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2015 DIGILAW 30 (ORI)

Rameswar Badi v. State of Orissa

2015-01-16

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT : S.K.SAHOO, J. The appellant faced trial in the court of learned Sessions Judge, Sundargarh in Sessions Trial No.103 of 2001 for offence punishable under section 302 IPC for committing murder of his covillager Jaganath Gardia (hereafter “the deceased”) on 6.11.2000 at about 8 p.m. by means of an axe. The learned trial court vide impugned judgment and order dated 2.8.2004 held the appellant guilty under section 302 IPC and accordingly convicted him of such offence and sentenced to undergo imprisonment for life. 2. On 7.11.2000 at 1.00 a.m. P.W.1 Narayan Deuria appeared before the Inspector-in-charge of Rajgangpur police station along with his co-villager Butia Ekka and orally reported about the incident which was reduced into writing and treated as FIR. It is the prosecution case, as per FIR (Ext.1) that on 6.11.2000 evening at about 8.00 p.m. P.W.1 had been to the house of Gram Rakhi Tikeswar Badi (P.W.2) to take dinner. After finishing the dinner while P.W.1 was washing his hands, at that time the appellant who is the brother of P.W.2 arrived there with a Budia (axe) and told that the deceased had come to his house in the evening consuming liquor and started quarrel with him for which being enraged, he assaulted the deceased by means of the Budia (axe) and dealt him about 8 to 10 blows and left him dead in his courtyard. P.W.1, P.W.2, P.W.3, P.W.4 and others proceeded to the house of the appellant and found the deceased lying dead in the courtyard of the appellant with bleeding injuries. The Inspector-in-charge directed Jagjiban Patel (P.W.12), Sub-Inspector of Police, Rajgangpur police station to take up investigation. During course of investigation, P.W.12 examined the informant and proceeded to the spot and held inquest over the dead body vide inquest report (Ext.11). He also prepared the spot map and sent the dead body for post mortem examination to Government Hospital, Rajgangpur. The I.O. seized blood stained and sample earth, one stone having blood stains under seizure list (Ext.3). He also seized the Budia (axe) on production by P.W.1 under seizure list Ext.2. The appellant was arrested on 8.11.2000 in his village. The wearing apparels of the deceased were seized on being produced by the constable under seizure list (Ext.9). The wearing apparels of the appellant i.e., red colour banian and striped lungi were seized under seizure list Ext.8. He also seized the Budia (axe) on production by P.W.1 under seizure list Ext.2. The appellant was arrested on 8.11.2000 in his village. The wearing apparels of the deceased were seized on being produced by the constable under seizure list (Ext.9). The wearing apparels of the appellant i.e., red colour banian and striped lungi were seized under seizure list Ext.8. The nail clippings of the appellant and his blood sample were also collected at the Government Hospital, Rajgangpur which were seized under seizure list (Ext.7). The I.O. produced the weapon of offence i.e., Budia (axe) before the doctor who had conducted post mortem examination and sought for her opinion as to whether the injuries can be possible by such weapon. The material objects seized in the case were produced before the learned J.M.F.C., Rajgangpur and on the prayer of the I.O., those were sent for chemical examination. The I.O. also sent requisition to the Tahasildar, Rajgangpur to depute a R.I. for demarcation of the spot of occurrence and received the spot map prepared by the R.I. and after completion of investigation submitted charge sheet against the appellant under section 302 IPC. 3. The defence plea is one of denial. 4. In order to prove its case, the prosecution examined twelve witnesses. P.W.1 Narayan Deuria is the informant in the case and he stated about the extra-judicial confession of the appellant. He further stated to have noticed the dead body of the deceased lying in the courtyard of the house of the appellant with bleeding injuries. He is also a witness to the seizure of axe, blood stained earth, sample earth and stone etc. P.W.2 Tikeswar Barik is the elder brother of the appellant and he has also stated about the extra-judicial confession of the appellant. He further stated to have found the dead body of the deceased lying in the courtyard of the appellant. P.W.3 Amresh Khadia is a formal witness who stated that the appellant was residing with his minor daughter in a house in village Talkudar and maintaining himself by collecting fire wood. P.W. 4 Albis Soreng stated to have found the dead body of the deceased lying in front of the courtyard of the appellant. P.W.5 Sankar Deuria is a witness to the inquest. P.W. 4 Albis Soreng stated to have found the dead body of the deceased lying in front of the courtyard of the appellant. P.W.5 Sankar Deuria is a witness to the inquest. P.W.6 Ujjala Kumar Brahma was the Inspector-in-charge, Rajgangpur police station who reduced the oral report of P.W.1 into writing and treated the same as FIR. P.W.7 Dr. Arati Satpathy conducted post mortem examination over the dead body of the deceased at Rajgangpur Government Hospital and proved her report (Ext.4). She also collected the blood sample and nail clippings of the appellant on the written requisition of the I.O. She examined the weapon of offence on being produced by the I.O. and opined that the injuries found on the dead body can be possible by such weapon. P.W.8 Bhimsen Badi did not support the prosecution case and he was declared hostile. P.W.9 Saheba Kalo was the Constable attached to Rajgangpur police station who accompanied the appellant to the hospital at the time of collection of nail clippings and blood sample. He is also a witness to the seizure of wearing apparels of the appellant. P.W.10 Peter Toppo is also another constable who stated about the seizure of wearing apparels of the appellant and his blood sample and nail clippings. P.W.11 Netrananda Pan is another constable who stated about the collection and seizure of nail clippings and blood sample of the appellant. P.W.12 Jagjiban Patel was the Sub-Inspector of police, Rajgangpur Police station who is the Investigating Officer of the case. 5. That so far as the conviction of the appellant under section 302 IPC is concerned, it is first to be seen as to how far the prosecution has established that it is a case of homicidal death. The prosecution apart from relying upon the inquest report (Ext.11) has examined P.W.7 Dr. Arati Satpathy who conducted post mortem examination over the dead body of the deceased on 7.11.2000 at Rajgangpur Government Hospital and noticed lacerated wounds, cut wound and abrasion on the dead body. The doctor opined that all the injuries are ante mortem in nature and the cause of death was due to haemorrhage and shock and injuries to vital organ like heart. She further opined that the injuries were sufficient in ordinary course of nature to cause death of the deceased. The evidence of the doctor has remained unchallenged. The doctor opined that all the injuries are ante mortem in nature and the cause of death was due to haemorrhage and shock and injuries to vital organ like heart. She further opined that the injuries were sufficient in ordinary course of nature to cause death of the deceased. The evidence of the doctor has remained unchallenged. After perusing the evidence on record, the post mortem examination report (Ext.4) and the statement of P.W.7 Dr. Arati Satpathy, we are of the view that the prosecution has proved the death of the deceased to be homicidal in nature. 6. In this case admittedly there is no direct evidence as to who committed the murder, when and how it was committed. The prosecution case is mainly based on circumstantial evidence i.e, the extra-judicial confession stated to have been made before P.W.1 and P.W.2, the recovery of axe from the possession of the appellant, the seizure of the wearing apparels stated to be stained with blood and the recovery of the dead body of the deceased in front of the house of the appellant in the courtyard. 7. So far as the extra-judicial confession is concerned, P.W.1 has stated that the appellant arrived in the house of his brother Tikeswar Badi (P.W.2) and he was holding an axe and stated that he has killed a person. When he asked the appellant as to who had been killed by him, the appellant replied that he had killed the deceased and further threatened P.W.1 that in case he picked up dispute with him he would also be killed. P.W.1 advised P.W.2 to control the appellant and accordingly P.W.2 took away the axe from the hands of the appellant. P.W.2 on the other hand stated that the appellant confessed before him that he and the deceased consumed liquor together and then he committed the murder of the deceased. P.W.2 has stated that the appellant behaves like a mad man and for that reason nobody pulls on well with him including himself (P.W.2). P.W.2 has further stated that the appellant is a habitual drunkard and he used to talk irrationally in drunken condition and on that day he was under the influence of liquor and talking incoherently. P.W.2 has stated that the appellant behaves like a mad man and for that reason nobody pulls on well with him including himself (P.W.2). P.W.2 has further stated that the appellant is a habitual drunkard and he used to talk irrationally in drunken condition and on that day he was under the influence of liquor and talking incoherently. In case of Sahadevan and another-V-State of Tamil Nadu reported in AIR 2012 SC 2435 , 2012 (2) OLR(SC) 316 it is held as follows:- “12….in case of circumstantial evidence, where the prosecution relies upon an extra judicial confession, the Court has to examine the same with a greater degree of care and caution. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration”. In Balwinder Singh v. State of Punjab reported in 1995 Supp. (4) SCC 259, it is held as follows:- “10. An extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extrajudicial confession”. In Pakkirisamy v. State of T.N. reported in (1997) 8 SCC 158 , it is held as follows:- “8…. It is well settled that 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 not doubt true that extrajudicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is caste upon the court to look for corroboration from other reliable evidence on record. It is not doubt true that extrajudicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is caste 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 extrajudicial confession is surrounded by suspicious circumstances, needless to state that its credibility becomes doubtful and consequently it loses its importance.” In Kavita v. State of T.N. reported in (1998) 6 SCC 108 , it is held as follows:- “4. 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 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.” In the case of State of Rajasthan v. Raja Ram reported in (2003) 8 SCC 180 , it is held as follows:- “19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made…… Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.” In the case of Aloke Nath Dutta v. State of W.B. reported in (2007) 12 SCC 230 , it is observed as follows:- “87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the Court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration. XXX XXX 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.” In the case of Rameshbhai Chandubhai Rathod v. State of Gujarat reported in (2009) 5 SCC 740 , it is held as follows: “53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the Court to rely on the retracted confession, unless, the Court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true”. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the Court should find out whether there are other cogent circumstances on record to support it. [Ref.: Sk. Yusuf v. State of W.B. (2011) 11 SCC 754 and Pancho v. State of Haryana (2011) 10 SCC 165 ]. In this case when the appellant was under the influence of liquor and talking incoherently at the time of making the so called extra-judicial confession and it was his habit to talk irrationally in drunken condition as stated by his brother (P.W.2), it cannot be said that such statement is a voluntary and truthful one and on the other hand it may be the outcome of the consumption of liquor. Even though P.W.2 was the brother of the appellant but he was not pulling on well with the appellant as per his own statement and in such circumstances there was no earthly reason for the appellant to repose confidence on P.W.2 and to make the so-called disclosure. Even though the appellant stated to have made extra-judicial confession only once in presence of both P.W.1 and P.W.2 but there are material contradictions in the evidence of these two witnesses in that respect. P.W.1 has not stated that the appellant confessed that he and the deceased took Handia together and then he committed the murder of the deceased which was stated by P.W.2. Though P.W. 1 has stated that first the appellant told that he has killed a person and on his further query the appellant replied that he has killed the deceased but the evidence of P.W.2 is different. P.W. 2 has stated that apart from P.W.1 and himself one Butia Ekka was also present when the appellant stated to have confessed his guilt. For the best reason known to the prosecution, the said Butia Ekka has not been examined. In view of such glaring infirmity in the prosecution case relating to extra-judicial confession, the so called extra-judicial confession has to be excluded from the purview of consideration for bringing home the charge. 8. So far as the recovery of axe is concerned, P.W.2 has stated that he snatched away the axe from the hands of the appellant. P.W.1 has also stated like that. P.W.12, the I.O. has stated that he seized the axe on production by P.W.1 under seizure list Ext.2. The axe was sent for chemical examination and the chemical examination report indicates that it was not stained with any blood. Similarly the I.O. stated to have seized a red colour banian and a striped lungi of the appellant under seizure list Ext.8. The chemical examination report indicates that the lungi was not stained with any blood but in the red banian human blood (small amount) was found. The grouping of the blood noticed on the banian could not be done because of deterioration. The chemical examination report indicates that the lungi was not stained with any blood but in the red banian human blood (small amount) was found. The grouping of the blood noticed on the banian could not be done because of deterioration. So far as the evidence relating to lying of the dead body in the front of the house of the appellant in the courtyard is concerned, P.W.4 has stated that the appellant sometimes behaves like a mad man and he does not stay in his house regularly and used to sleep in different places. The I.O. has stated that he sent requisition to the Tahasildar, Rajgangpur to depute a R.I. for demarcation of the spot of occurrence and that the R.I’s report has been submitted to the court along with other case records which reveals that the spot is on a piece of Government land which has been encroached by one Gurubari Pan. In view of such evidence, the lying of the dead body in the courtyard is not sufficient to hold the appellant guilty of the charge. 9. This case rests upon circumstantial evidence. In the case of Sharad Birdhichand Sarda v. State of Maharastra reported in AIR 1984 SC 1622 their Lordships have laid down five golden principles so as to constitute “Panchasheel” in the proof of a case based on circumstantial evidence which are as follows:- “1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3. the circumstances should be of a conclusive nature and tendency. 4. they should exclude every possible hypothesis except the one to be proved, and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” In the case of Jaharlal Das v. State of Orissa, reported in AIR 1991 SC 1388 , it is held that the Court as to bear in mind:- “9…. A caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.” In case of Budhuram –v-State of Chhatisgarh reported in (2013)1 Supreme Court Cases (Criminal) 727, it is held as follows:- “12. The law relating to proof of a criminal charge by means of circumstantial evidence would hardly require any reiteration, save and except that the incriminating circumstances against the accused, on being proved, must be capable of pointing to only one direction and to no other, namely, that it is the accused and nobody else who had committed the crime. If the proved circumstances are capable of admitting any other conclusion inconsistent with the guilt of the accused, the accused must have the benefit of the same.” In case of Kanhaiya Lal –v-State of Rajastan reported in (2014) 2 Supreme Court Cases (Criminal) 413 it is held as follows:- “8…..where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.” 10. In view of evidence available on record, it is difficult to accept that the prosecution has established the case against the appellant beyond all reasonable doubt. The conclusion arrived at by the learned trial court in convicting the appellant and the reasoning assigned for arriving at such conclusion is not at all acceptable and it seems that the learned trial court has proceeded on the basis of conjectures and suspicion. The conclusion arrived at by the learned trial court in convicting the appellant and the reasoning assigned for arriving at such conclusion is not at all acceptable and it seems that the learned trial court has proceeded on the basis of conjectures and suspicion. As held in case of Jaharlal Das (supra), the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of ‘may be true’. But there is a long mental distance between ‘may be true’ and ‘must be true’ and the same divides conjectures from sure conclusions. Law is well settled that the suspicion however so strong cannot take the place of legal proof. Thus we hold that the case against the appellant has not been established by the prosecution beyond all reasonable doubt and therefore he is acquitted of the charge under section 302 I.P.C. In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence is set aside and the appellant is acquitted of the charge under sections 302 I.P.C. The appellant is in jail custody since 9.11.2000. He should be released forthwith if he is not required in any other case. I agree.