Skip to content


Dinabandhu Tanti Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 8 of 1981
Judge
Reported in1984(II)OLR1017
ActsEvidence Act, 1872 - Sections 3, 24, 27, 32, 60 and 145
AppellantDinabandhu Tanti
RespondentState
Appellant AdvocateS.K. Padhi, Adv.
Respondent AdvocateA. Rath, Additional Standing Counsel
DispositionAppeal allowed
Cases ReferredKhagendra Gahan v. State. Apart
Excerpt:
.....additional sessions judge has observed in the body of his judgment that the prosecution had failed to establish any motive for the commission of the offence. 1 had given evidence that while he and his wife were in their house, he heard the cry of the deceased saying 'ghatak, ghatak gedarar bapa, dinabandhu mote chial kandare maridela'.the learned additional sessions judge should have done well in keeping on record a rendering of this statement in english. the evidence with regard to the extra judicial confession, in the very nature of things, is a very weak piece of evidence as observed by the supreme court in (1974) 4 s. state of assam, in order that an extra judicial confession is accepted to be a piece of reliable evidence, it must pass the test of reproduction of exact words, the..........the appellant as her assailant, p.ws.3 and 5, two co-villagers of p.w. 1 had testified about an extra judicial confession made by the appellant. in addition, the evidence of the investigating officer was that consequent upon the statement made by the appellant, the bow in two pieces (m.o.iii) had been recovered from the backyard of the house of the appellant.2. it has not been disputed before us that the deceased bad died a homicidal death. appearing on behalf of the appellant, mr. s.k. padhi has challenged the evidence adduced against the appellant as unreliable and unacceptable and according to him, the order of conviction could not have been recorded. mr. rath, the learned additional standing counsel, has pressed into service the dying declaration of the deceased and the extra.....
Judgment:

B.K. Behera, J.

1. The appellant assails the order of conviction recorded by the Court of Session against him under Section 302 of the Indian Penal Code sentencing him to undergo imprisonment for life after accepting the case of the prosecution that in the evening of October 18, 1979, the appellant committed the murder of Jema Bewa (here in after referred to as the 'deceased') by shooting her by means of an arrow (M.O.II) which pierced into her chest and resulted in her death. To bring home the charge, the prosecution had examined nine witnesses of whom Raghunath Tanti (P.W. 1), son of the deceased, was the first informant and the prosecution had relied on his evidence and that of his wife Gurubari Dei (P.W. 2) with regard to a dying declaration said to have been made by the deceased on the spot naming the appellant as her assailant, P.Ws.3 and 5, two co-villagers of P.W. 1 had testified about an extra judicial confession made by the appellant. In addition, the evidence of the Investigating Officer was that consequent upon the statement made by the appellant, the bow in two pieces (M.O.III) had been recovered from the backyard of the house of the appellant.

2. It has not been disputed before us that the deceased bad died a homicidal death. Appearing on behalf of the appellant, Mr. S.K. Padhi has challenged the evidence adduced against the appellant as unreliable and unacceptable and according to him, the order of conviction could not have been recorded. Mr. Rath, the learned Additional Standing Counsel, has pressed into service the dying declaration of the deceased and the extra judicial confession of the appellant and he finds no infirmity in the order of conviction.

3. There was no evidence with the name with regard to any motive on the part of the appellant to commit the crime. As a matter of fact, the learned Additional Sessions Judge has observed in the body of his judgment that the prosecution had failed to establish any motive for the commission of the offence. The prosecution is not obliged to establish any motive for the commission of the offence, but the absence of proof of motive would put the Court on its guard to examine the evidence with great care before it is accepted.

4. Coming first to the dying declaration, it must be kept in mind, as has been observed by the Supreme Court in AIR 1976 S.C. 1994 K. Ramachandra Reddy and Anr. v. The Public Prosecutor, that the dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it.

5. This fact was sought to be established by the prosecution on the basis of the evidence of the son and daughter-in-law of the deceased who, being close relations, would be interested for a successful termination of the trial against the appellant. The evidence of relations is not to be discarded on that ground, but their evidence needs examination with care. P.W. 1 had given evidence that while he and his wife were in their house, he heard the cry of the deceased saying 'GHATAK, GHATAK GEDARAR BAPA, DINABANDHU MOTE CHIAL KANDARE MARIDELA'. The learned Additional Sessions Judge should have done well in keeping on record a rendering of this statement in English. This statement would read 'GHATAK, GHATAK, FATHER OF GEDARAR DINABANDHU KILLED ME BY A CHIAL ARROW'. It was not a statement made by the deceased on P.W. 1's going to the spot. It seems to us to be highly artificial and unreal that the deceased, when hit by an arrow, would make such a long statement even giving the make of the arrow. That apart, the medical evidence was that the assault on the person of the deceased could cause instantaneous death. It was highly unnatural, therefore, that the deceased could have made such a statement as asserted by P.W. 1.

6. P.Ws. 1 and 2 were in the same house at the time of occurrence. While P.W. 1 had claimed to have heard the deceased saying in the manner referred to above, the evidence of P.W. 2 was otherwise. According to her, the deceased shouted saying that she was dying. In both the statements as deposed to by P. Ws. 1 and 2, the word 'GHATAK' appeared. It is not clear from the evidence as to what that expression meant. The trial Court should not have left it in obscurity and should have recorded as to what it infant. P.W. 2 had not stated about her hearing a cry of the deceased that the appellant had shot an arrow at her. She had stated in her cross-examination that when she heard the cry of the deceased, she sent her husband to see if the deceased had been attacked by a bear. If P.W. 1 had really heard what he had claimed to have, he would normally and naturally have told P.W. 2 that the deceased had not been attacked by a bear, but had been attacked by the appellant.

7. As the evidence of P.W. 1 and that of P.Ws. 3 to 5 would show, P.W. 1, after seeing the deceased on the spot and leaving his wife to guard that place, went and called P.Ws. 3 to 5 to the spot. There was no evidence that P.W. 1 had informed P.Ws. 3 to 5 about the statement made by the deceased naming the appellant as her assailant.

8. For the aforesaid reasons, we are not prepared to place any reliance on the evidence with regard to the dying declaration which was accepted by the trial Court without carefully scanning it.

9. P.Ws. 3 and 5 had spoken about the extra judicial confession said to have been made by the appellant and according to both of them, the appellant had given out that he had killed the deceased by shooting an arrow. The exact words which might have been uttered by the appellant had not been recorded by the trial Court in verbatim. The evidence with regard to the extra judicial confession, in the very nature of things, is a very weak piece of evidence as observed by the Supreme Court in (1974) 4 S.C.C. 747-Jagta v. State of Haryana and AIR 1975 S. C. 258 State of Punjab v. Bhajan Singh and Ors. As has been laid down by the Supreme Court in AIR 1973 S. C. 343-Rahim Beg v. The State of U. P. and AIR 1982 S. C. 1595 Heramba Brahma and Anr. v. State of Assam, in order that an extra judicial confession is accepted to be a piece of reliable evidence, it must pass the test of reproduction of exact words, the reason or motive for the confession and the person selected in whom confidence is reposed. Although the evidence of P. Ws. 3 and 5 was that P. Ws. 1 and 4 were also present when the extra judicial confession had been made by the appellant, neither P.W. 1 nor P.W. 4 had spoken about it in their evidence. On his own showing P.W. 3 had not been examined as a witness in the course of investigation. Unfortunate as it might seem, a contradiction had been sought to be proved by the defence while P.W. 5 was under cross-examination by inviting his attention to the fact that he had made no statement with regard to extra judicial confession in the course of investigation, but the defence did not prove this contradiction by drawing the attention of the Investigating Officer to this important omission in this statement of P.W. 5. When this was not done by the defence, it was the duty of the trial Court to draw the attention of the Investigating Officer to this omission to get at the truth. This had not been done. There was no indication in the evidence as to why the appellant would blurt out an extra judicial confession before some of his co-villagers and as to why he would repose utmost confidence in P. Ws. 3 and 4. Regard being had to these infirmities and suspicious features in the evidence on record, we have no hesitation to conclude that the evidence in this regard was far short of the mark keeping in mind the. principles of the Supreme Court referred to above.

10. P.Ws. 3 to 5 had testified that they had been informed by P.W.I that the appellant had killed the deceased. This was not the evidence of P.W. 1 himself. When a witness gives evidence that he had received information from another person and the other person does not say about it, such evidence would be in admissible being hearsay evidence. (See AIR 1983 S.C. 906: 1983 Cr.L.J. 1276 Bhagdomal Gangaram and Ors. etc. v. State of Gujarat). This part of the evidence of P.Ws, 3 to 5 could not, therefore, be relied on against the appellant.

11. The evidence of P.W. 1 was that when he left the spot to call the villagers, the appellant had been seen going with a bow. No other person had spoken about it. There was no evidence that P.W. 1 had either challenged the appellant as to why he killed his mother or that he informed any one about his seeing the appellant going with an arrow. The evidence of P.W. 1 in this regard could not safely be accepted.

12. Coming to the recovery of M.O. III (a bow in two pieces) on a statement said to have been made by the appellant, it admits of no doubt from the evidence that the place of recovery was accessible at all. The evidence did not warrant a conclusion that the appellant was the author of concealment of M.O. III. All that could be said from the evidence was that the appellant had at best the knowledge that M.O. III was lying at the place from where it was recovered. Where the statement accompanying the discovery is vague to identify the authorship of concealment, the pointing out of the object may at best prove the accused knowledge as to where it had been kept. The element of criminality tending to connect the accused with the crime lies in the authorship of concealment. (See AIR 1979 S.C. 1949 :1979 Gr. L.J. 1310 Pohalya Motya Valvi v. State of Maharashtra and AIR 1981 S. C 911: 1981 Cr. L. J. 618 Dudh Nath Pandey v. State of U.P.) This principle has been followed by this Court in 1982 Cr.L.J. 487 : 53 (1982) C.L.T. 121: 1981 C.L.R. 286 Khagendra Gahan v. State. Apart from these considerations, there was no evidence that M.O. III had been used by the appellant for the commission of the crime.

13. For the aforesaid reasons, we arc of the view that the charge against the appellant had not been established and the order of conviction recorded against him was unwarranted on the evidence on record.

14. We would allow the appeal, set aside the order of conviction and sentence passed against the appellant and direct that he be set at liberty forthwith.

K.P. Mohapatra, J.

15. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //