PRADIP MOHANTY, J & B.K.NAYAK, J. JCRLA NO.30 OF 2002 (Decided on 25.04.2011) CHAITAN PARAJA ……..Appellant. .Vrs. STATE OF ORISSA ………Respondent. EVIDENCE ACT 1872 (ACT NO 1 OF 1872)-S.24. For Appellant - Mr. Gyanaranjan Mohapatra. For Respondent - Mr. Anupam Rath (Addl. Standing Counsel) PRADIP MOHANTY, J. This Jail Criminal Appeal is directed against the judgment dated 27.08.2002 passed by the learned Ad hoc Additional Sessions Judge, Jeypore in Criminal Trial No.7 of 2002 convicting the appellant for commission of offence under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution, as narrated in the F.I.R. (Ext.1), is that on 20.01.2000 the Sarpanch of Godapodar Gram Panchayat (P.W.1) lodged a report at B.Singhpur Police Station that on 20.01.2000 at about 11:00 AM the appellant had murdered his wife by means of a Tangia due to sudden quarrel. It is further alleged in the F.I.R. that the appellant made an extra judicial confession before P.Ws.2 and 5. 3. The plea of the appellant was one of complete denial of the allegations. 4. In order to prove its case, prosecution examined as many as eleven witnesses including the doctor and the I.O. and exhibited eleven documents. The defence examined none. 5. Learned Ad hoc Additional Sessions Judge, who tried the case, convicted the appellant under Section 302 I.P.C. basing upon the evidence of P.Ws.2 and 5. 6. Mr. Gyanaranjan Mohapatra on behalf of Mr.Dayananda Mohapatra, learned counsel for the appellant assails the impugned judgment on the following grounds: (1) The entire conviction has been based upon the testimony of P.Ws.2 and 5 who are not trustworthy witnesses; and (2) Conviction cannot be based solely upon the extra judicial confession without any corroboration and in the instant case there is no corroborative evidence since the eye witnesses have been turned hostile and nothing adverse has been elicited from them in cross-examination by the prosecution. 7. Mr.Rath, learned Additional Standing Counsel, on the other hand, contends that a conviction can be based upon the extra judicial confession. The appellant himself made a confession before P.Ws.2 and 5 who are trustworthy witnesses. The dead body of the deceased was lying in front of the house of the appellant. The weapon of offence i.e. axe was lying on the spot and human blood stains were found from it. Therefore, there is no material before this Court to interfere with the impugned judgment and order of conviction. 8. Perused the LCR. P.W.1 is the informant. At the relevant time, he was a Sarpanch. He deposed that on the day of occurrence, some villagers of Kotagaon came to him and told that the appellant had committed murder of his wife by assaulting her on neck by means of a Tangia. On the next morning, he along with the villagers went to the spot and found the dead body of the deceased lying in front of the house of the appellant. Thereafter, they proceeded to Ranigada Out-post and reported the matter orally to the S.I. of police who reduced it to writing. He proved the FIR (Ext.1). The police came to the spot and seized some sample earth and blood stained earth under Ext.2 which was proved by P.W.1. P.W.2 deposed that on getting information that the appellant had committed murder of his wife, he along with P.W.1 and others went to the spot and found the dead body lying in front of the house of the appellant. On being questioned, the appellant told him that when he returned to his house from weekly market, he found his wife in a compromising position with another male. Finding them in such a position, he lost his temper and killed the deceased by means of an axe by assaulting her on neck. In cross-examination, he admitted that he was acquainted with the appellant prior to the occurrence and had visited his village but he was not on visiting terms with the appellant. He did not see any person with whom the deceased had alleged illicit connection and had not made any inquiry to know the identity of that person. He denied the suggestion that he was deposing falsehood against the appellant as he (appellant) did not support him in the last Samiti election. P.W.3 is the uncle of the appellant. The prosecution declared him hostile but in cross-examination nothing has been elicited to support its case. P.W.4 is a co-villager of the appellant who was also declared hostile. P.W.5 is the ‘Naik’ of the village. He stated that he went to the spot hearing about the murder from his wife and found the dead body of the deceased lying in front of the house of the appellant. Seeing the appellant, he asked as to why he killed the deceased. The appellant confessed before him that he had killed his wife by means of an axe as he was angry. P.W.5 stayed there and directed Arjuna Jani and Domu Jani (P.W.7) to call the Sarpanch who came to the spot on the next morning before whom the appellant also confessed to his guilt. In cross-examination, he admitted that he had not been examined by the police. In presence of Gramarakhi, the appellant made the confession. He further admitted that appellant made confession before him in presence of the police and the Sarpanch only after their arrival and not prior to that. P.Ws.6 and 7 are also co-villagers of the appellant who did not support the case of the prosecution and turned hostile. P.W.8 is the uncle of the appellant and a witness to the inquest. 2 P.W.9 is the doctor who conducted autopsy over the dead body of the deceased and found four incised injuries of sizes 2” X 2” X 4” on the left side of the neck just below the mandible with corresponding injuries to sternomastoid muscles, carotid artery, jugular vessels and cervical vertebra. He opined that the cause of death was due to haemorrhagic shock as a result of excessive bleedings and the death was homicidal in nature. He also proved the post mortem report (Ext.4). On examination of the Tangia sent by the I.O., he opined that the injuries found on the body of the deceased could be possible by the said Tangia. P.W.10 is the constable and a seizure witness to the wearing apparels of the deceased. P.W.11 is the I.O., who registered the case, held inquest over the dead body of the deceased and sent the same for autopsy, recorded the statement of the witnesses and after completion of the investigation filed charge-sheet against the present appellant under Section 302, I.P.C. 9. Scrutinizing the evidence this Court finds that there is no eye witness to the occurrence. The conviction has been based upon the extra judicial confession made by the appellant before P.Ws.2 and 5. Nothing has been elicited from P.W.2 to demolish his evidence. Therefore, there is no material to disbelieve the evidence of P.W.2. P.W.5 is a co-villager, who specifically deposed that he asked the appellant as to why he killed the deceased to which the appellant confessed that he had killed his wife by means of an axe as he was angry. In cross-examination, P.W.5 specifically admitted that the appellant made confession before him in presence of police and the Sarpanch (P.W.1) only after their arrival and not prior to that. But P.W.1, the informant, does not whisper a single word about the extra judicial confession. Moreover, as per statement of P.W.5 if the appellant would have confessed in presence of P.W.1 and the police, such confession would hit under Section 25 of the Evidence Act. In view of the above, it is not proper to rely on the evidence of P.W.5. Although the I.O. proved the seizure of axe under Ext.8 and specifically deposed that he seized the same on production by one Dhania Jani, the said Dhania Jani, who has been examined as P.W.8, has not whispered a single word in his evidence about the production of any axe. P.Ws.2 and 5 have not stated anything about the seizure of blood stained axe. Therefore, the factum of seizure of the axe is doubtful. Furthermore, the axe was not produced or proved before the trial court. 10. Now, the only question that arises for consideration is whether basing upon the evidence of extra judicial confession said to have been made before P.Ws.2 and 5 conviction can be recorded or not. On perusal of the accused statement, it reveals that no question was put to the appellant with regard to the extra judicial confession made before P.Ws.2 and 5. It is well settled that if an incriminating material which is brought by the prosecution against the appellant implicating him in the crime not put to him in his examination under Section 313 Cr.P.C., that evidence cannot be utilized against him. In Shaikh Maqsood V. State of Maharashtra; (2009) 6 SCC 583, the apex Court held that in the examination under Section 313 Cr.P.C. if no question was put to the accused which established that he was the author of the crime, the entire case of the prosecution fails. In the instant case, no question has been put to the appellant with regard to the extra judicial confession. Therefore, the same cannot be utilized against the appellant. This Court finds that there is no reason to depart from the time tested legal principle as noted herein above. 3 11. In view of the above reasons, the appeal is allowed. The judgment of conviction and sentence passed by the trial court is set aside. The appellant be set at liberty forthwith, if his detention is not required otherwise. Appeal allowed. 4