G.K. Misra, J.@mdashThe Appellant has been convicted u/s 302, Indian Penal Code and sentenced to death. The learned Sessions Judge has made a reference u/s 376, Code of Criminal Procedure for confirmation of the sentence of death.
2. The prosecution case runs thus : Simachal Panda (p.w. 2) is the father of the deceased Sakuntala. p.w. 2 is married to the sister of Satyananda Khadanga. On 22-2-1968 the nuptial ceremony of the son of Satyananda was to take place in his house in the evening. The wife of p.w. 2 with some of his children including the deceased had come to the house of Satyananda 4 days before. Satyananda''s backyard is just adjacent to the village road leading to Goutami. On either side of this road, there are houses of different castes. At about 7 P.M. on 20-2-1968 the deceased in the company of Swarnalate (p.w. 1), Pratima Rath, Debaraj Khadanga and Bijoy (younger brother of the deceased) were waiting for the arrival of the bride scheduled to come in a car. Prakash (p.w. 3), the younger brother of Sadananda (accused), came to the deceased and told her that her elder brother at Cuttack had sent a terylene frock through the accused and that the deceased would accompany him to take it from the accused. The deceased at first expressed reluctance and wanted her brother Bijoy to go and fetch the frock. p.w. 3 insisted that the accused wanted the deceased herself to come. The deceased Was about 11 to 12 years old and was married about 8 months back. She was bedecked with various gold ornaments weighing about 12 tolas. When the proceeded on the Goutami road towards Telenga Sahi in the company of p.w. 3, p.w. 1 and this companion Pratima Rath (not examined) wanted to go with the deceased. P.W. 3 pelted stones towards them to dissuade them from going, stating that the accused wanted the deceased alone. Accordingly p.w. 1 and Pratima Rath did not go with the deceased and p.w. 3. At about 7.30 P.M. Hanu Hisoi (p.w. 7) found the deceased in the company of the accused in the village Danda of Telenga Sahi nearabout the Goutami road and the cowshed of the accused. A little later Debahari Sahu (p.w. 10) found Dandasi Dora (not examined) pushing the outer Tati of the accused''s cowshed, while the accused was pushing the very Tati from inside the cowshed. p.w. 10 heard the voice of the accused from inside the cowshed asking Dandasi to leave the place and telling him that he would follow him. p.w. 10 also heard the mother of the accused shouting on the Dando that the accused was assaulting his own wife inside the cowshed. p.w. 10 did not believe the statement of the mother and suspected that some other woman was in the cowshed in the company of the accused. After going some distance on the Goutami road, p.w. 10 met Bhima Swain (p.w. 12) and told him that the accused had confined a woman inside his cowshed. Both of them waited for some time when they met Jura Patra and Dukhishyam Sahu. Dukhishyam had a torch. After Borne time they noticed the accused coming out of the cowshed and sitting on the verandah of Dandasi Dora. After the accused came out of the cowshed, both of them went inside the cowshed of the accused. They flashed the troch, but did not find any human being. They left the place for this respective houses, and some time after they heard a great hulla from the side of the house of the accused. In the meantime the bride arrived in Satyananda''s house. People took the feast as usual. Though the family members of p.w. 2 were residing in the house of Satyananda for the previous four days, p.w. 2 himself was remaining in his own house, At about 8 P.M. after the arrival of the bride when the feast took place, p.w. 2 made enquisies as to the whereabouts of the deceased. When he did not get any information, he went to the house of p.w. 1 and from her he learnt that the deceased had accompanied p.w. 3 to get a terylene frock from the accused. Accordingly p.ws. 2 and 7 and many other villagers went to the house of the accused to know the whereabouts of the deceased. Obviously there was fl. great commotion in the village. p.ws. 10 and 11 also arrived at the house of the accused. When the villagers gathered, the mother of the accused at first came out and said that the accused was suffering from fever. P.W. 3 was sent for. He divulged before the assemblage of people that on the direction of the accused he had brought the deceased at about 7 P.M. and left her in the company of the accused in the village Danda of Telenga Sahi touching the Goutami road. Thereafter the accused came trembling and confessed that he had killed the deceased out of greed to take her ornaments. The accused was asked to point out the dead body. He led the party through his cowshed to the empty kitchen room of Sukuru Reddy where the deceased was lying. Only 2 to 3 ornaments worn by the deceased had been taken away. The left ear-lobule was completely torn and a portion of the place was missing. The discovery of the death of the deceased was thus made, hardly within one hour of her disappearance. p.ws. 1, 2, 7, 10, 12 and Satyananda Khadanga are all residents of village Sidheswar. After the discovery of the dead body, two village watchmen of village Sidheswar came to the Sarpanch Jura Jena (p.w. 6) of village Sidhikhandi at a distance of about 4 furlongs from village Sidheswar. p.w. 6 immediately came to Sidheswar. In the meantime the accused had been detained by the villagers in the village Akhadaghar. On his arrival p.w. 6 found the accused in the village Akhadaghar. p.w. 3 told p.w. 6 that he took the deceased and left her in the company of the accused. The accused also made a confession before p.w. 6 as having killed the deceased for taking away the gold ornaments. p.w. 2 got the report (Ext. 1) written and gave it to p.w. 6, who in his turn wrote another report (Ext. 4) to the S.I. of Patapur Police Station. On the basis of these reports, the officer-in-charge drew up a formal F.I.R. (Ext. 10) and started investigation. The entire investigation was practically completed within a course of 12 to 14 hours. Only p.w. 7 had to be examined on 22-2-1968 as on 21-2-1968 he had gone away to Berhampur on his personal work.
The defence of the accused, as transpises from his statement u/s 342, Code of Criminal Procedure, is one of complete denial. He denies his complicity in the murder and of having made any confession. He admits that p ws. 2, 7, 10, 12 and other villagers came to his house on the night of occurrence. p.w. 7 gave him a push on his neck, p.w. 6 roped him and an of them took him to the village Akhadaghar. According to him, the entire case is concocted against him since his father Daitari Hisoi did not vote for p.w. 6 in the panchayat election and on that ground the villagers had ex-communicated the members of the family of the accused.
The learned Sessions Judge has held that the death of the deceased was homicidal and the circumstantial evidence in the case was sufficient to justify the conclusion that the accused killed the deceased. He did not place any reliance on the extra-judicial confessions made by the accused at his house and again at the Akhadaghar.
3. Mr. Behura for the Appellant does not challenge the finding that the death was homicidal. The Doctor (p.w. 8) conducted the post-mortem examination on 21-2-1968. There were a large number of injuries, mostly on the neck and shoulder of the deceased. He deposed that the injuries on the neck were consistent with the manual interference of the neck and were ante-mortem in nature. The death was due to asphyxia, resulting from manual strangulation of the throat. The Doctor''s opinion was not challenged in cross-examination. The learned Sessions Judge rightly came to the conclusion that the death was homicidal.
4. The next question for consideration is whether the Appellant killed the deceased. There is no eye-witnesses to the occurrence. Mr. Behura contends that the circumstantial evidence, relied upon by the learned Sessions Judge, does not establish beyond reasonable doubt that the accused committed the murder. The learned Standing Counsel, on the other hand, contends that the finding of the learned Sessions Judge rejecting the extra-judicial confession is wrong, and that not only the circumstantial evidence would justify the conviction but also the conviction can be further supported on the basis of the extra-judicial confession. Both the contentions require careful examination.
5. The first question to be examined is whether the circumstantial evidence in the case is enough to justify the conviction. The various relevant circumstances are to be examined hereunder in chronological sequence of events.
6. The first circumstance in the case is the statement of the deceased to her father (p.w. 2) that in the morning on 20-2-1968 the accused asked the deceased to come to his house to take the terylene frock. The exact statement runs thus:
My son who works as an assistant in the R.D.C. (Revenue Divisional Commissioner) Office at Cuttack had come home and left for Cuttack 4 days before the occurrence. In the morning of occurrence Sakuntala told me in the house of Satyananda Khadanga that the accused had told her the very morning, that my son had sent a terylene piece of cloth from Cuttack to him (accused) and as such, Sakuntala should come to the house of the accused at 7 P.M. in the evening to take the prepared frock...On hearing from my dallghter, as above, I disbelieved the statement of the accused, since my son had no money, and as such, could not have Bent any cloth for her purpose. I told Sakuntala that she should not go to the accused on that account.
The only cross-examination on this point was to the effect:
I had no occasion to ask the accused, if he had told my dallghter Sakuntala to give her a terylene frock
The statement of the deceased to her father is admissible u/s 32(1) of the Evidence Act. In
On the aforesaid test, the statement of the deceased to her father is admissible. p.w. 2 has no axe to grind against the accused. Nothing has been suggested, much less established, that there is any reason why p.w. 2 would falsely implicate the accused in such a heinous murder of his own dallghter p.ws. 1, 2, 6, 7, 10 and 12 are the most important witnesses in this case. Nothing has been suggested against anyone of them excepting making a general suggestion that in the Grama Panchayat election, in which p.w. 6 was elected as the Sarpanch, the rest of these witnesses supported the cause of p.w. 6, while Daitari Basisoi, father of the accused, opposed him, and it is on this ground that at the instance of p.w. 6 all these persons have combined to falsely implicate him. This suggestion has been denied by each of these witnesses to whomsoever it has been put. p.w. 6 further asserted that even Daitari Basisoi supported his cause in the election. The suggestion is frivolous and has not been established. If there were anything in the suggestion, Daitari Basisoi himself would have been falsely implicated. The accused serves in the military. He came to the village on leave about 15 to 16 days before the occurrence. He bad no contact with the villagers. There is no suggestion that during the few days be remained in the village he incurred the displeasure of anybody. This suggestion against all these witnesses is fantastic and is accordingly rejected. It was suggested to p.w. 2 in cross-examination that he stated before the I.O. that the deceased made the aforesaid statement to him on 19-2.1968 and not on 20-2-1968. p.w. 2 stated that be did not remember if be so stated before the I.O. The I.O. (p.w. 13) deposed that p.w. 2 did not specifically say the date 19-2-1968 when the deceased told him as to the promise of the accused for giving a terylene frock. Thus there is no discrepancy between the deposition made in Court and the statement given before the I.O. In paragraph 15 of his judgment, the learned Sessions Judge erroneously said, "In my opinion p.w. 2 might have confused as to the exact time when he heard so from his dallghter". There was no confusion. p.w. 2 adhered to his statement all through. We believe the evidence of p.w. 2 on this point.
7. The next circumstance is as to how the accused enticed away the deceased with the assistance of his younger brother p.w. 3 at 7 P.M. p.w. 1 testifies to this fact. She is 12 years old and is a child witness. It must be remembered that in India about 50 per cent of the gisls attain this puberty nearabout the age of 12 years. At that age gisls are very precocious to understand human affaiss. Though in the eye of law at that age they are child witnesses, in fact they possess sufficient maturity of understanding to judge men and events. The aforesaid general view has fun application to the case of p.w. 1 who was tested by the learned Sessions Judge about her capacity of understanding. He was of opinion that she was quite intelligent to understand questions and give appropriate replies. p.w. 1 was administered oath.
It was observed in Mohamed Sugal Esa v. The King AIR 1946 P.C. 3, that the evidence of a child witness is admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it. Corroboration, unless required by statute, goes only to the weight and value of the evidence. this Lordships further observed that it is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unshorn, but this is a rule of prudence and not of law.
As has already been stated, p.w. 1 had fun maturity of understanding and her evidence can be accepted without corroboration, provided it is reliable. She deposed that at about 7 P.M. the deceased and herself in the company of some others were waiting on the backside of the house of Satyananda Khadanga to see the arrival of the bride who was to come by a car on the road leading to Goutami. At that time p.w. 3 called the deceased saying that his brother wanted her to coma to this house to take the terylene frock. The deceased first refused to go, but when pressed suggested that she would send her younger brother Bijoy. p.w. 3 however insisted that the deceased was required by the accused to go in person. When the deceased accompanied p.w. 3 towards the house of the accused, p.w. 1 and Pratima Rath followed them. p.w. 3 threw stones at them asking them not to follow, and so both of them returned and the deceased alone accompanied p.w. 3 towards the house of the accused on the Goutami road. Shortly after, the bride came and she with others participated in the feast. While she was in her house after the feast, p.w. 2 enquired from her the whereabouts of the deceased. She disclosed the fact that the deceased had accompanied p.w. 3.
She was put to severe cross-examination, but nothing substantial was elicited to discredit her testimony. It was argued by Mr. Behura that she could have disclosed this fact in the feast itself when p.w. 2 was making enquiry. No question was put to her on this point to get her explanation. It is not unlikely that in the feast her attention was not specifically drawn to the enquiry made by p.w. 2 from some persons. It was further contended that non-examination of the other children like Pratima Rath. Bijoy and Debaraj Khadanga affects her testimony, as available evidence of corroboration was not produced by the prosecution. It is contended by the learned Standing Counsel that it appears from the case diary that an the other children are younger then p.w. 1 and are of the ages of ten years and below, and that is why the prosecution did not choose to examine them. There is absence of material on record as to why these witnesses were not examined, and the case diary is inadmissible for referring to such matters. No such question was however put by the defence to the I.O. In the absence of such data it is difficult to guess the reasons. If the evidence of p.w. 1 is otherwise satisfactory and reliable, it cannot be discarded on the theory that the prosecution does not furnish explanation as to why other witnesses on the same point were not examined. p.w. 1 appears to be a very truthful and reliable witness. If she intended to give false evidence, she could as well directly implicate the accused as taking away the deceased at 7 P.M. She does not go so far. She merely furnishes the earliest link as to the disappearance of the deceased and connects p.w. 3 who is not an accused.
It is not also correct to say that her evidence is not corroborated. At the earliest point of time when a search was made for the deceased, she disclosed this fact to p.w. 2. The evidence of p.w. 2 fully corroborate her. The fact that p.ws. 2, 7 and other villagers went to the house of the accused to make enquiry, on the basis of her disclosure about the whereabouts of the deceased, also corroborates her testimony. In his statement u/s 342, Code of Criminal Procedure, the accused admits that p.ws. 2, 7, 10, 12 and other villagers went to his house in the very evening to know the whereabouts of the deceased.
P.w. 2 in his cross-examination stated thus:
When I searched Sakuntala at about 8 P.M. in the evening of occurrence, I also asked my wife, who with an these three children, were present. I asked each of these sons about Sakuntala, but nobody could give any reply.
On the basis of this answer Mr. Behura contends that in view of the fact that Bijoy did not know the whereabouts of Sakuntala, the evidence of p.w. 1 that the deceased was enticed away by p.w. 3 is false inasmuch as Bijoy was nearabout her when p.w. 3 came to them. Though p.w. 1 stated that Bijoy was at the backyard at the time p.w. 3 came, she has made no statement that in fact Bijoy had knowledge about p.w. 3 taking away the deceased. If Bijoy had no knowledge, obviously he could not give any reply. Besides, Bijoy is younger then the deceased and we do not know his exact age and whether he had an impressionable mind. When Bijoy has not been examined, it is difficult to say why, he could not give any information to his father. This argument is accordingly rejected.
On the aforesaid reasoning we accept the evidence of p.w. 1 as truthful and reliable.
8. The next link in the circumstantial chain is the fact that at about 7 P.M. p.w. 7 law the deceased in the company of the accused on the Danda nearabout the cowshed of the accused. p.w. 7 is a respectable person. He was the Karji of the village until this post was abolished 8 years back. At about 7 P.M. he was returning to his house from the shop of Bhikari Prusti. He saw the accused taking the deceased with him near the entrance of the lane locally known as Telenga Sahi Gorji. From that place the cowshed of the accused is just one house after. His evidence is attacked by showing certain contradictions in between his statement in Court and that made before the I.O. Before the I.O. (p.w. 13) he had stated that the villagers were irritated and assaulted the accused in the night of occurrence. He did not tell the I.O. that he saw the accused and the deceased going together near the Gorji, but said that they were going to the cowshed. There is no contradiction so far as the second statement is concerned. Even in Court he deposed that be saw the accused and the deceased going together on the Danda near the cowshed. Before the I. O. he did Dot specifically refer to the Gorji. The Danda in front of the cowshed is the Gorji. There is therefore no contradiction. There is however a contradiction so far as ,the first statement is concerned, inasmuch in cross-examination he stated, "It is false that the accused was assaulted and dragged, when he was brought from the house to the village Akhadaghar". The contradiction on this fact alone cannot make his evidence unreliable. It is difficult to find a single witness in whose evidence there would not be some sort of contradiction.
In cross-examination he stated that he saw the accused and the deceased going together, from a distance of about 30 cubits. It is contended that in a dark night a witness cannot identify from such a distance. p.w. 7 however asserted that the time when be saw them was somewhat dark with Rome light. He was however very assertive that he could identify both. In a village people are well known to each other. They can identify in dark night from such a distance from gait, stature and manner of movement. When p.w. 7 was assertive that he could identify and he could not be dislodged in cross-examination, we are prepared to accept his statement that he could identify. His evidence, perused as a whole, leaves a clear impression in our mind that he is a truthful witness. As has already been stated, no enmity or illfeeling has been established against him and there is no reason why he would falsely implicate the accused in such a heinous murder We accept his evidence and hold that the deceased was seen by p.w. 7 in the company of the accused last on the Danda in front of the cowshed of the accused.
9. At about 7-30 P.M., p.w. 10 was returning from the shop of Bhikari Prusti through Telenga Sa hi. He found Dandasi Dora pushing the outer Tati of the accused''s cowshed. The accused was at that time pushing the said Tati from inside the cowshed. p.w. 10 stopped at the place and heard the voice of the accused from inside the cowshed asking Dandasi to go, promising that he would follow the latter. He also heard the mother of the accused saying on the Danda that the accused was assaulting his wife inside the cowshed. p.w. 10 did not believe the statement, though he knew that the accused was not pulling on when with his wife. He suspected that some other woman was in the cowshed. After going some distance on the Goutami Road he met Bhima Swain (p.w. 12). He divulged his suspicion to p.w. 12 and told him that the accused had confined some woman inside the cowshed. Both p.ws. 10, and 12 waited there to see the subsequent development. At that time Jura Patra came and met them, and Dukhishyam Sahu was going to the tank. They asked Dukhishyam for his torchlight which he gave to Jura Patra. After some time the accused came out of his cowshed and sat on the verandah of Dandasi Dora. p.ws. 10 and 12 and Jura Patra went inside the cowshed of the accused, flashed the torch, but could not find out anything. Thereafter they left the place and again gathered at the house of the accused at about 9 P.M. when they heard a hulla.
As has already been stated, nothing has been established against this witness who appears to be truthful and reliable. The evidence of this witness carries a string of truth in it. He does not advance any extravagant or exaggerated story. He does not go so far as to say that he actually saw the accused or the deceased inside the cowshed. Nor does he say that he could bear the voice of the deceased from inside the cowshed. There is no particular reason why be would narrate a small part of the story that Dandasi Dora was pushing the outer Tati of the cowshed and the accused was pressing from inside, and he merely beard the voice of the accused asking Dandasi to go. He could as well impute to the mother of the accused a statement that the accused was assaulting some other woman. Possibly the mother was concealing the truth by giving a colour to the incident inside the cowshed by saying that the accused was assaulting his own wife, an affairs in which ordinarily outsiders would not interfere. p.w. 10''s evidence gets fully corroborated by p.w. 12, who did not hear the voice of the accused from inside the cowshed. p.w. 10 divulged his suspicion to p.w. 12 that the accused was with some woman inside the cowshed. We have very critically examined the evidence of p.ws. 10 and 12, and we are satisfied that they are narrating the truth. There are some minor discrepancies in this evidence as to the exact place from where the torch was focussed inside the cowshed. Those are unsubstantial and carry no weight.
The evidence of these two witnesses establishes that near about 8 P.M. the accused was inside the cowshed, came outside and satin the verandah of Dandasi Dora. The accused does not furnish any reasonable explanation as to why he was inside the cowshed and pushing the Tati outside. He denies his entry into the cowshed at that particular hour.
10. The dead body was lying in the empty kitchen room of Sukuru Reddy marked "III" in the spot map, which is accepted by the accused as being correctly drawn out, in his answer to question No. 11. He also admits that the house and the kitchen of Sukuru Reddy were lying vacant for some months before the occurrence, that the courtyard of his cowshed and the kitchen of Sukuru Reddy is common without any boundary fence in between, and that the courtyard is surrounded by wans and houses. The prosecution evidence is that this Court yard is not accessible from any other house excepting through the cowshed of the accused, while the accused states that it is accessible from the house of Rajku Reddy. The statement of the accused to this extent is a lie, as would ,appear from the evidence of the I.O. (p.w. 13) who visited the spot. The kitchen of Sukuru Reddy is thus approachable only through the cowshed of the accused which has a door towards it. This is a very significant circumstance.
11. The evidence of p.ws. 2, 7, 10 and 12 satisfactorily establish that all of them went to the home of the accused at about 9 P.M. to know the whereabouts of the deceased after information was given by p.w. 1. There the accused said to have confessed the guilt and subsequently led those persons to the vacant kitchen of Sukuru Reddy and pointed out the dead body. For the purpose of the circumstantial evidence, discussion on the extra-judicial confession is not being made for the present. It is necessary to examine whether in fact the accused took these witnesses and other villagers to the vacant kitchen and pointed out the dead body.
After the accused made the confession and pointed out the dead body p.w. 2 gave the written report (Ex. 1) to the Sarpanch (p.w. 6) who received it at about 11 P.M. Therein there is no reference to the extra-judicial confession or to the fact that the accused led the party and gave discovery of the dead body. It is on account of this omission that the learned Sessions Judge ignored this piece of evidence.
The learned Sessions Judge fell into an error in excluding this piece of evidence on account of misconception of law. In Ram Chandra Sahu v. State 28 C.L.T. 398, a Bench of this Court explained the effect of an omission of a material fact in the F.I.R. or a former statement of a witness. Ext. 1 is the real F.I.R. in this case as the formal F.I.R. (Ext. 10) was drawn on its basis. It is elementary that an F.I.R. is not a substantive piece of evidence, nor is it to be an encyclopedia of all details of facts. It is a former statement of the maker of the F.I.R. It can be used to corroborate him u/s 157 of the Evidence Act and also to contradict him u/s 145 of that Act. It cannot be used as evidence to corroborate or contradict other witnesses.
Ext. I therefore could have been used only to contradict p.w. 2, the maker thereof, unless he furnished reasonable explanation as to why there was such omission. p.w. 2 in cross-examination was confronted with Ext. 1. He admitted that he omitted to mention about the extra-judicial confession and the fact of the accused giving discovery in Ext. 1, as he was in a bad state of mind. We are prepared to accept this explanation. It is to be remembered that the dallghter was alive at 7 P.M. and within the span of two hours she was murdered. When the factum of murder comes to the notice of the father, he is bound to lose his mental equilibrium. Sometimes a person may even become mad. It is not expected from p.w. 2 that he would narrate everything in the F. I. R. written then.
Even assuming that the explanation is not reasonable and there could not have been omission of such material facts, on this ground only his evidence on this aspect of the matter could have been ignored. But on account of his omission, the evidence of p.ws. 7, 10 and 12 could, in no circumstance, be discarded. As has already been stated, they are truthful and reliable witnesses, and absolutely nothing has been established as to why they would falsely implicate the accused in such a heinous crime. The learned Judge therefore fell into an error in discarding this evidence regarding the fact that the accused led them and the villagers through his cowshed to the vacant kitchen of Sukuru Reddy and pointed out the dead body lying there.
12. It is now necessary to examine the injuries found on the body of the accused and to consider if they have any bearing on the question of throttling the deceased. The Doctor (p.w. 9) examined the accused on police requisition on 22-2-1968 and found the following injuries:
(1) One human bite injury at the right scapular region of size 1�-" � �", simple in nature.
(2) One abrasion in the interior part of wrist of size" "
(3) Two abrasions �" each on the right side of the eye. (4) Inflammed swollen area of �" around arm and writs.
(5) Six bruises at the back of size 6" � 1".
All the injuries were simple in nature. According to the Doctor, injury No. 1 might have been caused by human teeth, injury No. 2 by some sharp article like ''/Jail, injury No. 3 by coming into contact with some hard substance, and injury No. 4 by rope or by strong catch by means of had. The Doctor says that the possibility of injury No. 4 being caused by rope is remote, as according to him there would be some abrasions in case the rope is tied to the wrist injury No. 5 (bruises) migh have been caused by fall while two persons were fighting.
In cross examination he answered to the effect:
These injuries would have been caused by struggle of the accused with the villagers, resulting in fight, assault and tooth bite.
The question that arises for consideration is whether these injuries were caused by assault of the accused by the villagers or whether they were likely to have been caused when the deceased struggled with the accused to get out of his clutches before and at the time of struggling.
The learned Sessions Judge in paragraph 18 of his judgment expressed his view thus:
The presence of some injuries particularly teeth bites on the scapular region of the accused, as found by the Medical Officer p.w. 9 on 21-2-1968, adds to the above inference, that the deceased during her struggle for life, had bitten the accused in self defence. The accused explained these injuries to have occasioned during the assaults by the villagers. In fact, admission of such assaults seems to have been made by the p.w. 7 before the I.O. But in my opinion, there was no possibility of teeth-bite, particularly when nothing of the sort was even suggested.
The learned Judge committed a serious error of law in accepting the statement of p.w. 7 to the I. O. that "The people were irritated and assaulted the accused in the night of occurrence" as substantive evidence by way of admission. We are somewhat surprised that he overlooked Section 162, Code of Criminal Procedure whereunder statement to the police officer during investigation is inadmissible in evidence except for the limited purpose of contradicting p.w. 7. The effect of this contradiction has been considered in paragraph 8 of this judgment wherein it has been observed that to this limited extent p.w. 7''s denial in Court that he did not make such a statement is a lie. That does not however mean that p.w. 7''s statement to the I. O. is admissible in support of a finding that there was in fact assault of the accused by the villagers. The learned Judge also committed a further error of fact in saying that the possibility of teeth-bite by the villagers was not suggested by the accused. It was suggested to p.w. 12 who gave a reply to the effect. It is false that this teeth bite was caused by us". The learned Sessions Judge''s cryptic and superficial finding on this question, based on error of law and fact, requires critical examination.
On the question of assault, p.ws. 3 and 4 support the defence story that the accused was assaulted by the villagers in the night of occurrence. p.w. 3 is the brother and p.w. 4 is the sister of the accused. In this statements u/s 164, Code of Criminal Procedure and before the police they had fully supported the prosecution story. p.w. 3 narrated as to how he had enticed away the deceased on the direction of the accused and left her in the company of the accused at the village Danda near the Goutami road. p.w. 4 narrated how her mother chastised the accused for having killed the deceased and how she saw the accused carrying the dead body of the Brahmin gisl. These statements have not been taken into consideration on the ground that they were inadmissible. A statement u/s 164, Code of Criminal Procedure can be used only to cross-examine the person who made it and to show that the evidence of the witness is false. But it cannot be used as substantive evidence-
P.ws. 1, 2, 6, 7, 10 and 12 and the I.O. (p.w. 13), the main prosecution witnesses, were also put questions regarding the assault. All of them stated that the accused was not assaulted. There is therefore no substantive evidence in Court in support of the defence theory of assault. As has already been stated, p.w. 7 said to the police that the people were irritated and assaulted the accused in the night of occurrence. To that extent his denial in Court is a He. All the same it cannot be used as substantive evidence, and on account of p.w. 7 making a false statement on this question other witnesses on the same point cannot be dishelieved.
13. In answer to question No. 7 as to whether he made the extra-judicial confession, the accused had replied that p.w. 7 Hanu gave a push on his neck, Juria Jena roped him, and all the villagers took him to the village Akhadaghar. Question No. 13 was formulated thus:
How do you explain the injuries on your persons, particularly the teeth-bite, as reported by the p.w. 9?" The answer was:
"They were caused by assaults of the villagers". It would thus be Been that there is no substantive evidence before the Court that the accused was assaulted by the villagers in the night of occurrence.
The evidence of the Doctor (p.w. 9) in cross-examination to the effect "These injuries would have been caused by struggle of the accused with the villagers, resulting in fight, assault and tooth bite" does not carry the defence version any further. Any injury can be caused if the villagers assaulted the accused. But there is no evidence that the villagers in fact assaulted. The Doctor cannot give an opinion whether in fact the villagers assaulted.
The nature and location of these injuries indicate that they occurred during struggle when the deceased wanted to extricate herself from the clutches of the accused. If the villagers assaulted the accused, it is hardly expected that some one would bite with his teeth the right scapular region. Nor is it expected that two abrasions would be caused on the right side of the eye. All the injuries located on the front part of the body are simple in nature and of peculiar character. They are consistent with the prosecution story that they were caused during struggle. The Sarpanch (p.w. 6) and the I.O. (p.w. 13) stated that they did not find the accused in ropes at the Akhadaghar when they arrived.
On the basis of the aforesaid discussion we are clearly of opinion that the accused was not assault d by the villagers and the injuries on his body were caused during struggle with the deceased who tried to save her life by callsing injuries with nails and teeth.
14. All the circumstantial evidence arising in the case have been fully discussed. The various circumstances may now be collated. They are:
(i) In the morning of 20-2-1968 the deceased had told her father p.w. 2 that the accused wanted her to go to him at 7 P.M. to take the terylene frock sent by her brother from Cuttack.
(ii) At about 7 P.M., p.w. 3, the brother of the accused took the deceased with him saying that his brother wanted to give her a terylene frock.
(iii) The accused and the deceased were seen together by p.w. 7 at about 7 P.M. in the village Danda near the cowshed of the accused.
(iv) P.w. 10 heard the voice of the accused from inside the cowshed when he was pushing the Tati from inside which was being pushed from outside by Dandasi Dora. p.w. 10 suspected that some woman was inside the cowshed from the declaration of the mother of the accused that the latter was assaulting his own wife inside the cowshed.
(v) p.ws. 10 and 12 found the accused coming out of the cowshed at about 8 P.M.
(vi) Both p.ws. 10 and 12 went inside the cowshed and found nothing therein.
(vii) There is a door from the cowshed to the common courtyard of the accused and Sukuru Reddy which is not accessible from any other side except through the cowshed.
(viii) The dead body was lying inside the vacant kitchen of Sukuru Reddy whose house was locked up and in which there were no inmates.
(ix) The accused led p.ws. 2, 7. 10 villagers through the cowshed to the kitchen and pointed out the dead body.
(x) The plea of the accused that he was assaulted by the villager is not borne out by any evidence and the injuries on the accused are consistent with the theory that the deceased struggled hard for her life to extricate herself from the clutches of the accused and that in the process she caused injuries by tooth and nails.
All the aforesaid links establish beyond reasonable doubt that the accused committed the murder of the deceased. The learned Sessions Judge placed no reliance on the circumstances of the accused leading the villagers and pointing out the dead body and the effect of all the injuries on the accused. Even if those circumstances are excluded from consideration, the other circumstances are by themselves enough to establish the guilt of the accused beyond reasonable doubt. The deceased was seen last in the company of the accused at about the time when and at the place where the murder appears to have been committed. The only rational hypothesis is that it is the accused who committed the murder of the deceased out of pure greed for her gold ornaments.
It has been contended by Mr. Behura that no blood stained earth was seized from the cowshed, nor was there any blood mark found on the Lungi of the accused which was seized. It is to be remembered that in case of strangulation sometimes and 12 and other of Sukuru Reddy even blood does not come out. In this case Borne blood mixed with froth came out of the nose of the deceased and as the left ear lobule was torn and a part of the place was missing, some blood must have come out from the ear. It is not exactly known whether the actual murder took place inside the cowshed or the kitchen. From the kitchen some blood stained earth was seized. As very little blood would come out in case of strangulation, the absence of heavy patch of blood stain either on the earth or on the Lungi does not militate against the prosecution case.
15. We would now proceed to examine the contention of the learned Standing Counsel that the learned Sessions Judge excluded the extra-judicial confession from consideration on a misconception of law. His discussion on this part of the case in paragraph 14 of his judgment was wholly perfunctory and may be quoted:
The p.ws. 2, 7, 10 and 12 have faithfully corroborated one another regarding the events, in the house of the accused, his coming out, somewhat trembling, his confession and at last, leading to the place of occurrence. The p.w. 6 also spoke of such extra-judicial confession before him. Though I have no hesitation that such version is true, I would however discard the same from my consideration, while examining the guilt of the accused. This is because, that such a very important item remained conspicuously absent from either of the reports Exts. 1 and 4. To repeat, in usual course, such confession and leading to discovery should have been boldly mentioned in the reports, when they were written after these events. It is not unlikely that these persons in order to make the case stronger, tried to develop the story to this effect.
In paragraph 11 of this judgment the error of law committed by the learned Sessions Judge has been pointed out. p.w. 2 him self admitted that he did not refer in Ext. 1 to the extra-judicial confession or to the fact of the accused leading to the place where the dead body was lying. We have already discussed the law as to how this omission might affect the evidence of p.w. 2 on that particular point, if no reasonable explanation had been furnished. On the same reasoning, which need not be repeated, the evidence of p.ws. 7, 10 and 12 as to the extra-judicial confession made by the accused at his house cannot be excluded. We have also indicated that the explanation given by p.w. 2 for the commission is reasonable. We are therefore clearly of opinion that the learned Sessions Judge excluded the extrajudicial confession on a misconception of law, though he himself was of opinion that the evidence of p.ws. 7, 10 and 12 was acceptable.
16. The gist of the extra-judicial confession at the house of the accused, as deposed to by p.ws. 7, 10 and 12 may be noticed. p.w. 7 stated thus:
Thereafter we all went to the residential house of the accused and asked the accused to come out. Then his mother alone came out and expressed that the accused had fever. When we were questioning her about such illness of the accused, Prakash (p.w. 3) came there. Dwarikanathe Panda, p.w. 2 and others asked him about Sakuntala. He said that be had called Sakuntala, as desised by the accused, for taking a frock from the accused. Then the accused Sad a came out, somewhat trembling, disclosing fear-complex. To our query, he confessed to have murdered that gisl Sakuntala out of greed for her gold ornaments, by throttling her neck. When he pressed him to tell as to the place where he had kept the dead body, he said that he had kept it in the kitchen house of Sukuru Reddy beyond his own cowshed. As desired by us, the accused led us to the place, where we found the dead body of Sakuntala lying in the kitchen house of Sukuru Reddy.
P. ws. 10 and 12 have spoken almost in the same terms.
This extrajudicial confession has been retracted, inasmuch as the accused denies to have made such a statement.
The onus is on the prosecution to establish that the retracted confession is voluntary and true. In paragraph 13 of this judgment we have already held that the accused was not assaulted by the villagers as alleged. There was no case of any promise or inducement. Thus the extra-judicial confession is proved to be voluntary.
The next question is whether it is true. Law is well settled that extra-judicial confessions are not usually considered with favour. But that does not mean that such a confession, coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement, should not he believed See
As has been repeatedly said, p.ws. 7, 10 and 12 are witnesses of unimpeachable character. They had no axe to grind against the accused who had come on leave to the village only 15 days before. The retracted confession is also corroborated in material particulars. The accused confessed to have murdered Sakuntala out of greed for her gold ornaments by throttling her neck. In fact Sakuntala had been murdered. She had a number of gold ornaments, out of which one or two had been removed. According to the Doctor, see was killed by throttling. Thus the retracted confession is corroborated in material particulars. Further the evidence of the witnesses establish that the accused led the villagers to the vacant kitchen of Sukuru Reddy which was inaccessible from all sides except through his cowshed. The retracted confession is thus proved to be true.
If the retracted confession is proved to be voluntary and true, it can constitute the sole basis of conviction. Mr. Behura contends that the extra-judicial confession at the house of the accused was made in presence of Dwarikanath Panda who was the Naib Sarpanch. Placing reliance on
As to who is a person in allthority within the meaning of Section 24 of the Evidence Act was clearly analysed by a Bench of this Court in Palam Munda v. State 32 C.L.T. 1170. In paragraph 9 this Court observed thus:
The expression ''person in allthority'' has not been defined. No illustration of the expression has been appended to the section. Generally speaking ''person in allthority'' is one who is engaged in the apprehension, detention or prosecution of the accused, or one who is empowered to examine him.
There is no provision in the Orissa Grama Panchayat Act corresponding to the Bihar Act, whereunder the Sarpanch or Naib Sarpanch has been conferred statutory duties for apprehension, detention or prosecution of the accused. We accordingly reject the contention that the extra-judicial confession in presence of Dwarikanathe Panda is inadmissible.
Section 24 of the Evidence Act has some other elements also. We have held that there was no threat, inducement or promise, and accordingly this section does not come in aid of the defence contention.
It is not necessary in this case to examine further if the extra-judicial confession made at the Akhadaghar before p.w. 6 is voluntary and true. Accordingly how Ext. 4 helps the prosecution case need not be discussed.
17. On the aforesaid discussion we are clearly of opinion that the conviction of the accused can be sustained on the basis of circumstantial evidence and also independently on the basis of the extra-judicial confession made at the house of the accused which has been proved to be voluntary and true.
18. We have given our anxious consideration to the question of sentence. The murder in this Case is brutal, cold-blooded and pre-planned. An innocent gisl Was the victim on account of pure greed of the accused for her gold ornaments. The penalty of death is the only reasonable punishment that could be inflicted in the circumstances of this case. The sentence of death is confirmed. In
19. The conviction and the sentence are well founded. The appeal fails and is dismissed. The Death Reference is accepted.
Ray, J.
20. I agree.
