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2016 DIGILAW 1121 (ORI)

Mangala Oyale v. State of Odisha

2016-11-18

K.R.MOHAPATRA, S.PUJAHARI

body2016
JUDGMENT : S. Pujahari, J. Judgment and order dated 20.11.2004 passed by the learned Sessions Judge, Koraput at Jeypore in Criminal Trial No.275 of 2003, convicting the appellant (hereinafter referred to as “the accused”) for committing murder of his wife (hereinafter referred to as “the deceased”) under Section 302, I.P.C., and sentencing him to undergo R.I. for life, are assailed in this Jail Criminal Appeal by the accused, presently lodged in the District Jail, Koraput to undergo the sentence. 2. The prosecution placed before the trial court a case that 16.02.2003, a Sunday, was a weekly fair day at village Semiliguda. The accused along with the deceased had been to that weekly fair to market sundry goods. After the marketing, both of them left for their village. But, on their way back to home, at about 7.30 P.M., near Dompanigadha ‘Dangar’ (a hillock) of village-Mukhi Bidei, both of them had an altercation which led to a fight between them. The accused overpowered the deceased and pinned down her to the ground and mercilessly assaulted her on her face and head with a lathi and stone and caused severe bleeding injuries for which she lost her sense. Then the accused dragged her to a little distance i.e. to near Dompanigada “Nala” (stream of water) and found her to have succumbed to the injuries. The accused, however, guarded her dead body there throughout the night. On the next day morning, when people found him sitting near her dead body, he confessed before them to have killed the deceased during course of mutual fight between them. The matter was reported to the police at Semiliguda Police Station by the Ward Member, namely, Shyam Sundar Majhi (P.W.1) in writing (Ext.1), pursuant to which Semiluguda P.S. Case No.23 of 2003 was registered. The police investigated the matter and found substance in the allegation inasmuch as the investigation indicated that the accused was the author of the crime and as such the police placed charge-sheet against the accused for commission of offence punishable under Section 302 of the I.P.C. Learned S.D.J.M., Koraput also took cognizance of the same and finding the case to be triable by the Court of Sessions, committed the same. Hence, the accused be proceeded for committing the murder of the deceased. 3. Hence, the accused be proceeded for committing the murder of the deceased. 3. Learned Sessions Judge, Koraput at Jeypore, placing reliance on the aforesaid case of the prosecution which was also supported by the materials collected by the police during investigation, framed charge under Section 302 of the I.P.C. against the accused. But the accused pleaded not guilty of the charge and faced trial. The prosecution examined as many as 10 witnesses besides exhibiting certain documents and also material objects to establish the charge against the accused. The accused who took a plea of denial and false implication, did not adduce any independent evidence in support of such plea. The trial court on conclusion of the trial, appreciating the evidence adduced by the prosecution, returned the judgment of conviction and order of sentence as stated earlier. 4. Learned counsel for the accused though did not dispute that the deceased died a homicidal death, but submitted that there being no credible evidence on record indicating the fact that the accused was the author of the crime, the trial court erred in recording the judgment of conviction and order of sentence as stated earlier. 5. Elaborating the submission, it has been submitted by the learned counsel for the accused that the trial court on a wrong premises relied on the confession of the accused said to have been made while in police custody, though Sections 25 and 26 of the Evidence Act, 1872 (hereinafter referred to as “the Act”) prohibits the use of the same. No doubt Section 27 of the Act allows some confession while in police custody to be led into evidence in spite of prohibition in the preceding Sections 25 and 26 of the Act, but the same must be distinctly relatable to the fact discovered. The confession before the police relied on here in this case being not covered by the aforesaid exception, the trial court should not have placed reliance on the same resorting the mandate of Section 27 of the Act. When the aforesaid confession is effaced off the record being hit by Section 25 of the Act, the other circumstance available against the accused is recovery of the weapons of offence from the place of concealment which by itself is not sufficient to form the foundation for conviction. In such premises, he submits the accused is entitled to a judgment and order of acquittal. 6. In such premises, he submits the accused is entitled to a judgment and order of acquittal. 6. Per contra, drawing notice of the Court to the evidence on record, it has been submitted by the learned counsel for the State that there is ample evidence on record indicating the fact that the deceased died a homicidal death while in the company of the accused and the accused had no explanation for the same. The same itself is a strong incriminating circumstance. Coupled with the same, when the accused had given information to have concealed the material objects which were found to be the weapons of offence, there is no manner of doubt that it was the accused who authored the death of the deceased, even if the confession made while in police custody that was taken into consideration by the trial court, is effaced off the record for having no legal sanction. 7. The evidence on record as placed before the trial court indicates that the death of the deceased was homicidal in nature. The doctor (P.W.8) who conducted the post-mortem examination of the deceased, deposed to have found the following injuries on the person of the deceased during post-mortem examination: “External injuries:- i. A lacerated wound of size 1 cm. x 0.5 cm x 0.5 cm. over the lateral side of left eye. ii. Lacerated wound of size 0.5 c.m. x 0.5 cm x bone depth over the root of nose with fracture of nasal bone. iii. Rapture of the left eye bail with rent over the cornea of size 1 cm. x 0.5 cm x full thickness. iv. Peri-orbital swelling of both the eye. v. Multiple abrasions (25 in numbers) over the face each of sizes 1 cm. x 0.3 cm. vi. Bruise of size 3 cm. and dia metre over the right pinna. vii. Abrasion below the right ear over the neck of size 2 cm. x 2 cm. viii. Bruise 2 cm. and dia-metre behind the left ear. ix. 3 bruises over the right fore-head each of size 1 cm. and dia-metre with underlying fracture of right frontal bone and an epidural haematoma of size 2 cm x 2 cm. x 0.5 cm. Corresponding membrance and the frontal lobe of the right hemisphear were also bruised. x. Abrasion of size 5 cm. x 2 cm.over the anterior chest wall (right) in upper half. xi. and dia-metre with underlying fracture of right frontal bone and an epidural haematoma of size 2 cm x 2 cm. x 0.5 cm. Corresponding membrance and the frontal lobe of the right hemisphear were also bruised. x. Abrasion of size 5 cm. x 2 cm.over the anterior chest wall (right) in upper half. xi. Abrasion of size 4 cm. x 1 cm. over the right axilla. xii. Abrasion of size 1 cm. x 1 cm. over the right shoulder. xiii. Abrasion of size 3 cm. x 1.5 cm. over the anterior chest wall in lower 1/3rd. xiv. Lacerated wound over the anterior superior iliac spine of size 1 cm x 1 cm. x Muscle depth. xv. 3 abrasions each of size 0.5 cm. x 0.5 cm. over the posterior surface of right elbow. xvi. Two parallel bruise each of seize 4 cm. x 0.5 cm. with intervening bend of normal skin of size 0.5 cm bredth over the lateral aspect of right upper thigh oriented horizontally. xvii. Two parallel bruises each of size 10 cm. x 0.5 cm. with intervening bend of normal skin of 0.5 cm. bredth over the anterior surface of left thigh. xviii. Abrasion over the right knee anteriorily of size 4 c.m. x 3 c.m. xix. Two abrasions one on each side of L-5. pinous process each of size 1.5 c.m. x 1 c.m. xx. Haemotama over the occipital area of skull circular in shape of 3 c.m. and dia metre with brusing of underlying membrance and occipital lobes of both hemisphere.”, According to this doctor, all the aforesaid injuries were antemortem in nature and the death of the deceased was attributable to the injuries on the head which was sufficient in ordinary course of nature to cause death. The doctor had also prepared the post-mortem examination report (Ext.9), contemporaneous to his such examination. The aforesaid postmortem examination report (Ext.9) as such corroborates the version of the doctor in the court. Nothing has been elicited in the cross-examination of the doctor to indicate that the aforesaid injuries are suicidal or accidental in nature inasmuch as the doctor has flatly denied the suggestion given that the injuries could be possible by fall on hard and rough surface and looking into the situs and gravity of some of the injuries, possibility of the same being self inflicted is ruled out. No material was brought to record contrary to the evidence of the doctor. No material has also been placed before the court that the doctor had not bestowed the required care and caution while conducting post-mortem examination. In such premises, the finding of the court below that the death of the deceased was attributable to the injuries noticed by the doctor which is also not disputed in this appeal by the accused, appears to be based on credible evidence on record, as such needs no interference. The injuries being homicidal in nature as such the deceased died a homicidal death. 8. So far as author of such homicidal death of the deceased is concerned, there is no manner of doubt that the evidence of the informant (P.W.1) indicates that on the day following the incident at about 9.00 A.M., the accused was found near the dead body of the deceased Dalimba Oyal near Damapani Gada Pada and there was bleeding from her nose and mouth. Thereafter, ascertaining the cause of death from the accused PW-1 stated to have lodged report (Ext.1) scribed by another. This witness in his statement has never deposed anything indicating the fact that the death of the deceased occurred in the company of the accused and he made any confession before him. The aforesaid circumstance as such is not at all incriminating to the accused. 9. The investigating officer (P.W.9) in his evidence deposed that after registration of the case on the basis of the information received vide Ext.1, he conducted investigation and during the course of investigation, as it appears from his evidence, he seized a piece of stone (M.O.IV) and a lathi (M.O.V) consequent to the accused showing the place of concealment after making confession before him that he murdered the deceased by assaulting her with the stone (M.O.IV) and lathi (M.O.V) and after such murder he had thrown away the said lathi and stone at a little distance from the assault place in a concealed manner and also he proved the aforesaid statement recorded by him as Ext.5/1. It appears that the trial court held such confession of the accused while in police custody to be admissible under Section 27 of the Act and placing reliance on the same, held the accused to be the author of the injuries contributing to the death of the deceased. 10. It appears that the trial court held such confession of the accused while in police custody to be admissible under Section 27 of the Act and placing reliance on the same, held the accused to be the author of the injuries contributing to the death of the deceased. 10. Section 25 of the Act speaks that no confession made to a police officer shall be proved as against a person accused of any offence, but Section 26 of the Act which is in the nature of an exception to the rule provided in Section 25 allows a confession made in the custody of a police officer to be proved, if the same is made in the immediate presence of a Magistrate. However, Section 27 of the Act which is in the nature of proviso to the aforesaid rule provided in Sections 25 and 26 of the Act with regard to use of confession before police, speaks that when a fact is deposed to as discovered in consequent of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 11. The aforesaid mandate of law would go to show that though use of confession under Section 25 of the Act before the police officer is prohibited, if the same is made in the immediate presence of a Magistrate, Section 26 of the Act allows such confession made before the police to be admissible in evidence. While Section 27 of the Act overrides the aforesaid prohibitions of use of confession made in police custody by a person accused of an offence, to be proved, even if not made in the circumstances as indicated in Section 26 of the Act, if such confession appears to be an information given to the police pursuant to which a fact was discovered and such information albeit relevant information, if distinctly relates to the fact thereby discovered. Section 27 of the Act does not make confession of an accused while in police custody, to be admissible, which does not distinctly relate to the fact discovered pursuant to such information. It allows such information even if the same is a confession which distinctly relates to the fact discovered. 12. Section 27 of the Act does not make confession of an accused while in police custody, to be admissible, which does not distinctly relate to the fact discovered pursuant to such information. It allows such information even if the same is a confession which distinctly relates to the fact discovered. 12. In the case of Pulukuri Kottaya and others –vrs.- Emperor, reported in AIR (34) 1947 Privy Council 67, in the context of Section 27 of the evidence Act have held as follows: “It is fallacious to treat the “fact discovered” within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (emphasis supplied) The aforesaid has been relied upon in a line of decisions by the Apex Court as well as different High Courts of India till date. To our knowledge, the Apex Court has not laid down any law contrary to the aforesaid law laid down by the Privy Council in the case of Pulukuri Kottaya (supra). The above proposition of law in this regard which has been described as a “locus classicus”, set at rest much of the controversy that centered round the interpretation of Section 27 of the Act. 13. The Apex Court in the case of MOHMED INAYATULLAH –VRS.- THE STATE OF MAHARASHTRA, reported in (1976) 1 SCC 828 , interpreting Section 27 of the Act have held as follows: “12. 13. The Apex Court in the case of MOHMED INAYATULLAH –VRS.- THE STATE OF MAHARASHTRA, reported in (1976) 1 SCC 828 , interpreting Section 27 of the Act have held as follows: “12. The expression “provided that” together with the phrase “whether it amounts to a confession or not” show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.” 14. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.” 14. So also in the case of STATE OF MAHARASHTRA – VRS.- DAMU S/O GOPINATH SHINDE AND OTHERS, reported in (2000) 6 SCC 269 , placing reliance in the case of Pulukuri Kottaya (supra) at paragraphs 35 and 36, the Apex Court have held as follows: “35 The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. 36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Xx xx xx xx xx” 15. The evidence of the investigating officer would go to show that the accused said to have given information of concealment of the stone (M.O.IV) and the lathi (M.O.V) in a place which are found to be weapons of offence inasmuch as the doctor (P.W.8) in his evidence examined the aforesaid and answered the query of the I.O. vide Ext.10 that the aforesaid could have caused the injuries on the deceased and he identified the said M.Os. IV and V, so also human blood was found in the lathi (M.O.V) in the chemical examination, as revealed from chemical examination report (Ext.15). The information of the accused to have caused the death of the deceased causing the injuries contributing to the death of the deceased with the stone (M.O.IV) and the lathi (M.O.V) is a confession, but the same does not distinctly relate to the fact discovered i.e. recovery of concealed stone (M.O.IV) and lathi (M.O.V) in a place within the knowledge of the accused inasmuch as the said discovery of fact does not in any manner relates to user of the aforesaid M.Os. Without information of the fact that he used the same in causing the injuries contributing to the death of the deceased, the facts as aforesaid could have been discovered also. But, learned Sessions Judge held the same to be admissible under Section 27 of the Act in spite of prohibition contained in Sections 25 and 26 of the Act and placing reliance on the same, held the accused to be the author of the crime. Such approach of the learned Sessions Judge is contrary to law laid down in the case of Pulukuri Kottaya (supra), reiterated in a number of decisions by the Apex Court including in the cases of MOHMED INAYATULLAH (supra) and DAMU S/O GOPINATH SHINDE AND OTHERS (supra) 16. Besides the same, no other evidence being there, now it is to be seen whether the aforesaid circumstances, i.e., the deceased died a homicidal death and pursuant to the information given by the accused M.Os.IV and V, the weapons of offence, were recovered from the place of concealment, are sufficient enough to hold the accused to be the author of the crime. The Apex Court in the case of Hanumant Govind Nargundkar and another –vrs.- State of Madhya Pradesh, reported in AIR 1952 SC 343 , dealing with a case of circumstantial evidence have held as follows: “In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” (quoted from placitum) The aforesaid law laid down by the Apex Court has been reiterated in a number of decisions by the Apex Court including in the oft quoted decision with regard to recording of conviction on circumstantial evidence i.e. the case of Sharad Birdhichand Sarda –vrs. State of Maharashtra: reported in AIR 1984 SC 1622 . The Apex Court in the case of Sharad Birdhichand Sarda (supra) have held as follows: “The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established; (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ 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 to 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.” (quoted from placitum) 17. Learned counsel for the accused has argued that a piece of evidence collected under Section 27 of the Act in no circumstances can form the foundation of the conviction and as such the accused is entitled to an order of acquittal. The aforesaid is a favorite argument advanced at the Bar in most of the cases, where only the incriminating evidence is relevant under Section 27 of the Act. But the aforesaid contention is at times fallacious as seen from the law laid down in the case of Pulukuri Kottaya (supra) of the Privy Council. A Division Bench of this Court dealing with the aforesaid in the case of Satrughana alias Satura Majhi – vrs.- State, reported in XXXV (1969) CLT 351, have held at paragraph 8 as follows: “8. Kottaya v. Emperor, is the leading decision on this point. A clear exposition of the evidentiary value of such a statement is given in para 11 of the judgment. Their Lordships observed thus:- “Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.” The effect of this passage has unfortunately been overlooked in most of the subsequent decisions. The implication of this concept may be explained by an illustration. If the statement made under Section 27 of the Evidence Act leads to discovery of opium, then a conviction can be founded solely on the basis of that statement, as possession of opium without license is by itself an offence under the Opium Act. Similarly discovery of arms without licence on the basis of a statement made under Section 27 of the Evidence Act can constitute the sole basis of conviction. But where the gist of the offence is not possession alone, then the statement leading to discovery in most cases cannot constitute the foundation of the prosecution case. Similarly discovery of arms without licence on the basis of a statement made under Section 27 of the Evidence Act can constitute the sole basis of conviction. But where the gist of the offence is not possession alone, then the statement leading to discovery in most cases cannot constitute the foundation of the prosecution case. As their Lordships put it, it is only one link in the chain of proof, and the other links must be established beyond reasonable doubt before the guilt is brought home to the accused.” However, in the present case, the aforesaid circumstances does not satisfy the requirement to record the conviction as laid down in the case of Hanumant Govind Nargundkar and another (supra) and also in the case of Sharad Birdhichand Sarda (supra). This Court also in the case of Satrughana alias Satura Majhi (supra) in similar circumstances had held as follows: “9. A direct case on the point is to be found in Dhunda v. Emperor. In that case, a blood stained chopper and a blood stained chadar were recovered from the house of the accused. Their Lordships held that such a discovery was not by itself enough to justify the conviction. They observed thus:- “This is circumstantial evidence the value of which is very great when used to corroborate other evidence. It cannot by itself prove the case for the Crown. It is possible to imagine many an occasion where the mere discovery of a blood-stained weapon or bloodstained clothes was due to something other than murder, for instance, concealing a dead body or receiving from the real murderer a blood-stained weapon in order to hide it and so assist the murderer. It is impossible to say that the discovery of a blood-stained article is enough by itself to justify a conviction for murder”. A similar view was taken in In re Periyaswami Thevan. There the distinction in the effect of discovery of an article belonging to the deceased and to the accused was forcefully brought out. Their Lordships held that if the prosecution had shown that the blood-stains on the chopper belonged to the same group as the blood of the deceased, the answer would have been clinching. There the distinction in the effect of discovery of an article belonging to the deceased and to the accused was forcefully brought out. Their Lordships held that if the prosecution had shown that the blood-stains on the chopper belonged to the same group as the blood of the deceased, the answer would have been clinching. They observed thus: “Ordinarily in a case of circumstantial evidence where there has been a discovery as a result of confession made under Section 27, Evidence Act, one expects to find the discovery of something which can be associated with the deceased and not with the accused. The question of the weapon with which the offence was committed being discovered as a result of information given by the accused is also probable. But in such a case the mere fact that a weapon, which could have been used for the commission of a crime like this, was discovered with blood-stains on it on information given by the accused, would not, by itself be sufficient to show that he was the murderer”. On the dictum of the Privy Council authority, we are clearly of opinion that the confessional statement leading to discovery, in the facts and circumstances of this case, cannot establish the prosecution case that the accused was the murderer, though it raises grave suspicion.” 18. On reappraisal of the evidence on record, therefore, we are of the considered opinion that in this case conviction recorded by the learned Sessions Judge, Koraput against the accused is indefensible inasmuch as the circumstances which has been brought to the record in this case does not satisfy the test to record a conviction as held by the Apex Court in the cases of Hanumant Govind Nargundkar and another (supra) and Sharad Birdhichand Sarda (supra). Hence, there being no evidence indicating that the accused to be the author of the homicidal death of the deceased, we have no hesitation to say that judgment of conviction and order of sentence have been passed in this case in erroneous appreciation of evidence on record and as such the same are liable to be set aside and this Jail Criminal Appeal deserves to be allowed. 19. Accordingly, this Jail Criminal Appeal stands allowed. 19. Accordingly, this Jail Criminal Appeal stands allowed. Consequently, the judgment of conviction and order of sentence passed against the accused are set aside and the accused stands acquitted of the charge under Section 302 of the I.P.C. The accused be set at liberty forthwith, if he is not otherwise required to be incarcerated. K.R. Mohapatra, J. I agree.