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2019 DIGILAW 590 (ORI)

Runu Pradhan v. State of Orissa

2019-09-18

A.K.MISHRA, S.K.MISHRA

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JUDGMENT : A.K. Mishra, J. In this appeal, the appellants have challenged their conviction and sentence in the judgment dated 31.07.2000 passed by the Addl. Sessions Judge, Talcher in S.T. Case No.60-A/40 of 1999/2000, whereby the accused-convict Runu Pradhan being found guilty for the offence U/s.302 and 201 of the IPC, has been sentenced to life imprisonment and six months rigorous imprisonment and the accused-convict-Jayanti Pradhan on being convicted for the offence U/s.302 read with Section 109 of the IPC has been sentenced to undergo life imprisonment. 2. The prosecution case in brief is that on 25.10.1998, the five years old son namely Ranjana of the informant had been to the house of grandmother in that village but did not return for about one hour. The mother searched. The accused-Runu told her that the lad might be playing with others. By evening the informant smelled a rat as she was forced to marry Bijay Pradhan as per the decision of the villagers. When she could not trace the son, she called Udhab Behera-P.W.6 to search the well. Udhhab dived and brought out the dead body from their well. The dead body was then taken to the Mandap (Pendal) of the village. The accused persons admitted their guilty. F.I.R. was lodged on next day at 6.30. A.M. resulting registration of Rengali Dam Site P.S. Case No.33 dated 26.10.1998. In course of investigation, inquest was made. The written extrajudicial confession was seized from one Maheswar Dehury (not examined), brother of the informant. Post-mortem was conducted by P.W.5 opining that the probable cause of death was due to asphyxia. After completion of investigation, charge-sheet was submitted. The case was committed to the Court of Session. The accused persons faced trial for offence U/s. 302 and 201 of IPC read with Section 34 of IPC. Prosecution examined eight witnesses in all. Defence examined none. The plea of defence is denial simplicitor and false implication. P.W.1 is the informant. Her mother is P.W.4. P.Ws. 2 and 3 are co-villagers. P.W.5 is the Medical Officer who conducted the postmortem. P.W.6 is the diver who recovered the dead body from the well. P.W.7 is the scribe of the confessional statement i.e. Ext.7 and Ext.8 stated to have been given by the accused persons before the villagers. P.W.8 is the Investigating Officer. No witnesses is examined on behalf of the defence. P.W.5 is the Medical Officer who conducted the postmortem. P.W.6 is the diver who recovered the dead body from the well. P.W.7 is the scribe of the confessional statement i.e. Ext.7 and Ext.8 stated to have been given by the accused persons before the villagers. P.W.8 is the Investigating Officer. No witnesses is examined on behalf of the defence. F.I.R., post-mortem, dead body challan, inquest report, seizure list etc. are marked as Exts.1 to 9. 2.A Learned Addl. Sessions Judge believing the Doctor found that the death of the deceased was homicidal in nature. He believed P.W.7 and extrajudicial confession under Exts. 7 and 8 to connect the accused persons as the author of such culpable homicide. According to him, the previous bitterness for marital jealousy was the motive. Consequently, the appellants were convicted and sentenced as stated above. 2.B Mr. S.R. Mohapatra, learned counsel for the appellants would submit that the learned trial Court has committed illegality in accepting the extrajudicial confession in written (Ext.7 and Ext.8) which is stated by P.W.7 to have been made before the police. He contended that there is no evidence to prove conclusively that the death of the deceased was homicidal in nature because the Doctor-P.W.5 did not find any external injury and opined that it was post-mortem drowning. According to him, the bleeding from nostril could be possible as per the Doctor by pressure given on the chest, if dashed against the boundary of the well and thereby the absence of any mark of external injury regarding throttling rules out the possibility of homicidal death. Learned Addl. Govt. Advocate-Mr. K.K. Mishra refuted the above contentions submitting that the totality of the circumstances coupled with medical evidence establish that the death of the deceased was homicidal in nature and the statement in Ext.7 and Ext.8 can be considered as extra-judicial confessions made before the villagers. 3. We perused the record of the lower court carefully keeping the contentions made above. Parties are related. The evidence of Mother-P.W.1discloses that her son five years old-Ranjana, was found missing at 2.30 P.M. while he was sleeping with her. She searched every nook and corner of the village but it was in vain. Her evidence along with P.W.6 proved that the dead body was found from the well situated in the bari of Rabi Pradhan and the dead body was taken to the village Mandap (Pendal). She searched every nook and corner of the village but it was in vain. Her evidence along with P.W.6 proved that the dead body was found from the well situated in the bari of Rabi Pradhan and the dead body was taken to the village Mandap (Pendal). P.W.4-the mother of the informant also corroborates this aspect. In the backdrop of above evidence, the medical evidence is required to be scanned. Doctor, P.W.5 stated that on 26.10.1998 he conducted post-mortem of the deceased and found blood stain discharged from mouth and nostril. He did not find any external injury, bruise or ligature mark. According to him the probable cause of death was due to asphyxia and the viscera preserved by him was not sent for chemical analysis. He has proved his report Ext.2. He has also admitted that the possibility of bleeding injury from mouth and nostril could be due to pressure caused to the chest by dashing against the well boundary. He has specifically stated that it was a case of postmortem drowning. In the scenario leading to discovery of dead body from well, the opinion of Doctor as expert is acceptable. Death resulting from asphyxia includes death due to hanging, strangulation, suffocation and drowning. As drowning is stated here to be after death and no contrary evidence suggesting any hypothesis is available, we are persuaded to affirm the finding of the trial court that the nature of death of deceased was homicidal. 3.A The vital aspect of prosecution evidence is extrajudicial confession. It is made under Ext.7 and Ext.8. The witness is P.W.7. He has admitted to have scribed the same. In cross-examination he has categorically admitted that he wrote the said statement at the instance of villagers in presence of the police. He has also stated that the accused persons were not present by then and the signature of the accused persons and the villagers were not taken in his presence. P.W.8 Investigating Officer stated that both the documents Ext.7 and Ext.8 were seized under Ext.9 in the village on the production by Maheswar Dehury-brother of the informant. Maheswar Dehury is not examined. No villager has come forward to corroborate the extrajudicial confession. On perusal of both written documents Ext.7 and Ext.8, it is noticed that those were written in the form of undertaking to the villagers where the accused persons have separately signed. Maheswar Dehury is not examined. No villager has come forward to corroborate the extrajudicial confession. On perusal of both written documents Ext.7 and Ext.8, it is noticed that those were written in the form of undertaking to the villagers where the accused persons have separately signed. The preparation of such document is doubtful when it stands discrepant to the factum of the person who signed therein and the place where it was prepared. The defining element of Ext.7 and Ext.8 is that it is hit by the prohibition of the provision U/s.25 of the Indian Evidence Act. Learned trial court has committed error in relying upon such extrajudicial confession. 3.B The prosecution wants to draw strength from the evidence of P.W.3 that she had seen the accused-Runu Pradhan returning in a road which joins a road leading to her house. She was declared hostile on the core of her testimony. In cross-examination, she has clarified that in their locality, people used to go to field for ablution and that was the only way for the family members of Runu to go the field for easing. So the circumstance that Runu was found going on the road which was usually used cannot be taken an exceptional conduct to incriminate the accused persons. 4. To sum up, in absence of eye-witnesses, circumstances relied upon by the learned trial Court are found to be not conclusive in nature. The extrajudicial confession is not admissible being hit U/s.25 of the Indian Evidence Act. The conduct of accused-Runu using the path, she used to pass, cannot be an exceptional conduct to incriminate the accused persons. Learned Trial Court has committed error in not appreciating the evidence in proper perspective and admissibility of extrajudicial confession made before police is the illegality which could not be allowed to form the basis of conviction. 5. On the conspectus of above, the prosecution is found to have failed to bring home the charge beyond reasonable doubt. There is sufficient ground for interference in this appeal. Conviction and sentence are not sustainable in the eye of Law. 5.A Accordingly, conviction of the appellants for the offence U/s.302/201 and 109 of I.P.C. and sentence passed thereon are hereby set aside. The appellants be set at liberty. In the result, appeal is allowed. 6. Both the accused persons are on bail vide order dated 23.08.2000 passed in Misc. Conviction and sentence are not sustainable in the eye of Law. 5.A Accordingly, conviction of the appellants for the offence U/s.302/201 and 109 of I.P.C. and sentence passed thereon are hereby set aside. The appellants be set at liberty. In the result, appeal is allowed. 6. Both the accused persons are on bail vide order dated 23.08.2000 passed in Misc. Case No. 357 of 2000. The bail bond be cancelled. LCRs. be returned immediately to the lower court.