PRADIP MOHANTY, J & B.K.PATEL, J. JCRA. NO.98 OF 2000 (Decided on 13.07.2011) NEKRU @ ALEKH BEHERA ……Appellant. .Vrs. STATE OF ORISSA ……Respondent. EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.24, 26. For Appellant - Mr. Ramesh Chandra Mohanty. For Respondent - Mr. Anupam Rath (ASC) PRADIP MOHANTY, J. In this appeal from jail, the appellant has assailed the judgment dated 25.01.2000 passed by the learned Additional Sessions Judge, Angul in S.T. No.88A of 1997/88 of 1997 convicting him under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution in a nutshell is that the informant (P.W.1), who is the brother of the deceased, lodged an FIR before NTPC police station on 01.05.1997 to the effect that his sister (deceased) was given in marriage to the appellant six years prior to that date. On the day preceding to 01.05.1997, he along with his two friends had gone to the house of his sister to see opera at NTPC area. They took their dinner there and at about 10.30 PM along with the appellant went to see opera at N.T.P.C. area. While the opera was going on, the appellant on the pretext of going to the police station left the place. At about 3.30 AM, the elder father’s son of the appellant informed them at opera show about the death of his sister. Immediately, they came to the spot and saw the deceased lying dead on the floor of the house of the appellant. It is also alleged that the appellant was having illicit relationship with another lady of his village and that the appellant and his family members used to torture his sister physically and mentally. As the informant could not get any satisfactory reply from the family members of the appellant, suspecting foul play he lodged the FIR. On receipt of the FIR, the O.I.C, NTPC Police Station (P.W.16) registered the case and proceeded with the investigation. During the course of investigation, he visited the spot, examined the witnesses, held inquest over the dead body and sent the same for post mortem examination. He also seized the wearing apparels of the deceased and the appellant, arrested him and sent the seized incriminating articles to S.F.S.L., Rasulgarh for chemical examination. As per direction of the Superintendent of Police, Angul he made over charge of investigation to the C.I. of Police, Talcher (P.W.13), who on completion of investigation filed charge sheet against the appellant under Sections 498-A/302, IPC. 3. On receipt of the charge-sheet, the learned Magistrate took cognizance of the offence and committed the case to the Court of Session. The learned Addl. Sessions Judge framed charge under Sections 498-A/302, IPC against the appellant who pleaded not guilty and claimed to be tried. In order to prove its case, prosecution examined as many as sixteen witnesses including the doctor and the investigating officer, and exhibited twelve documents. None was examined on behalf of the appellant in defence. In his statement under Section 313, Cr.P.C., the appellant took the plea of denial. The learned Addl. Sessions Judge relying on the circumstantial evidence available on record convicted the appellant under Section 302, IPC and sentenced him to undergo imprisonment for life. He, however, acquitted the appellant of the charge under Section 498-A, IPC. 4. Mr. Mohanty, learned counsel for the appellant submits that in the instant case there is no eye witness to the occurrence and the trial court has convicted the appellant basing on the circumstantial evidence. The extra judicial confession on which much emphasis has been laid by the trial court to convict the appellant is a very weak piece of evidence. Referring to a judgment of the apex Court in Union of India and others v. J.S. Brar, AIR 1993 SC 773, learned counsel for the appellant submits that in absence of any other corroborative evidence extra judicial confession cannot form the basis of conviction. His further submission is that other incriminating circumstances available on record do not complete the chain of circumstances. Therefore, the impugned judgment of conviction and order of sentence are not sustainable in the eye of law and liable to be set aside. 5. Mr. Nayak, learned Additional Government Advocate vehemently contends that soon after the occurrence the appellant confessed before P.W.10 that he had killed his wife and requested him to burn the dead body. On the next morning of the occurrence, in the police station the appellant in presence of P.Ws.14 and the police confessed that he killed his wife by throttling her neck. The conduct of the appellant is highly doubtful because while the opera was going on, the appellant left the opera show on the plea that he would go to the police station and during the period of his absence from the opera show death of the deceased occurred. The medical evidence is very clear and cogent that the deceased died due to asphyxia and strangulation and that the injuries found on the neck of the deceased cannot be possible by suicidal hanging. Medical evidence tallies with the oral evidence of P.W.10. For all these reasons, it cannot be said that there is infirmity or illegality in the impugned judgment of conviction and sentence passed by the trial court. 6. This Court gone through the LCR minutely. As already stated, P.W.1 is the brother of the deceased and the informant of this case. He deposed that after taking dinner in the house of his deceased sister, he along with his two friends, namely, Siba Behera & Nenkuri Behera, as well as his brother-in-law (appellant) went to Rangabeda to see opera. The appellant and another man did not enter inside the opera hall. The appellant telling them that he was going to the police station left the place with the assurance to come back soon. At about 3.00 AM to 3.30 AM in the night appellant came back and took a seat with them inside the opera show. Thereafter, P.W.2 came and informed that the deceased is in serious condition. Hearing this, he along with the appellant and P.W.2 went to the house of the appellant and by the time they arrived there they found that hands and legs of the deceased were stiff and blood was coming out of her mouth. He asked the inmates of the house of the appellant regarding the death of his sister. As they pleaded ignorance, he went to the police station and lodged the FIR. 2 P.W.2 is the cousin brother of the appellant. He in his examination-in-chief deposed that as the mother of the appellant requested him, he went to the opera show and informed the incident to the appellant. In cross-examination, he admitted that none was present when the mother of the appellant told him that the wife of the appellant had expired and that he alone went to the place where opera was going on. P.W.3 is the brother of elder father of the appellant. He deposed that he came to know about the death of the deceased at about 4.00 AM in the night when the mother-in-law of the deceased cried and called them. He went to the house of the appellant and found legature mark on the neck of the deceased. The deceased was lying on the floor of the house and a rope was lying near her. He did not find any injury on the person of the deceased. Thereafter, he sent P.W.2 to call the appellant. He also deposed that he came to know from the family members of the appellant that the deceased committed suicide. In cross-examination he admitted that he saw rope marks on the neck of the deceased. P.W.4 is the mother of the appellant. She deposed that the deceased found dead in her outer room where the deceased and the appellant were residing separately from them. The elder son of the deceased came crying and told her about the incident. She took her grandson with her and went to the room where deceased was lying dead. She further deposed that she found that the deceased had hanged herself by means of a rope. At that time, the appellant along with his brother-in-law (P.W.1) had gone to see the opera show. She immediately cut the rope and went to inform the elder brother of her husband (P.W.3) and nephew (P.W.2). When they came to the spot and found the deceased dead, she lost her sense. In cross-examination, she admitted that she sent her nephew (P.W.2) to call the appellant from the opera show and her nephew alone went there. P.W.5 is the mother of the deceased. In her evidence she stated that her deceased daughter had married to the appellant six years prior to her death. The appellant and the deceased were staying in one room along with their children. Her deceased daughter had been telling her that the appellant did not like her. The appellant wanted to marry a girl of village Rangabeda two months prior to the death of the deceased. The appellant developed intimacy with that girl when he went to his sister’s house at Rangabeda. She was informed about the incident by Nenkuri (P.W.6) and Siba of their village. By the time she reached at the spot, the dead body of the deceased had already been sent to the hospital for post-mortem examination. In cross-examination, she stated that whenever her deceased daughter came to her house told her that the appellant was always doing golmal and assaulting her. P.W.6 is the co-villager of the informant. His evidence is that in the night of occurrence at about 9.30 AM he himself, Siba, appellant, Pabitra, and Dhuleswar (P.W.1) came to see opera at NTPC. They gave money to the appellant to purchase tickets. But, the appellant brought four tickets for them and did not bring ticket for himself. The appellant did not accompany them to see the opera show and left the place on the plea that he would go to NTPC police station to see his father who had been arrested by the police. At about 3.30 PM they saw the appellant sitting behind them. After half an hour a co-villager of the appellant came and intimated about the incident. P.Ws.7 and 9 are witnesses to the seizure of wearing apparels of the deceased and the command certificate under Ext.3. In cross-examination, they have admitted that 3 at the time of seizure no outsider was there. P.W.8 is the Gram Rakhi. He stated that he put his signature on Ext.4, but he had no knowledge about the seizure. P.W.10 is a co-villager of the appellant. He deposed that after the death of the deceased the appellant came running to him at about 5.00 AM while he was executing a work near NTPC under a petty contractor. At first the appellant told him that he had killed his wife and requested to help him in burning the dead body. Subsequently, he changed his version and told that somebody had committed rape on the deceased and thereafter murdered her. He told the appellant to come to his house and the appellant deed so. Meanwhile, he managed to inform about the incident to police who came and took the appellant from his house. He further deposed that on being called by police he went to the NTPC police station and found Madhusudan Pani (P.W.14) present there along with other persons. The appellant confessed before police in their presence that after committing sexual intercourse twice or thrice on the deceased, he throttled the throat of the deceased and murdered her. In cross-examination, he admitted that none else was present there when the appellant confessed his guilt before him near the work site. He further admitted that he was pulling on well with the appellant Nenkuri alias Alekha prior to the incident. P.W.14 is another co-villager of the appellant. He deposed that at the relevant time he was P.C.C. member of congress party. While he was talking with one Santosh Pradhan under whom appellant was working for election propaganda of congress party, on account of faith on him the appellant told after going 6 to 7 cubits with him that somebody raped and murdered his wife and that some wine bottles were lying near the dead body. He advised the appellant to go to his house to guard the dead body. On the next day morning, he went to the police station being called by police where the appellant confessed before him and police that he throttled the neck of his wife and killed her. In cross-examination, he also clarified the above fact. P.W.11 is the doctor who conducted post-mortem examination on the dead body of the deceased and found the following injuries: “(i) Legature mark and bruise on the neck. Bruise mark 1” x 1/2” transversely placed 1” above the left clavicle. (ii) Another bruise ¼” x ¼”, half inch below the lateral to the first injury, and (iii) Legature mark ¾” width parallel to the mandible over the thyroid cartilage 4” length.” He opined that the cause of death was due to asphyxia as a result of strangulation. In cross-examination, he admitted that the injuries could not be possible by hanging by rope or by suicidal handing. P.W.12 is a witness to the inquest and proved the inquest report (Ext.2) and his signature (Ext.2/2). P.W.13 is the C.I. of police who simply submitted the charge sheet against the appellant under Sections 302/498-A, IPC. P.W.15 is the doctor who examined the appellant and found no mark of injury on his body. In the conclusion he deposed that absence of smegma suggested occurrence of sexual intercourse within 24 4 hours. P.W.16 is the I.O. who registered the case, took up investigation, examined the witnesses, held inquest over the dead body of the deceased and sent the same for post mortem examination. He also seized the wearing apparels of the appellant and the deceased and sent the same to S.F.S.L., Rasulgarh for chemical examination. 7. The analysis of evidence made above would go to show that in this case there is no eye witness account to implicate the appellant with the murder of the deceased. The trial court, as is evident from the impugned judgment, has convicted the appellant basing on the circumstantial evidence available on record. Extrajudicial confession said to have been made by the appellant is one of the circumstances on which much emphasis has been given by the trial court. The prosecution through P.Ws.10 and 14 has tried to prove such extrajudicial confession. This Court carefully scrutinized the evidence of these two witnesses. P.W.10 deposed that at first the appellant told him that he had killed his wife (deceased) and requested to help him in burning the dead body but subsequently he changed his version and told that somebody had committed rape on his wife and thereafter murdered her. From this, it is crystal clear that the appellant retracted from his earlier statement made before P.W.10. A retracted confession is of no value, except as a reassurance when reliable evidence has already been adduced on behalf of the prosecution, as held by the apex Court in Union of India and others v. J.S. Brar, AIR 1993 SC 773 referring to the judgment rendered in Shrishail Nageshi Pare v. State of Maharashtra, AIR 1985 SC 866. In the instant case, there is no other reliable evidence to support this retracted confession. The other witness (P.W.14) stated that on the next morning of the occurrence he had gone to NTPC police station being called by the police. The appellant confessed before him and the police that he had killed his wife. Such confession is inadmissible in the eye of law being hit by Section 25 of the Indian Evidence Act. The plea of the appellant for remaining absent from the opera show gets support from the evidence of P.W.6 who has categorically deposed that on the occurrence night after giving food the deceased told them that her father-in-law had been arrested by the police. P.W.5 although in her evidence deposed that she found piercing of knife blow on the left side chest of her deceased daughter, the post-mortem doctor (P.W.11) has not deposed about any such injury on the chest. The evidence of the prosecution witnesses suffers from material contradictions and infirmities. There is no other reliable circumstance except the retracted confession of the appellant said to have been made before P.W.10 and it is not safe to convict the present appellant basing upon such retracted confession. For all these reasons, this Court holds that the circumstances adduced in this case do not conclusively prove the guilt of the appellant and there are missing links in the chain of circumstances. 8. In the result, the Jail Criminal Appeal is allowed and the judgment dated 25.01.2000 passed by the learned Additional Sessions Judge, Angul in S.T. Case No. 88A of 1997/88 of 1997 convicting the appellant under Section 302 IPC and sentencing him to undergo imprisonment for life is set aside. The appellant-Nekuri alias Alekha Behera be set at liberty forthwith, unless his detention is required otherwise. Appeal allowed. 5