Sujit Barman Roy, C.J.@mdashThis Death Reference along with the Criminal Appeal of Dara Singh and other connected Jail Criminal Appeal and Criminal Appeals having arisen out of the same judgment passed by the Learned Trial Court were heard analogously and are being disposed of by this common judgment.
2. This is a sensational case of triple murders of an Australian Christian Missionary, namely, Graham Stewart Staines and his two minor''s sons. Among the Appellants, convict Dara Singh alone was convicted u/s 302, Indian Penal Code simplicities and has been sentenced there under to death. Apart from the aforesaid, Dara Singh and all the Appellants of the connected appeals have been convicted also under Sections 302/149, 120B, 148, 435/149 and 436/149, Indian Penal Code, and have been sentenced to various terms of imprisonment including imprisonment for life in respect of offences under Sections 302/149, 120B and 436/149, Indian Penal Code. Apart from Dara Singh '' Rabindra Kumar Pal, other Appellants, namely Umakanta Bhoi, Kartik Lohar, Rabi Soren, Mahadev Mahanta, Turam Ho, Dayanidhi Patra, Renta Hembram, Suresh Hansda '' Ojen, Mahendra Hembram, Suratha Naik, Harish Chandra Mohanta and Dipu '' Rajata Kumar Das were convicted and sentenced as already stated.
3. The prosecution case is that Graham Stewart Staines was a Christian Missionary from Australia and he was working in this State among the poor people and lepers. His two minor sons namely, Philip Staines, aged about 10 years and Timothy Staines, aged about 6 years were also brutally murdered. It needs to be stated here that Appellant Dayanidhi Patra preferred two appeals against the same judgment, namely, Jail Criminal Appeal No. 131 of 2003 and Criminal Appeal No. 278 of 2003.
4. The incident of murders took place in the mid-night of 22.01.1999/23.01.1999. In this case, in all 55 P. Ws were examined on behalf of the prosecution. It appears that out of the said 55 P. Ws, 11 witnesses were examined as eye-witnesses for the prosecution. They are P.W. 2, Basi Tudu, P.W. 3, Paul Murmu, P.W. 4, Ralia Soren, P.W. 5, Sinigo Marandi, P.W. 10, Nimai Hansda, P.W. 11, Bhakta Marandi, P.W. 15, Mathai Marandi, P.W. 23, Joseph Marandi, P.W. 36, Raghunath Dohari, P.W. 39, Soleman Marandi and P.W. 43, Lablal Tudu. Apart from the evidence of the aforesaid eye-witnesses, number of Appellants made confessional statements. Prosecution also adduced evidence of criminal conspiracy against all the Appellants. These are the three types of evidence, namely version of the eye-witnesses, confessional statements of number of Appellants and evidence relating to criminal conspiracy that were relied upon by the prosecution before the Trial Court, and acting upon such evidence the Trial Court convicted and sentenced the Appellants as already stated.
5. On behalf of the defense in all 25 witnesses were examined. Defense of the Appellants in course of the trial was that of simple denial of the prosecution case as alleged.
6. It appears from the record of this case that all the accused were charged under Sections 120B, 148, 435/149, 436/149 and 302/149, Indian Penal Code. Apart from these charges Appellant Rabindra Kumar Pal '' Dara Singh was separately charged u/s 302, Indian Penal Code. Only the Appellant Rabindra Kumar Pal '' Dara Singh was convicted u/s 302, Indian Penal Code simplicities and was awarded sentence of death there under. All the Appellants including the Appellant Dara Singh were also convicted and sentenced as already stated. Death Reference No. 1 of 2003 is a reference to this Court made by the Trial Court u/s 366 of the Code of Criminal Procedure for confirmation of death sentence awarded to accused Rabindra Kumar Pal '' Dara Singh.
7. We will first deal with the evidence of eye-witnesses. On the basis of evidence of these eye-witnesses and also the confessional statements allegedly made by some of the Appellants, the Appellant Dara Singh was convicted u/s 302, Indian Penal Code and has been awarded sentence of death. Apart from this, all the Appellants including Appellant Dara Singh were further convicted under Sections 148, 435/149, 436/149, and Section 302/149, Indian Penal Code on the basis of evidence of the eye witnesses and confessional statements allegedly made by some of the Appellants. They were also convicted u/s 120B, Indian Penal Code and accordingly, they were all sentenced to imprisonment for life on the basis of evidence relating to conspiracy. Therefore, we will first deal with the eye-witnesses and thereafter, we will proceed to examine the evidence furnished by the confessional statements allegedly made by some of the convict-appellants and lastly we will take up the evidence relating to the charge u/s 120B, Indian Penal Code.
8. Among the eye-witnesses P.W. 2 Basi Tudu is the first eye-witness examined on behalf of the prosecution. In her evidence she stated that she is Christian by faith. She knew the deceased Graham Stewart Staines for the last 15 years. Deceased Graham Stewart Staines used to visit Manoharpur church once in a year. He last visited the said church two years back on a Wednesday. He came there with his two minor sons, namely, Timothy Staines and Philip Staines. One Suvankar Ghosh also came there with them. They were also accompanied by their driver. The luggages of Graham Stewart Staines were brought in another vehicle. Name of the said driver is Nimai Hansda (P.W. 10). The vehicle carrying the luggages was driven by Graham Staines himself. The driver Nimai Hansda also used to cook food for Graham Staines. In the night of occurrence, Graham Staines with his two minor sons slept inside one of the vehicles. The said vehicle was parked in front of the church.
9. The occurrence took place on 22.1.1999 at about 12 mid-nights. Hearing some dogs barking, she woke up and came out from her house when she found about 60 persons were proceeding along the passage by the side of her house towards the church. Among them she could identify one Chenchu. However, the said Chenchu is not before us in any of these appeals and the Death Reference Case. It appears from her evidence that in the Trial Court she first identified and accused by face whose name is Rajat Kumar Das. However, when this witness was brought to the middle of the court-room to have a better view of the accused persons, she could identify one Appellant by face whose name is Ojen Hansda '' Suresh Hansda. Instead of identifying accused-appellant Rajat Kumar Das, she pointed out Ojen Hansda as the person whom she saw among the aforesaid 60 persons. It is, therefore, evident that she did not know Ojen Hansda '' Suresh Hansda by name. She identified Suresh Hansda for the first time in the court by face only. She also stated that these 60 persons were holding torch-lights and lathis. At that time Appellant Suresh '' Ojen Hansda had tied his head with a piece of red cloth. Others did not tie their heads with any cloth. When she wanted to know from them as to whether they were proceeding for a dance or for hunting, the miscreants did not give any reply whatsoever. After that, she went back to her bed. Soon after that, she could hear bursting sound and on hearing such sound she again came out of her house. However, the aforesaid miscreants did not allow her to proceed further. Then she went to the thrashing floor and from the thrashing floor she found that these miscreants had surrounded the vehicle of Graham Staines and she could see those setting fire to the said vehicle and accordingly, Graham Staines and his two minor sons were burnt to death. The people who had surrounded the vehicle raised slogans saying "JAI BAJARANG BALI" and "DARA SINGH JINDABAD". This is in brief what she has stated in her examination in chief.
10. It appears from the evidence on record that of all the Appellants, she could identify only Appellant Suresh Hansda '' Ojen by face for the first time before the Trial Court. No. T.I. Parade was held to enable her to identify Suresh Hansda. Therefore, her identification of Suresh Hansda '' Ojen by face during trial was not corroborated by any previously held test identification parade. In course of the investigation, her statements were first recorded by the Crime Branch of the State Police on 4.2.1999. Investigation of the case was later on taken up by the CBI. Her statement was again recorded on 5.6.1999 by the CBI. Investigating Officer, namely, P.W. 55. It is the admitted case that in none of these statements recorded by the two Investigating Officers, she ever disclosed the name of Ojen '' Suresh Hansda. During her cross-examination she further admitted that there was no moon in the sky at that time. But she claims to have identified the Appellant Suresh Hansda '' Ojen Hansda by the light of the lamp locally called Dibri which she had kept on the verandah. It must be mentioned here that it was mid-night during the pick of the winter season. She claims to have kept a lamp in the verandah when she was sleeping inside her house. Reason for keeping a lighted lamp (Dibri) in the verandah at midnight is not understood. The question whether any reliance can be placed on such evidence of this witness where she identified the accused Ojen Hansda '' Suresh Hansda for the first time in the Trial Court without being corroborated by any previously held test identification parade will be dealt with later while dealing with the evidence of all the eye-witnesses together inasmuch as the evidence of all the eye-witnesses suffer from same defect. So far as other Appellants are concerned, the evidence of this witness virtually contains nothing. She also admitted during her cross-examination that she could not identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze. Her belated disclosure of the incident as seen by her to the police is another circumstance against her credibility though a huge police party was camping in the village for several months since the morning after the incident.
11. P.W. 3 Paul Murmu is the next eye-witness for the prosecution. He stated in his evidence that he was converted to Christianity in the year 1997. He knew the deceased Graham Staines since 1972. He used to accompany Graham Staines to different places. He last accompanied Graham Staines during his visit to Manoharpur on 20.01.1999. They started together on that day from Baripada in two vehicles. They were in all 11 persons together including Graham Staines and his driver. He was travelling in the vehicle No. 1208 (a jeep) along with Pitar Murmu, Bayu Hembram and driver Nimai Hansda (P.W. 10). Along with Graham Staines his two minor sons, namely, Timothy and Philip (both deceased) and three other persons from Cuttack, namely, Suvankar Ghosh, Pittar Khugi and another were travelling in vehicle bearing No. 952. They reached Manoharpur in the evening. Three huts were constructed for them just behind the church. In the first hut, Pittar Khugi and the persons from Cuttack stayed. The driver Nimai Hansda (P.W. 10) and Bayu Hembram stayed in the second hut. This witness himself along with P.W. 5 Pittar Murmu stayed in the third hut. Graham Staines and his two minor sons slept inside vehicle No. 1208 in front of the church. Both the vehicles were parked in front of the church. It is stated by him in his evidence that whenever Graham stains used to visit Manoharpur he used to sleep inside the vehicle. That night "Nagin Dance" was performed at a distance of about 250 cubits from the church. Around 12.30 A.M.P.W. 10 Nimai Hansda suddenly woke him up from the sleep and simultaneously he heard sounds of beating the vehicles parked in front of the church. Soon after that, this witness along with P.W. 10 Nimai Hansda went near the church and found some 60/70 persons putting straw below the vehicle No. 952 and setting it on fire. As P.W. 10 Nimai Hansda proceeded towards the said vehicle No. 952, he was assaulted by these people. Three persons were also found pulling the door of vehicle No. 1208 in which Graham Staines and his two minor sons were sleeping. They pulled out the handle of the vehicle door but could not open the door. These three persons broke the glass pans of the vehicle in which Graham Staines and his two minor sons were sleeping and gave strokes to Graham Staines and his two sons with sticks. They also focused the torch into the vehicle. One of them was a bearded man. This witness then pointed out to accused Dara Singh '' Rabindra Kumar Pal in the dock saying that the bearded man resembled like the person whom this witness had seen at the scene of occurrence. Other two persons who were trying to open the door of the vehicle and were giving blows with lathis could not be identified by him. It, therefore, appears from his evidence that this witness found accused Dara Singh to resemble one of the assailants. They pulled straw which were kept on the top of the vehicle and put them below the vehicle and set fire to the same. A person of short stature set the straw and the vehicle ablaze. Thereafter, they raised slogans saying "JAI Bajarang bali" and "Dara singh jindabad". They had also blown whistle thrice. That incident occurred in the mid-night of 22.01.1999. On the question of identification of Appellant Dara Singh for the first time in the Trial Court by this witness, his evidence reads as follows:
They were focusing torch into the vehicle. One of them was having a beard. The witness points out to accused Dara Singh in the dock saying that the bearded man resembled like him (Dara Singh). I am not able to identify if the other two are in the dock.
After the whistle was blown thrice, he became unconscious as he saw that the vehicle in which Graham Staines and his two minor sons were sleeping was on fire. After he regained consciousness, this witness along with others tried to extinguish the fire by pouring water, but the fire could not be extinguished. After the fires subsided he could find the charred bodies of Graham Staines and his two sons inside the vehicle and burnt head of one of the sons of Graham Staines, namely, Philip was severed from the body and was lying on the ground. The charred body of Timothy was lying in the vehicle with the head on the hand of charred body of Graham Staines. This is in brief what this witness had stated during his examination in chief. It further appears from the evidence of this witness during cross-examination and the evidence of the Investigating Officer that this witness in his statements given to the three Investigating Officers on three different dates never alleged that one of the miscreants was a bearded man. He further stated that he saw the occurrences from a distance of 5/6 cubits. He also never stated in his previous statement that P.W. 10 Nimai Hansda accompanied him to the church at the time of occurrence. He never made any such statement to the Investigating Officer that the three persons including a bearded man gave strokes to Graham Staines and his two sons with lathis or that they flashed torches into the vehicle. He also never stated to the Investigating Officer that head of Timothy was severed and was lying beneath the vehicle. This is in short the evidence given by him before the Trial Court. It needs to be mentioned that statement of this witness was recorded by the Investigating Officer of the State Police on 23.01.1999. Again he was examined on 10.02.1999 by the Investigating Officer of the Crime Branch of the State Police. Subsequently, on 20.04.1999 his statement was recorded by the CBI Investigating Officer (P.W. 55). In none of these statements he claimed that one of the miscreants was a bearded man and nowhere had he disclosed the name of Dara Singh '' Rabindra Kumar Pal. It is true that generally speaking identification of an unknown accused for the first time before the Trial Court is of no value unless corroborated by previously held T.I. Parade. But, in exceptional cases departure from this general rule of prudence is permissible. Almost all the eye-witnesses consistently stated that during occurrence miscreants raised slogans in the name of Dara Singh. The story of this slogan was also mentioned in FIR lodged soon after the occurrence. Therefore this slogan in the name of Dara Singh corroborates his identification before the Trial Court for the first time.
12. P.W. 4 Ralia Soren is the next eye-witness for the prosecution. In his evidence he stated that he knew deceased Graham Staines since preceding 20 years. Graham Staines had two minor sons and a daughter. Deceased Philip and Timothy were his two minor sons. Graham Staines visited Manoharpur last on 20.01.1999. He was accompanied by his two sons and Ors. like Gillburt, Suvankar Ghosh, Swain and Khadi Babu. None of them had been examined in this case as witness. They all came in one vehicle. Some travelled in another vehicle in which P.W. 10 Nimai Hansda, Bayu Hembram, Pittar Murmu, P.W. 3 Paul Murmu accompanied Graham Staines. They reached Manoharpur in the evening. This witness met Graham Staines and other persons accompanying him soon after their arrival at Manoharpur. After arrival there, Graham Staines along with his two minor sons slept in the vehicle bearing No. 1208 and it was parked in front of the church. The other vehicle No. 952 was also parked in front of the church. In the evening of 21.1.1999 a film relating to the life of Jesus Christ was exhibited in front of the church. In that night also Graham Staines and his two minor sons slept in the vehicle bearing No. 1208. Again in the evening of 22.1.1999 a film on the life of Jesus Christ was screened in front of the church. Dinner was taken by them around 9 P.M. and Graham Staines and his two minor sons slept inside the vehicle bearing No. 1208. His (P.W. 4) house is situated to the south of the church intervened by four other houses. The vehicles parked in front of church were visible from the road in front of his house. In the night of occurrence on 22.1.1999 this witness slept in his house after dinner. His wife was sleeping in another room. His wife woke him up from sleep and said that sound of large number of people going towards the church with lathis and torches were heard. He then came out and hardly walked 100 ft. towards the vehicle when he could find large number of people giving lathi blows on the vehicle in which Graham Staines and his two minor sons slept. Other vehicle bearing No. 952 was also set on fire. Three to four persons belonging to that group caught hold of his collar and restrained this witness form proceeding further. They focused torch light on his face and threatened him with lathis not to call any body or raise any alarm. He admits that he could not recognize any of them as they kept their heads covered with caps and faces by mufflers. At that time Barial Marandi (not examined in this case) was running towards him. Then he went back and took the route to the church through his backyard. He called Christian people of the street, but none responded. He along with Barial Marandi then went to the Grama Rakhi at Panasadiha. However, the Grama Rakhi declined to come out during night. Then they went to Tulasibani and called the Christian people of the village. Five of them came with this witness to Manoharpur. When they reached near the church, they found that both the vehicles were burnt, and Graham Staines and his two sons were burnt to death. Thereafter this witness along with some others went to the house of one Pradipta Das (not examined) and reported him about the incident and from there all of them went to Thakurmunda Police Station. They went straight to the residence of the O.I.C. of the said Police Station and woke him up. As Manoharpur village is situated under the jurisdiction of Anandapur Police Station which is situated at a distance of 50 kilometers from Manoharpur, they requested the O.I.C. of Thakurmunda Police Station to report the incident to Anandapur Police Station, the Superintendent of Police and the Collector of the district. Later on, this witness along with Pradipta Das from a telephone booth informed the Superintendent of Police and the Collector of the district about the incident. Thereafter this witness along with others and P.W. 23 Joseph Marandi boarded a bus for Anandpur. They could arrive at Anandapur on the next day at 8.20 A.M. When he reached the Police Station, he could not meet the O.I.C. of the said Police Station as he had already left for Manoharpur. The police personnel available at Anandapur Police Station arranged for their transport by a private jeep to Manoharpur and after reaching Manoharpur at about noon time, they found that the police personnel had already arrived there. Around 9 P.M., the O.I.C. of Anandapur Police Station being P.W. 52 showed him a written paper and told him that, that is the FIR and he gave signature thereto as requested by the O.I.C. This is the entire evidence during his examination in chief. It appears from his evidence during examination in chief that he never claimed to have recognized any of the miscreants involved in the incident. Therefore, his evidence does not serve any purpose whatsoever for the prosecution so far as identity of the miscreants is concerned. But it must be mentioned here that in the FIR names of large number of miscreants were mentioned. But none of them has been charge-sheeted in this case. It is true that names of none of the Appellants were mentioned in the FIR. But in the FIR itself it was stated by this witness that at the time of occurrence miscreants raised slogans saying "Bajarangbali Jindabad" and "Dara Singh Jindabad". Therefore, these slogans lend corroboration to the testimony of these eye witnesses who identified Dara Singh for the first time in the Trial Court.
13. P.W. 5 Sinigo Marandi has also figured in this case as an eye witness. In his evidence, he stated that he is a resident of village Manoharpur. A "Nagin dance" was held in their village in the night of Saraswati Puja in 1999. This dance started in the evening and he witnessed it along with the boys and girls of the village and his mother as well as Mukta Marandi. He witnessed the dance for about an hour and thereafter he slept at the verandah of one Galu of their village. The "Nagin dance" was staged at a distance of about 200 ft. from the church. A cinema was exhibited in front of the church before the "Nagin dance began." When he was sleeping in the verandah of one Galu, his mother was sitting by his side, though time of occurrence was midnight during peak of the winter season. Who else could be termed as chance witnesses accept this witness and his mother who were sleeping in the verandah of another man during peak of the winter night instead of sleeping in their own house ? This witness further stated in his evidence that at midnight his mother woke him up and then he saw something was burning near the church. He further found that a vehicle was moving towards the road and Appellant Ojen and one Chenchu (not an accused in this case) came to this witness and his mother. They were carrying lathis and torch with their heads tied with red cloth. They advised this witness and his mother not to go near the fire as they would be exposed to the risk of being killed if they went near that place where some people who were brought by them were killing the Christians. They asked them not to disclose their names to any body. For this reason this witness and his mother went out of the village to the field situated nearby. Thereafter, he heard sound of blowing whistle thrice and the slogans like "Jai Bajrang Bali" and "Jai Dara Singh". While pointing to Appellant Ojen Hansda in the dock, he stated that a person of his appearance told him not to go near the fire. But his evidence that a person with appearance resembling Appellant Ojen Hansda had told him not to go near the fire does not amount to identification of the Appellant Ojen Hansda. Therefore, his evidence to this effect does not help prosecution even with respect to Ojen Hansda. It further appears that at the time of occurrence he was prosecuting his studies at Cuttack and his mother was working as a laborer in Bhadrak. In these circumstances coupled with the fact that he was sleeping in verandah of another person with her mother sitting beside him till midnight during peak of the winter sounds highly incredible and he fulfils all the characters of a chance witness.
14. Next important eye witness is P.W. 10 Nimai Hansda. As already seen during discussion of evidence of the aforesaid eye-witnesses, P.W. 10 drove the vehicle carrying the luggage of Graham Staines and along with him they all reached Manoharpur in the evening from Baripada. It appears from his evidence that the is also an eye-witness of the occurrence. His evidence is also more or less similar to the evidence of other eye-witnesses already discussed except that he could not identify anybody. During his examination in chief, he clearly admitted that he could not identify any of the miscreants involved in the incident. Therefore, for the sake of brevity, we do not consider it necessary to discuss his evidence any more. However, it needs to be mentioned here that during the occurrence he heard the miscreants raising slogans saying "Jai Bajarang Bali" and "Dara Singh Jindabad". Therefore, his evidence that he heard slogan in the name of Dara Singh corroborates evidence of other eye-witnesses who identified Dara Singh in the Trial Court for the first time.
15. P.W. 11 Bhakta Marandi is the next eye-witness of the occurrence. In his evidence he stated that in the night of 22.1.1999 Graham Staines and his two minor sons slept in a vehicle and this witness himself slept in his house. In the mid-night his wife woke him up from sleep on hearing some bursting sound. On hearing this, he came out of the house and found 4/5 persons standing in front of his house holding lathis and torches. They were threatening that they would kill the persons whosoever dared to go that way. One of them threw a lathi to him. This witness retreated back to his house and went to his backyard and from there he went to the house of tone Benjamin situated one house apart form the church. From there he saw number of persons in front of the church near the vehicle, and they were all armed with lathis and were holding torches. They were beating the vehicle with lathis. A slim and tall man was holding an axe. They set fire to one of the vehicles. Those persons had red clothes tied around their heads. Two/three persons poured petrol near the wheel of the vehicle. Some of them brought straw from a nearby straw heap and kept the same in the vehicle. They set fire to both the vehicles and both vehicles were burnt. The miscreants blew whistle and raised slogan saying "Jai Bajarang Bali" and "Dara Singh Jindabad". Then they left the place. The person holding the axe was also beating the vehicle with an axe and guiding other miscreants. This witness then pointed out the accused Dara Singh and accused Rajat Kumar Das in the dock and claimed that these two persons were beating the vehicle and set fire on the vehicles. Accused Dara Singh had been identified as a slim tall man holding an axe and he was guiding the other miscreants. He further claims that the Investigating Officer of the CBI showed him photographs of some persons and he had identified two of the photographs as the miscreants. He put his signature on those photographs. M.O. I am the photograph of accused Dara Singh standing in the dock. M.O. II is the photograph of accused Rajat Kumar Das in the dock. This is in short the evidence given by him. This part of the prosecution story as regards photo identification of these two Appellants is also reiterated by the C.B.I. Investigating Officer (P.W. 55). It needs to be mentioned here that accused Paul Murmu (P.W. 3) also identified Dara Singh for the first time in the Trial Court. In his evidence P.W. 3 stated that Dara Singh was giving strokes on Graham Staines with a lathi. But P.W. 11 says that accused Dara Singh was holding an axe and with the axe he was beating the vehicle. However in a dark night an axe may appear like a lathi or vice versa. The evidence that the Investigating Officer showed some photographs and he identified the same and the said two photographs were of accused Dara Singh and Rajat Kumar Das is inadmissible in evidence inasmuch as these statements are the statements before the Investigating Officer during Police Investigation and such statements are hit by Section 162, clearly provides as to how statements made to a Police Officer in course of investigation should be used. Same cannot be used as evidence except for the purpose of contradiction. The evidence of this witness to the Investigating Officer with regard to identification by photographs sought to be proved by the prosecution amounts to statement made to a Police Officer in course of investigation. Therefore, such evidence is clearly inadmissible in evidence. The evidence of other eye-witnesses also suffers from more or less same defect as regards identification. The statement recorded u/s 161, Code of Criminal Procedure. cannot be used for any purpose except for the purpose as provided u/s 162, Code of Criminal Procedure. It may be used only for contradiction. The prosecution cannot contradict its own witness with his previous statement unless he is declared hostile and permission is obtained from the Trail Court to cross-examine him. of course, if such statements amount to dying declaration though recorded u/s 161, Code of Criminal Procedure. same may be used as evidence. Surely identifications of the offenders by photographs before a police officer do not amount to dying declaration. Therefore, such statements are clearly hit by Section 162, Code of Criminal Procedure. and hence same are inadmissible in evidence. It is thus manifest from the aforesaid that this witness did not know accused Dara Singh or Rajat Kumar Das by name. He identified them for the first time in the Trial Court. The evidence of identification by photographs before the Investigating Officer being inadmissible, for the reasons stated above, the same is not available to lend corroboration to the identification of these two accused before the Trial Court for the first time, Needless to mention here that no test identification parade was held. Instead of adopting this novel method, as done by the Investigating Officer, it was open to him to place the photographs before the Judicial Magistrate and Judicial Magistrate could have been requested to hold a test identification parade of photographs of suspects and direct this witness to identify if any of the persons in the photographs were participants in the crime. That course was not followed by the Investigating Officer. Such lapses on the part of an elite investigating agency like C.B.I. cannot be excused. But he heard slogans in the name of Dara Singh. Eye-witnesses are consistent about this story of slogan in the name of Dara Singh. This slogan was also mentioned in the FIR. Therefore, identification of Dara Singh is corroborated by the story of slogan raised in his name. Though we accept his evidence as regards Dara Singh, we are unable to accept his evidence as regards identification of Rajat Kumar Das for want of proper corroboration to his identification. He further stated during his cross-examination that P.W. 15 Mathai Marandi and two others came to the place of occurrence after the miscreants left that place. He also did not report about the incident to them. This witness does not claim to have seen any one who arrived at the scene of occurrence while Bikram Marandi, Susna Marandi and P.W. 15 Mathai Marandi came there after the miscreants had left that place. He further stated that in the next morning police and Collector came to their village. Yet, this witness did not report about the incident he had seen either to the police or to the Collector. His statement was recorded for the first time by P.W. 55 on 5.6.1999. It is also stated by him that the Investigating Officer of the C.B.I. brought some 20/25 photographs to his house for identification of the suspects and out of those photographs he identified only 2 photographs of Appellants Dara Singh and Rajat Kumar Das and accordingly signed the said photographs. He further admitted that he did not know the names of the persons whose photographs he identified before the C.B.I. Investigating Officer, and also that he saw the man holding an axe for the first time during the occurrence. He further admits that he could learn the name of the accused Dara Singh when he was told by the Investigating Officer of the C.B.I. the day prior to the date on which his deposition was recorded before the Trial Court. He was also told by the Investigating Officer of the C.B.I. that the name of the person in the photograph Ext. M.O. II is Rajat Das. There was an inordinate delay of about five months on his part to report about the incident to the police though a police camp was set up in the village in the very next morning after the incident and it was continued there for several months. Apart from the police camp, several high level police officers including investigating officers and administrative officers were visiting the village of occurrence since the morning after the incident. Evidence of such a witness is not at all reliable. His evidence with regard to identification of Dara Singh may be acceptable as the same is corroborated by the story of slogans raised in the name of Dara Singh. But we are unable to accept the identification of Rajat Das.
16. P.W. 15 Mathai Marandi also figured in this case as an eye-witness. In his evidence he stated that on 20.1.1999 deceased Graham Staines along with 11 other including his two sons, namely, Philip and Timothy visited village Manoharpur. Graham Staines along with two sons used to sleep during night in the vehicle parked in front of the church. In the night of 22nd January, 1999 when this witness was sleeping, his wife on hearing some bursting sound woke him up P.W. 15 Mathai then came out being attracted by some commotion and sound of beating and found 40/50 persons had gathered near the vehicle in front of the church and they were beating the vehicle with lathi. The miscreants were armed with lathis, axe, bows and arrows and torches. They were beating both the vehicles. He also heard cries of two sons of Graham Staines. When he advanced towards the vehicles, 3 or 4 persons focused torches at his face and as they threatened him with lathis, he retreated towards his house and went to the huts raised behind the church and called P.W. 10 Nimai Hansda, P.W. 3 Paul Murmu, P.W. 53 Pitter Murmu and others. When he again went to the place of occurrence near the vehicles, he found the miscreants setting fire to the vehicles. Miscreants pulled out straws from the top of the vehicles and put the same beneath the vehicles and set fire to them. Both the vehicles caught fire and were burnt. He claims that he could identify Dara Singh, Dipu Das, Ojen Hansda and Mahadev and accordingly, he identified them in the dock. He further stated that the Appellants he identified were beating the vehicles and Appellant Dara Singh was holding an axe and he was directing others saying "Marbe Pita Be". He also claimed in his evidence that Ojen Hansda and Mahendra Hembram belonged to his village. But, he did not identify Appellant Mahendra Hembram and, therefore, his evidence against Mahendra Hembram is of no consequence. He also identified Appellant Umakanta Bhoi in a T.I. parade conducted in Anandpur jail. Umakanta Bhoi is one of the miscreants who set fire to the vehicles. P.W. 10 Nimai Hansda tried to extinguish the fire with a bucket of water but he was also assaulted. He further stated in his evidence that after the vehicles were burnt, miscreants blew whistle thrice and raised slogans saying "Jai Bajarang Bali, Dara Singh Jindabad" and then left the place. However, during cross-examination he admitted "I have not stated before the local police that I could identify 4 persons from among the miscreants. I have not stated before Crime Branch I.O. that I could identify 4 persons from among the miscreants". However, after the aforesaid statement, he immediately hastened to add an explanation saying, "As none of the I. Os. asked me anything about the identification, I have not told before them that I could identify 4 of the miscreants." This is too insufficient an explanation and hence it is bound to be rejected. He further admitted that he did not state in his statements before the investigating officers that Appellant Umakant Bhoi was also seen setting fire to the vehicles or that he saw some of the miscreants pulling straws from the "roof of vehicles, putting it beneath the vehicles near the wheel and setting fire to it." During his cross-examination he conveniently failed to recollect if he had stated to the police that he had gone near the vehicle. He made most vital admission during his cross-examination with regard to Appellant Umakanta Bhoi in the language as quoted hereunder:
C.B.I. officers had called me to the Anandapur camp and asked me whether I can identify accused Umakant Bhoi and I told them in the affirmative T.I. parade was conducted seven days thereafter at Anandpur jail and as per the date given by C.B.I. officers I went to Anandapur jail to participate in the T.I. parade as a witness. The C.B.I. officers had shown me a bunch of photographs at their Anandapur camp the day they had called me there, i.e. seven days prior to T.I. parade. The photograph of Umakanta Bhoi was in that bunch.
17. Therefore, seven days prior to T.I. parade in which this witness identified Appellant Umakanta Bhoi, overzealous C.B.I. investigating officer (P.W. 55) had shown this witness amongst others, a photograph of Appellant Umakant Bhoi. It further appears from the evidence of this witness that C.B.I.I.O. showed him a bunch of photographs and out of them he had signed three photos. But he could not say why he signed them. But, it appears from the evidence of P.W. 55 that on being shown by P.W. 55, this witness (P.W. 15) had identified photographs of different Appellants. No court of law, unless utterly over-credulous, can act upon such evidence on a most important question as to the identification of the offenders. In these circumstances, we are constrained to observe that it was absolutely unfair and unethical on the part of the over zealous C.B.I. investigating officers to adopt such unheard methods to procure tainted evidence to somehow procure conviction of the Appellants. Trial Court was also astonishingly over-credulous to act upon such evidence. This witness also gave evidence during the Trial of juvenile offender Chenchu before the juvenile court. It appears that in his evidence before the juvenile court he did not state that the miscreants, who were beating the vehicles and setting fire to the same, were carrying lathis, axe, bows, arrows and torches or that he heard two minor sons of Graham Staines were crying or that he went near huts raised behind church and called P. Ws. Nimai, Paul, Pitter and Ors. or that the miscreants pulled straws from the "roof of the vehicles and set it on fire" or that he again went to the P.O. and found the miscreants setting the vehicles on fire or that Appellant Dara Singh was holding an axe or that Nimai Hansda carried a bucket of water and he was assaulted or that miscreants raised slogans saying "Dara singh Jindabad" and "Jai Bajarangbali". He admitted that he did not tell anyone of his village that Appellants Ojen Hansda and Mahendra Hembram were seen setting fire to the vehicles. He never saw Dara Singh before the occurrence. In his statements before the State Police Investigating Officer he did not state that 40/60 persons had gathered at the place of occurrence or that he went to the huts raised behind the church and called Nimai Hansda, Paul Murmu, Pitter Murmu and Ors. or that he heard wailing sound of minor sons of Graham Staines or that the miscreants were holding axe, bow, arrow etc. or that when he came out some of the miscreants had focused torches on his face or that he saw the miscreants setting fire to the vehicles. It appears that he stated to State Police Investigating Officer that he found vehicles on fire only. He also did not state to them that he saw miscreants pulling out straws form the "roof of the vehicle" and put them beneath the vehicle and lighted the same or that he would be able to identify some of the miscreants or that the Appellants Ojen Hansda and Mahendra Hembram belong to his village. It therefore appears that in view of the aforesaid circumstances and his omission to mention all important aspects in his evidence including names of the Appellants he identified before the Trial Court in his previous statements recorded by as many as three investigating officers, it is absolutely unsafe to place any reliance on his evidence.
18. The next eye-witness is P.W. 36 Raghunath Dohari. In his evidence before the Trial Court he stated that about 3 years prior to the date on which his evidence was recorded before the Trial Court deceased Graham Staines visited the village Manoharpur by bus. Then he changed his version stating that the deceased Graham Staines visited Manoharpur in two vehicles. Both the vehicles were parked in front of the church. It was the day of Saraswati Puja. He slept in his house during the night. While so sleeping he heard sound of beating. Being attracted by such sound he got up from bed and went to the church where he could find a gathering of about 60/70 persons in front of the church, and they were beating the vehicles with sticks. They set fire to both the vehicles. They brought straw and set fire to the vehicles by lighting the straws. The witness then identified the Appellants Dara Singh, Harish Chandra, Mahadev and Turam Ho as the miscreants who were there in the gathering and set fire to the vehicles. This is in brief, the gist of the evidence given by him during his examination in chief. During cross-examination he further stated that the deceased were burnt alive. He further admitted that he never disclosed the occurrence to anybody. Between his house and the church there were about 8/9 other houses. He also stated that the deceased were burnt alive. He further admitted that he did not report about the incident to any of the villagers in the morning. In the next morning after the occurrence police party came and camped there for about one month. He never visited the Police Station or the C.B.I. camp at Ghasipura. He was brought to the Court by the C.B.I. officer on the date on which his deposition was recorded by the Trial Court. The Appellants whom he identified before the Trial Court were standing in front of the vehicle at the time of occurrence. From the deposition of this witness, as recorded by the Trial Court, it is not clear whether P.W. 36 identified the four accused persons by name and face or by face only. It is also not clear from his evidence as to whether these four accused were previously known to him. The four persons whom he identified set fire to the vehicles by lighting the straw. He further stated that he has not seen the four accused persons whom he had identified in the dock after the occurrence till the date of his deposition. He further stated that Ralia Soren, Mathai Marandi and Joseph Marandi came to the place of occurrence after the incident was over and the miscreants had left the scene of occurrence. He also stated that all these persons came about an hour after the miscreants left the scene of occurrence. But P.W. 15 Mathai Marandi clearly stated that he was present at the scene of occurrence and had he witnessed the incident. in course of investigation the investigating Officer of the C.B.I., namely P.W. 55 alone recorded his statement u/s 161, Code of Criminal Procedure. on 30.5.1999. Before that he never reported the matter to the Police though it is admitted case of the prosecution witnesses that the police party arrived at the village in the very next morning after the incident and they camped there for several months. Apart from the police party, the collector and other Police Officers also came to that place of occurrence. Yet he did not report the incident he claims to have seen either to the police or to the Collector for about long 4 months.
19. P.W. 55 being the C.B.I. Investigating Officer stated during cross-examination that the photographs of the suspects mixed with photographs of other persons were shown to the witnesses including Raghunath Dohari in a test identification parade of photographs. This witness identified the photographs of the aforesaid Appellants whom he identified in the Trial Court. In the written notes of submission filed on behalf of the C.B.I. (See Pages 68, 69 & 71 thereof) it is stated that photographs of suspects were not shown to this witness by P.W. 55. But this is belied by what the investigating Officer (P.W. 55) himself admitted at the page 848 of the paper book. Such identification on the basis of photographs was held by P.W. 55, being a statement made to the Investigating Officer in course of investigation, is inadmissible in evidence and hence such statements cannot be acted upon to lend corroboration to the identification of the Appellants in the Trial Court for the first time, particularly when they were not known to the witness. From this fact it is further evident that P.W. 36 did not know the four accused persons by name or face as otherwise there was absolutely no justification for the I.O. to hold photo identification parade of the suspects. It further appears from page 847 of the paper book that P.W. 55 (I.O.) procured photographs of each of the suspects from the election office. It further appears from page 848 of the paper book where I.O. (P.W. 55) admitted during his cross-examination that he showed photos of suspects to P.W. 36 Raghunath Dohari on 30.5.1999 and he identified Dara Singh, Dipu and Andka Naik only. Rest was not identified by him. But in his evidence before the Trial Court he identified only Dara Singh, Harish Chandra, Mahadev and Turam Ho. Prosecution has not come forward to explain this serious contradiction on the question of identification. Therefore, in the ultimate analysis we have no option but to reject his testimony as regards identification of some of the Appellants before the Trial Court for the first time. It is equally unsafe to act upon his evidence due to his belated disclosure of the incident to I.O. (P.W. 55) about five and half months after the occurrence.
20. P.W. 23 Joseph Marandi is another eye-witness examined in this case for the prosecution. In his evidence he stated that his house is situated near the church at Manoharpur. He knew deceased Graham Staines who was popularly called by them as Saheb Dada at Manoharpur. Deceased Graham Staines along with his two sons and some other persons came to Manoharpur on 20.1.1999. They came in two vehicles. The occurrence took place in the night of 22.1.1999. Graham Staines and his two sons (since deceased) slept in one vehicle parked in front of the church and Ors. had slept in the huts raised for them behind the church. The persons who accompanied deceased Graham Staines slept in the house of Samson Marandi. In the mid-night that day he heard the sound of beating the vehicles and then woke up. When he came out of his house he was restrained by 3/4 persons and they threatened him to assault if he proceeded further. These 3/4 persons were holding lathis and torches. He then came in the lane situated between his house and the church and from that place he could see 20/22 persons with lathis in their hands had surrounded the vehicle in which Graham Staines and his two sons were sleeping. Some of the persons were setting fire to the vehicle by putting straw under the same and lighted them with a match stick. After the vehicle caught fire and burnt, somebody form among the miscreants blew a whistle three times and they shouted slogans saying "Jai Bajarang Bali, Dara Singh Jindabad". The other vehicle was not visible to him from the place where he was standing. He could also recognize the Appellants Renta Hembram and Mahendra Hembram of his village among the miscreants, and they were accordingly identified in the dock. From among other persons involved in the crime, this witness identified Appellants Dara Singh, Rajat Kumar Das '' Dipu who set fire to the vehicle. He further stated that the C.B.I. Investigating Officer has shown him 30/40 photographs of suspected persons out of which he could identify the photographs of Appellants Renta Hembram, Mahendra Hembram, Dara Singh and Rajat Kumar Das '' Dipu. He could not say exactly when photographs of these Appellants were identified by him before the C.B.I. Investigating Officer. The C.B.I. Investigating Officer took his signature on the reverse side of the photographs being Exts. 20/1, 20/1 and 22/1. However, he stated that the photographs of Appellants Renta Hembram and Mahendra Hembram were not among those three photographs which were produced before him during trial. Needless to say here that such statements in the form of identification of photographs of the aforesaid Appellants before the Investigating Officer and signatures obtained on the reverse-side of the photographs by the Investigating Officer amount to statements to a police officer in course of investigation and therefore, such statement being hit by Section 162 of the Code is inadmissible in evidence. This is in short the evidence given by this witness in course of his examination in chief. In the written notes of submissions filed on behalf of the C.B.I. (page 70 thereof) it is stated that I.O. did not show this witness photos of Appellants Renta Hembram and Mahadev Hembram. But, this is totally belied by what this witness stated at page 616 of the paper book during his examination in chief. If Renta an Mahendra were indeed his co-villagers and he knew them since before the occurrence, there was absolutely no necessity for the I.O. to show photos of Renta and Mahendra to this witness for identification. It, therefore, seems that this witness did not disclose name of any Appellants in his three statements recorded by three Investigating Officers, as otherwise there was no necessity for photo identification.
21. It further appears from the evidence on record that his statement was first recorded about 10 days after the occurrence on 2.2.1999 by the Investigating Officer of the State Police. Again his statement was recorded on 6.2.1999 by the Investigating Officer of the Crime Branch of the State Police. Subsequently P.W. 55 recorded his statement u/s 161 of the Code on two occasions, namely, 3.6.1999 and 3.6.2000. He further stated that on 23.1.1999 Police from Anandpur Police Station seized a small cloth, a camera, some steel glass tumblers, spoons, torch batteries, two kataris and few coins from the burnt vehicle where Graham Staines and his two sons had slept. He was witness to the said seizure and accordingly he signed Ext. 18 being the seizure list. During cross-examination he admits that he did not report about the incident to the Police when such seizure was made by the police of Anandapur Police Station. It is not understood as to why there was a delay of about 10 days for the I.O. of the State Police to record his statement on 2.2.1999 for the first time ? No explanation was given by the prosecution or by this witness as to why he did not report about the incident to the Police when such seizure was made, as aforesaid, by the Police personnel of Anandapur Police Station. It is admitted case of the prosecution that in the very next morning after the occurrence Police personnel came to the village and a police camp was set up there for several months and yet this witness did not report the incident he saw to the police except on 2.2.1999. This inordinate delay has not been explained either by this witness or by the prosecution. It may further be stated in this connection that he was a witness to number of other seizures made by the Police in the very next morning after the incident and yet he did not report the incident he had seen to the Police for quite a long time. He also admitted during his cross-examination that police party came to the village on 23.1.1999 in the morning and they were in the village till evening though prosecution case is that police party camped in the village for several months since the next morning after the incident, yet it is really mysterious as to why he did not report the matter he claims to have seen to the Police for such a long time. Needless to mention here that no T.I. parade of the suspects/appellants who were arrested during investigation was held before a Magistrate for their identification by this witness. Prosecution as well as the learned Trial Court heavily relied upon the evidence given by this witness and other alleged eye-witnesses including P.W. 55 as to identification of the Appellants on the basis of photographs shown to them by the Investigating Officer. These photographs could have been placed before a Judicial Magistrate and T.I. parade on the basis of such photographs could have been held by the Judicial Magistrate for identification of the culprits by the eye-witnesses. That method was not followed in this case. During cross-examination he further admits that this witness along with P.W 4 Ralia Soren (eye-witness), Bayu and Pradip Das of Thakurmunda went together to Thakurmunda Police Station. They reported the incident to Pradip Das. He also claims to have reported the incident to Pradip Das. He also claims to have reported the incident to the Police Officer of Thakurmunda P.S. at his residence. The Police Officer directed them to lodge F.I.R. at Anandpur Police Station. They then reached Anandapur Police Station by 8 AM. They were then told that he officer-in-Charge and other police personnel had already left for the village. Anandpur Police Station arranged conveyance for them to go to their village and yet their statements were not recorded either by the Police Officer of Thakurmunda Police Station or by the Police Officer of Anandpur Police Officer or the Police Officers whom this witness saw in the village for about a month. He further admits that he did not report the matter to the police personnel of Anadapur police station who were found in the village. He even did not report about the occurrence to his parents. Timothi Murmu was further of the church at the relevant time. He also did not report about the incident to Timothi Murmu or to the Grama Rakhi of their village or to the Sarpanch. He admits that he never saw the Appellant Dara Singh in their village before the occurrence. It further appears that this witness did not state to various investigating officer that while standing in the lane he saw the occurrence. He also did not state before the Crime Branch Investigating Officer that some people set fire to the vehicles or that Appellants Renta Hembram and Mahendra Hembram were present at the scene of occurrence. In fact he did not disclose the names of any of the Appellants in as many as three statements which he had made to various Investigating Officers in course of investigation though he claims that Renta and Mahendra were his co-villagers. He also did not state to the Investigating Officer that some persons threatened to assault him if he proceeded further and for this reason out of fear he went to the backside of his house. Therefore, from the aforesaid it appears that this witness never divulged the names of the Appellants whom he identified before the Trial Court in his statements recorded by various Investigating Officers. He was co-operating with investigating agency in the sense that he attended number of seizures made by the police in the very next morning after the incident. This conduct of this witness further belies the prosecution theory that out of fear P. Ws were unable to disclose the names of assailants. We, therefore, cannot accept his evidence of identification of some of the Appellants other than Appellants Dara Singh and Mahendra Hembram. However, he also heard the slogans in the name of Appellant Dara Singh and accordingly, identification of Dara Singh for the first time in the Trial Court stands corroborated by such slogans as heard by all the eye witnesses. Furthermore, identification of Appellant Mahendra Hembram by this witness in the Trial Court for the first time is corroborated by other materials on record to which we will refer at a later stage of this judgment. However, there is no material in the evidence on record to lend corroboration to the identification of Renta Hembram and Raja Das '' Dipu for the first time during trial and hence, we are unable to place any reliance on the identification of Renta Hembram and Rajat Kumar Das.
22. Next important eye-witness is P.W. 39 Soleman Marandi. In his evidence he stated that he knew deceased Graham Staines from his childhood and he used to call him as Saheb dada. Graham Staines used to visit Manoharpur once in a year. About three years prior to the date of his deposition, Graham Staines visited their village. He was accompanied by his two sons. They came in two vehicles from Baripada. He was sleeping along with his two sons in the vehicle during night. The vehicles were parked in front of the church at Kachasahi. They reached the village in the evening in connection with jungle camp. Jungle camp continued for two consecutive days. After the jungle camp was over during third day night Graham Staines along with his two sons slept in a vehicle parked in front of the church. At mid-night being attracted by the sound of beating the vehicle, he came out of his house and went near the church and found 30/40 persons had surrounded the vehicle. Some of these persons were beating the vehicle in which Graham Staines was sleeping. He could hear cries of the two sons of Graham Staines from inside the vehicle. The people set fire to the second vehicle kept near the vehicle in which Graham Staines was sleeping. They brought straw from the straw heap of Lablal and put the same beneath the vehicle and set fire to it. They brought straw for the second time from the heap and set fire to the straw by lighting match stick and put the burning straws by beneath the vehicle. The vehicle caught fire. The miscreants also lighted straw and put the same beneath the vehicle in which Graham Staines was sleeping and that vehicle also caught fire. The witness then identified Appellant Dara Signh, Rajat Kumar Das, Surath Nayak, Harish Chandra Mahanta, Ojen '' Suresh Hansda and Kartik Lohar from among the accused in the dock and he further stated that these miscreants had set fire to the vehicle. From his deposition, as recorded by the Trial Court, it is not clear whether this witness identified these Appellants by name and face or by face only. This is not the proper way to record evidence on an important question like identification of the offenders. We are constrained to observe here that the Trial Court was utterly lackadaisical in this regard. He further claimed that Appellant Ojen Hansda belongs to his village. Appellant Dara Singh was holding a batten like lathi. It may be recalled that some other eye-witness claimed that Appellant Dara Singh was holding an axe. However, in a semi-dark condition an axe; may appear like a lathi or the vice-versa. This witness did not say so. Dara Sigh was also beating the vehicle. Appellants Suratha and Rajat brought straw from the straw heap of Lablal and put the same beneath the vehicle and thereafter both the vehicles were set on fire. Out of fear this witness returned back to his home. His house was situated four houses away from the church. He could also hear the blowing of whistle three times and slogan was raised saying "DARA SINGH JINDABAD, Bajarangbali JINDABAD". He returned back to his home about 10-15 minutes later after the miscreants had left the place. About 3/4 months after the occurrence C.B.I. Investigating Officer showed him number of photographs out of which he could identify five persons who had taken part in the occurrence. He put his signature on the back side of those photographs. Out of those five photographs, three were photographs and two were Xerox copies, on which signature were put by him. The photographs were marked Exts, 44, 45 and 46 and the Xerox copies were marked as Exts. 47 and 48. Necessity of showing him photographs of suspects is not understood if the witness had known the Appellants whom he had identified before the Trial Court and if he had indeed named them in his statement before the Investigating Officer. From this fact it is manifest that this witness in his statement recorded by various Investigating Officers never disclosed names of the suspects/appellants whom he identified before the Trial Court. In fact Learned Special P.P. for the C.B.I. contended that none of the eye-witnesses disclosed names of the Appellants in their statements before the Police. Out of fear they did not disclose the names of suspects and for this reason no T.I. Parade could be held. For this reason this unheard of method of identification parade of photos of suspects was held by the I.O., (P.W. 55). Needles to repeat that such statements to the Investigating Officers in course of investigation as to identification by photographs being hit by Section 162 of the Code are inadmissible in evidence. From these facts it further appears that none of the culprits were known to this witness, and therefore, his testimony as regards identification of the aforesaid Appellants in the Trial Court for the first time without being corroborated by previous T.I. Parade held by a Judicial Magistrate either on the basis of the photographs or with the suspects physically present in such T.I. Parade is of no use. It is needs to be mentioned that his statement in course of investigation was recorded on 3.2.1999 by the Investigating Officer of the Crime Branch and later on 3.5.1999 by the Investigating Officer of the C.B.I., namely, P.W. 55 Learned Special P.P. admits that in none of the statements he named any of the miscreants. As has been already noticed, a police camp was set up in the village in the very next morning after the occurrence and the police camp remained in the village for several months and yet he did not report the matter to any police officer till 3.2.1999. Police officers, Collector and other authorities were visiting the village from time to time since the morning after the occurrence. Yet he did not come forward to report about the incident. His statement was recorded for the first time about 12 days later on 3.2.1999. He further stated that his statement was recorded by the C.B.I. Investigating Officer about 2/3 months after the occurrence. He also admitted that the Police and other authorities came to the village in the very next morning after the occurrence. The police camp was set up in village Manoharpur for about three or four months. He did not report about the incident he had seen to any of them or to his mother, wife, and younger brother in the night of occurrence. He also did not report about the occurrence to the father of the church Timothi Murmu or Sarpanch of the village though they came to the village after the occurrence. He also did not report the incident to any police officer. During cross-examination, he further stated:
Three of the persons I have identified yesterday were setting fire to the vehicle parked near the house of Mathai and rest 3 was standing on the road. I cannot name them except accused Ojen but I can identify them.
During cross-examination on behalf of accused Suratha Nayak, Umakanta Bhoi etc. he specifically stated that the Investigating Officer of the Crime Branch did not show him any photographs of the suspects. However, the Crime Branch had shown him posters with pictures of some suspects declaring reward for giving information about these suspects, but when poster was shown to him, he kept mum out of fear. The Crime Branch people asked him about the posters about a month after the occurrence. He did not state in his statement recorded by the Investigating Officer of the Crime Branch that Graham Staines and his two sons were sleeping in the vehicle in the night of occurrence and that those vehicles were parked in front of the church, or that he saw the miscreants were beating the vehicles. He also did not state in his statement recorded by the Investigating Officer of the Crime Branch that he heard cries of two sons of Graham Staines or that miscreants brought straw from the straw heap of Lablal and that they put the straw beneath the vehicles and then set fire to the same. He also did not state in his aforesaid statement recorded by the Investigating Officer of the Crime Branch that he could identify some of the miscreants who took part in the incident or who brought straw from the straw heap of labial and set fire to the vehicles. He admits that he did not know Appellant Dara Singh previously. He further admits that he never saw Appellant Dara Singh nor he knew him before the occurrence. He also did not state to the Investigating Officer of the C.B.I. that one of the miscreants was holding a batten like lathi with which he was beating the vehicles. This is in short the entire evidence of P.W. 39. Except identification of Dara Singh, we are unable to accept his evidence about identification of other Appellants. As regards identification of Dara Singh, we find that it is corroborated by the slogan he heard which miscreants raised in the name of Dara Singh. All the eye witnesses including the FIR are consistent about the slogans given in the name of Dara Singh.
23. The next eye-witness examined for the prosecution in this case is P.W. 43 Lablal Tudu. In his evidence he stated that he knew deceased Graham Staines as he used to visit their village Manoharpur once in a year. About three years prior to the date of his deposition Graham Staines visited their village Manoharpur. He was accompanied by his two sons and Bayu Hembram, Nimai Hansda, Pittar Murmu and others. He stayed for a day. He came in one evening. After taking dinner Graham Staines with his two sons slept inside a vehicle parked in front of the church at Kachasahi. At mid-night his mother P.W. 2 Basi Tudu heard the sound of beating the vehicles and she called this witness P.W. 43 woke up from his sleep and heard the sound of beating the vehicles and for this reason he came out and saw 3/4 persons were standing in front of their house. He then went to his thrashing floor adjacent to his house and could see 50/60 persons were beating the vehicles with lathis in which Graham Staines and his two sons were sleeping. Those persons had their heads tied with red cloth and were armed with lathis, bows and arrows and were also holding torches. Three or four of them collected the straw form the straw heap and put the same beneath the empty vehicle kept near the vehicle in which Graham Staines slept with his two sons and lighted the said straws with match sticks. The witness heard cries of the children when the "vehicle was heated". After setting the empty vehicle ablaze same persons put straw beneath the vehicle in which Graham Staines and his two sons had slept and ignited the same with match sticks. Both the vehicle caught fire. He claims to have identified four of the miscreants setting fire to the vehicles. The witness then identified the Appellants Dara Singh, Turan Ho, Daya Patra and Rajat Das as these persons beat the vehicles and set fire to the same. Here again the Trial Court while recording deposition was most lackadaisical in as much as it is not clear whether this witness identified these Appellants by name and face or by face only. This is in brief what this witness stated during his examination in chief. During cross-examination he stated that his village had no electric connection. He admits during his cross-examination that after the occurrence he did not report to anybody about what he had seen. His statement was recorded after a month of the occurrence by the Investigating Officer of the C.B.I. However, it appears from the evidence on record that his statement was recorded by P.W. 55, who is Investigating Officer of the C.B.I., on 3.6.1999. Therefore, his statement was recorded by the C.B.I. Investigating Officer (P.W. 55) about five months after the occurrence. He admits that he never reported the incident to anybody except the C.B.I. Investigating Officer. He further says in his evidence that the C.B.I. Investigating Officer had shown him number of photographs of suspects, and from those photographs he had identified the photographs of those whom he identified in the Trial Court. From this it appears that he did not name any of the miscreants in his statement recorded by the Investigating Officer (P.W. 55) in course of investigation. Learned Special P.P. also admits that due to fear this witness did not name the miscreants in his statement recorded by the I.O. (P.W. 55). His statement that he had identified those whom he identified in the court in course of investigation when he was shown photographs by P.W. 55 (I.O.) amounts to statement made before the Police in course of investigation and hence such statement as to the identification of some of the miscreants on the basis of photographs shown to him by the C.B.I. Investigating Officer is clearly inadmissible in evidence, and therefore such statements are not available for us to lend corroboration to his testimony before the Trial Court regarding identification of some of the miscreants. Though this omission to mention the names of the miscreants in the statement recorded u/s 161, Code of Criminal Procedure. has not been proved on required by law, but it is evidence that for his failure to disclose the names of the miscreants before the I.O., a necessity arose to show him the photographs of the suspects and on that basis he identified some of the miscreants before the Investigating Officer. Those suspects who were arrested before submission of charge-sheet could have been placed on T.I. Parade, yet that easy course was not followed by the investigating agency. Even the photographs used by the C.B.I. Investigating Officer could have been made available to the Judicial Magistrate requesting him to hold Test Identification Parade of the suspects on the basis of such photographs. That course not having been adopted we are constrained to hold that no legally admissible evidence is available on record to lend corroboration to this witness as regards identification of some of the miscreants in the Trial Court for the first time. He even did not report to his mother about what he had seen during the occurrence. He further admits during his cross-examination that soon after the occurrence a police camp was set up in the village which continued there for several months, yet he did not report the incident as seen by him to the police camp. For the first time his statement was recorded by the C.B.I. Investigating Officer about five months after the occurrence. He further admits that he cannot say the specific roles played by the four accused that he identified in the court for the first time. He is also unable to say whether these four accused persons had any weapon with them. It appears from his cross-examination that he did not disclose in his statement recorded u/s 161, Code of Criminal Procedure. that he came out of his house and found four persons in front of his house or that after seeing these four persons in front of his house, he went to the thrashing floor of his house or that number of miscreants were beating the vehicles. He also did not state to the C.B.I. Investigating Officer that the four miscreants whom he identified in the Trial Court put straw beneath the vehicle. He further states that he had no occasion to see the four miscreants whom he had identified in the Trial Court either by name or by face. This is the evidence, in brief, that this witness deposed before the Trial Court. There was a delay of about five months to record his statement. For this reason it is not possible for us to place any reliance on his evidence.
24. In this case charge sheet was filed on 22.6.1999 against all the Appellants. C.B.I. Inspector Umesh Kumar investigated the case from 23.4.1999 to 2.5.1999. Prior thereto, the State Police and also the Crime Branch Police of the state investigated the case. C.B.I. Inspector Dharam Sahu took up investigation on 3.5.1999 and continued with the investigation till 10.5.1999. After that the entire investigation was conducted by the C.B.I. Investigating officer being P.W. 55. Though the State Police drew up FIR which discloses names of many participants in the main occurrence which does not include any of the Appellants, yet C.B.I. registered a second FIR being Ext. 57 in this case. It is not understood under what authority of law a second FIR is registered in this case. Investigating Officer (P.W. 55) at number of places during his examination in chief as also during his cross-examination stated that photographs of all the suspects were collected from the photo identity cards of the respective suspects from the Election Department of the concerned collect orates. These photographs were mixed up with the photographs of other persons and the witnesses were asked to identify as to whether any of them were seen by them to take part in the occurrence. On the basis of such Test Identification Parade of photographs conducted by the Investigating Officer (P.W. 55), these witnesses who claimed to be the eye-witnesses, identified several Appellants. For the sake of brevity we are not going into the details of such evidence as given by P.W. 55. We have already stated that P.W. 55 started his investigation on 10.5.1999. The occurrence admittedly took place on 22.1.1999. Prior to that number of Investigating Officers had visited the village of occurrence. They recorded the statements of most of the witnesses before P.W. 55 entered the scene of investigation. In all these statements recorded by various Investigating Officers, none of these eye-witnesses claimed to have identified any of the miscreants involved in the incident. For long number of days many of these eye-witnesses never came forward before the respective Investigating Officers and other Police personnel visiting the village from time to time claiming that they had seen the occurrence. Some of the witnesses were examined for the first time on 23.1.1999 by the Investigating Officer of the State Police. They never claimed before him that they could recognize some of the Appellants by face or name. In these circumstances, we are of the view that no reliance can be placed on the testimony of these alleged eye-witnesses, as their identification of the Appellants other than Dara Singh and Mahendra Hembram, before the Trial Court for the first time is not corroborated by a previous T.I. Parade held by a Magistrate or by any other material.
25. P.W. 52 is another Investigating Officer, who investigated the case for some time. He belongs to the State Police. We find from his evidence that P.W. 52 was Officer-in-charge of Anandapur Police Station. He received a V.H.F. message from M.K. Dwibedy, D.S.P., Keonjhar that in the previous night some miscreant set fire to some house at Manoharpur resulting in the death of one person. In the instant case, it is not the prosecution version that any of the houses at Manoharpur was gutted by fire. There was absolutely no allegation or evidence that any arson was committed in any house at Manoharpur. However, P.W. 52 entered this information in the station diary vide Entry No. 550 dated 23.1.1999. He also relayed this message he has received over V.H.F. to the Circle Inspector of Anandapur Police Station, S.D.P.O., Anandapur and Sub-Collector, Anandapur. Thereafter at 7.45 in the morning, P.W. 52 with other Police personnel proceeded to Manoharpur and reached Manoharpur village at 9 A.M. On reaching Kachhasahi of Manoharpur village he found a huge gathering and two burnt station wagon vehicles in front of the church. He also found charred human dead bodies inside the station wagon No. ORM 1208. He deployed some Police Constables who were accompanying him to regulate and control the crowd. The S.D.P.O., Anandapur, the Circle Inspector of Police, Anandapur and the Sub-Collector, Anandapur the Inspector in charge of Ghasipur Police Station, the Officers-in-charge of Sosa and Nandipada along with one platoon of force arrived at his spot around 9 in the morning. The Collector, Keonjhar, Superintendent of Police, Mayurbhanj, Collector, Mayurbhanj; D.I.G. of Police, Western Range, Rourkela; D.I.G. Admn. Cuttack and also the Director General of Police, Orissa arrived at the spot at 11 A.M. At or around 9 A.M.P.W. 4 Rolia Soren lodged oral report which P.W. 52 reduced into writing and obtained signature of P.W. 4 thereon. Same was treated as FIR being Ext. 1/1. As regards the incident, it appears that P.W. 4 stated in the FIR lodged by him that some persons named therein apart from the Christian people of the village saw the occurrence. They found Lalit Marandi, Subhash Murmu, Rabindra Marandi, Sudam Murmu and Khitish Mandi setting fire to the vehicles and pelting stones. None of the persons named in the FIR are before us. They have not been charge-sheeted. It appears that this P.W. 4 never alleged in his FIR that any of the Appellants or any other persons apart from those he named as stated above, took part in the incident of murder and arson or in the incident of mischief by fire to the vehicle in question. In the Trial Court P.W. 4 of course figured as an eye-witness. In his evidence before the Trial Court P.W. 4 never alleged that persons whom he had named in the FIR were involved in the incident. Rather he stated in his evidence that the miscreants had their faces covered with caps and mufflers and for this reason he could not recognize them. However, in the FIR lodged early in the morning after the night of incident it is clearly stated that after the crime was committed, miscreants raised slogans saying "BAJRANG BALI JINDABAD" and "DARA SINGH JINDABAD". FIR was lodged soon after the occurrence when there was no time fore embellishment.
26. But, in the subsequent statements recorded by the Investigating Officers or in evidence before the court P.W. 4 never named the persons whom he had named in the FIR. He also recorded the statement of P.W. 53 Pittar Murmu. The I.O. (P.W. 52) also stated in his evidence that P.W. 53 merely stated that he was present when the Police arrived at Manoharpur village and was present when I.O. held inquest over the dead bodies. He put his signature on the inquest report. He also put his signature as a witness to the FIR lodged by P.W. 4. Apart form the aforesaid, evidence of this witness has no other importance. P.W. 52 conducted the inquest in presence of P.W. 3 Paul Murmu, Bayu Hembram, P.W. 53 Pittar Murmu, and K.K. Padhi, Tahasildar-cum-Executive Magistrate, Anandapur. It appears that on 23.1.1999 itself statement of P.W. 3 Paul Murmu was recorded by P.W. 52. As we have already seen he did not name any of the Appellants in his evidence before the Trial Court or in his statement recorded by P.W. 52 or by the subsequent Investigating Officers.
27. In these circumstances, we are unable to place any reliance upon the testimony of these eye-witnesses as the evidence of identification of the Appellants other than Dara Singh and Mahendra Hembram is highly doubtful. As already discussed above, and it is well settled principle in this regard that in the absence of any independent corroboration like Test Identification Parade held by the Judicial Magistrate, the evidence of eye-witnesses as to the identification of the Appellants for the first time before the Trial Court cannot be acted upon generally. However, this is not a rule of law but rule of prudence. Under exceptional circumstances a department from this rule of prudence may be permissible.
28. As has been noticed already that none of the alleged eye-witnesses named the miscreants in their statements recorded by number of Investigating Officers. They identified them for the fist time in the Trial Court. It is of course true that the Investigating Officer showed them photographs of the suspects where they claim to have identified some of them, and such statements made before the Investigating Officer in course of investigation are sought to be proved for lending corroboration to the evidence of identification of the accused-appellants before the Trial Court. It is well settled now that substantive evidence of a witness is his statement in the Court; but the purpose of identification is to test that evidence and the safe rule is that the sworn testimony of the witness in court as to the identity of the accused who are strangers to the witness, generally speaking, requires corroboration which should be in form of an earlier identification proceeding. (See
29. As regards failure to conduct the Test Identification Parade in respect of unknown accused who have been identified by such witnesses in the court for the first time it has been held to raise serious doubt and such testimony must be excluded. ( See
30. The Trial Court also relied upon the evidence furnished by some of the Appellants in their confessions recorded by the respective Judicial Magistrates. These confessions were used for lending corroboration to the evidence of eye-witnesses.
31. P.W. 29 Ashok Kumar Agrawal as Judicial Magistrate, First Class, Bhubaneswar recorded the confession of Appellant Rabi Soren being so directed by the Additional Chief Judicial Magistrate (Special Court), Bhubaneswar by his order dated 18.5.1999. It appears from the evidence of P.W. 29 Ashok Kumar Agrawal that this accused Appellant Rabi Soren was in the custody of the C.B.I. and from the custody the Appellant Rabi Soren was produced before the Additional Chief Judicial Magistrate on 18.5.1999. It appears that the Appellant Rabi Soren was produced before the Additional Chief Judicial Magistrate at 8 am. on 18.5.1999. Many things have been stated by P.W. 29 as regards the questions he had asked the Appellant to ascertain whether or not the confession sought to be made by this Appellant was voluntary or not. But from the contemporaneous record, we do not find that such questions and answers thereto were recorded. Only a routine statutory certificate as required u/s 164, Code of Criminal Procedure. was given by him. It further appears from the evidence on record that the very same day on which the Appellant Rabi Soren was produced before the Judicial Magistrate from the C.B.I. custody his confessional statement was recorded after giving him few hours reflection in the Court of Judicial Magistrate himself. It appears from the confession that the Appellant was placed in charge of the Bench Clerk and the Orderly Peon of the Court of P.W. 29 on the very day on which he was produced before him from the custody of the C.B.I. He did not caution that if the Appellant Rabi Soren refused to make any confession, he would not be remanded to C.B.I. or Police custody. The Appellant was also not informed that if he confessed such confession it may be used in evidence against him and on that basis there was possibility of his being sentenced to death or life imprisonment. His body was not checked to find out as to whether this Appellant was subjected to cruelty when he was in police custody/C.B.I. custody. He was also not asked as to whether he was coerced to make any confession or whether he was tortured while in the custody of the police/C.B.I. It further appears from the evidence of P.W. 29 that after the Appellant Rabi Soren was produced before him in his Court he gave the Appellant only five hours time for reflection during which period he was in the custody of his Bench Clerk in his chamber. At 1.00 p.m. after administering some warnings he recorded the confession of Appellant Rabi Soren. It is surprising that P.W. 29 after recording the confessional statement of Rabi Soren on 18.5.1999 again remanded the Appellant Rabi Soren to the custody of police (C.B.I.) till 20.5.1999. This is evident form the evidence of P.W. 55 at pages 855-856 of the Paper Book.
32. Sub-section (3) of Section 164 of the Code of Criminal Procedure clearly stipulates that if any accused refuses to make any confessional statement, such Magistrate shall not authorize detention of the accused in police custody. It may be further pointed out that before proceeding to record confession of Appellant Rabi Soren P.W. 29 never cautioned him that if he refused to make the confession he shall not be remanded to police custody. Therefore, there was a strong possibility of fear psychosis in the mind of Appellant Rabi Soren that he may be subjected to cruelty in police custody again if he refused to make the confessional statement. Remanding the Appellant again to police custody after his statement was recorded u/s 164, Code of Criminal Procedure. is not justified. Therefore, possibility of coercion, threat or inducement to the Appellant Rabi Soren to make the confession cannot be ruled out.
33. In his confessional statement Appellant Rabi Soren stated that around 3 O''clock in the afternoon of the day of Saraswati Puja of that year some 10/12 persons had gathered under a mango tree near Peon Tudu''s house. Out of them, Appellant Kartik Lohar and two others of Manoharpur came to the house of Appellant Rabi Soren and asked him to go near the mango tree. On being so asked, Appellant Rabi Soren went to the said mango tree along with aforesaid Kartik Lohar and two others. A person wearing lungi and kurta was present near the mango tree. Appellant Kartik Lohar identified the man wearing lungi and kurta as Dara Singh. Appellant Dara Singh and two others of Manoharpur asked him to come to Dumuria in the evening and saying so Dara Singh and Kartik Lohar went away towards village Boring and the persons of Manoharpur village went away to their village. His brother Satya Soren also accompanied Appellant Rabi Soren to that place. At that time Appellant Dara Singh also asked him to go to Manoharpur on that night. Thereafter, this Appellant along with his brother Satya Soren returned to his house. On that very day at about 9 p.m. Appellant Surath Naik and Daya Patra called him from his house and together they went to village Dumuridiha. Upon reaching that village they found Appellants Dara Singh and Kartik Lohar along with two other persons of Manoharpur were already there. They gave this Appellant some chuda (flattened rice) to eat and thereafter all of them together being armed proceeded. Appellant Dara Singh gave them red ribbon to tie on their respective heads and stated that they would together set fire to the vehicles of Christian Padris of Manoharpur village, as the Christian Padris threatened that if the Hindus do not convert themselves to Christianity they would not come to Manoharpur again. Accordingly, they together proceeded to Manoharpur. Dara Singh divided them into three groups. Appellant Dara Singh, Kartik Lohar and two other persons of Manoharpur and Daya Patra were in the first group. 10/12 other persons of Manoharpur were in the second group whom this Appellant could not identify. Appellant Surath, Appellant Rabi Soren himself along with 15 others formed the third group. Dara Singh told that the first group of which Appellant was not a member would attack the vehicles. The second group would help the first group and the third group would guard the houses of the co-villagers. As per this decision, the Appellant Rabi Soren and other of his group guarded the houses of Manoharpur village. Dara Singh himself removed the straw kept on the vehicle of the Padris and lighted the same with fire and put it under the vehicle and started breaking the glasses by beating the same with sticks. He put some straws inside the vehicle and by a match stick lighted the same. At that time the Christian Padri, who was sleeping inside the vehicle came out but the Appellant shot two arrows one of which struck on the left side of his chest and another struck him on his right hand. Door of the vehicle was prevented from being opened by the said Appellants Dara Singh, Kartik Lohar and other persons of Manoharpur who accompanied them. Appellant Daya Patra prevented the Padri from coming out of the vehicle. After the vehicle was burnt, Appellant Dara Singh went towards the other vehicle and set fire to it in the same fashion by putting straw under it and thereafter he blew his whistle twice. Appellant Rabi Soren stated in his confession that he had joined Dara Singh''s group thinking that the Christian Padris would be threatened. He has no knowledge that the Christian Padris would be killed. Had he any knowledge/information that this would happen, he would not have accompanied them. Out of the persons who were standing under the mango tree, he could recognize Peon Tudu, Madga Kisku, Laxman Tudu (P.W. 26), Badha Naik, Appellants Surath Naik, Daya Patra, Kartik Lohar, Dara Singh and two other persons of Manoharpur village who were also there. He further begged to be pardoned for the mistake he had committed. This is, in brief, the confessional statement said to have been made by this Appellant soon after his production from the Police Custody and said to have been recorded by the Judicial Magistrate First Class, namely P.W. 29 Ashok Kumar Agrawal. However, from his examination u/s 313, Code of Criminal Procedure. it appears that he retracted from this confession. In reply to Question No. 118 during his examination u/s 313, Code of Criminal Procedure. Appellant Rabi Soren stated that he was beaten by the C.B.I. and threatened to make confessional statement in the court in the same line as made by him and sign on the paper. He was made naked and was beaten. He was not allowed to sleep. He claimed to be innocent. Appellant further stated that he was misled in view of the fact that other Appellants gave him an impression that the Christian Padri would merely be threatened as he was converting the Hindus into Christianity. He had no knowledge and information that the Christian Padri would be murdered. He further claimed that if he had the slightest inkling that the other Appellants and miscreants would murder the Christian Padri he would not have accompanied them. Therefore, it is manifest that this confessional statement is clearly exculpatory inasmuch as the maker of the confession excluded himself from any liability whatsoever and laid the entire blame at the door of Appellant Dara Singh and other Appellants. At appropriate stage necessary discussion will be made regarding the law in this regard and how far such confession which is totally exculpatory can be used in evidence against other Appellants or as to how far it can be utilized against the maker of the confession.
34. One striking feature of this case is that the moment P.W. 55 started investigation of this case, series of Appellants made this type of confessional statement. None made any such confession before that. Whether it is accidental coincidence, we are unable to say anything. But this conjunction of events raises serious doubt in our minds.
35. Likewise confession of Appellant Turam Ho was also recorded by the very same Magistrate, namely, P.W. 29. From the evidence of P.W. 29, it appears that on 21.5.1999 the Additional Chief Judicial Magistrate (Special Court), Bhubaneswar directed P.W. 29 to record the confessional statement of Appellant Turam Ho. It further appears that Appellant Turam Ho was remanded to Police (C.B.I.) custody on 12.5.1999 pursuant to the order passed in this behalf by him and the Appellant Turam Ho was produced before the Additional C.J.M. on 21.5.99 in the morning at or about 8 a.m. Thereafter that Learned Additional C.J.M. issued the aforesaid direction upon P.W. 29. Here also we find that Appellant Turam Ho was not cautioned that if he made any confession, same may be used against him in evidence, and on that basis he may be sentenced to death or imprisonment for life. Equally Appellant Turam Ho was not cautioned by P.W. 29 that if he refused to make the confessional statement he would not be remanded to police custody. He was not asked any question as to whether he was subjected to cruelty while in police custody to make such confessional statement. It appears that the Appellant was taken to C.B.I. custody twice. First, he was taken to C.B.I. custody from 13.5.1999 to 19.5.1999, and thereafter again from 19.5.1999 to 23.5.1999. However, before the second police remand was over he was produced before the J.M.F.C. (P.W. 29) on 21.5.1999 to record his confession. In his confessional statement he made a similar exculpatory statement. On the very same day on which the Appellant Turam Ho was produced before the Judicial Magistrate First Class (P.W. 29) from Police (C.B.I.) custody, his confessional statement was recorded after giving him only five hours time for reflection in his chamber in the custody of this Bench Clerk. The time for reflection after a prolonged police custody was insufficient to wash out the fear psychosis from the mind of the Appellant Turam Ho. However, in his confessional statement as recorded by P.W. 29 he stated in brief that the incident in question occurred around 7 p.m. on the day of Saraswati Puja. On that day when he was in his house, two unknown persons called him through the inmates of his family. On being so called, he came out of his house and met those unknown persons and they called him to Manoharpur to witness a drama. He refused to go to Manoharpur as he did not know these persons. Then they told him that Ramjan, Mahadev and Harish Chandra, who were going ahead would go with them. Aforesaid three persons being his co-villagers this Appellant ultimately accompanied those unknown persons to Manoharpur to witness the drama. He met Ramjan, Madev and Harish Chandra half a mile ahead. All of them thereafter came to a place where he found 30 other persons had also gathered there. One of such persons was addressed by others as Dara Singh. After staying there for a while, they were given chuda (flattened rice) to eat. After eating, Dara Singh told them to go to Manoharpur to assault the Christians there. Everybody agreed to his proposal and proceeded towards Manoharpur armed with sticks etc. He also accompanied them. On reaching Manoharpur he saw two jeeps. Those persons damaged the jeeps and thereafter set them on fire by putting straw beneath and inside the said vehicles. Both the vehicles were burnt and thereafter Dara Singh blew whistle on hearing which everybody left that place. Appellant Turam Ho also went with them. He could not recognize other persons due to darkness. Then they returned to their respective homes. This is, in brief, the confessional statement he had made. However, he retracted from this confessional statement during his examination u/s 313, Code of Criminal Procedure. In response to Question No. 118 during such examination he stated that he had no knowledge at all about the incident. He was beaten by the C.B.I. police and he was given electric shock. He did not tell anything to the Magistrate. The Magistrate also did not ask him anything. From the aforesaid confessional statement the gist of which has been given above, it is clearly seen that this Appellant himself did not take part in the commission of crime, he did not render any assistance whatsoever to facilitate the commission of crime either directly or indirectly. Therefore, this confession is also exculpatory.
36. P.W. 34, Judicial Magistrate First Class, also recorded the confessional statement of Mahadev Mahanta on 8.7.1999 immediately after his production before P.W. 34 from the custody of police. It appears from the evidence of P.W. 34 that on 8.7.1999 she was directed by the Additional C.J.M., Bhubaneswar to record the confessional statement of Appellant Mahadev Mahanta. Appellant Mahadev Mahanta was given only ten minutes time for reflection after his production from police custody.
37. P.W. 55 being the C.B.I. Investigating Officer also stated in his evidence that on 8.7.1999 he produced Appellant Mahadev Mahanta before the Additional C.J.M. (Special Court), Bhubaneswar to record his confessional statement u/s 164, Code of Criminal Procedure. It further appears from his evidence that he arrested Mahadev Mahanta at C.B.I. camp, Anandapur on 1.7.1999 at 6.00 p.m. It further appears from the confession so recorded by P.W. 34 that the Appellant Mahadev Mahanta was brought before her by Police Sub-Inspector in her chamber on 8.7.1999 at 3.00 p.m. The confession of the Appellant Mahadev Mahanta as recorded by P.W. 34 suffers from same infirmity from which the confessions of other Appellants suffer. He was not cautioned that if the Appellant refused to make any confession, he would not be remanded back to the Police custody or that if he makes any confessional statement same may be used as evidence against him and on that basis he may be sentenced to death or life imprisonment. His body was not examined to see whether his body bore any marks of violence or torture. He was also not asked whether the police committed any torture upon him for making the confessional statement. These are the minimum requirements, which should be complied with by the Magistrate before recording the confession of an accused. Unfortunately this has not been done in the instant case. In his statement he stated that on one Friday he had been to Kuludhiha hat and that was the day of Saraswati Puja. There Ghanashyam Mahanta asked him to go to Manoharpur. Accordingly, the Appellant Mahadev Mahanta went to Manoharpur. He was informed by Ghanashyam Mahanta that Christian people would be threatened. All of them thereafter came near the Manoharpur church. Ghanashyam Mahanta them introduced this Appellant to Appellants Dipu Das and Dara Singh. After the introduction was over, they went to the church in the dark night and it was around 12 O''clock midnight. Dara Singh divided them into three groups, namely groups A, B and C, and this Appellant Mahadev Mahanta was a member of Group C. Group started beating the vehicle. This Appellant and Ors. of his group was standing at a distance of 30/40 meters. They set fire. He also saw the persons inside the vehicle were struggling. Upon seeing this, this Appellant held the hands of Dara Singh and asked him not to set fire as the people would die. However, the Appellant Dara Singh pushed him aside with two first blows and threatened him with an axe. Little while thereafter Dara Singh blew a whistle and slogans were raised by the miscreants saying "BAJARANGBALI KI JAI" and "DARA SINGH JAI". Thereafter he went away and drank water near the canal. Dara Singh took them to village Boring where he put them on a vehicle. Thereafter, this Appellant Mahadev Mahanta returned to his home. It is, therefore, evident from the confessional statement of this Appellant that he made a wholly exculpatory statement excluding him completely from any involvement whatsoever with the crime accept his innocuous presence at the scene of occurrence. He laid the entire blame at the door of Dara Singh and others. It has already been noticed that within ten minutes of his production before the Judicial Magistrate (P.W. 34) from long seven days custody on C.B.I. remand aforesaid confessional statement was recorded by the Learned Judicial Magistrate. It further appears that the Appellant Mahadev Mahanta retracted from his confessional statement during his examination before the Trial Court u/s 313, Code of Criminal Procedure. In reply to Question No. 118 during his aforesaid examination, this Appellant stated that he was beaten by the C.B.I. police for long seven days. He was made naked and was beaten. His two sons were also beaten. He was threatened that if he did not sign before the Magistrate, then his sons would be sent to jail. He further stated that he never made any statement to the Magistrate. The Court Peon and the C.B.I. Police took his signature on a piece of paper and he is innocent.
38. It is further stated by P.W. 55 during his cross-examination that on 24.8.1999 Appellant Umakanta Bhoi came and met him at C.B.I. camp at Anandapur and expressed his desire to make the judicial confession. Strangely Appellant Umakanta Was then on bail. Accordingly, he moved the Additional Chief Judicial Magistrate, Bhubaneswar for recording the confessional statement of Appellant Umakanta Bhoi on 27.8.1999 and on that very day P.W. 34 on being directed by the Additional C.J.M. recorded the confessional statement of Appellant Umakanta Bhoi. It appears that though Umakanta Bhoi allegedly appeared on his own before P.W. 55, the I.O. (C.B.I.) at the C.B.I. camp, Anandapur on 24.8.1999 and expressed his desire to make the judicial confession, yet he was produced before the Additional C.J.M. three days thereafter on 27.8.1999. It is not known where he was kept all these days ? In view of over-zealous nature of the investigation made by P.W. 55 which have already been noticed in various respects we cannot rule out the possibility that the accused was kept in C.B.I. custody without sanction of law at lest from 24.8.1999 until he was produced before the Additional C.J.M. However, thereafter on 31.8.1999 P.W. 34 recorded the confessional statement of this Appellant Umakanta Bhoi. In his confessional statement this Appellant stated that it was the day of Saraswati Puja on 22nd January, 1999. At about 10 O''clock in the morning, while he was going to take his bath Ghanashyam Mahanta being a shop keeper near his house requested him to attend a marriage party at Janjali village with him and accordingly this Appellant agreed to attend such marriage party. At about 4.30 p.m. Ghanashyam Mahanta called Appellant Umakanta Bhoi to accompany him on a cycle. Said Ghanashyam Mahanta along with the Appellant Umakanta Bhoi thereafter went to village Janjali. Ramjan Mahanta was also following them. After they crossed Janjali, Appellant Umakanta Bhoi asked Ghanashyam Mahanta as to where they were going. Then, Ghanashyam Mahanta informed him that they were going to Manoharpur and some Christian persons came from Baripada who were influencing the villagers of Manoharpur with money to convert them to Christianity. As a result of conversion the Hindu religion would be wiped out and the country will be ruled by foreigners. On being further asked, Ghanashyam Mahanta told him that they would do whatever they may be directed by Dara Singh. Appellant Umakanta Bhoi then reacted that as he did not inform his family about this, his family members would be displeased if they ever come to know about this. In these circumstances, this Appellant Umakanta Bhoi expressed his desire to return home. It was already dark at that time and it was 7.30 p.m. When this Appellant refused to accompany Ghanashyam Mahanta any further, he took Umakanta Bhoi forcibly with him. Despite his unwillingness they reached the out-skirts of Manoharpur around 8.30 p.m. Ghanashyam Mahanta went to the house of somebody in the jungle to keep his cycle leaving Umakanta Bhoi to stand on the road. After he returned, he took Umakanta Bhoi into the jungle route to a hut and by the time they reached it was around 10.00 p.m. Ghanashyam Mahanta then identified a person as Dara Singh, who was wearing lungi and kurta. He also saw other co-villagers Dinabandhu Mahanta, Santosh Mahanta, Mahendra Mahanta and Krushna Ramjan Mahanta and Dayanidhi Sahoo. Ghanashyam Mahanta gave him some chuda (flattened rice) to eat. After eating chuda he slept for a while and then was made to wake up by some unknown person around 12 O''clock in the night. He found some 30/40 persons there. All of them were given red ribbons, small sticks which were lying there. Thereafter one of them commanded that they would go to Manoharpur. However, the Appellant Umakanta Bhoi was afraid as they were holding sticks and he was forced to accompany them as it was a jungle road and he could not come back alone. After proceeding some distance, everybody stopped on the direction of one of them. There they divided into three groups. Each group consisted of 10/12 persons. Dara Singh was holding an axe and three others were armed with bows and arrows. One of them said that the first and second group should go near the church and the third group would prevent the villagers. He was put in the third group. The third group to which this Appellant Umakanta Bhoi belonged was at a distance of about 200-250 meters away from the church. He first heard the sound of vehicle being beaten. When 2/3 villagers came out, his group told them that Hindu should not go there. Out of fear nobody advanced further. Suddenly this Appellant saw the fire from a distance and seeing the fire he ran towards that place. Seeing fire, thereafter this Appellant alone with co-villager Kushu Ranjan Mahanta ran away out of fear. After some time he asked Kushu to go away home, but Kushu advised him to wait saying that he was afraid of wild animals. Thereafter they came near this Appellant blowing whistles and raising slogans "BAJARANG BALI KI JAI" and "DARA SINGH JINDABAD". Then and there he shouted at Ghanashyam Mahanta saying that if his family heard of this incident, they would be displeased. However, Ghanashyam told him that his family would not be informed about the incident. Thereafter this Appellant along with Dinabandhu Mahanta, Padmalochan Mahanta, Ghanashyam Mahanta, Dayanidhi Sahu and Mahendra Mahanta returned to their village around 4 O''clock. He never disclosed this incident in his house. On 11.3.1999 he was arrested by the Crime Branch. He further stated that he had not gone to the place of occurrence out of his own free will and had gone there being misled. This is in brief, the statement made by him. It is needless to elaborate any further that this is a statement which is absolutely exculpatory. Hence, it serves no purpose of the prosecution. However, during his examination u/s 313, Code of Criminal Procedure. before the Trial Court he retraced from his confessional statement. He had stated the he was arrested by the Crime Branch on 11.3.1999. He used to be produced before Anandapur Court after intervals of every 15 days. In the court he was identified to the witness''s number of times by the C.B.I. Officer. On 1st June, 1999, C.B.I. brought Mathai Marandi up to the jail gate and identified him. On 4th June, 1999 Mathai had entered into the jail. Initially Mathai could not identify him. He reported this matter to the Jail Superintendent in writing and told him that CBI made him identified by Mathai. On 4th June, 1999 CBI took him to Ghasipura camp. His father was also found in the camp. He was told to give his confessional statement otherwise his bail prayer would be rejected. He was beaten after keeping him in the camp for 5-6 days. CBI officer was visiting his house at every alternate day. He was brought to Bhubaneswar on 26th August, 1999 and was kept in CBI office, and was brought to Court on 27th August, 1999 on his refusal to give any confessional statement. Again he was taken to CBI office, and he was given threatening likewise. On 28th August, 1999 he was again brought to Court and was taken back and was beaten. On 31st August, 1999 he was brought to Court and produced before the "Judge". The CBI Officer sat in the court room. The "Judge" did not ask him anything. He also did not say anything. The "Judge" took his signature on a piece of paper. In some portion of that paper there was something written. He claimed to be innocent. It may be recalled that this Appellant Umakanta Bhoi was placed on Test Identification Parade inside the jail along with other suspects and miscreants mixed with other persons and P.W. 15, Mathai Marandi identified him in the jail during Test Identification Parade held by the Judicial Magistrate. But P.W. 55 admitted in his evidence that about seven days prior to the Test Identification Parade he had shown to P.W. 15 Mathai Marandi the photograph of Umakanta Bhoi. This shows the partisan nature of investigation conducted by P.W. 55. Therefore no reliance can be placed on the evidence of T.I. Parade adduced in court on the basis of investigation conducted by an utterly biased Investigating Officer like C.B.I. Investigating Officer (P.W. 55). From this we cannot accept the investigation to be an impartial one. Therefore, this is another circumstance to show that the confessional statement made by Appellant Umakanta Bhoi must have been procured by coercion, duress and threat.
39. Next important evidence in this regard is the confession of Appellant Dayanidhi Patra recorded by P.W. 34 Mrs. Toyaka Bharati, Judicial Magistrate First Class. From the evidence of P.W. 34 it appears that on 30.9.1999 the Additional C.J.M.; Bhubaneswar directed P.W. 34 to record the confessional statement of Dayanidhi Patra. The Appellant Dayanidhi Patra was produced before her on that very day, i.e. 30.9.1999. It needs to be mentioned here that in this case charge sheet was filed on 22.6.1999. The I.O. (P.W. 55) claims that he obtained permission from the concerned Magistrate for further investigation in this case. In course of such further investigation, the confession of this Appellant was recorded by the Judicial Magistrate concerned. After his production before P.W. 34 on 30.9.1999 along with the record of the case containing the order of the Additional C.J.M., she gave judicial remand to this Appellant till 1.10.1999 for reflection. He was thereafter produced before her on 1.10.1999, and accordingly she proceeded to record the confessional statement of this Appellant. In his confessional statement he stated that on 22nd January of that year it was the day of Saraswati Puja. He was engaged as a laborer for producing bricks. After doing working in that evening this Appellant along with one Gobind Sethi returned home and after having a wash he went to Kirtan Mandap and from there he returned back to his home. He took his meal. While going to his court-yard he met his co-villager Surath Naik (appellant). Surath Naik asked him to go to Manoharpur. However, he refused stating that he was totally tired as he worked throughout the day. However, he was forced to accompany the Appellant Surath Naik. This Appellant armed himself with bow and arrow as he was afraid of going through the jungle unarmed. Then they reached the house of Peon Tudu of their village. Peon Tudu had severe headache. Thereafter they decided to return home. While returning home they met the Appellant Rabi Soren, who was going to Manoharpur being told by Surath Naik. They together came to Manoharpur. Before reaching Manoharpur they went to Dumuridhia. At Dumuridhia there was a hut in the wheat field. It is about 1.5 km. from Manoharpur. There he saw some 40/50 persons. When they reached that place, Appellant Surath Naik gave them Chuda and sugar to eat. They ate the same and sat there for some time. When they were so sitting there, a boy came and took them to church. After about half an hour they left that spot. On the way they assembled in a field where the Appellant Dara Singh gave each of them red ribbon to tie their head and thereafter the persons who assembled there were divided into three groups. After the groups were divided, they proceeded towards the church, and on reaching the church at Manoharpur they could see that two vehicles were parked in front of the church. About 2/3 persons of the group belonging to this Appellant''s group went towards the vehicle and started cutting the tiers. When the air escaped from the tiers, the persons sleeping inside the vehicle started shouting. On hearing their shouts, 2/3 persons belonging to the group of this Appellant Dayanidhi Patra started to cut the tiers of the said vehicle. Suddenly Dara Singh appeared in the scene and set fire to the vehicle in which the deceased persons were sleeping. The roof of that vehicle was covered with straw. The vehicle started burning. Seeing this, this Appellant Dayanidhi Patra got frightened and this Appellant along with Appellant Surath and Rabi Soren retreated into a corner out of fear. Some time thereafter the fire gradually subsided and Dara Singh blew a whistle thrice. Hearing the whistle, the persons present there raised slogan saying "JAI BAJARANGBALI" and "DARA Bhai ki Jai" and thereafter they left that place. Out of fear this Appellant also followed them towards the wheat field. They all gathered in the wheat field where Dara Singh had earlier distributed the red-ribbons to each of them. There he took away the red ribbons from them and thereafter they returned to their respective villages. The participants who proceeded towards east were carrying a machine with them. 7/8 of them including this Appellant and other Appellants, namely, Rabi Soren, Surath Naik, Kartik Lohar, Dara Singh and two strangers came to the village of the Appellant Dayanidhi Patra. Thereafter he went to his house. Appellant Surath, Kartik Lohar, Dara Singh and two others went towards village Boring. He slept in the house on that very day. He heard news from radio that the Christian Missionary Graham Staines and his two minor sons were burnt to death. Later on some eight days after the incident, he came to learn from his villagers that he police was searching for him. He went to Pohula Mines. After staying there for some days he went to Phulabahadi. There he did some cultivation work. He celebrated the Rakhi Purnima at village Phulabahadi. On the next day he went to the house of this aunt at Ekatali. He stayed there for about 10 days and thereafter, he went to sailing and did some cultivation work. From there he went to Suanpur to see football match. There he watched the tournament for two days. Then this Appellant along with three brothers-in-law of his sister came back to this village. He knew earlier that Police was on the look out for him. So before reaching his village, he had been to one Mitu Patra, Choukidar of the village Sarasposi and narrated the incident before him. He sought his advice with regard to the case. Mitu Patra then advised him that after consulting the D.S.P. he would inform next day. Then he went to village Nuagaon Remilidiha. In that village he was arrested by the Police in the night of one Tuesday. He did not know that Dara Singh would burn the vehicles. If he had any knowledge or inkling about this incident, he would not have gone there. He further pleaded that he committed a mistake in joining with them. So in the confession itself he begged to be pardoned. This is in short the so called confessional statement made by this Appellant. However, during his examination u/s 313, Code of Criminal Procedure. this Appellant retracted from his statement which he made before P.W. 34. He stated in reply to Question No. 118 during his examination u/s 313, Code of Criminal Procedure. that after doing hard labor during day time he was sleeping at his home. At that time, Surath called him to go to see a Jatra. It was around 8/9 p.m. However, he started with him in spite of his unwillingness. As they had to pass through a jungle road he took with him bow and arrow and sword. First they went to the house of Peon Tudu. Peon Tudu refused to accompany them to see the Jatra (folk drama). Then they returned back to his house. On way back to his house Appellant Rabi Soren met them. Appellant Surath told Rabi Soren to go and watch the Jatra. Rabi Soren after taking his dinner went out. After reaching at Dumuridiha, Surath told them to go on left direction. Surath carried with him Chuda (flattened rice). They took flattened rice at wheat field. They sat around the fire lighted with wood. People assembled there one after another. Appellant Dara Singh was discussing about Group A and Group B. Someone from the gathering questioned the Appellant Dara Singh if they would do such thing, the Police would catch them. Dara Singh replied that if they would do this, then the Government of that time would collapse, and they uttered slogan "JAI BAJARANGBALI" and Bajarang Dal would be liable. This Appellant then told Appellant Rabi Soren and Surath to leave for the Jatra. They denied. However, this Appellant left the place for seeing the Jatra. He went up to Manoharpur where he heard the sounds of Nagra and Madal (drums). He then proceeded towards that direction. Reaching there he saw some persons both males and females, who had already gathered there. The vehicle was not set on fire. Dara Singh came from the back side by holding an axe. Keeping the axe on the floor he lighted a Beedi. He set fire on straws kept on the roof of the vehicle. The vehicle also caught fire. He them left the place out of fear. After walking some distance, he saw Rabi Soren and Surath Naik on the way. After meeting them, he could again hear the slogans saying "JAI BAJARANGBALI". Thereafter he returned to his home. He further stated that the C.B.I. gave him a written statement and required him to make the statement before the Court in accordance with such written statement. Therefore, it appears that the so-called confessional statement is totally exculpatory and he also retracted from the confession. This confessional statement was made long after the charge-sheet was filed in this case on 22.6.1999. This Appellant was also charge-sheeted on 22.6.1999 showing him as an absconder.
40. These are the confessional statements recorded in connection with this case. All these confessional statements were heavily relied upon by the Trial Court for lending corroboration to the oral evidence of the eye-witnesses.
41. We have already seen that apart from other infirmities as already pointed out one major infirmity of very serious nature from which each of the confessions suffers, namely, all these are of exculpatory nature. Section 30 of the Evidence act deals with as to how far the confession of co-accused is relevant. Section 30 of the Evidence Act is a new provision. There was no such provision in the Evidence Act 2 of 1855. It therefore makes a departure from the common law of England. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself or some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Therefore, unless the statement of a person amounts to a confession acknowledging the entire guilt, the same cannot be treated as confession. What is admissible against co-accused is a confession amounting to complete acknowledgment of the guilt. Therefore, Section 30 of the Evidence Act applies to confessions and not to statements which do not admit the guilt of the confessing accused. (See
42. In
43. Again in
44. We have also pointed out while discussing the evidence relating to confession that many of these confessions were recorded immediately after production of the maker thereof before the Judicial Magistrate after long CBI custody. We have also pointed out that in some cases even after such statements were made and recorded by the Judicial Magistrate, the maker was remanded to police custody. This is utterly illegal. Various warnings/cautions required to be given to the accused before recording such confession have not been adhered to by the recording Magistrates. The Supreme Court in
45. Prosecution also relied upon two letters allegedly written by Appellant Mahendra Hembram to his relations containing confession made by him. The relevant evidence in this regard is given by P. Ws. 7, 8 and 9. These two letters are marked as Exts. 2 and 3. P.W. 7 Bholanath Tudu stated in his evidence that he is maternal uncle of Appellant Mahendra Hembram. Mahendra was prosecuting his studies staying in his house in Padiabeda College in the year 1995-1996. About a year prior to the date on which his deposition was recorded, C.B.I. officers searched the house of this witness and seized an inland letter and another letter written on plain paper in two sheets. Ext. 2 is the inland letter and Ext. 3 is the letter written on plain paper. The C.B.I. officers seized these two letters under the seizure list marked Ext. 4. He signed the inland letter at the instance of the C.B.I. Officer. Subsequently he stated that he did not sign the inland letter. He further stated that he was unable to identify Mahendra Hembram in the dock. At this stage prosecution declared him hostile and with the permission of the Trial Court he was cross-examined by the prosecution. During such cross-examination he stated that he did not know the writings in Exts. 2 & 3. Therefore, he could not say as to who wrote those two letters. He further denied to have stated before the Investigating Officer, C.B.I. that the letters marked Exts. 2 & 3 were written by Appellant Mahendra Hembram to his daughter-in-law Kapuru Tudu. He further claimed that he was never examined by the investigating Officer, C.B.I. However, he admitted that he signed the seizure list being dictated by the Investigating Officer, C.B.I. He emphatically denied that the letters marked Exts. 2 & 3 were recovered from his house. Therefore, his evidence does not support the prosecution case. Likewise P.W. 8 Ramesh Chandra Tudu was also declared hostile as he failed to identify the handwriting of Appellant Mahendra Hembram. He stated in his evidence that Appellant Mahendra Hembram is the son of sister of his father. Kapuru Tudu is his wife. He further stated that he cannot identify the handwriting of Mahendra Hembram. At this state this witness was declared hostile and with the permission of the Court he was cross-examined by the prosecution. In his evidence he stated that he could not say as to whom the author of letters was marked Exts. 2 & 3, though the same were addressed to his wife. He also denied to have made any such statement before the C.B.I. investigating officers that Appellant Mahendra Hembram was the author of the letters marked Exts. 2 and 3. Therefore evidence of this witness also does not support the prosecution.
46. P.W. 9 Kapuru Tudu is the wife of P.W. 8. She is another witness with regard to the letters marked Exts. 2 & 3. Appellant Mahendra Hembram is the son of sister of her father-in-law. Mahendra was prosecuting his studies in Padiabeda College and staying in their house. Thereafter he prosecuted his studies at Bhadrak College. She failed to identify as to who wrote Exts. 2 & 3 letters. At this stage prosecution declared her hostile and with the permission of the Court she was cross-examined by the prosecution. She denied to have ever stated before the Investigating Officer, C.B.I. that the letters marked Exts. 2 & 3 were written by the Appellant Mahendra Hembram. Therefore, her evidence also does not support the prosecution with regard to the prosecution story on the question of two letters marked Exts. 2 & 3. It must be stated in this connection that statement of this batch of witnesses, namely, P.W. 7, P.W. 8 and P.W. 9 were recorded on 4.6.1999 and 5.6.1999 respectively by P.W. 47. Therefore, these letters seem to have been seized few days before filing of the charge-sheet. P.W. 24 Biranchi Narayan Majhi is a witness to the seizure of letter marked Ext. 2 allegedly written by the Appellant Mahendra Hembram. In his evidence he stated that he signed on a piece of blank paper at the instance of the C.B.I. Officer marked Ext. 4. Ext 4 is the seizure memo under which letter Ext. 2 was seized. He further stated that never his statement was recorded by the CBI. Investigating Officer. Therefore, this seizure witness also does not support the prosecution story with regard to the seizure of letter Ext. 2. Prosecution story with regard to Exts. 2 and 3, in brief, is that some time after the occurrence Appellant Mahendra Hembram wrote two letters addressed to her sister-in-law, namely, P.W. 9 Kapuru Tudu. However, all the witnesses examined in this regard denied that aforesaid two letters were in the handwriting of Appellant Mahendra Hembram. The seizure witness also denied the story of seizure. We have also discussed the evidence of this witness, namely P.W. 24 Biranchi Narayan Majhi. With regard to this letter evidence of P.W. 35-Sumon Ghosh is very important. In this evidence P.W. 35 stated that he was working as an L.D. Clerk in National Atlas and Thematic Mapping Organization, Calcutta since 1992 and still continuing in that post. On being instructed by his authority, on 4.12.1999, he reported to the Inspector, C.B.I.D. Sahu, Special Crime Branch, Salt Lake, Calcutta. Inspector D. Sahu obtained specimen handwritings and signatures of Appellant Mahendra Hembram in his presence. The witness identified Mahendra Hembram in the dock. Ext. 35 sheets of paper contain the specimen handwriting and signatures of Appellant Mahendra Hembram taken in his presence. He further stated during his cross-examination that Appellant Mahendra Hembram wrote the specimen writings as per dictation of the C.B.I. Inspector. C.B.I. Inspector D. Sahu had identified Appellant Mahendra Hembram before him. It further appears that it was suggested on behalf of Appellant Mahendra Hembram that Ext. 35 is not in the handwriting of Appellant Mahendra Hembram. The specimen handwritings and signatures contained in Ext. 25 were compared with the handwritings contained in the letters marked Exts. 2 & 3, and upon comparison the Handwriting Expert found that the writings contained in the letters marked Exts. 2 & 3 and the specimen handwritings were written by the same person. Therefore, we hold that the letters marked Exts. 2 and 3 were indeed written by Appellant Mahendra Hembram though denied by him. Contents of the said two letters amount to confession or at least admission of some very important incriminating materials. He has been identified before the Trial Court by P.W. 23 Joseph Marandi as a participant in the crime. Contents of these two letters lend support to the evidence of his identification before the Trial Court for the first time as given by P.W. 23. In this sense identification of Appellant Mahendra Hembram for the first time in the Trial Court is an exceptional case where we do not require further corroboration by evidence of previously held T.I. Parade inasmuch as his involvement with crime is amply corroborated by the contents of the two letters written by Appellant Mahendra Hembram.
47. Appellant Mahendra Hembram by his letters dated 1.2.2002 and 2.2.2002 addressed to the Sessions Judge confessed his guilt. The statement of Mahendra Hembram in these letters that he was solely responsible for the alleged murders on 22.1.1999 exonerates other Appellants. Be that as it may, the contents of these two letters contain incriminatory admissions made by Mahendra Hembram himself and hence the contents of these two letters addressed to the Learned Sessions Judge in course of the trial lend ample corroboration to his identification before the Trial Court for the first time by P.W. 23 Joseph Marandi. We would not have acted upon his identification for the first time in the Trial Court by P.W. 23 Joseph Marandi as the same was not supported by any previously held T.I. Parade conducted by a Judicial Magistrate. But then, in view of the contents of the aforesaid letters addressed by him to the Learned Sessions Judge as also two other letters addressed by him to his relations lend corroboration to his identification in the Trial Court by P.W. 23 and hence such identification can be safely relied upon. We, therefore, hold that in fact the involvement of Appellant Mahendra Hembram as regards his participation in the crime which resulted in rioting, arson and murder of three persons have been proved beyond all reasonable doubt.
48. We have already discussed in this judgment as to how the identification of Appellant Dara Singh by a number of eye-witnesses has been amply corroborated by contemporaneous slogans raised by the participants in the crime saying "DARA SINGH JINDABAD". Therefore, in respect of involvement of these two Appellants, we are of the view that the prosecution has made out an exceptional case where identification for the first time before the Trial Court can be relied upon though they were no identified in any previously held T.I. Parade conducted by a Judicial Magistrate.
49. But only Appellant Dara Singh has been convicted u/s 302, Indian Penal Code and accordingly sentenced there under to death. There is absolutely no evidence on record that due to individual act of the Appellant Dara Singh alone the three deceased persons or any of them died. No particular fatal injury to any of the deceased has been attributed to Dara Singh. Therefore, for the murder of the three deceased persons, the Appellant Dara Singh cannot be held individually liable though he can be held liable vicariously along with others by invoking Section 149, Indian Penal Code. As a matter of fact the evidence against Appellants Dara Singh and Mahendra Hembram and all other participants is of the same nature. The eye-witnesses never attributed any particular fatal injury to Appellant Dara Singh for which he can be individually held responsible for the death of three deceased persons or for the death of any of them. Evidence against all the participants including Dara Singh being of identical nature, they were all equally responsible for the three murders. Therefore, no justification is available from the evidence on record to single out Dara Singh for convicting him u/s 302, Indian Penal Code. In that view of the matter, the conviction of Appellant Dara Singh u/s 302, Indian Penal Code and sentence of death there under cannot be sustained and must be set aside. We uphold the conviction of the said two Appellants, namely, Dara Singh and Mahendra Hembram only under Sections 148, 435/149, 436/149 and 302/149, Indian Penal Code and sentences passed against them in respect of such convictions. However, convictions and sentences of remaining Appellants under Sections 148, 435/149, 436/149 and 302/149, Indian Penal Code cannot be sustained as there is no reliable evidence on record as regards their identification.
50. In fact, prosecution case with regard to the charges against the remaining Appellants Umakanta Bhoi, Dayanidhi Patra '' Daya, Kartik Lohar, Rabi Soren, Mahadev Mohant, Turam Ho, Renta Hembram, Ojen '' Suresh Hansda, Suratha Nayak, Harish Chandra Mohanta and Dipu '' Rajat Kumar Das has not been proved beyond reasonable doubt in so far as their identification is concerned. Therefore, their convictions and sentences on the aforesaid charges cannot be sustained.
51. Now we will deal with the prosecution case as regards the charges of criminal conspiracy u/s 120B, Indian Penal Code. All the Appellants have been convicted on the aforesaid charge and accordingly they have been sentenced to suffer R.I. for life. Most important prosecution witness with regard to the charge u/s 120B, Indian Penal Code is P.W. 12, Purna Mahanta. He stated in his evidence that two years back prior to the date on which his deposition was recorded he attended Majhi Mela. At that time he saw the Appellant Dara Singh and Dipu as he knew them previously. In the Mela this witness was selling Chana (Gram) and while selling Chana he saw Appellant Dara Singh and Dipu '' Rajat Kumar Das were taking country liquor called ''Handia''. At that time Appellant Dara Singh called him and requested him to collect 10 to 15 persons for doing a job for him, namely to finish Christian persons as they were converting the Hindus into Christianity. However, this witness declined to do so and went away. This is all in short the material part of the evidence of this witness. He virtually stated nothing against Appellant Dipu '' Rajat Kumar Das in so far as criminal conspiracy is concerned. From his cross-examination, it appears that his statement u/s 164, Code of Criminal Procedure. was also recorded by the Judicial Magistrate. His statement was recorded by the Investigating Officer of the Police Station on 1.2.1999 and thereafter his statement was recorded again by the C.B.I. Investigating Officer (P.W. 55) on 8.6.1999. However, he stated during his cross-examination that police never recorded his statement. His statement was recorded by the police for the first time a day before his statement was recorded by the Judicial Magistrate u/s 164, Code of Criminal Procedure. In the statement recorded by the Investigating Officer of the C.B.I. this witness never stated that he attended the Mela for selling Chana. He further stated that Appellant Dara was at that time lying on the road near the Mela by consuming Handia. At that time police came in the vehicle and pushed Dara by the side of the road. Yet this witness did not inform the police that Appellant Dare had made a conspiracy and asked him to call 10 to 15 persons to finish the Christians camping at Manoharpur. However, if we believe the evidence of this witness with regard to his version against Appellant Dara, this witness has not disclosed any thing whatsoever against Appellant Dipu '' Rajat Kumar Das. Therefore, the evidence of this witness does not furnish any basis whatsoever for convicting Appellant Dipu '' Rajat Kumar Das u/s 120B, Indian Penal Code. Equally his version does not furnish anything with regard to involvement of other Appellants in the alleged criminal conspiracy.
52. Next important witness in this regard as relied upon by the prosecution is P.W. 13, Bidyadhar Mahanta. He has stated in his evidence before the Trial Court that he knew the Appellants Dara Singh and Dipu. He met these two Appellants twice in Tamahuda weekly market. They also visited this witness in his house in village Talapada twice. Both of them requested him in his house prior to Dashara to meet them at Gaharmunda chalk in the shop of one Ghanashyam. Some time thereafter this witness had been to the shop of Ghanashyam at Gaharmunda. Ghanashyam took this witness and five others to Bhalughera High School. They took dinner at 8.00 p.m. and thereafter they went to Satakosia Ghati. They were taken to Satakosia Ghati by these two Appellants. In the next morning Appellants Dara Singh, Dipu '' Rajat Kumar Das, Ramjan and Mahadev of Bhalughera and Ors. returned back from Satakosia Ghati and were talking among them that they had burnt the trucks carrying cattle after unloading the cattle. They would assault the Christian priests, who had visited Manoharpur during Makar so as to restrain them from converting Hindus to Christianity. It has been stated by Appellant Dara. Others did not utter a single word regarding assault on Christian priests at Manoharpur. The burning of trucks carrying cattle had nothing to do with the instant case. Therefore, such evidence is totally irrelevant for the purpose of the present case. It is, therefore, evident from the aforesaid that so far as other Appellants are concerned, they did not utter a single word regarding the assault on Christian priests at Manoharpur. Therefore, evidence of this witness also does not furnish any basis whatsoever for holding other Appellants guilty u/s 120B, Indian Penal Code. He again states that on another occasion in the month of December, 1998 he met Appellant Dara at Tamahuda weekly market. At that time Appellant-Dara requested him to come to Manoharpur with his friends on Makar Sankranti day to assault Christian priests who were converting Hindus to Christianity. Thereafter Appellant Dara did not send him any message whatsoever. This is the gist of the entire evidence given by P.W. 13 during his examination in chief. His statement u/s 161, Code of Criminal Procedure. was recorded by the C.B.I. Investigating Officer (P.W. 47) for the first time on 17.6.1999. Prior to this he never reported the matter to anybody. Therefore, he remained silent on this important question for long five months. He also admits during his cross-examination that the C.B.I. Investigating Officer had showed him the photographs of Appellants Dara and Dipu '' Rajat Kumar Das. He stated in his evidence before the Trial Court that he knew both the Appellants since many years prior to the occurrence. If he indeed knew them for many years prior to the occurrence and if in fact he had mentioned the names of these two Appellants in his statement recorded by the I.O. of the C.B.I. (P.W. 47) about long five months after the occurrence, it is not understood as to what was the necessity for the I.O. to show him the photographs of these two Appellants. This part of the evidence is inadmissible being hit by Section 162, Code of Criminal Procedure. It further proves the fact that these two Appellants were not known to this witness and therefore, necessity arose for the I.O. to fabricate the evidence regarding these two Appellants with regard to their identification by showing this witness the photographs of these two Appellants. In these circumstances, identification of these two Appellants by this witness is doubtful. We may repeat that this witness did not utter a single word that other Appellants he had named in his examination in chief had been talking about conversion of the Hindus to Christianity or that they would assault the Christian priests at Manoharpur during Maker Sankranti. Therefore, the evidence of this witness does not furnish any material to hold the other Appellants guilty u/s 120B, Indian Penal Code. He further admits that he came to learn about the occurrence at Manoharpur from electronic and print media in the evening two days after the occurrence. He did not visit Manoharpur after that occurrence. Despite such knowledge about the occurrence at Manoharpur from Electronic and print media he did not report about the conspiracy hatched by Dara to anybody except for the first time when P.W. 47, being the C.B.I. Investigating Officer recorded his statement after long five months since the occurrence. Therefore, in view of the inordinate delay in recording his statement u/s 161, Code of Criminal Procedure. and in view of the fact that the C.B.I. Investigating Officer, (P.W. 47) had shown him the photographs of the two Appellants, Dara and Dipu, we are constrained to hold that the identification made by this witness for the first time before the Trial Court cannot be acted upon and therefore the evidence of this witness does not furnish any basis whatsoever for conviction of any of the Appellants on the charge of criminal conspiracy u/s 120B, Indian Penal Code.
53. The next important witness in this regard is P.W. 19, Srikanta Purty. In his evidence he stated that on 21.1.1999 at 8.00 p.m. he returned to his home from the house of his sister when he could learn from his mother that some persons had visited their house and were staying in his out-house. Then with a lantern in hand he went to his out house and found nine persons there, eight of whom were wearing trousers and shirt and one person was wearing lungi and Punjabi. The person wearing lungi and Punjabi told him that he was hungry and hence asked for food. He then supplied him with two kilograms of rice and papaya along with cooking pots and they cooked their food. However, he was unable to say if the person who was wearing lungi and Punjabi was there in the dock. So far as the other eight persons are concerned, out of them, he named only three and they were Dipu Das, Andha Naik and Kartik Lohar and they were identified in the dock. The person who was wearing lungi and Punjabi was addressed by his companions as ''Dara Bhai''. During night these nine people stayed in their out house. This witness went to his wheat field to guard it during night. Wheat field is situated about half a kilometer away from his village. In the morning he returned home from the wheat field and found that all these nine persons had already left his house. Again in the next night this witness along with one Rajendra Hembram went to sleep in the wheat field. At that time at about 8.00 p.m. about 7/8 persons came to the wheat field. They were the very same persons and one of them was wearing lungi and Punjabi and Ors. were wearing trousers and shirts. On being asked by them, he supplied them with a pot (dekchi) and water and they ate flattened rice (Chuda) mixed with sugar in the dekchi. In the meanwhile, some more persons came and joined them. They were altogether thirty to forty persons. The person who was wearing lungi and Punjabi had brought red rags and all the persons tied their heads with red rags. They were carrying torches and lathis. He, however, failed to identify as to whether any of such person was in the dock before the Trial Court. It is precisely at this stage, prosecution declared him hostile and with permission of the Trial Court cross-examined him. These people at about 10 or 11 p.m. left the wheat field and proceeded towards Manoharpur. In the evening of 23.1.1999 he learnt that three persons were burnt alive at Manoharpur. During cross-examination by the prosecution he stated that his statement was recorded u/s 164, Code of Criminal Procedure. by the S.D.J.M. Anandpur. In his statement, he stated that besides Dipu Das, Kartik Lohar and Andha Naik, Surathat Naik, Budhi Naik, Renta Hembram, Ojen Hansda, Chhencu Hansda, Mahendra Hembram, Umakanta Bhoi, Ghanasyam Mohanta, Mahadev Mohant and Madhu Mohanta were there in the wheat field. However, he added that he disclosed these names in his statement recorded u/s 164, Code of Criminal Procedure. from a list of names supplied to him by the Crime Branch. Therefore, as regards conspiracy charge u/s 120B, Indian Penal Code as a matter of fact, this witness stated nothing against any of the Appellants. Mere assembling together at the wheat field any amount to preparation for the crime, but it cannot amount to evidence of criminal conspiracy within the meaning of Section 120B, Indian Penal Code. He also failed to identify any of the Appellants before the Trial Court in the dock. Therefore, on the basis of evidence of this written, no conviction of any of the Appellants u/s 120B, Indian Penal Code is possible. Again P.W. 25, Kaibalya Biswal stated in his evidence in this regard that he knew Appellant Dara and Dipu '' Rajat Das among the accused in the dock. Some three years back one day these two Appellant had visited his house. They first met him on the road before visiting his house and they enquired from him about the caste and creed of the people residing in his village. Again six months or a year thereafter these two Appellants visited his house late in the night and requested him to provide them accommodation in their house in the night. In course of conversation he could learn that their names were Dara and Dipu. He did not know their names earlier. They left his house next morning. Again he stated in his evidence that Appellant Dipu along with two others came to his village in the afternoon of Saraswati Puja in the year 1999. Dipu requested him to supply him with men and boys to beat up the Christian padres camping at Manoharpur who were converting the Hindus to Christianity. However, this witness declined him to do so. Thereafter, Appellant Dipu left that place. This is the nature of mouthful evidence of this witness which by its very nature is of speculative type. Admittedly, the crime was committed at Manoharpur in the night of Saraswati Puja in the year 1999. This can at best be said to be a preparation for committing the crime. Such evidence cannot be treated to be the evidence of conspiracy. His statement was recorded in course of investigation by the C.B.I. Investigating Officer (P.W. 47) on 13.6.1999 for the first time. Prior to that, he never reported this incident to anybody. He admits during cross examination on behalf of the Appellants that he never reported this incident to his father. He also did not give any information about the aforesaid incident to any of the villagers or to the Sarpanch. He admits that he learnt that Manoharpur incident occurred in the night of Saraswati Puja and he visited Manoharpur about 8 to 10 days after the occurrence. The police, Ministers and other officers were present at Manoharpur on the day when he visited Manoharpur, yet he did not give any information to any of the police personnel about what he knew as regards the so called conspiracy. It is therefore, risky and dangerous to convict so many Appellants on the basis of speculative evidence of this witness who did not disclose this incident to anybody except the C.B.I. Investigating Officer long five months after the occurrence. We are sorry to observe that such evidence cannot be relied upon for holding any of the Appellants guilty u/s 120B, Indian Penal Code.
54. P.W. 31, Satya Soren was also relied upon by the prosecution for proving the charge of conspiracy against the Appellants. On scanning of his evidence, we find there is nothing against the Appellants with regard to the charge of conspiracy.
55. Further question of such speculative evidence is provided by P.W. 44, Birendra Purty. He is the brother of P.W. 19, Srikanta Purty. In brief his evidence is that 7/8 persons were sitting at his verandah at about 8.30 p.m. on 21.1.1999. After he returned home he saw that they were talking something about ''Christian and Hindu community''. They stopped talking whenever they saw this witness. These strangers were addressing one of them as Dara Bhai. This is the gist of entire evidence. Therefore, his evidence discloses absolutely nothing in respect of the conspiracy charge against any of the Appellants.
56. Apart from the aforesaid, there is no further evidence on record against the Appellants with regard to charge of conspiracy. We are sorry to say that the nature of the evidence is absolutely weak and on the basis of such speculative evidence it is not possible to hold any of the Appellants to be guilty u/s 120B, Indian Penal Code. Therefore, the conviction and sentence of the Appellants u/s 120B, Indian Penal Code cannot be sustained and must be quashed.
57. In the result, for the reasons as stated above, we are constrained to quash the conviction of Appellant Dara Singh u/s 302, Indian Penal Code and the death sentence awarded to him there under. The death reference made by the learned Trial Court for confirmation of the death sentence passed against Dara Singh thus stands answered. The conviction of all the Appellants u/s 120B, Indian Penal Code and the sentence of life imprisonment passed against them is also quashed.
58. However, we maintain the conviction of Appellant Dara Singh and Mahendra Hembram under Sections 148, 435/149, 436/149 and 302/149, Indian Penal Code and the sentence passed there under in respect of these two Appellants. So, the appeals filed by these two Appellants are party allowed while maintaining their convictions and sentences, as stated above.
59. The appeals being Jail Criminal Appeal No. 131/2003 preferred by Dayanidhi Patra '' Daya; Criminal Appeal No. 251/2003 preferred by Umakanta Bhoi; Criminal Appeal No. 269/2003 preferred by Kartik Lahor; Criminal Appeal No. 278/2003 preferred by Rabi Soren, Mahadev Mohanta, Turam Ho and Dayanidhi Patra; Criminal Appeal No. 290/2003 preferred by Renta Hembram and Ojen '' Suresh Hansda; Criminal Appeal No. 32/2004 preferred by Surath Nayak and Harish Chandra Mohanta and Criminal Appeal No. 87/2004 preferred by Dipu '' Rajat Kumar Das are allowed and the impugned judgment in respect of these Appellants only resulting in their conviction under Sections 148, 302/149, 120B, 435/149 and 436/149, Indian Penal Code and corresponding sentences passed against them are set aside.
60. We further direct that these Appellants namely, Dayanidhi Patra '' Daya, Umakanta Bhoi, Kartik Lohar, Rabi Soren, Mahadev Mohanta, Turam Ho, Renta Hembram, Ojen '' Suresh Hansda, Suratha Nayak, Harish Chandra Mohanta and Dipu '' Rajat Kumar Das be set at liberty forthwith.
L. Mohapatra, J.
61. I agree.
Ordered accordingly.
