Sukru Pradhan vs State of Orissa

M. Papanna, J.—This Jail Criminal Appeal is filed by accused (hereinafter referred to as ''appellant''). He has challenged order of conviction u/s 302, Indian Penal Code and sentence or rigorous imprisonment for life there under recorded against him by learned Sessions Judge, Phulbani in S.T. No. 88 of 1993.

Prosecution case is very simple. Appellant and his elder brother Biranchi (hereinafter referred to as ''deceased'') had partitioned their properties including lands. Despite that, there was a dispute between them centering round a piece of land. Deceased intended to sell the said land to one Hari Padhan. Appellant objected to that. On 31.5.1993 at about 8.30 A.M. Appellant appeared before Boudh P.S. with a Tabilia (axe) stained with blood. He stated before Police that he committed murder of the deceased while he was sleeping. He also murdered his wife (Uma). Police entered this fact in the Station Diary (Ext. 20). Tabilia (M.O.I) was seized, During investigation Police drew up plain paper FIR (Ext. 22). Inquest over both the dead bodies was held. The dead bodies were sent for P.M. examination. On completion of investigation police submitted charge sheet against Appellant.

Defence plea is one of denail.

In proof of charge against Appellant, prosecution examined 14 witnesses. P.W. 1 is brother of deceased Uma. P. Ws. 2 and 3 are witnesses to seizure of Tabilia (axe). P.W. 4 is a witness to seizure of some incriminating articles. P.W. 5 is an inquest witness. P.W. 6 is another witness to seizure of some more incriminating articles. P.W. 7 is a witness to Panch Faisala. P.W. 8 is wife of Appellant. P. Ws. 9 and 10 are also witnesses to seizure of some more incriminating articles. P.W. 11 is Doctor who conducted autopsy over the dead bodies. P.W. 12 is Havildar. He escorted the dead bodies to the Doctor for autopsy. P. Ws. 13 and 14 are I. Os.

Defence, on the other hand, examined two defence witnesses.

Appellant''s counsel urged that learned trial Judge has gone wrong in convicting the Appellant on the evidence of I.O. (P.W. 13). He has vehemently challenged admissibility of Appellant''s statement said to have been made before the Police. He has further urged that motive of the Appellant to commit the crime having been not established, his conviction is unsustainable in law. That apart, prosecution has utterly failed to prove guilt of Appellant beyond all reasonable doubt particularly when no blood, as per chemical examination report and report of Serologist (Ext. 29), is found on Dhoti and nail clippings of Appellant.

On the other hand, learned Additional Government Advocate supported the order of conviction and sentence impugned in the appeal.

The learned Sessions Judge based conviction of Appellant on circumstantial evidence. We categorise the said circumstantial evidence as below for convenience.

(i) Medical evidence showing that both the deceased died homicidal death.

(ii) Animosity between Appellant and deceased arising out of proposed transfer of a piece of land of deceased in favour of Hari Padhan (P.W. 5).

(iii) Station Diary entry (Ext. 20) containing Appellant''s statement made in the Police Station after the occurrence.

(iv) Tabilia (M.O.I) stained with blood, and incriminating articles such as Dhoti, nail clippings and sample blood connecting the Appellant with complicity of crime.

This is a double murder case. Prosecution lacks in direct evidence to prove Appellant''s guilt. To prove its case Prosecution relies on circumstantial evidence.

To prove, deceased died homicidal death, we have to rely on medical evidence. It is one of the chains in such circumstantial evidence. Doctor (P.W. 11) proved Post Mortem report (Ext. 14) in respect of deceased Biranchi. Ext. 14 indicates an incised injury of 5'''' x 3'''' x 3'''' from middle of the neck extending to back side cutting the great vessels. He found atrophy of leg and hand fingers due to leprosy. On dissection of dead body of Biranchi he found trachea being cut with right cartoid vessels. The above injury is ante mortem in nature. The deceased died a homicidal death. Cause of death is due to haemorrhage and shock.

The Doctor (P.W. 11) has also proved Post Mortem report (Ext. 15) in respect of deceased Uma. Ext. 15 indicates three incised wounds of different sizes found on the dead body of deceased Uma. On dissection of her body, trachea and left cartoid vessels were found cut. The injuries were ante mortem in nature caused by sharp cutting weapon. Cause of death is due to haemorrhage and shock. She died homicidal death. The Doctor has also proved his opinion Ext. 16 given on examination of Tabilia (axe) (M.O.I) referred to him to the effect that injuries found on the dead bodies of Biranchi and Uma could be possible by M.O.I. Defence declined to cross-examine P.W. 11 on material aspect of medical evidence referred to above. It is not disputed that the dead bodies were of Biranchi and Uma. It is also not disputed that they died homicidal death. In view of that, finding of the learned trial Judge that both the deceased died homicidal death is affirmed by us.

Now we look for motive of the wrong doer to commit the alleged crime. Reliance can be placed on Udaipal Singh v. The State of U.P.; AIR 1972 SC 54 on this point. Apex Court has laid down the law on motive of the accused as below:

xxxIn cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong enough motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation-if any- of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused. He may, in that event, safely be held guilty on such circumstantial evidence.xxx

Appellant''s counsel has urged that there is total failure on the part of prosecution to establish Appellant''s motive for commission of the crime. But the learned Additional Government Advocate has drawn our attention to relevant portion of evidence of P. Ws. 1, 4 and 5 for proof of motive. In view of these rival contentions, we have to examine how far prosecution has been successful in proving such motive.

We have gone through evidence of P.W. 1. His evidence that he was cultivating deceased''s land is not disputed. The reason is obvious. Deceased was a leprosy patient. So, he was not able to plough his land. Relevant portion of evidence of this witness is quoted below:

The land is at Bendilipalli. Biranchi Padhan wanted to sell away his share of land to one Hari Padhan of Jagannathpur. The accused did not allow the transfer of the land. Sali-Duhuli is one Kilometre away from village Bendilipalli. Accused was threatening to kill Biranchi Padhan to cause his murder in case the land is sold away.

Evidence of P.W. 1 shows existence of strained relationship between Appellant and deceased arising out of transfer of a land to Hari Padhan (P.W. 5). We do not find any reason to disbelieve and discard his version. The fact that there was quarrel between two brothers is also disclosed from evidence of P.W. 4. In this regard, evidence of Hari Padhan (P.W. 5) cannot be lost sight of. He is the person who wanted to buy land of deceased to which Appellant objected. His evidence that four days prior to death of deceased, proposed transfer of the land was finalised, has not been assailed during cross examination. Therefore, keeping in mind, facts and circumstances of the case and in view of evidence of P. Ws. 1, 4 and 5, we do not agree with Appellant''s counsel when he argues that motive of the wrong doer has not been established. Learned Trial Judge has rightly held that there was enemical relation between Appellant and deceased arising out of proposed transfer of the land.

Appellant''s counsel has urged that evidence of P. Ws. 2 and 3 regarding seizure of M.O.I cannot be relied upon particularly when they have not supported the prosecution case that Appellant produced M.O.I. with a statement which was reduced to writing in their presence. His further contention is that learned Trial Judge ought not to have disbelieved evidence of D.W. 1 when he says that Tabilia (M.O.I) was lying two to three cubits away from dead body of Uma and I.O. (P.W. 13) brought the same.

On the other hand, learned Additional Government Advocate contends that seizure of M.O. I having been established what remains to be proved is, whether it has been seized in the P.S. on production by Appellant or seized from a place which is two to three cubits away from the spot where deceased Uma was lying dead.

In this regard, we have perused evidence of I.O. (P.W. 13). It is he who reduced oral statement of Appellant to writing in the Station Diary vide S.D.E. No. 668 (Ext. 20). He has stated to have seized under Seizure List Ext. 1, a Tabilia (M.O.I) on production by Appellant in the P.S. At that time, as per his testimony, witnesses Sashibhusan Guru (P.W. 2) and Santosh Behera (P.W. 3) were present in the P.S. During cross-examination defence suggestion that M.O.I was brought from the house of Biranchi has been denied by P.W. 13. A perusal of evidence of P.W. 2 shows that police prepared the seizure list (Ext. 1) in respect of an axe at the Police Station in his presence. No doubt, the fact that M.O.I. was produced by Appellant at the time of seizure has been denied by P.W. 2 but that does not affect the seizure of M.O.I. Evidence of P.W. 3 in this regard indicates clearly that M.O.I was seized in his presence under Seizure List Ext. 1 in the P.S. Therefore, evidence of P. Ws. 2 and 3 read with evidence of I.O. (P.W. 13) clearly goes to indicate that M.O.I was seized on production by Appellant in the P.S. It is also clear from evidence of P.W. 13 that he made seizure of M.O.I after he reduced his statement to writing in Ext. 20. Therefore, we cannot disbelieve and discard evidence of P.W. 13 regarding seizure of M.O.I. in the P.S. on production by Appellant who gave information of commission of offence orally. In the facts and circumstances and in view of evidence of P. Ws. 2 and 3 read with evidence of I.O. (P.W. 13) proving seizure of weapon of offence M.O.I under seizure list (Ext. 1), we are not inclined to believe the version of D.W. 1 when he says that M.O. I was lying 2 to 3 cubits away from the dead body of deceased Uma and police brought the same. The learned Trial Judge has rightly rejected evidence of D.W. 1 and placed reliance on the evidence of the aforesaid witnesses examined for the prosecution. Evidence of D.W. 2 is of no avail for defence. Accordingly, we are not inclined to accept and rely on evidence of D. Ws. 1 and 2 adduced on behalf of Appellant.

Learned Counsel appearing for Appellant has left no stone unturned in attacking prosecution case. Vehemently, he challenges admissibility of Appellant''s statement (Ext. 20) made before I.O. (P.W. 13). He urges, the entire statement contained in Ext. 20 amounts to Appellant''s confession of his guilt. Therefore, such a confession of Appellant made before police cannot be admitted in evidence. On this ground alone, Appellant''s counsel persuades us to allow the appeal.

In the light of contention raised on behalf of Appellant as above, we have examined (Ext. 20). It is written in Oriya. We have translated the same into English as below:

(i) My name is Sukru Pradhan, son of late Digambar Pradhan, aged about 49 years, of village Bendilipali, P.S. Boudh, Dist. Phulbani, today, Monday 31.5.1993 morning at about 8.30 A.M.I. having come to Boudh P.S. make statement before you.

(ii) Since about thirty years my elder brother Biranchi Pradhan has been living separately with his family at village Beliripali.

(iii) Our ancestral lands have been recorded in separate R.O.R. But for not giving my share of 2 acres of Bhogra land we have been in litigating terms.

(iv) In the meantime, the said bhogra land has been recorded in the name of my elder brother.

(v) On Sunday my elder brother consulted one Hari Pradhan of Jagannathpur village to sell the said land to him. I could know this fact.

(vi) Hence I, being disappointed, in the midnight of Sunday thought of killing my brother and sister-in-law and being armed with a sharp Tabilia with wooden handle went to the house of my brother Biranchi Pradhan situated at outskirt of the village.

(vii) My brother Biranchi Pradhan was sleeping on a Charpoin covering his face in front of his house in the open space.

(viii) I dealt a blow by means of the said Tabilia aiming at the neck of by brother.

(ix) My brother sustained severe bleeding injury on his neck and died there instantaneously.

(x) My sister-in-law Uma Pradhan was sleeping in the courtyard of her house. She woke up by the time I went to her.

(xi) I chased her and dealt blows on her back. My sister-in-law when fell down on the ground, I dealt another blow with force aiming at her neck.

(xii) My sister-in-law, struggling in a pool of blood, died on the spot.

(xiii) Being nervous, I went to my house with the Tabilia by means of which my brother and sister-in-law were killed and told my wife, the entire incident.

(xiv) With that blood stained Tabilia I went to Boudh P.S. and surrendered there.

The contents were read over and explained to me and being satisfied that the same are written correctly as per my instruction, I signed in presence of witnesses.

We have divided the statement (Ext. 20) into 14 parts as below:

(a) Broadly speaking Parts (I) to (xiv) show that Appellant appeared before Boudh P.S. to make report.

(b) Parts-II, III, IV and v. show motive of the Appellant for committing murder of Biranchi and Uma,

(c) Parts VI and VII disclose his movement, preparation and opportunity that he availed of before commission of crime,

(d) Parts VIII, IX, X, XI and XII disclose his intention and killing his elder brother while he was sleeping and also killing his sister-in-law Uma inside their house,

(e) Part XIII indicates his conduct soon after the occurrence, and

(f) Part XIV indicates how he went to Boudh P.S. with blood stained Tabilia and surrendered there.

Before we arrive at a conclusion whether or not the entire statement of Appellant (accused) (Ext. 20) is a confession made to the I.O. (P.W. 13), we need to put forth what the law is on the subject. Provision of law as contemplated u/s 25 of the Indian Evidence Act deals with confession made by the accused before the Police. Sections 24 to 30 of the Evidence Act and Sections 162 to 164, Code of Criminal Procedure deal with law relating to confessions. Sections 17 to 31 of the Evidence Act are to be found under the heading ''admission''. Confession is a species of admission. Confession is dealt with in Sections 24 to 30 of the Evidence Act.

The well established position of law is, a confession or admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confession caused by certain inducement, threat and promise. Section 25 says, "no confession made to a police officer shall be proved as against a person accused of an offence".

The Apex Court has settled the law relating to confession. The law is laid down in Aghnoo Nagesia Vs. State of Bihar, . We quote it thus:

The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused, It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression ''accused of any offence'' covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession.

Their Lordships of the Supreme Court made the following observation in the reported case as follows.

The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It 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 not, as relates distinctly to the fact thereby discovered, may be proved.

Further their Lordships of the Supreme Court have stated in the reported case that Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer i the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under Sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act.

In the case at hand, the learned trial Judge has admitted some parts of statement contained in Ext. 20 in evidence. He has done it in accordance with the provisions of Section 21 of the Evidence Act. He came to hold that strained relationship between Appellant and deceased prior to date of occurrence is suggestive of the fact that Appellant had strong enough motive to kill the deceased. In this regard, we would refer to a case rendered in the case of Lachhuman Munda Vs. The State of Bihar, In the said case the High Court of Patna admitted in evidence portion of the first information report relating to motive, the opportunity and the entire narrative of events before and after the crime. The Apex Court has followed this case in the judgment in the case of Aghnoo Nagesia v. State of Bihar (supra). We quote it thus:

Some of the decided cases took the view that if a part of the report is properly severable from the strict confessional part, then the severable part could be tendered in evidence. We think that the separability test is misleading and the entire confessional statement is hit by Section 25 and save and except as provided by Section 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.

Therefore, in the light of this apt quoted decision of the Apex Court, we hold that the entire statement contained in Ext. 20 cannot be admitted in evidence.

Now it is to be seen whether the circumstances held established by the learned trial Judge are sufficient to come to a positive, definite, inescapable and irresistible conclusion that Appellant is the perpetrator of the crime even if the statement in Ext. 20 is not used against him who made it before police. In this regard, we would like to refer to decisions of the Apex Court reported in The State of Andhra Pradesh Vs. I.B.S. Prasada Rao and Others, and also Kashmira Singh Vs. State of Madhya Pradesh, The former ruling speaks about effect and sufficiency of circumstantial evidence for the purpose of conviction and the latter ruling speaks about if other evidence independently of confession made by the accused, is capable of belief can be the basis of conviction. We quote the following lines from the former decision as below:

In regard to the question of effect and sufficiency of circumstantial evidence for the purpose of conviction, it is now settled law that before conviction based solely on such evidence can be sustained, it must be such as to the conclusive of the guilt of the accused and must be incapable of explanation on any hypothesis consistent with the innocence of the accused. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis sustained by the accused, however, extravagant and fanciful it might be. Before an accused can contend that a particular hypothesis pointing to his innocence has remained unexcluded by the facts proved against him, the Court must be satisfied that the suggested hypothesis is reasonable and not far fetched. Further it is not necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point conclusively to his guilt. It may be that a particular fact relied upon by the prosecution may not be decisive in itself and yet if that fact, along with other facts which have been proved, tends to strengthen the conclusion of his guilt, it is relevant and has to be considered. In other words, when deciding the question of sufficiency, what the Court has to consider is the total cumulative effect of all the proved facts each of which reinforces the conclusion of guilt and if the combined effect of all those facts taken together is conclusive in establishing the guilt of the accused; conviction would be justified even though it may be that in one or more of those facts by itself is not decisive.

According to the latter decision the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid.

It is not disputed that it is the accused-appellant who made the first information report to the police. Therefore, no dispute has arisen regarding identification of the maker of the first information report in the Police Station. We have examined evidence of independent witnesses regarding motive, preparation and previous or subsequent conduct of the Appellant after the occurrence of double murder. Therefore, while summing up of circumstantial evidence appearing against the Appellant, we hold that the said evidence independently of confession is sufficient to hold that the Appellant-accused is real author of the crime. The reason is obvious. Medical evidence proves that death of both the deceased persons is homicidal in nature. Besides, medical evidence proves that the injuries sustained by them have been caused by Tabilia-axe (M.O.I). That apart, weapon of offence (M.O.I) with which injuries were inflicted on the deceased persons has been seized by the I.O. (P.W. 13) on production in the Police Station by the Appellant in presence of P. Ws. 2 and 3. We are highly convinced with the evidence of P. Ws 1, 4 and 5 regarding motive of the Appellant and also the opportunity he availed of to commit the crime in question with the said motive. This is a very strong circumstantial evidence appearing against him. During examination u/s 313, Code of Criminal Procedure, Appellant has failed to explain the said circumstance. On the whole, in our considered view, the chain of evidence as discussed above, is so complete as to show that within all human probabilities the crime in that event must have been committed by the Appellant. Therefore, in the aforesaid fact situation and in the light of the dictum laid down by the Apex Court as discussed above, we hold the Appellant guilty on the circumstantial evidence referred to above.

In the ultimate result, we dismiss the appeal as devoid of any merit. Accordingly, judgment impugned before us is upheld.

B.P. Das, J.

I agree.