State of Orissa Vs. Dubuga Tubud - Court Judgment

K.P. Mohapatra, J.

1. This appeal is against the judgment passed by the learned Sessions Judge, Dhenkanal, acquitting the respondent of the offence of patricide.

2. The prosecution case is that on 15-12-1980 at about 6.00 p.m. there was a quarrel between the respondent and his father (deceased) over thrashing of paddy. During quarrel, out of anger, the respondent threw a piece of Sal wood (Sala Khunta) (M.O. I) aiming at the deceased which struck the head near the left ear of the latter, as a result of which he fell down on the ground. Thereafter, the respondent assaulted him by means of a stick. On account of the assault, the deceased breathed his last. A Home Guard of the village, P.W. 1 lodged F.I.R. (Ext. 1) at Pallahara Police Station. After investigation, charge-sheet was submitted against the respondent under Section 302, I.P.C.

3. The defence plea was denial simpliciter.

4. At the hearing it was not challenged that the death of the deceased was homicidal as a result of several injuries which were ante-mortem in nature and were sufficient in the ordinary course to have caused the death of the deceased according to the opinion of the Medical Officer (P.W. 2) in the post-mortem report (Ext.2) and a subsequent report (Ext. 3).

5. The learned Sessions Judge disbelieved the evidence of extra-judicial confession said to have been made by the respondent before P.W. 1, as well as the evidence of the sole eyewitness to the occurrence (P.W. 3) and recorded the judgment of acquittal.

6. On the contentions raised by Mr. D. P. Sahu, learned Standing Counsel appearing for the appellant, and Mr. J. M. Mohahty, learned Counsel appearing for the respondent, the following two points arise for consideration:

(i) Whether the extra judicial confession said to have been made before P.W. 1 who was Home Guard of the village was hit by Section 25 of the Evidence Act; and

(ii) Whether the evidence of the sole eye witness, to the occurrence (P.W. 3) can be believed so as to convict the respondent of a serious charge of murder.

7. P.W. 1 stated that he was the Home Guard, of the village, When he came to the place of occurrence on hearing the cries of the daughter of the deceased that her father had been killed, he saw that the deceased was lying on the ground, the respondent was also there. When he enquired, the respondent told him that the deceased was always is colding him and was calling him a dog and so out of anger he assaulted him, Apart from the fact that there is no other evidence to corroborate the evidence of P.W. 1 in this respect, it is to be considered whether the confession, if at all it has been made by the respondent, was hit by Section 25 of the Evidence Act and so inadmissible in evidence, ,It is to be remembered that in a Bench decision of this Court reported in 1977 Cut LR (Cri) 55 : 1977 Cri LJ NOC 132 Madan alias Undu Bark v. The State, it was held by making reference to a catena of decisions and by interpreting Section 6 of the Orissa Grama Rakhi Act, 1067 and Rules 16 to 23 of the Orissa Grama Rakhi Rules, 1969, that a Grama Rakhi is a police officer and a confession made before him being hit by Section 25 of the Evidence Act is inadmissible in evidence. According to Section 3 of the Orissa Home Guards Act, 1961, a Home Guard is appointed by the Commandant-General. Under Section 4 thereof, a Home Guard may be called either for training or for discharging any function assigned to him under the Act. Section 5 which is important for our purpose is quoted below for easy reference:

Rule 5. Powers, privileges and protection of the force.-(1) A member of the Homes Guards when called out under Section 4 shall have the same powers, privileges and protection as an officer of police appointed under any law for the time being in force.

(2) No prosecution shall be instituted against a member of the Home Guard in respect of anything done or purporting to be done by him in the discharge of his functions or duties as such member except with the previous sanction of the Commandant-General.

According to Section 11, a Home Guard shall be deemed to be a public servant within the meaning of Section 21, I.P.C. Functions and duties of a Home Guard have been specified in Rule 17 of the Orissa Home Guards Rules 1962 which are quoted below:

17. Functions and duties. - (1) The Home Guards shall discharge the following functions and duties namely:

(i) to help the police in maintaining law and order and internal security during any emergency when called out for service in aid of the police;

(ii) to render assistance during natural and other calamities, such as, earthquake, floods, famine and fire for protection of persons and their property;

(iii) to operate transport, communications, electricity, water and other essential services when the normal services are not functioning;

(iv) to collect and communicate any information relating to the breach of public peace to the local police;

(v) to prevent the commission of offences . and public nuisances;

(vi) to obtain and communicate to the officer-in-charge of the police station, correct information about criminals, criminal classes, vagrants and wandering gangs, persons residing in or passing through the police station;

(vii) to assist the police in quelling communal disturbances and industrial and internal disorders;

(viii) to assist the police in maintaining law and order in fairs, festivals and big gatherings;

(ix) to assist the civil defence organisation during the national emergency;

(x) to guard vulnerable points/areas, lines of communication bridges, embankments, etc., as and when necessary;

(xi) to watch and report forthwith to the local police the names of the persons who may be found engaged or taking part in activities which are anti-social in nature or prejudicial or subversive to the interest of the Union; and

(xii) such other functions and duties as may be assigned to them from time to time by the State Government in consultation with the Commandant-General.

(2) A member of the Home Guards constituted for any area shall be liable to serve in any other area in which the Act is in force.

If Section 5 and Rule 17 are read and considered conjointly, there is no escape from the conclusion that a Home Guard when performing duty being called by the Commandant-General under Section 4 shall have the same powers as an officer of police appointed under any law for the time being in force and in particular he is privileged to perform functions and duties enumerated in the rule quoted above. We are, therefore, of the opinion that an extra judicial confession made before a Home Guard on duty is hit by Section 25 of the Evidence Act and is inadmissible in evidence.

7. In this particular case, so far as the extra-judicial confession is concerned, there are two aspects. First, the evidence of P.W. 1 in respect of the extra judicial confession has remained uncorroborated. Second, the witness himself asserted that he was the Home Guard of the village and so it can be assumed that he was performing duty as such being called under Section 4 of the Orissa Home Guards Act, 196'l. It could also be possible that he was not performing the duty as such. But when a material fact in a criminal case is capable of two interpretations, the one which is favourable to the accused is to be accepted In this case, the interpretation that P.W. 1 was performing duty as a Home Guard is favourable to the respondent in the sense that the extra judicial confession made before him was hit by Section 25 of the Evidence Act and was inadmissible in evidence. Therefore, according to rules of interpretation, the one which is favourable to the respondent has to be accepted Viewed from any angle, it is quite unsafe to rely on the evidence of extra judicial confession alleged to have been made by the respondent before P.W. 1. Therefore, such evidence is ruled out of consideration.

8. Now coming to the evidence of the eye-witness to the occurrence, P.W. 3 stated that he was the elder brother of the deceased and at the same time he was serving under him as an agricultural labourer. There was a quarrel between the deceased and the respondent, in course of which the latter threw a Sala Khunta (M.O. I) aiming at the deceased which struck his head near the ear. As a result, the deceased fell down on the ground after which he was further assaulted by the respondent by means of a stick. On account of the assault, death of the deceased occurred immediately. This witness had been examined under Section 164, Cr. P.C., the material omissions of which were confronted to him. He did not state that the respondent threw the Sala Khunta (M.O. I) aiming at the deceased. But on the other hand he only spoke of the respondent assaulting the deceased by means of a bamboo lathi. The omission was a material contradiction. The above apart, the witness on account of age was shaky and infirm. On consideration of his evidence, we are satisfied that on the sale basis thereof it was not safe to record a judgment of conviction of a serious charge of murder.

9. P. Ws. 4 and 5 were the daughters of the deceased According to the prosecution, both of them also saw the occurrence. But, they turned hostile and did not support the prosecution at all.

10. The above analysis of the prosecution evidence shows that the view taken by the learned Sessions Judge was neither unreasonable nor perverse. Therefore, according to the settled position of law, the impugned judgment cannot be interfered with. We are satisfied that this is not a fit case for setting aside the judgment of acquittal so as to record conviction and sentence the respondent,

11. In the result, the appeal is dismissed. Bail bond furnished by the respondent is cancelled.

A.K. Padhi, J.

12. I agree.