ORISSA HIGH COURT,CUTTACK JCRLA NO. 36 OF 2003 From the judgment dated 28.3.2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.216 of 2001. ---------- Geda Singh … Appellant -versus- State of Orissa … Respondent For appellant - Mr. A.Mohanty For respondent - Mr. S.K.Das, Addl. Standing Counsel. PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ----------------------------------------------------------------------------------- Date of hearing & judgment- 8.12.2011 ----------------------------------------------------------------------------------- B.K.Patel,J. This appeal from jail is directed against the judgment dated 28.3.2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.216 of 2001 convicting the appellant under section 302 of the Indian Penal Code (for short, the I.P.C.) and sentencing him to imprisonment for life for having committed murder of deceased Sukumari Singh. 2. Occurrence took place in the night of 27/28.1.2001. Appellant is deceased’s husband’s sister’s son. 3. Prosecution case is that on 28.1.2001 at about 9.30 A.M. informant P.W.1 who happens to be a Grama Rakhi residing at village Dukura, went to Dukura beat house and presented written report Ext.1 before the A.S.I. of Police P.W.10 alleging that at about 8 A.M. on that date the appellant belonging to the occurrence village Angerkundia came to his house and confessed that he had killed his aunt Sukumari Singh in the previous night in between 3 A.M. to 4 A.M. as she practised witchcraft and tried to press his neck. Appellant also told to P.W.1 that he assaulted the deceased by means of wooden thick bar, sal stick and bamboo lathis and that the deceased was lying dead in his house. It was also alleged in the report that P.W.1 immediately went to the spot with the accused and saw the dead body of the deceased lying inside the house of the accused. One wooden bar, sal sticks and bamboo lathis, stained with blood, were lying nearby. Thereafter, P.W.1 brought the accused to the beat house and lodged report. In absence of the Officer In-charge, P.W.10 entered the fact in the station diary, registered the case and took up investigation. On completion of investigation, charge sheet was submitted against the appellant under section 302 of the I.P.C. 4. Appellant took the plea of denial. 5. In order to substantiate the charge prosecution examined 10 witnesses. P.W.1, the informant, as well as P.Ws. 1,2 and 3 deposed regarding extra-judicial confession made by the appellant before each of them. P.Ws. 4 and 5 turned hostile. P.W.6 is the doctor who conducted post-mortem examination over the dead body of the deceased. P.W.7 who is a signatory of seizure list Ext.5 denied to 2 have witnessed the seizure of Dibiri. P.W.8 took charge of investigation from P.W.10 and submitted charge sheet. P.W.9 a police constable assisted in the investigation. P.W.10 is also an Investigating Officer. No defence evidence was adduced. Placing reliance on the evidence of P.Ws. 1,2 and 3 stated to have been corroborated by medical evidence of P.W.6 and other circumstances, trial court held the appellant guilty of the charge. 6. Shri Mohanty, learned counsel for the appellant submitted that in absence of any eyewitness, the case is based on circumstantial evidence only. There is no other circumstance implicating the appellant with the alleged offence except extrajudicial confession stated to have been made by the appellant before P.Ws. 1,2 and 3. It is contended that not only P.W.1 was a Grama Rakhi but also prosecution has not brought out any material indicating the reason for which appellant reposed confidence in P.Ws. 1,2 and 3 to make extrajudicial confession. It is also argued that P.Ws. 2 and 3 admitted in course of cross-examination that they have not disclosed regarding extrajudicial confession made by the appellant before deposing in court. Therefore, in absence of any circumstance suggesting complicity of the appellant with the alleged offence, evidence of P.Ws. 1,2 and 3 cannot sustain a conviction. 7. Learned counsel for the State places reliance on evidence of P.Ws. 1,2 and 3 as well as P.W.6 to urge that evidence of P.Ws. 1,2 and 3 is corroborated by medical evidence and the circumstance that in the 3 night of occurrence, none else except the appellant and the deceased were present in the house of the appellant where the occurrence took place. 8. We have closely scrutinized evidence of all the witnesses. P.Ws. 4 and 5 did not support prosecution and were declared to be hostile witnesses. There is nothing in their evidence to support the prosecution. P.W.7 examined as seizure witness, though admitted to have signed on the seizure list Ext.5, testified that he had not seen seizure of Dibiri from the house of appellant. P.Ws. 8 to 10 are police officials. 9. P.W.1 testified that in the morning following the night of occurrence at about 8 to 9 A.M. appellant came to his house and told that he had already killed his maternal aunt Sukumari Singh by means of bamboo lathi, sal bar and wooden hammer. Appellant also told that he killed Sukumari Singh as the deceased being in the impact of witchcraft pressed his neck in the night before occurrence and that his maternal aunt was lying dead inside the house. P.W.1 further stated that he went to the spot with the appellant and found that the deceased was lying dead and she had bleeding injuries on her head, shoulder and neck. Wooden hammer, sal bar and bamboo lathi were lying at the spot. It appears that P.W.1 belongs to village Dukura. It has been elicited in the evidence of I.O. P.W.8 that the distance between the occurrence village and Dukura beat is about 4 to 5 K.Ms. 4 P.Ws. 2 and 3 are appellant’s co-villagers. Each of them alleged that appellant came to him and made extrajudicial confession. P.W.2 testified that appellant told that he had killed his maternal aunt Sukumari Singh who was pressing his neck in the impact of witchcraft and as such he had killed her with the help of sal bar, wooden hammer and bamboo lathi. He further deposed that wife of the appellant was not in the house on that date and she had been to her father’s house. He went to the appellant’s house and found that the deceased was lying dead near the door of the house with bleeding injury on her head. In course of cross-examination P.W.2 expressed his inability to say regarding date and month when the appellant made extrajudicial confession before him. He also expressed his inability to say as regards the place where dead body of the deceased was found lying. His house is situated at a distance of half a mile from the house of the appellant. That apart, P.W.2 also testified in cross-examination that he had not disclosed regarding the occurrence before any one. P.W.3 also testified that the appellant came to him in the morning and told that he had killed his maternal aunt with the help of wooden bar, bamboo stick and wooden hammer, and that the deceased pressed his neck on the impact of witchcraft and he had killed her. This witness also testified that wife and children of the appellant were not in the house and they had been to her father’s house. He further stated that no one was staying in the house of the appellant except his wife. This witness in course of cross-examination testified that house 5 of the appellant is at a distance of 2 miles from the occurrence village. P.W.3 also expressed his inability to say regarding the date, month and time when as well as place where appellant made extrajudicial confession before him. He contradicted himself by saying the he cannot say who else were present in the house of the appellant on that date and that he does not know who was staying in the house of the appellant in the occurrence night. Moreover, this witness stated in course of cross-examination that he deposed regarding the occurrence for the first time in court. 10. No doubt prosecution has adduced unimpeachable medical evidence regarding homicidal death of the deceased through P.W.6 who conducted post mortem examination over the dead body of the deceased. P.W.6 found lacerations on deceased’s front parietal scalp, left eyebrow and right grutial region, and bruise over the ribs apart from other injuries. Cause of death of the deceased was due to coma resulting from head injury. Injuries were ante-mortem in nature and were sufficient in ordinary course of nature to cause death. However, medical evidence of P.W.6 does not help the prosecution in implicating the appellant with commission of offence. 11. Thus, extrajudicial confession of the appellant as deposed by P.Ws. 1,2 and 3 is the only circumstance which is being relied upon by the prosecution to establish the charge against the appellant. None of three witnesses P.Ws. 1,2 and 3 deposed that the appellant had any 6 reason to come all the way to him and repose confidence to make confession. P.Ws. 2 and 3 testified that they disclosed regarding extrajudicial confession made by the appellant for the fist time in court. P.Ws. 2 and 3 also were unable to testify regarding date, time and place when appellant made extrajudicial confession. P.W.1 is not a residence of the occurrence village. In view of nature of evidence of P.W.3, it has also not been cogently proved that none else except appellant and deceased was present in appellant’s house in the occurrence night. 12. As has been reiterated by the Supreme Court in Pancho –v- State of Haryana : (2011)10 S.C.C.165, it is true that an extra- judicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record. An extra-judicial confession is on the face of it, a weak evidence and courts are reluctant, in the absence of a chain of cogent circumstances, to rely on it for the purpose of recording a conviction. 13. In the present case, not only no other circumstance corroborates evidence of P.Ws. 1,2 and 3, but also evidence of none of the three witnesses inspires confidence to sustain finding that the appellant made extra-judicial confession before them. In such circumstances, prosecution is found to have failed to establish the charge against the appellant. The impugned judgment is liable to be set aside. 7 14. We, accordingly, allow the appeal and set aside the judgment dated 28.3.2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.216 of 2001 convicting the appellant for commission of offence under section 302 of the I.P.C. and sentencing him to undergo imprisonment for life. The appellant is acquitted of the charge. It is stated that the appellant Geda Singh is still in custody. If that be so, the appellant be set at liberty forthwith unless his detention is required in any other case. …………………… L.Mohapatra,J. ……………………… B.K.Patel,J Orissa High Court, Cuttack, Dated 8th Dec.,2011/Palai 8