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Paula Nayak Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 81 of 1962
Judge
Reported inAIR1963Ori93; 1963CriLJ788
ActsEvidence Act, 1872 - Sections 27
AppellantPaula Nayak
RespondentThe State
Appellant AdvocateS.C. Jena, Adv.
Respondent AdvocateGovt. Adv.
DispositionAppeal dismissed
Cases ReferredChinnaswamy Reddi v. State of Andhra Pradesh
Excerpt:
.....operation is that discovery of a fact in consequence of information received from an accused in police custody must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. the words 'as relates distinctly to the fact' are very significant and must not be lost sight of. the extent of the information admissible must however depend on the exact nature of the fact discovered to which such information is required to relate distinctly. emperor, air 1947 pc 67. upon the view that in such a case the 'fact discovered1' is the physical object produced and that any information which relates distinctly to that object can be proved, it was argued on behalf of the crown that information given by a person that the body produced is..........the knowledge of the accused as to this, and the information given must relate distinctly to this fact. information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. 13. in the present case the learned trial court does not appear to have appreciated this position in law while considering the question of admissibility of information received by the police officers from the appellant while in police custody. the learned trial judge's finding on this point is quoted as follows: 'i next come to the conduct of the accused no. 1 in having confessed before the s. i. to have murdered the deceased and removed the five gold ear-rings from her person and pledging the same with the accused, hadibandhu. this.....
Judgment:

Barman, J.

1. The appellant Paula Naik was convicted and sentenced to imprisonment for life on a charge of murder of a woman named Pusha Stree, also known as Brahmabati, at Bandaki Parbat on the footpath running through the forest. He was convicted for robbery of gold ear-rings and silver bangles from the person of the deceased and sentenced to rigorous imprisonment for seven years to run concurrently. There was another co-accused who was charged with the offence of dishonestly receiving stolen property but acquitted by the trial Court.

2. How the crime came to light was this: On a Sunday morning on October 15, 1961, two village pedestrians Radhanath Naik and Daulo Singh Naik were returning home after weekly marketing at G. Udayagiri Hat on the previous day (Saturday). They were passing through a forest. Daulo Singh Naik was lame and could not walk fast. He was lagging behind and following Radhanath. Radhanath who was going ahead first saw a dead body of a woman lying on the foot-path with bleeding injuries on her person. He also saw that the appellant was snatching gold ear-rings from the ears of the dead body. The appellant was wearing a blood stained napkin and the various parts of his body were stained with blood. A blood stained axe was lying near the appellant while he was snatching away the ornaments. The appellant threatened to assault Radhanath with tangia. Radhanath out of fear did not protest and left the place without uttering any word. Daulo Singh who was following Radhanath also appeared on the scene, saw the dead body with cut injuries and found the appellant wearing a blood stained napkin with blood stains over various parts of his body and standing near the dead body with a blood stained axe in his right hand and two silver bangles in his left hand. The appellant also threatened to assault Daulo Singh with the tangia. The two pedestrians left the place of occurrence and narrated what they had seen to the villagers.

3. On the same day (October 15, 1961) in the-after-noon a station diary entry reporting the incident was made at the local P. S. at Raikia, four miles from the place of occurrence. The formal First Information Report was made on the following: day on October 16, 1961 at 10.30. a.m. in the morning and the appellant was arrested. On the information received from the appellant while in the custody of police, the gold ear-rings, silver bangles, tangia and blood-stained napkin were seized by the policed On October 18, 1961 the appellant was produced before the Magistrate and remanded' to jail custody. On October 25, 1961, the appellant was again produced before the Magistrate and remanded to jail custody. On October 25, 1961, theappellant made a confessional statement before the Magistrate. The appellant was charged with the offence of murder and robbery. The co-accused, who was acquitted, was charged with the offence of dishonestly receiving stolen property.

4. The defence of the appellant is this: Out of previous ill-feeling, he was falsely implicated in the crime. He was tutored and assaulted by the Police. He received injuries on his person. Out of fear, he had made the confession. The gold ear-rings belonged to him. He had pledged the same with the other accused.

5. The prosecution case is based on the direct testimony of the said passerby villagers P. Ws. 1 and 2 who had actually seen the appellant near the dead body of the deceased in the state and circumstances hereinbefore stated. It is quite clear from the evidence of these 2 witnesses that what the witnesses had seen was immediately after the deceased was done to death by the appellant obviously for the purpose of robbing the woman of her ornaments. Indeed P. W. 1 Radhanath Naik is an eye witness to the appellant snatching away the gold ear-rings from the dead body of the deceased. The other passerby witness Daulo Singh had also seen the accused with the blood stained tangia and silver bangles in his hands. There is no suggestion that these two witnesses are in any way interested. Their evidence is further corroborated by P. W. 4 Tularani Stree and P. W. 5 Nimra Padhan to whom, immediately after, the said eye-witnesses had narrated what they had seen. Another corroborating cir-cumstance is the fact of presence of injuries on the person of the appellant. The appellant could not give a convincing explanation for the injuries. It can be reasonably inferred that the injuries (three scratch marks) :were presumably caused by the deceased in resisting the appellant in self-defence when he was assaulting the deceased. The appellant's explanation that injuries were caused by police torture is unacceptable.

6. Apart from the confession before the Magistrate with which I shall deal hereafter, there is also the extra-judicial confession made by the appellant before his Mousi P. W. 3 Kalu Stree who deposed that on the following day (Monday) at about noon the appellant had come to her house and confessed to have killed a woman on the previous day. The appellant is said to be the witness's elder sister's son. The witness has denied the defence suggestion in cross-examination that she had a land dispute with the accused's mother. I find no reason why the witness would falsely implicate her nephew in a murder case.

7. As regards the confession before the Magistrate, the evidence of P. W. 13 the then Sub Divisional Magistrate is that the appellant was first produced before him on October 18, 1961. The Magistrate had given the appellant necessary warning and remanded him to jail custody. The confessional statement was recorded on Oct. 25, 1961 after the Magistrate had given the appellant necessary warning. In fact on the day the confessional statement was recorded the Magistrate had given two hours time for reflection. There was no police officer in his sight when the statement was recorded. The Magistrate was satisfied that the confession wasvoluntary. In view of the position that the appellant had been kept in jail custody since October 18, 1961 there was no possibility of any police influence on the appellant to make the confession. Apart from two hours time for reflection immediately before the confession was recorded on October 25r. 1961, the appellant had sufficient time for reflection as he was in jail custody for seven days before he made the confession. I am satisfied that the confes-sion of the appellant was voluntary and true. There is also sufficient corroboration in material parti-culars of the confession.

8. As regards recoveries the seizure of gold ear-rings, silver bangles, tangia and the blood stained napkin directly establishes the complicity of the, appellant in the crime of both murder and robbery, the seizure witnesses are P. W. 18 Radhanath Naik, Mutha Head, and P. W. 19 Kasmath Patro, a local merchant. They both are respectable persons of the locality. The Mutha Head P. W. 18 said that the appellant had produced the tangia, napkin and silver bangles. In one of the bangles there is an. engraving 'Brahmabati' which is another name of the deceased. The other seizure witness P. W. 19, a local merchant stated that he was present when the co-accused,-who was charged but acquitted of the charge of dishonestly receiving stolen property, --produced the gold ear-rings. The witness in cross-examination clarified the position that the said co-accused while producing the gold ear-rings said that the appellant Paula Naik had pledged the ornament with the co-accused as security for loan of money. The parents of the deceased (P. Ws. 11 and 14) had identified the gold ear-rings and silver bangles as given by them at the time of the deceased's marriage. The deceased's mother had also deposed that the deceased was otherwise called Brahmbati which name appeared engraved in one of the silver bangles as one of the seizure witness P. W. 18 said in his evidence.

9. The doctor P. W. 22 who conducted the postmortem examination found eight injuries including three lacerated wounds, incised wounds and a clean amputation of both fore-arms half-way between the wrist and elbow with both the bones in each case divided in the same level. The doctor's Opinion is that the injuries were caused by a heavy sharp weapon and that it may be by the blade of a tangia (axe) M. O. III. Thus the nature of injuries found on the body of the deceased shows that they were inflicted with tangia produced by the appellant himself.

10. Indeed, the recoveries were made on information received by the police from the accused appellant himself. This case affords a good illustration which gives occasion to clarify an interesting point of law on the question of admissibility of such information. In this context the relevant portions of the evidence of the two police officers to whom the appellant is said to have given information while in police custody are as follows: The Officer in Charge, P. W. 21 deposed thus:--

'The accused Paulo Naik led me to the house of Hadibandhu Nayak A-2 after confessing to have pledged with Hadibandhu Nayak the five gold ear-tings belonging to the deceased, which he got aftermurdering the deceased. Accused Hadibandhu produced the same -- M. O. V.

XX XX XX X At 9.45. a.m. the accused while in custody, confessed before me to have removed a pair of silver bangles M. O. IV from the person of the deceased after murdering her and also confessed that he had kept the same in his house. Saying this he led me to Ms house and produced M. O. IV and also produced a blood-stained napkin M. O. VI saying that hehad used it at the time of commission of theoffence.'

The Circle Inspector of Police P. W. 24, who tookcharge of the case from the officer-in-charge,P. W. 21, in this context said this:

'The accused No. 1 Paulo Naik confessing tohave assaulted the deceased with that tangia produced it.

x x x x x Paulo Nayak got it from his brother and produced it before me.'

11. The question is: How much of the information received from the accused appellant while in police custody is admissible in evidence under the law? The relevant provisions of the Indian Evidence Act (so far as material) are these:

'25. Confession to Police Officer not to be proved. -- No confession made to a police officer, shall be proved as against a person accused of any offence.

26. Confession by accused while in custody ofPolice not to be 'proved against him.-- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

(The explanation to the section is not relevant.)

27. How much of information received from accused may be proved. -- Provided 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 the confession or not, as relates distinctly to the fact thereby discovered, may be proved,'

The ban on admlssibility of confession before police officers is laid down in Section 25 and Section 26 as quoted above. Section 27 provides an exception to the prohibition imposed by the two preceding sections. The condition necessary to bring Section 27 info operation is that discovery of a fact in consequence of information received from an accused in police custody must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The words 'as relates distinctly to the fact' are very significant and must not be lost sight of. Section 27 is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence. The extent of the information admissible must however depend on the exact nature of the fact discovered to which such information is required to relate distinctly. Generally Section 27 is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. On this point there used to be a misconception which their Lordships of the Privy Council have removed in a judgment delivered by Sir John Beaumont in Pulukuri Kottaya v. Emperor, AIR 1947 PC 67. Upon the view that in such a case the 'fact discovered1' is the physical object produced and that any information which relates distinctly to that object can be proved, it was argued on behalf of the Crown that information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. While rejecting this Crown argument, the Privy Council observed that if indeed this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the Police, or by persons in police custody.

12. In AIR 1947 PC 67 the Privy Council had clarified the principles underlying Section 27, which, shortly stated, are these: The ban under Sections 25 and 26 was presumably inspired by the fear of the Legislature that a' person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The proviso to Section 26 added by Section 27 should not be held to nullify the substance of the Section. It is fallacious to treat the 'fact discovered' within the section equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered.

13. In the present case the learned Trial Court does not appear to have appreciated this position in law while considering the question of admissibility of information received by the police officers from the appellant while in police custody. The learned trial Judge's finding on this point is quoted as follows:

'I next come to the conduct of the accused No. 1 in having confessed before the S. I. to have murdered the deceased and removed the five gold ear-rings from her person and pledging the same with the accused, Hadibandhu. This confession leads, to the discovery of the five gold earrings, M. O. V from the house of the accused Hadibandhu. On receiving this information the police went to the house of the accused Hadibandhu and in fact recovered those ornaments. Next his conduct in producing the napkin, M. O. VI blood jstained, it is said that he used it in the commission of murder and his confession to have removed a pair of silver bangles, M.O. IV and produced the same before the Police are also strong incriminating circumstances. M. O. IV, the silver bangles, have been identified before me as belonging tothe deceased. In one of the bangles the name 'Brahmabati' has been engraved. It is in evidence that the deceased is also called 'Brahmabati'. He also produced before the Circle Inspector the tangia M. O. III confessing that he assaulted the deceased with this weapon.'

In my opinion, the learned trial Judge should not have admitted or relied on such part of the information received from the accused appellant which did not relate distinctly to the fact therebydiscovered.

14. For further clarification and future guidance, I indicate below as to how much of the information received by the police officers from the accused appellant while in police custody is admissible in the present case.

Re: Officer-in-charge P. W. 21.

In the deposition of the officer-in-charge P. W. 21 quoted above, the only portion which is admissible is this much:--

'The accused Paulo Nayak led me to the bouse of Hadibandhu Naik A-2 xx xx x Accused Hadibandhu produced the M. O. V. xx xx x He (the accused Paulo Nayak) led me to his house and produced M. O. IV (silver bangles) and also produced a blood stained napkin M. O. VI.....'

The rest, including the portion which refers to pastuser of the blood stained napkin, in that the napkin produced is the one the accused had used at the time of commission of the crime, and other matters as not relating 'distinctly to the fact thereby discovered' are all inadmissible.

Re: Circle Inspector P. W. 24.

Similarly, in the deposition of the Circle Inspector P. W. 24 quoted above the little that would be admissible, is only this much, namely:

'The accused No. 1 Paulo Nayak ..... produced it (tangia) ..... Paulo Nayak got it..... and produced it before me.'

The rest including the portion which refers to past user of the Tangia (axe) in that the weapon produced is the one used by the accused appellant in the commission of the murder and any other information not relating 'distinctly to the fact thereby discovered' are inadmissible.

15. Thus it is to be carefully noted that in the deposition of the two police officers the portions of the information received from the accused appellant that he murdered the deceased with the tangia, that he had got the five gold-ear-rings after murdering her, that the accused had pledged the gold ear-rings with the co-accused, that the accused had removed the pair of silver bangles from the person of the deceased after murdering her, that the accused had kept the silver bangles in his house, that the accused had used the blood-stained napkin at the time of the commission of the crime and any other information not relating 'distinctly to the fact thereby discovered,' are all inadmissible. The learned trial Judge was wrong in admitting any portion of such information as received from the accused appellant while in the custody of the police officers which do not relate 'distinctly to the fact thereby discovered.'

16. In the present case, however, even discarding the portion of the evidence improperly admitted there is still sufficient evidence to justify theconviction as discussed above.

17. In this view of the case, the order of conviction and sentence is maintained. The appeal is accordingly dismissed.

Narasimham, C.J.

18. I agree. The principle, laid down by the Privy Council in Kotayya's case, AIR 1947 PC 67 has been reiterated by the Supreme Court in several decisions, the latest, of which is Chinnaswamy Reddi v. State of Andhra Pradesh (Criminal Appeal No. 6 of 1960, D/- 26-7-1962: (AIR 1962 SC 1788) not yet reported).


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