as the sentence of fine. The appellant is acquitted of the said charge. The bail bond furnished by the appellant stands discharged. The Jail Criminal Appeal is accordingly allowed. R. DASH, J.I agree. Appeal allowed.