Judgment:
1. This appeal has been preferred by the convict Ajit Mishra through jail against the judgment and order dated 17th January, 2003 passed by the Additional Sessions Judge, Purulia in Sessions Trial No. 16 of 2001 arising out of Sessions Case No. 35 of 1989 wherein the appellant-accused was tried on a charge of having committed murder of his son Bhajan Mishra and found guilty and sentenced to suffer imprisonment for life and to pay a sum of Rs. 5,000/-, in default, to suffer rigorous imprisonment for 2 months for the offence punishable under Section 302 IPC.
2. It is the prosecutions case that the appellant-accused Ajit Mishra killed his son Bhajan who was aged 5-6 years in order to enable his maternal aunt (mamima), Jaya Rajhangshi, to bear a child. According to the prosecution, the appellant-accused Ajit Mishra developed illicit relationship with his maternal aunt and for that reason abandoned his wife Smt. Arasona Mishra (P.W. 2) and son Bhajan who at the relevant time were residing in her parents house which was in the same village. On 29.12.87 Smt. Arasona Mishra (P.W. 2) found that her son has not come back to the house. She along with her brother Moni Ojha (P.W. 1) started searching for the child and learnt from Bura Tewari (P.W. 9), a friend of Bhajan, that while they were playing, Ajit, appellant accused, has taken away Bhajan to his house. Therefore, Mani Ojha went to the house of Ajit, appellant-accused, and questioned him regarding the whereabouts of the child and came to know from Ajit that the child has been murdered and buried in his house and his blood has been collected in the bottle for gratifying the demand of his mamima. Pursuant to the confession made by Ajit Mishra in the presence of Mani Ojha (P.W. 1), Smt. Arasona Mishra (P.W. 2) and host of villagers who have gathered at the house of Ajit Mishra who was residing with his father Mani Mishra in the same village. Smt. Arasona Mishra (P.W. 2), mother of the child, then dug out the dead body of the child from the house. The villagers then informed Ashoke Kumar Sarkhel (P.W. 5), Pradhan of the village Nildhih, who lodged an FIR in Raghunathpur P.S. Ajit Mishra was detained by the villagers till the police arrived. On receiving information O.C. Raghunathpur, Sukhendu Chandra Dev (P.W. 11) along with the police party reached the village and found the appellantaccused Ajit Mishra detained by the villagers in front of a primary school. His custody was taken over and the police went to his house and found the dead body of child Bhajan lying in the courtyard covered by a small kantha. The police prepared the inquest report (Exbt. 1). The dead body was sent to Purulia Sadar Hospital for postmortem examination. The police seized blood stained earth, bonti and pira from the place of occurrence and recorded the statement of the witnesses. After investigation was completed, charge sheet came to be filed against the appellant-accused for committing an offence under Section 302 IPC.
3. The appellant-accused pleaded not guilty to the charge for having committed murder of his son and claimed to be tried. The prosecution in all examined 12 witnesses in support of their case. On conclusion of the trial, the Court found the appellant-accused guilty of having committed murder of his son Bhajan and convicted and sentenced the appellant-accused. Learned counsel for the appellant-accused submitted that there is no eye-witness to the incident and the prosecutions case is based on circumstantial evidence. It is submitted that the motive attributed by the prosecution that Ajit Mishra killed his own son in order to satisfy the demand of his mamima with whom he had illicit relation is a got up story and unbelievable. It is submitted that Mani Ojha (P.W. 1), brother-in-law, and Smt. Arasona Mishra (P.W. 2), wife of the appellant-accused, along with covillagers have falsely implicated the appellant-accused in the case due to strained matrimonial relation. It is submitted that the prosecution mainly rely on the alleged extra oral judicial confession which is a weak piece of evidence. Therefore, it will be most unsafe to rely on such evidence to convict the appellant-accused for the heinous charge of murdering his own son. Learned counsel for the appellant-accused further submitted that the evidence of the witnesses as regards discovery of wooden pira, bonti and other articles like small bottle containing blood at the instance of the accused is unreliable and according to the witnesses all these were lying in the house of the appellantaccused and seen by them before the police arrived at the place of occurrence.
4. It is submitted that the police found the dead body of Bhajan placed in the house of the appellant-accused covered with kantha whereas the appellantaccused was detained by the villagers at the primary school from where the police arrested him, creates doubts in the prosecutions case whether it is appellant-accused who has committed the murder. It is submitted that the evidence of the witnesses do not corroborate each other and, therefore, their evidence before the Court is unreliable. It is submitted that who killed Bhajan is a mystery and, therefore, the appellant-accused deserves to be acquitted by extending benefit of doubt as no father would kill his child for such a reason as attributed by the prosecution that the mamima wanted to drink the blood of the victim so as to get pregnant. It is further submitted that Jaya, the mamima of the appellant-accused came to be discharged as there was no evidence against her. Therefore, the very basis of the prosecution case, i.e., the motive for killing Bhajan does not survive.
5. proved his case beyond a shadow of doubt and the circumstances proved against the appellant-accused clearly go to show that in all probability it is the appellant-accused who has committed the crime. It is submitted that the prosecution has examined witnesses other than Mani Ojha (P.W. 1) and Smt. Arasona Mishra (P.W. 2) who are natural witnesses, witnesses being co-villagers before whom the appellant-accused confessed of having committed murder of Bhajan for giving his blood to his mamima to drink in order to bear a child. It is submitted that in the crossexamination of these witnesses nothing has been brought on record to show that they have falsely implicated the appellant-accused. It is further submitted that the prosecution has proved that after committing the murder, the appellant-accused buried the dead body of the victim, collected his blood in a bottle and the body of the child Bhajan was exhumed by Mani Ojha (P.W. 1) and Smt. Arasona Mishra (P.W. 2). It is submitted that the trial Court has considered the evidence led by the prosecution, the extra judicial confession made by the appellant-accused, the circumstances leading to discovery of the dead body from the house of the appellant-accused, the seizure of weapon, the incriminating articles and that Bhajan, the victim, was last seen with his father, i.e., the appellant-accused, is not disputed by the appellant-accused and, therefore, the appeal deserves to be dismissed.
6. The only point which arises for determination is whether the prosecution proved that the appellant-accused committed murder of his own son Bhajan and we have no hesitation to arrive at a conclusion that the appellant-accused is guilty of having committed murder of his son.
7. Let us examine whether the proved circumstances bring home the guilt of the appellant-accused beyond reasonable doubt. What we find from the prosecutions case is that the appellant-accused had strained relation with his wife Smt. Arasona Mishra (P.W. 2) to whom the victim Bhajan was born out of the wedlock and Smt. Arasona Mishra was residing separately at her fathers house in the same village on being neglected and deserted by the appellantaccused. The reason for the strained relationship between the two is attributed to the illicit relation of the appellant-accused with his mamima Jaya Rajhangshi. In their evidence Mani Ojha (P.W. 1) as well as Smt. Arasona Mishra (P.W. 2) have brought on record that Jaya Rajhangshi was the maternal aunt of Ajit Mishra. She was the resident of village Parasiri under P.S. Para. Smt. Arasona Mishra (P.W. 2) was his wife and after Bhajan was born, the appellant-accused abandoned his house and used to reside in the house of his maternal uncle and developed intimacy with Jaya, the mamima and that he did not look after his wife and child Bhajan.
8. On the day of the incident, Mani Ojha (P.W. 1), uncle of Bhajan, was searching for Bhajan and came across Bura Tewari (P.W. 9), a friend of Bhajan, who told him that Ajit Mishra, the father of Bhajan, took Bhajan to his own house. On getting the said information, Mani Ojha (P.W. 1) went to the house of Ajit and asked him the whereabouts of Bhajan on which Ajit became annoyed and threatened to take him to police and lodge complaint. On hearing hue and cry, Smt. Arasona Mishra (P.W. 2), Krishna Chandra Rajak (P.W. 3), Amiya Ganguli (P.W, 4), Manindra Nath Mishra (P.W. 6), Panchanan Bouri (P.W. 7) gathered. There was an altercation in which the appellantaccused is said to have disclosed to Smt. Arasona Mishra (P.W. 2) and others that he has killed Bhajan and kept the body buried beneath the earth in the East facing room. On hearing this, Smt. Arasona Mishra (P.W. 2) and others entered the house and noticed some dug earth had been replaced. So, Smt. Arasona Mishra (P.W. 2) started digging the earth by her hands. According to Smt. Arasona Mishra (P.W. 2) at this stage the appellant-accused also showed her a bottle containing blood and further confessed that his own mamima had told him that she would become pregnant if she drank the blood of their son and for that reason he killed his son Bhajan. At this time, Smt. Arasona Mishra (P.W. 2) dug out the earth and took out dead body of her son Bhajan and noticed a big cut mark on the throat of Bhajan and she became unconscious. This oral extra judicial confession was heard by Mani Ojha (P.W. 1), Krishna Chandra Rajak (P.W. 3), Amiya Ganguli (P.W, 4) and other covillagers in whose presence the appellant-accused has shown the spot where the dead body was buried after he killed his son Bhajan with the pira and bonti. On this fact that the appellant-accused made confession before his wife, brother-in-law and villagers of having killed Bhajan and buried his dead body, the evidence of these witnesses goes unchallenged and the fact that the dead body of Bhajan was exhumed from the room in the house of appellantaccused Ajit Mishra by his mother and that the accused also showed them the weapon by which he had killed Bhajan, i.e., the pira and bonti and also the bottle containing blood, goes undisputed. All these led to anxiety in the village and on hearing these facts, Manindra Nath Mishra (P.W. 6), Panchanan Bouri (P.W. 7) informed Ashoke Kumar Sarkhal (P.W. 5), Pradhan of the village to lodge a report to the police. Ashoke Kumar Sarkhal (P.W. 5), Pradhan of the village then lodged the FIR. In the meantime, the villagers held and detained the appellant-accused at the primary school in the village till the police party led by Sukhendu Chandra Dev (P.W. 11) arrived at the scene of occurrence. It has been contended by the learned counsel appearing for the appellant-accused that this evidence of extra judicial confession is weak type of evidence and the possibility of appellant-accused being falsely implicated in the case cannot be excluded. Extra judicial confession may or may not be a weak evidence and, therefore, each case is required to be examined on its own facts.
9. In the case of Sahoo vs. State of Uttar Pradesh AIR 1966 SC 40, the Supreme Court observed as follows :
5. Before we consider whether the circumstances narrated above would stand the said rigorous test, we will at the outset deal with the contention that soliloquy of the accused admitting his guilt was not an extra-judicial confession as the Courts below held it to be. If it was an extra-judicial confession, it would really partake the character of direct evidence rather than that of circumstantial evidence. It is argued that it is implicit in the concept of confession, whether it is extra-judicial or judicial, that it shall be communicated to another. It is said that one cannot confess to himself: he can only confess to another. This raises an interesting point, which falls to be decided on a consideration of the relevant provisions of the Evidence Act. Section 24 to 30 of the Evidence Act deal with the admissibility of confessions by accused persons in criminal cases. But the expression confession is not defined. The judicial Committee in Pakala Narayanaswami v. Emperor, 66 Ind App 66 : (AIR 1939 PC 47) has defined the said expression thus :
A confession is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.
10. A scrutiny of the provisions of Ss. 17 to 30 of the Evidence Act discloses, as one learned author puts it, that statement is a genus, admission is the species and confession is the sub-species. Shortly stated, a confession is a statement made by an accused admitting his guilt. What does the expression statement mean The dictionary meaning of the word statement is the act of stating, reciting or presenting verbally or on paper. The term statement, therefore, includes both oral and written statements. Is it also a necessary ingredient of the term that it shall be communicated to another? The dictionary meaning of the term does not warrant any such extension; or the reason of the rule underlying the doctrine of admission or confession demands it. Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that, as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be. The following illustration pertaining to a written confession brings out the said idea : A kills B; enters in his diary that he had killed him, puts it in his drawer and absconds. When he places his act on record, he does not communicate to another;
indeed, he does not have any intention of communicating it to a third party. Even so, at the trial the said statement of the accused can certainly be proved as a confession made by him. If that be so in the case of a statement in writing, there cannot be any difference in principle in the case of an oral statement. Both must stand on the same footing. This aspect of the doctrine of confession received some treatment from well-known authors on evidence, like Taylor, Best and Phipson. In A Treatise on the Law of Evidence by Taylor, 11th Edn., Vol. 1, the following statement appears at p. 596:
What the accused has been overheard muttering to himself, or saying to his wife or to any other person in confidence, will be receivable in evidence.
11. In The Principles of the Law of Evidence by W. M. Best, 12th Edn., at p. 454, it is stated much to the same effect thus:
Words addressed to others, and writing, are no doubt the most usual forms; but words uttered in soliloquy seem equally receivable. We also find the following passage in Phipson on Evidence, 7th Edn., at p. 262:
A statement which the prisoner had been overheard muttering to himself, if otherwise than in his sleep, is admissible against him, if independently proved.
12. These passages establish that communication to another is not a necessary ingredient of the concept of confession. In this context a decision of this Court in Bhogilal Chunilal Pandya v. State of Bombay, (1959) Sup (1) SCR 310: (AIR 1959 SC 356) may usefully be referred to. There the question was whether a former statement made by a witness within the meaning of S. 157 of the Evidence Act should have been communicated to another before it could be used to corroborate the testimony of another witness. This Court, after considering the relevant provisions of the Evidence Act and the case-law on the subject came to the conclusion that the word statement used in S. 157 meant only something that is stated and the element of communication was not necessary before something that is stated became a statement under that section. If, as we have said, statement is the genus and confession is only a subspecies of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt.
6. But, there is a clear distinction between the admissibility of an evidence and the weight to be attached to it. A confessional soliloquy is a direct piece of evidence. It may be an expression of conflict of emotion; a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime. The tone may be soft and low; the words may be confused; they may be capable of conflicting interpretations depending on witnesses, whether they are biased or honest, intelligent or ignorant, imaginative or prosaic, as the case may be. Generally they are mutterings of a confused mind. Before such evidence can be accepted, it must be established by cogent evidence what were exact words used by the accused. Even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence.
13. In the present case, on the day of incident when Bhajan was found missing from the house as he had not returned to have his food, his maternal uncle Mani Ojha (P.W. 1) while searching him met Bura Tewari (P.W. 9) who told him that while they were playing on the kuli beside his house, Ajit Mishra, father of Bhajan came there and took him away on his lap which naturally led Mani Ojha (P.W. 1) to the house of appellant-accused Ajit Mishra who questioned Ajit Mishra about the whereabouts of Bhajan. This led to altercation between Mani Ojha (P.W. 1) and Ajit Mishra which drew the attention of Smt. Arasona Mishra (P.W. 2) and other co-villagers. The fact that Ajit Mishra was having illicit relationship with one Jaya, mamima of the appellant-accused, and that he had strained relation with his wife, must be known in the village and, therefore, the appellant-accused having been questioned by his wife Smt. Arasona Mishra (P.W. 2) and Mani Ojha (P.W. 1) and the anxiety of all who had gathered there in all probability led the appellant-accused to confess that he had killed his son in order to extract his blood for giving it to Jaya. One can well appreciate the mental state of the appellant-accused as it has come in evidence that he not only confessed of having killed his son Bhajan but also gave the reason for committing such a heinous act and that is to please Jaya with whom he had illicit relationship. The appellant-accused when questioned by the Court under Section 313 Cr. P.C. candidly accepted that he had taken his son while he was playing with Bura Tewari (P.W. 9). This is a very strong circumstance against the appellant-accused which inspires confidence in the prosecutions case that the appellant-accused committed murder of his own son which he confessed. The next important thing was the finding of the dead body of the child Bhajan in the house of the appellant-accused which was exhumed by Smt. Arasona Mishra (P.W. 2).
14. In so far as prosecutions case that how the victim was killed and his blood was extracted can very well be found from the evidence of Dr. K. B. Sinha (P.W. 12). Dr. Sinha conducted the postmortem examination of the dead body of Bhajan Mishra and found the following injuries :
1. One sharp cut injury over anterior aspect of upper part of neck extending from left lateral aspect of neck to the right side, 6 x bone deep x3 deepest at the middle, carotid sheath with its contents cut on the left side;
Trachea is cut completely at the level of injury, third cervical vertebra cut partially.
2. One small abrasion found over anterior aspect of right knee joint.
15. In the opinion of Dr. Sinha cause of death was due to shock and hemorrhage as a result of the injuries which were ante-mortem and homicidal. Dr. Sinha has further deposed that it is a fact that neck is a vital part of the body. The injuries might be caused by sharp cutting weapon like bonti. The post mortem report is Exhibit 12.
16. In the evidence of Sukhendu Chandra Dev (P.W. 11), O.C. Raghunathpur, it has been stated that he was led by Ajit Mishra to South facing room of appellant-accused. There he found some blood stain on earthern bedi at the South/East corner of the room. He also found some stains of blood on the Southern side wall of the said room. Thereafter, appellant-accused Ajit Mishra showed him bonti and pira with which appellant-accused killed his son. He seized all these articles, so also the bottle containing blood, clothes of the victim and other incriminating articles. The articles seized from the place of occurrence were forwarded to the Forensic Science Laboratory and the report of the Forensic Science Laboratory showed that the blood found on the articles as well as in the bottle was human. The FSL report (Exbt. 13) has been proved by Inquiry Officer P.I. Sukhendu Chandra Dev (P.W. 11).
17. As we have already noted that these articles were already seized from the place of occurrence and recovered at the instance of the appellant-accused by the police and all these things were pointed out by the appellant-accused to Mani Ojha (P.W. 1), Smt. Arasona Mishra (P.W. 2), Krishna Chandra Rajak (P.W. 3), Amiya Ganguli (P.W, 4) and other co-villagers even before the police arrived at the place of occurrence.
18. Therefore, we find that the trial Court has come to the correct finding of facts on the basis of the evidence on record that the appellant-accused committed the murder of his son Bhajan and rightly found him guilty and sentenced him to suffer imprisonment for life.
The appeal, therefore, stands dismissed.