Judgment:
Pradip Mohanty, J.
1. This appeal is directed against the judgment and order dated 24.04.2004 passed by the learned Ad hoc Addl. Sessions Judge, Sundargarh in ST. No. 204/76 of 2003 convicting the appellant under Section 302, IPC and sentencing him to undergo rigorous imprisonment for life.
2. The prosecution case in brief is that the deceased was a mason and the sister of the accused-appellant was working as a Reja (female coolie) under him. The deceased had illicit relationship with her. On 20.01.2003 evening, the deceased was found missing from his house, for which on 22.01.2003 information was given at the police station by the informant (P.W.1), who happens to be the brother of the deceased. On 23.01.2003, P.W.2 came to the informant and informed that last Monday at about 10 P.M. the accused-appellant came to his house and called him to search for his sister. While searching, both of them saw his sister coming from the side of a nearby well. The deceased was following her. Seeing them, the accused-appellant chased the deceased holding an axe and the deceased ran away. P.W.2, out of fear, returned to his house, but he heard some sound from the side of the brick kiln. On 21.01.2003, accused-appellant came to his house and made an extra judicial confession stating that on the previous night he had killed the deceased by means of an axe and concealed the dead body with the help of his father. P.W.1 orally reported the matter to police, which was reduced to writing. The I.O. took up investigation and on completion of the same filed charge sheet against three accused persons including the present appellant.
3. The plea of the defence is complete denial of the allegation.
4. In order to prove its case, prosecution examined as many as nine witnesses including the doctor and the I.O. and exhibited 24 documents. Defence examined none.
5. The learned Ad hoc Addl. Sessions Judge, Sundargarh framed charge against the present appellant under Section 302; IPC. He also framed separate charge against the present appellant and two other accused persons under Sections 201/34 I.P.C. On conclusion of trial, the learned Ad hoc Addl. Sessions Judge convicted the present appellant for commission of offence under Section 302, IPC and sentenced him to undergo imprisonment for life basing upon the circumstantial evidence and the extra judicial confession. He, however, acquitted the present appellant and the other two accused persons of the charge under Section 201/34 I.P.C.
6. Mr. Chand, learned Counsel for the appellant contended that though P.W.2 is a witness to the extra judicial confession, he is not a reliable witness, because he has admitted in his cross-examination that he had no good relationship with the present appellant. So, conviction cannot be made basing on the so-called extra judicial confession, which is a weak piece of evidence. This witness (R.W.2) also stated that while the appellant was making confession before him, his wife was present, but she has not been examined by the prosecution. P.Ws.3, 5 and 6 are witnesses to the seizure and they have not supported the prosecution.
7. Mr. Mohapatra, Learned Additional Government Advocate vehemently submitted that there are ample materials against the appellant. The evidence of P.Ws.1, 2, 7 and 8 is sufficient to convict the appellant for commission of offence under Section 302 IPC. The axe, which was seized from the possession of the appellant, was stained with blood. The chemical examination report reveals that the axe contained human blood of Group 'B'. Therefore, no illegality and infirmity has been committed by the trial Court in convicting the appellant for commission of offence under Section 302, IPC.
8. Perused the L.C.R. In the instant case, P.W.1 is the informant, who specifically stated that on 20.01.2003 the deceased had gone elsewhere. They searched for him during the night and on the next morning, but could not trace him out. On 22.01.2003, he intimated about the missing of DAOA (dedeased) at the P.S. On 23.01.2003, P.W.2 informed him that the appellant had murdered his DADA (deceased). He further stated that P.W.2 disclosed before him that when the deceased and the sister of the appellant were found coming near the well of P. Kisan, the appellant dealt Tangia blow on the body of the deceased. P.W.1 also admitted in his cross-examination that there was illicit relationship between the deceased and the sister of the appellant. P.W.2 is a witness to the extra judicial confession. He stated in his evidence that the appellant confessed before him that he had killed the deceased. At the time of confession, his wife was present. He also admitted in his cross-examination that he had no good relationship with the appellant. P.W.3 is a co-villager and a witness to the extra judicial confession, but he turned hostile. P.W.4 is a constable and was a witness to the seizure. P.W.5 is a co-villager and a witness to the leading to discovery and seizure of the axe. But, he did not support the prosecution case and turned hostile. P.W.6 is another co-villager who saw the appellant chasing the deceased by holding a Tangia. She turned hostile. P.W.7 is the Judicial Magistrate First Class who recorded the statement of P.W.2-under Section 164 Cr.P.C. Nothing has been elicited through cross-examination to discredit his testimony. P.W.8 is the doctor who conducted autopsy on the dead body of the deceased and found the following injuries.
(i) One lacerated injury- U-shape size, 3' x 2' x 1/2' over right frontal area.
(ii) One incised wound 1' x 1/2' x 1/4' in front of trages of right ear.
(iii) One chop wound 3' x 1/2' x 1' left over the left frontal region, injuring the frontal.
(iv) One chop wound of size 3' x 1/2' over left parietal region.
(v) One chop wound - 3' x 1/2' over right parietal region.
(vi) One incised wound - 3' x 1/2' x 1/2' over left frontal area.
He opined that the cause of death is due to haemorrhagic shock from bleeding vessel and injury to the brain. He specifically stated that the injuries were ante mortem in nature and were sufficient in ordinary course of nature to cause death. P.W.9 is the I.O. who investigated into the matter and seized the material object. He specifically stated that on 24.01.2003 at 2 A.M. the appellant led him to his bed room and produced the blood stained sweater, blood stained axe, burnt ashes of pant, shirt and banion. He seized the same and ultimately filed the charge-sheet. Nothing has been elicited by way of cross-examination to discredit his testimony.
9. On perusal of the statement of the accused recorded under Section 313 Cr.P.C, it reveals that in all five questions had been formulated to put the appellant. But, the trial Court has recorded the answer against question No. 1 only. So, it is presumed that the other questions, against which no answer has been recorded, were not put to the appellant by the trial Court. The trial Court has also not asked to the accused-appellant for examination of any defence witness. So far as the prosecution case that the appellant made an extra judicial confession before P.W.2 and other witnesses is concerned, it is to be noted that no question was put to him with regard to extra judicial confession. Similarly, no question was also put to the appellant with regard to medical evidence. The object of examination of the accused under Section 313 Cr.P.C. is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. He must be questioned separately about each material substance, which is intended to be used against him. The questioning must be fair. In the cases of Hate Singh, Bhagat Singh v. State of Madhya Pradesh : AIR 1953 SC 468 and Ajay Singh v. State of Maharashtra (2007) 37 OCR 872, it has been settled that each material circumstance should be put simply and separately in a way that an illiterate person will be able to appreciate and understand. No material circumstance appearing in the evidence against the appellant were put to him. For the above reason, this Court is of the view that the impugned judgment and order of conviction passed by the trial Court cannot be sustained. It is a fit case for remand to the trial Court, which should record the statement of the accused under Section 313 Cr.P.C. by putting separate question for each material substance and thereafter dispose of the matter afresh in accordance with law.
10. Accordingly, the impugned judgment of conviction and sentence passed against the appellant is set aside and the matter is remitted back to the trial Court for proper recording of the statement of the accused under Section 313 Cr.P.C.
11. The Criminal Appeal is disposed of accordingly.
L. Mohapatra, J.
12. I agree.