L.MOHAPATRA, J & S.K.MISHRA, J. JCRA NO.28 & 29 OF 2001 (Decided on 06.04.2011) PITABASH LOHARA & ANR. … ….. Appellant. .Vrs. STATE OF ORISSA ……… Respondent. EVIDENCE ACT,1872 (ACT NO.1 OF 1872) - S.27 For Appellant - Sri R.N.Nayak & K.K.Sahoo For Respondent - Addl. Govt. Advocate For Appellant - Smt. Mina Kumari Das For Respondent - Addl. Govt. Advocate S.K.MISHRA,J. The appellants in both the cases assail their convictions under Section 302/34 of the Indian Penal Code (hereinafter referred to as “the I.P.C.” for brevity) in S.C. No.46/11 of 1999-2000 of the court of learned Addl. District and Sessions Judge, Nuapada. 2. Bereft of unnecessary details, the prosecution gravamen is that on 15.3.1999 in the night the accused persons organized a feast with the deceased in his house and took their dinner. Due to some reason there was a quarrel between the appellants and the deceased. In such quarrel appellant Pitabash Lohara caught hold of the deceased from the back and the other appellant Paramananda Gahir stabbed him by means of a knife, consequently the deceased died instantaneously on the village road of Hirapur. 3. Hearing the noise Dushasan Pandey and others, who were watching the T.V. in the house of the deceased, came out and saw that the appellants were running away along with the weapon of offence, i.e. the knife by withdrawing the same from the chest of the deceased. After the said incident the informant Rudra Charan Patnaik lodged an F.I.R. before the O.I.C., Sinapali on 16.3.1999. On the basis of which the O.I.C. registered the case, took up investigation and after completion of investigation submitted charge sheet against the appellants under Section 302/34 of the I.P.C. 4. To establish the charges levelled, the prosecution examined ten witnesses out of whom P.W.1 is the informant, P.Ws.2,6,7 and 8 are the independent witnesses, who have seen the appellants running away from the spot with the weapon of offence, i.e. the knife after the deceased fell down on the ground. P.Ws.3 and 5 are the post occurrence witnesses. P.W.9 is a witness to the discovery of the weapon of offence on the disclosure statement made by the accused, Paramananda Gahir. P.W.4 the doctor, who had conducted post mortem examination on the dead body of the deceased and P.W.10 is the Investigation officer. 5. After having considered the materials on record, the learned Addl. District and Sessions Judge has come to the conclusion that the death of the deceased was homicidal in nature and the prosecution has proved its case beyond all reasonable doubt that the accused persons committed murder of the deceased in furtherance of their common intention and, therefore, the learned Addl. District and Sessions Judge proceeded to convict them for the offence under Section 302/34 of the I.P.C. and sentenced each of them to undergo imprisonment for life. Such judgment of conviction and order of sentence are assailed in these appeals. 6. In assailing the conviction, learned counsel appearing for the appellants submitted that the learned Addl. District and Sessions Judge has based his findings on conjectures and surmises and has come to a erroneous finding, especially it is contended that the involvement of the accused persons in the crime is not established beyond all reasonable doubt. 7. Learned Addl. Government Advocate submitted that the appellants have been rightly convicted as there is enough evidence against them to establish the charges beyond all reasonable doubt. 8. While considering the case, it is seen that the appellants do not challenge the finding that the death of the deceased was homicidal in nature. P.W.4, who happens to be the doctor and had conducted the autopsy, has stated on oath that on 16.3.1999 he conducted the post mortem examination over the dead body of the deceased and found a stab injury on the right anterior chest wall 11.5 C.M. from the right clavicle 2 C.M. midial and the size of the said injury is stated to be 4.2 C.M. X 2 C.M. in the middle part of gradually tapering towards both ends, making sharp angles at the two extremities. The doctor has opined that the injuries were ante mortem in nature and the death resulted due to shock from profuse hemorrhage, as a result of stab on the heart. Though cross-examined, nothing has been brought out from the mouth of the said witness to discredit his evidence given in Court. Therefore, this Court comes to the conclusion that the death of the deceased was proved to be homicidal in nature. 9. Coming to the evidence led on behalf of the prosecution, it is seen that P.W.2 has stated on oath that in the evening of 15.3.1999 himself, the deceased, Karrtika Tandi, Chowhan Tandi, Dillip Pandey, Premlal Pandey and Garna Bandichor were watching T.V. in the house of the deceased. Sometime thereafter both the appellants came there. They brought some liquor and chicken for preparing a feast. They went to the kitchen room along with the deceased. At about 9.30 P.M. they heard hullah from the road side and came outside and saw the accused persons and the deceased were there. They also found that the accused Pitabash Lohara drew the knife from the chest of the deceased and running away from the spot and the other accused person also ran away with him. He found that the deceased lying on the ground with bleeding injury. The deceased died there. The other witnesses also came there. He has been cross- examined extensively. In cross-examination an important contradiction brought out by the defence. This witness has denied the defence suggestion that he did not state before the Police that the accused Pitabash Lohara withdrew the knife pierced on the chest of the deceased and having withdrawn the same he ran away from the spot along with the other accused. 2 A cross reference to the statement of the I.O., P.W.10, reveals that at paragraph- 9 of his cross-examination he has stated that P.W.2, Dushasan Pandey, did not state before him that on the date of occurrence the accused Pitabash Lohara withdrew the knife pierced on the chest of the deceased and having withdrawn the same he ran away along with the other accused. 10. P.W.6 is another witness, who states about the occurrence. He has also stated to have seen the accused Pitabash Lohara running away by withdrawing the knife from the chest of the deceased. In cross-examination the defence has confronted the witness that he omitted to state such a fact before the I.O. A further reference to the evidence of P.W.10, reveals that none of the witnesses stated before him that the accused Pitabash Lohara withdrew the knife from the chest of the deceased, but all of them have stated, except Balaram Tandi, that both the accused persons ran away from the spot. Thus, it is clear that none of the witnesses, who have been examined as P.Ws.2,6,7 and 8, have stated before the I.O. in course of investigation that they saw the appellant, Pitabash Lohara withdrawing or pulling out the knife from the chest of the deceased and both the appellants ran away. They stated that they have seen the appellants run away from the spot. The prosecution has developed a new story and, therefore, these statements have to be viewed with suspicion. It is the trite law that whenever a material aspect of the evidence is deposed in the Court, but the same has not been deposed before the I.O. in course of recording of their statements under Section 161 Cr.P.C. Then the credibility of the witness becomes suspect and the normal course is not to accept such evidence to record a conviction of the accused persons, especially when the charges are grave and offences are visited with capital punishment. 11. Another component of evidence, which has been given much emphasis by the learned Addl. District and Sessions Judge, is the statement under Section 27 of the Indian Evidence Act, 1872( hereinafter referred to as “the Evidence Act” for brevity). This can be appreciated by examination of certain paragraphs of the judgment impugned. At paragraph-10, learned Addl. District and Sessions Judge has observed as follows: “At the outset it may be stated that the entire case of the prosecution rests on the circumstantial evidence. Because there is no eye witness to the occurrence. In other words none of the witnesses has seen any of the accused persons causing stab injury on the person of the deceased. There are only materials available on record that accused, Pitabash Lohara withdrew the knife from the chest of the deceased and both the accused persons running away from the spot. There is no direct evidence to the effect as to which of the accused person has dealt knife blow on the body of the deceased.” Then at last portion of paragraph-11, learned Addl. District and Sessions Judge has further observed that excepting the testimony of P.W.9 and the evidence led by the prosecution under Section 27 of the Evidence Act, there is no eye witnesses to the occurrence. The learned trial judge has further held that the materials as stated above are quite clear and cogent that on the date of occurrence the accused, Paramananda Gahir dealt a knife blow on the chest of the deceased with the help of the other accused, Pitabash Lohara. In order to arrive at this conclusion, learned Addl. District 3 and Sessions Judge has taken into consideration the statement of the accused made under Section 27 of the Evidence Act. The statement has been marked as Ext.10. Examination of the said exhibit reveals that Paramananda Gahir concealed the knife, which is the weapon of offence, and later stated the place where he had concealed it. This fact has been deposed to by P.W.9. From such exhibit, learned Addl. District and Sessions Judge has come to the conclusion that on the date of occurrence while the accused persons and the deceased had a feast, due to some reason quarrel took place among them and accused Paramananda Gahir dealt a knife blow and other accused withdrew the same from the chest of the deceased and both the accused persons ran away from the spot. 12. Section 27 of the Evidence Act provides that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or admission of guilt or not, as it distinctly relates to the fact thereby discovered, may be proved. In order to attract Section 27 of the Evidence Act, the following features must be established, namely (i) the accused must be in police custody, (ii) while in such custody he gave certain information to the police officer which has led to the discovery of the fact and (iii) the information must relate distinctly to the facts discovered and not to any other aspect of the case. Section 27 of the Evidence Act is in fact an exception to Sections 25 and 26. Section 25 of the Evidence Act excludes proof confession to a Police Officer in any circumstances. Section 26 excludes proof of any confession by a person in Police custody, unless made in immediate presence of a Magistrate. If a statement is made whether confessional or not to a Police Officer, which led to discovery of a fact, then it is admissible in evidence. Thus, a plain reading of these provisions reveal that a statement which is intended to be used under Section 27 of the Evidence Act cannot be taken to be a confessional statement relating to the occurrence or how it was perpetuated and who committed the offence etc. like a full-fledged confessional statement. Such statement recorded under Section 27 of the Evidence Act should not be used as a wholesome confession of the appellant. Learned Addl. District and Sessions Judge having done so in arriving at the conclusion as afore described has committed grave error on record. 13. Another aspect of the case is that though the knife was sent for chemical examination, no blood stained was found on it. Moreover, it being a single piece of circumstance does not form a complete chain of circumstances unerringly pointing to the guilt of the accused persons and, therefore, cannot sustain a conviction. 14. Thus, on conspectus of the materials on record and the impugned judgment, this Court comes to the conclusion that the conviction recorded by the learned Addl. District and Sessions Judge is erroneous and requires interference. Accordingly both the appeals are allowed and the appellants in both the appeals are acquitted of the charges. They be set at liberty forthwith, if their detentions are not required in any other case. Appeals allowed. 4