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Bhanu Dei and Joginath Pradhan Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberJail Criminal Appeal Nos. 96 and 97 of 1981
Judge
Reported in1985(I)OLR638
ActsEvidence Act, 1872 - Sections 24, 30, 32(1) and 824; Code of Criminal Procedure (CrPC) , 1973 - Sections 164
AppellantBhanu Dei and Joginath Pradhan
RespondentThe State
Appellant AdvocateSuman Kumar Dey, Adv.
Respondent AdvocateN.C. Panigrahi, Ad. Govt. Adv.
DispositionAppeal allowed
Cases Referred and Dikson v. R. A.
Excerpt:
.....dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - well be based on a judicial confession, if found to be voluntary and true. in order to rely on a confession, it must be perfectly voluntary and must be true and trustworthy. 2 and 3 with regard to the circumstances in which the alleged extrajudicial confession had been made and as to what exactly was said by the appellant joginath, it would not be safe and proper to accept the evidence of p. extrajudicial confession, to afford a piece of reliable evidence, must pass the test of reproduction of exact words, the reason or motive for confession and the..........the order of conviction recorded against this appellant is factually ill-founded and the retracted judicial confession ( ex. 7 ) and the extrajudicial confession said to have been male by the appellant before p. ws. 2 and 3, his two co-villagers, cannot sustain the charge in the absence of corroborative . evidence, the learned additional government advocate has submitted that an order of conviction can be based on judicial and extrajudicial confessions and therefore, the order of conviction against this appellant may not be interfered with.5. it may be kept in mind that the dead body of the deceased had been cremated, as the prosecution sought to show and thus, there had been no autopsy over the dead body of the deceased in this case. there was, however, the evidence of p. ws. 2 to 4.....
Judgment:

B.K. Behera, J.

1. The two appeals arise out of the same judgment and order passed by Mr. K. P. Acharya, Sessions Judge, Puri holding the two appellants to be guilty of the charge of murder in furtherance of their common intention under Section 302 read with Section 34 of the Indian Penal Code (for short 'the Code') and convicting each of them there under and sentencing them to undergo imprisonment for life while acquitting the appellant Bhanu of the charge of abetment of the commission of murder in view of her conviction under Section 302 read with Section 34 of the Code and also acquitting the appellant Joginath and his father Bhagabat of the charge under Section 201 of the Code for causing disappearance of the legal evidence of the commission of murder by cremating the dead body in order to screen the offenders from legal punishment, as according to the learned Judge, there was no evidence in support of this charge. The learned Judge has accepted the case of the prosecution that at the instance of and on being told by the appellant Bhanu, his step-mother that if he (Joginath) would not kill his daughter (deceased), he would not be given food, the appellant Joginath dealt two strokes on the neck of his own daughter (deceased) resulting in her death while the other appellant Bhanu had caught hold of the deceased on the land of the appellants on July 10, 1980, where the appellant Joginath had gone for the purpose of cultivation followed by the appellant Bhanu and the deceased. The appellant Bhanu is the second wife of the acquitted co-accused Bhagabat, the father of the appellant Joginath and as alleged, she had been torturing Jayanti (to be referred to here) in after as 'the deceased'), the daughter of the appellant Joginath through his wife Gurei (P. W. 6), who had left her husband because of ill-treatment by the appellant. Bhanu and Bhagabat and remained with Sonia Nayak as his concubine.

2. To bring home the charges, eight witnesses had been examined for the prosecution. The plea the appellants and the co-accused was one of denial and false implication in the case.

3. No one had seen the actual assault on the person of the deceased by the appellant Joginath while the other appellant Bhanu had caught hold of the deceased. There was also no evidence to indicate even the presence of the two appellants on the scene of attack at the relevant time. As regards the ill-treatment and torture of the deceased by the appellant Bhanu, there was no evidence of any one having actually seen such ill-treatment or torture and this story of the prosecution has been accepted unreasonably by the trial Court on the basis of some statements said to have been made by the deceased before Jogi (P. W. 1) and his two sisters Gurei and Dukhi (P. Ws. 6 and 7) who are highly interested persons in that because of ill-treatment at the hands of the appellant Bhanu, Gurei had to leave the appellant Joginath and come away from the house. As has rightly been contended by the. learned counsel for the appellants and has candidly and fairly been submitted by the learned Additional Government Advocate, the statements of the deceased before P.Ws. 1, 6 and 7 in this regard could not be admitted in evidence as such statements could pot come within the purview of Section 32(1) of the Evidence Act. - The statements of a dead person can be admitted if such statements relate to the cause of the death of the deceased or as to any of the circumstances of the transaction which had resulted in death and not otherwise. In this connection the learned Additional Government Advocate has invited out attention to the principles laid down in AIR 1964 S. C. 900 ( Moti Singh and another v. The State of U. P. 1984 (I) O. L. R. 911 ( Nilambar) Patra v. The State) and AIR 1961 M P. 45 (Umrao and other v. State of M. P.). He has been very fairy in submitting that in the absence of any substantive evidence regarding the complicity of the appellant Bhanu on which a conclusion of guilt can be rested, the confession of the co-accused Joginath, even if accepted to be voluntary and true, cannot sustain the charge of murder against her as the confession of a co-accused can be pressed into service to lend assurance to the other evidence on which an order of conviction can be founded and cannot, by itself, be the foundation of an order of conviction. In our view, the order of conviction against the appellant Bhanu is illegal and misconceived.

4. This takes us to the case against the appellant Joginath. While the learned counsel for the appellants has urged that the order of conviction recorded against this appellant is factually ill-founded and the retracted judicial confession ( Ex. 7 ) and the extrajudicial confession said to have been male by the appellant before P. Ws. 2 and 3, his two co-villagers, cannot sustain the charge in the absence of corroborative . evidence, the learned Additional Government Advocate has submitted that an order of conviction can be based on judicial and extrajudicial confessions and therefore, the order of conviction against this appellant may not be interfered with.

5. It may be kept in mind that the dead body of the deceased had been cremated, as the prosecution sought to show and thus, there had been no autopsy over the dead body of the deceased in this case. There was, however, the evidence of P. Ws. 2 to 4 that they had seen the dead body of the deceased lying on the land of the appellants. Some yague evidence had been led through them that there had been bleeding on a portion of the dead body of the deceased. Apart from this, there was no evidence that the deceased had died a homicidal death. For this, too, the prosecution would depend on the confessions of the appellant Joginath.

6. An order of conviction can be sustained on the basis of an extrajudicial confession if such evidence is found to be clear and cogent, true and trustworthy, as held by the Supreme Court in AIR 1985 S. C. 48 (State of U.P v. M.K.Authony).In law an order of conviction can as. well be based on a judicial confession, if found to be voluntary and true. But as a rule of practice prudence and caution, a Court would look for independent corroboration of a retracted confession to sustain a conviction. In order to rely on a confession, it must be perfectly voluntary and must be true and trustworthy. (See AIR 1978 S. C 1243 (Shankaria v. State of Rajasthan). As has been laid down by the Supreme Court in AIR 1958 S. C. 65 (Subramania Goundan v. The State of Madras) and 1931 Cri. L. J. 623 (Modi Ganga v. State of Orissa.) when a confession is retracted, general corroboration is sufficient. Retracted confession needs corroboration, as held in AIR 1933 S. G. 330 (Kora Ghani v. State of Orissa).

7. Coming first to the extrajudicial confession, this has been deposed to by P. Ws. and 3. At the stage of investigation, implicit reliance had not been placed with regard to the credibility of P. Ws. 2 and 3 for which steps had been taken by the investigating agency to have their statements recorded under Section 164 of the Code of Criminal Procedure. No fault can be found with the. investigating agency for this step and the evidence of persons whose statements have been recorded under Section 164 is not to be discarded only on that ground, but their evidence requires very careful scrutiny as they feel tied down to their previous statements because a departure from such statements might land them in a prosecution for perjury. [See AIR 1968 S. C. 1270 (Ram Charan v. State of U. P. ) and AIR 1974 S. C. 2165 ( Balak Ram and another v. State of U. P.).]

8. P Ws. 2 and 3 are, no doubt, the co-villagers of the appellant Joginath, but there is no material to indicate that they were persons in whom the appellant could repose confidence. According to P. W. 2, the statement of the appellant was that he had cut Jayanti at the instance of bis mother Bhanu. This witness had denied the suggestion of the defence that P. W. 3 had threatened to assault the appellant Joginath when he denied his knowledge about the death of Jayanti and had deposed that P. W. 3 asked the appellant as to how he had been denying the knowledge about the deceased when her dead body was lying in his field with bleeding on her throat and then the appellant confessed. P. W. 3 had given evidence that he first asked the appellant as to how Jayanti died and the .. appellant nothing, but latter told him that he had cut Jayanti 'at the instigations' or 'at the instance' of his mother Bhanu. This appears to us to be wholly artificial as no one would make a statement that he had killed some one 'at the instigation' 'at the instance' of another. This witness had admitted in his cross-examination that he first told the appellant as to what business he had to make them search for the deceased when he (Joginath) had killed Jaysnti and thereafter the appellant admitted to have killed the deceased. The witness had further stated that he had threatened the appellant Joginath after which the latter confessed. Thus the statements made by P Ws. 2 and 3 with regard to the extrajudicial confession and the manner in which the appellant was alleged to have confessed were substantially different. As the evidence of P. Ws. 2 and 3 would indicate, P. W. 4 had accompanied them when the appellant was alleged to have made the confessional statement. P. W. 4 had not stated a word about it and according to him, after seeing the dead body of the deceased, he was the first to leave the spot being followed by others and he did not meet any one on his way back home. It was not in the evidence of P. Ws. 2 and 3 that P. W. 4 had left the spot ahead of them.

9. An important material improbabilising the case presented at the trial of which no due notice was taken by the trial Court was that while in his evidence, P. W. 4 had testified that he had not heard from any person about the deceased, he had made a categoricel statement in the course of investigation that the appellant Bhanu had been enquiring from the appellant Joginath regarding the deceased. If such an enquiry had been made by one appellant from the other, this conduct would be inconsistent with the allegation levelled by the prosecution that at the instance of one, the other killed the deceased.

10. If the appellant Joginath had first denied his knowledge about what had happened, it is not understood as to how and why in the same breath, he would admit to have killed the deceased at the instance of the other appellant. In the absence of any evidence of previous association between the confessing accused and the persons before whom his confession is said to have been made and in the absence of any reason or motive to make a confessional statement and in view of the divergent evidence of P. Ws. 2 and 3 with regard to the circumstances in which the alleged extrajudicial confession had been made and as to what exactly was said by the appellant Joginath, it would not be safe and proper to accept the evidence of P. Ws. 2 and 3 in this regard. Extrajudicial confession, to afford a piece of reliable evidence, must pass the test of reproduction of exact words, the reason or motive for confession and the person selected in whom confidence is reposed. {See AIR 1973 S. C. 343 ( Rahim Beg v. The State of U.P. ) and AIR 1982 S. C. 1595 ( Heramba Brahma and another v. State of Assam.] The evidence with regard to the extrajudicial confession in this case was far short of the mark and could not be accepted.

11. There thus remains for consideration the judicial confession of the appellant Joginath recorded by the Special Judicial Magistrate (P. W. 5) whose record and evidence would give an indication that due and proper caution had been administered to the appellant before he made the judicial confession. It would, however, appear from his evidence that the confession had been recorded on the same day on which the appellant had been produced before him after giving about an hour's time for reflection by the appellant joginath inside his court room having kept him under the supervision of his Orderly Peon and away from any police influence. On the circumstances of the case in which the appellant was alleged to have killed his own daughter without any motive, some further time should have been given to him for reflection by remanding him to judicial custody after giving the necessary warning for a day or so although we may not be understood as saying that a judicial confession recorded on the same day on which an accused is produced cannot be said to be voluntary. Each case depends on its own facts and circumstances and no hard and last rule can be laid down in this regard. The appellant has retracted from the confession.

12. As observed by Straight, J., the retraction of confession is :

'An endless source of anxiety and difficulty to those who have to see that the justice is properly administered... . I have said, and repeat now, it is incredible that the extraordinarily large number of confessions, which come before us in the criminal cases disposed of by this court, either in appeal or revision, should have been voluntarily and freely made in every instance as represented.... the retraction follows almost invariably as a matter of course'

(R. Babulal, 6 A 509, 542 543_See Sarkar on Evidence, Twelfth Edition,Pages 248_249).

I would quote an extract from the same book at page 249 .

'It is unfortunate that in this country confessions should be as plentiful as retractions at the trial. They go to show that -most of these confessions do not proceed from any feeling of penitence and remorse as they should, but that they have their origin in inducement, threat, torture, hope or any other non-validating cause.'

In R v. Thompson,1893 2 QB 12, 18 (referred to with approval in Dy Legal Ram v. Karuna, 22 C 164, 172 and Dikson v. R. A. 1942 P. 90, 93) Cave, J. said :

'I would add that for my part I always suspect these confessions which are supposed to be the offspring of penitence and remorse and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare, occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is other wise other wise clear, and satisfactory, but when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with a desire, born of penitence and remorse, to supplement it with a confession_a desire which vanishes as soon as he appears in a court of justice.'

In this context, we would quote a passage from the article ''Recording of Pre-Trial Judicial Confessions should be Prohibited' by the Director of National Police Academy, Hyderabad, published in the May part of Criminal Law Journal, 1984.

'Apposite to the context are some highly relevant observations of Sir Alfred Denning : 'Indeed, shortly before 1793 a man was executed in Paris for the alleged murder of a woman, proved only by his own confession under torture and the woman was discovered alive two years after the execution of the supposed murderer'. Sir Alfred Denning, Freedom under, the Law, Stevens & Sons Ltd, London, 1949, Sixth Impression (resot), 1954, P. 29. In the eighteenth century there was a case of a man who, under promise of pardon, confessed himself guilty with two others, who were tried with him, of the murder of Mr. Harrison at Campden, in Gloucestershire, but a few years afterwards it appeared that Mr. Harrison was alive.' 'Experiences, such as these led the judges, in 1785, to lay down the law that a confession forced upon from the mind by flattery of hope, or the torture of fear, comes in so questionable a shape that no credit ought to be given to it and therefore is rejected. 'Sir Alfred Denning, op. cit., p.30.'

13. Here is a case in which the appellant, it was alleged, had killed his daughter whom he had reared up and had kept under his care after his wife Gurei (P. W. 6) deserted him and remaind as the concubine of another person and this was without any apparent motive and for the more asking by his step-mother that unless he killed the deceased, he would not be given food. There was no evidence that the appellant was dying of hunger. There was no evidence either that the appellant himself was being ill-treated by his father and his step-mother. There was no meterial to indicate that the appellant was so hopelessly placed that he would have to do whatever his step-mother would desire him to do. It was certainly not the case of the prosecution that this appellant was insane at the time of the occurence so that he would commit such a dastardly and inhuman act of killing his daughter without any previous motive Whether remorse and penitence had actuated him to blurt out a confession or some other extraneous considerations had propelled nun to make one was an important consideration which the learned trial Judge did not take adequate care to critically examine. Confessions are not always true and are at times improperly obtained to bolster up the cases. They must, therefore, be checked carefully and properly in order to see if they carry conviction.

14. In his confession, the appellant had stated that the appellant Bhanu had not been giving food to him and his daughter ( the deceased ). The appellant Bhanu told him that if he would not kill Jayanti, she would not give food to him. He had been to his land with ploughs on Thursday and thereafter his daughter Jayanti and Bhanu went to that land. On reaching that place, the appellant Bhanu asked the appellant to cut his daughter and caught hold of her (deceased) and he dealt two strokes on the neck of the deceased by a Tangia as a result of which the deceased fell down and died. He had kept the Tangia in his house and the police authorities had brought it.

15. In the first place, the story presented in the confession ( Ex, 7 ) would undoubtedly appear to be unreal and fantastic. In the absence of any evidence that the appellant himself had been ill-treating his daughter ( deceased ) whose mother ( P. W. 6 ) had left him and had been kept as the concubine of Sonia Nayak, this appellant, on the mere asking of the other appellant to kill the deceased but for which he would not be given food, would not kill his own young daughter. The story given by the appellant in the confessional statement would not appeal to common sense and certainly not to reason.

16. There is no evidence to corroborate the retracted judicial confession either with regard to the commission of the crime or with regard to the complicity of the criminal. The recoveries of an axe ( M. O. VI) and two pieces of clothes ( M. Os. VII and VIII ) on production by the appellant could rot be guilt-pointing circumstances in the absence of any evidence that blood had been detected in any of these articles and that M. O. VI was the weapon of assault, There is no independent evidence which would even remotely corroborate the retracted extrajudicial confession in any manner.

17. As indicated earlier, if not as a rule of law, as a rule of practice and prudence, retracted judicial or extrajudicial confession, to be acted upon and to form the basis of conviction, requires independent general corroboration. In the instant case, there have been two sets of evidence, viz., the judicial confession and the exarajudicial confession which have been retracted. Even assuming that the two confeessional statements had been made voluntarily, the court should look to corroboration generally, and more so, on the facts and in the circumstances of this case. When there are two sets of evidence neither of which alone can be accepted without corroboration, each, in in its turn, cannot corroborate the other. When corroboration is sought, the retracted judicial confession cannot be said to have been corroborated by the retracted extrajudicial confession by the same person itself requiring corroboration. Corroboration should be had from independent and reliable source and in the instant case, there was none.

18. For the foregoing reasons, it would be absolutely unsafe and hazardous, in our view, to hold that the order of conviction can be sustained in law only on the retracted confessions of the appellant.

19. The infirmities in the evidence and the suspicious circumstances and the other considerations which have weighed with us had not been taken due note of by the trial Court and an untrue and fantastic case was accepted the appellant Joginath.

20. For the reasons aforesaid, we hold, as we must, that the charge of murder against this appellant had not been established.

21. In the result, the appeals succeed and the same are allowed. The orders of conviction and sentences passed against the two appellants are set aside. The appellants shall be set at liberty forthwith.

D.P. Mohapatra, J.

22. I agree.


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