A. Pasayat, J.
1. In this appeal from the Circle Jail, Cuttack Khageswar Khatua (hereinafter referred to as the 'accused') calls in question the legality of his conviction for an offence punishable Under Section 302 of the Indian Penal Code, 1860 (in short,'IPC') and sentence of imprisonment for life as awarded by the teamed Additional Sessions Judge, Jajpur.
2. Adumbrated in brief, the prosecution case as unfolded during trial is as follows :
The accused and his wife Hagori Dei (hereinafter described as the 'deceased)' were residing in village Kharadi separately from other villagers, as their marriage was not approved by the villagers. The deceased was a widow before she married the accused. Therefore, the villagers took exception to such marriage. On the night of 10-10-1986 there was exchange of hot words between the accused and the deceased. The latter abused the former in filthy language and told him that he should have sexual intercourse with his mother and sister if he wanted it. Being enraged at such of: noxious and indecent utterance accused brought a crow-bar (M.O.I) and dealt blows on her throat and neck as a result of which she succumbed at the spot. Immediately thereafter, the accused went to the house of his maternal uncle Genda Penthei (PW 6) and confessed before him to have killed his wife. The accused also approached Govinda Mallik, Grama Rakhi (PW 2) and repeated his confession before him. The Grama Rakhi along with the accused went to the house of Mukunda Charan Khatua (PW 1), where Chaitanya Penthei (PW 3), Krupasindhu Sahu (PW 4), Anam Khatua (PW 5) and Ors. were present and accused confessed the guilt before them. PWs 1 and 2 and the accused went to Sukinda Police Station where the first information report was lodged by PW 1. The Sub-Inspector of Police of the said Police Station (PW10) registered a case in the absence of the officer-in-charge and took up investigation. The accused was arrested at the police station at 5.15 a. m. on 11-10-1986, While in police custody, the accused gave out that tie had concealed the crow-bar with which he committed the offence on the Songa of his house and led the investigating officer (PW 10) and gave recovery of the same, PW 10 seized it under seizure list(Ext. 2) and also the red Coloured saree (M. O. II) wrapped on the dead body of the deceased. PWs 1 and 3 were the witnesses to the seizure. After inquest, post mortem examination was conducted by PW 7 and the post rnortem report was submitted. On completion of investigation, charge sheet was submitted and accused was committed for trial.
3. The accused pleaded innocence. He took a stand that since he had married the deceased, a widow, against the objection of the villagers, he has been falsely implicated.
4. Eleven witnesses were examined by the prosecution to further its case. The prosecution mainly relied on the extrajudicial confe ssion stated to have been made before PWs 1 to 6, and the recovery pursuant to the information given by the accused. The learned trial Judge found the accused guilty and convicted and sentenced him as aforesaid.
5. Learned counsel for the appellant, urged that the so-called extrajudicial Confession Cannot be acted upon on various grounds firstly, the so-called confession before PW 2, the Grama Rakhi is inadmissible in law and secondly, the so-called confession was made before PWs 1, 3, 4 and 5 in presence of PW 2 rendering it inadmissible. In any event, the evidence of the witnesses Is so incredible on the extrajudicial confession aspect that no credence can be put on it. So far as PW 6 is concerned, it is urged that though in the Court this witness has stated about the confession his statement before the investigating officer was materially different. So far as recovery of the weapon of offence pursuant to the information given by the accused is concerned, the learned counsel has drawn our attention to the evidence of PW 1 who was a saizure witness to highlight that there was no recovery as claimed, The learned counsel for the State, however, submitted that merely because the Grama Rakhi (PW 2) was present when confession was made before PWs 1, 2, 4 and 5, it cannot be vulnerable since it has been established that the same was voluntary. So far as the recovery is concerned, he has stressed that the seizure list and the evidence of the investigating officer clearly shows that the recovery was made pursuant to the information given by the accused while in custody.
6. We shall first deal with the plea relating to the extrajudicial confession, and whether confession before a Grama Rakhi is encompassad by Section 25 of the Indian Evidence Act, 1872 (in short, the 'Act')' In terms of Section 24 of the Act a confession made by an accused person is irrelevant in criminal proceeding, it the making of the confession appears to the Court to have been caused by any enducement, threat or promise having reference to the charge against the accused persons proceeding from a person in authority and sufficient,, in the opinion of the Court, to give the accused person ground which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him. Section 24 has been stated in the form of a rule of exclusion.
7. What is a 'confession' is a very relevant question. The expression has not been defined in the Act. Stephen in his 'Digest of the Law of Evidence, (Art 21) defines of thus -
'A confession is an admission made at anytime by a person charged with crime, stating or suggesting the inference that he committed the crime'.
The words 'suggesting the inference that he committed the crime' created some difficulty and confusion in realising the true import of the expression. The position was succinctly clarifid by Lord Atkin in Pakala Narayana Swami v. Emperor ; AIR 1939 PC 47 in the following words ;
'......no statement that contains self-exculpatory matter can amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not of itself a confession, e.g.an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession Some confusion appears to have been caused by the definition of 'confession' in Art.22 of Stephen's Digest of the Law of Evidence, which defines a confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose define confessions so as to cover all such admissions, in order to have a genera! term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused 'suggesting the inference that he committed' the crime.'
According to Wigmore ;
'A confession is an acknowledgement in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential .part of it. It is to this class of statements only that the present principle of exclusion applies.'
Section 25 of the Act prescribes that no confession made to a police officer, shall be proved as against a person, accused of any offence, Section 25 is broadly worded and it absolutely excludes from evidence against the accused, a confession made by him to a police officer under any circumstance. The section applies to confession to any police officer though he may not be acting as such. The policy behind Section 25 is to make it substantive rule of law the confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a Magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and therefore inadmissible, except so far as is provided by Section 27 of the Act.
Section 26 makes admissible a confession by a person made in the immediate presence of Magistrate while in the custody of the polioe. It may be to the Magistrate himself or to any other person.
8. In the present case, the confession was made before PW 2 a Grama Rakhi. 'Police officer' has not been defined in the Act. This Court in Madan alias Undu Barik v. The State: 43 (1977) CLT 512, held that a Grama Rakhi is a police officer in terms of Section 25 of the Act, and therefore, a confession made to him or in his presence would be inadmissible in law. The learned trial Judge has taken note of that decision but on facts held that confession made before the Grama Rakhi was not inadmissible because it was made before investigation was undertaken. The learned counsel for the appellant drew sustenance for his submission with reference to the decision. However, the decision does not lay down the correct position in law. The following observations of the apex Court in Raj Kumar Karwal v. Union of India and Ors. : AIR 1991 SC 45 :
'......The power to investigate is to be found in Chapter XII of the Code which begins with Section 154 and ends with Section 176. The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by the officer-in-charge of a police station. Once such information is received and registered, Section 156 empowers any officer incharge of the police station to investigate the same without any magisterial order. The investigation which so commences must be confluded, without unnecessary delay, by the submission of a report Under Section 173 of the Code to the concerned Magistrate in the prescribed form. Any person on whom power to investigate under Chapter XII is conferred can be said to be a 'police officer', no matter by what name he is called. The nomenclature is not important, the content of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or charge sheet under Sac. 173 of the Code. That is why this Court has since the decision in Badku Joti Sayant v. State of Mysore : AIR 1966 SC 1746, accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Cods, including the power to submit a report Under Section 173, he cannot be described to be a 'police officer' Under Section 25, Evidence Act.........'
It is, therefore, clear that a Grama Rakhi is not a police officer and therefore, confession before him does not attract operation of Section 25. of the Act.
9. The learned Additional Sessions Judge has observed that the confession being voluntary in nature, the mere fact that PW 2 was a Grama Rakhi or he was present when the alleged confessions were made before the other witnesses is of no consequence. However, he accepted that confession before a Grama Rakhi is inadmisssible in law. In view of the decision in Raj Kumar Karwal's case (supra), the view is indefensible. For assessing acceptability of confession before any person except a police officer, the test is whether it was voluntary. The same test applies to a Grama Rakhi also.
The evidence of PWs 1, 3, 4 and 5 relating to confession has to be tested on the touch-stone of acceptability and reliability. We shall deal with the evidence of each evidence in this regard. Mukunda (PW 1) has stated that accused and Grama Rakhi (PW 2) came to his house together, the Grama Rakhi told him that accused killed his wife, the accused admitted to have done so, the accused once confessed before him and other witness (obviously meaning PW 2), and also admitted his guilt at the house of each witness when he called them. He has admitted that he did not know what the accused confessed before the other witnesses. According to PW 2, the Grama Rakhi, after the confession was made to him, he was all along with the accused and was holding his hand till he was produced at the police station. Significantly he does not speak about the confession before any other person. Chaitanya (PW 3) has stated that PW 2 alone told him that the accused killed his wife He also did not state that the accused confessed before him. Krupasindhu (PW 4) has stated that he learnt about the killing from PW 2, and the accused also confessed before him. It is significant that in his previous statement before the investigating officer,he did not even indicate presence of PW 2. So far as evidence of PW 5 is concerned, he has stated that accused came to his house along with PW2, when the said witness told him about the killing and the accused also confessed to the crime, but did not indicate the reason as to why did so. In his previous statement before investigating officer he did not state about presence of PW 2. In view of these apparent infirmities in the evidence of the concerned witnesses, it would be unsafe to accept their credibility and cogency.
So far as the evidence of PW 6 is concerned, the learned counsel for the State has emphasised that the confession was made before him, and it was a separate confession made before PWs /1 to 5. We have perused the statement of PW 6 before the investigating officer during investigation which depicted entirely a different picture. While in Court, he deposed that the accused first visited him in his previous statement he had stated that he came to the spot on hearing the voice of many persons and when he came out he found the accused in the company of many persons including PWs 1,2, 3 and 4. Thereafter he claimed to have gone to the spot, when the confession was made. Therefore, there is material contradiction in the version of PW 6 as stated before the investigating officer (PW 10) and as deposed in Court. We find it difficult to put any credence on the evidence of PW 6.
10. Residual material on which the learned trial Judge placed reliance is the recovery of the weapon of offence purported to have been made on the basis of the information given by the accused. It has been indicated that PWs. 1 and 3 were witnesses to the seizure. Significantly PW1 has stated in his cross-examination that the accused was at the police station when the police first arrived at the spot and the accused was in fact not brought to the spot by the police when the seizures were made. He admitted that by mistake he stated that the accused led the police to the recovery of MOs and II from his Songha. In view of this statement of PW 1, it is difficult to accept that the recovery was made as claimed by the prosecution.
11. The major planks of the prosecution case having collapsed, there is no scope for holding the accused guilty.
12. We accordingly set aside the order of conviction and sentence passed against the accused and direct his acquittal. He be released forthwith, if he is not required to be in custody in connection with any other case.
The appeal is allowed.
D.M. Patnaik, J.
13. I agree.