Surendra Dharua Vs. State of Orissa - Court Judgment

A.S. Naidu, J.

1. The judgment and order of conviction dated 8th January, 1996 paseed by learned Sessions Judge, Bolangir, convicting the appellant for commission of offence under Section 302, IPC and sentencing him to undergo rigorous imprisonment for life in S. C. No. 61 of 1995 are assailed in this appeal.

2. The criminal action was set to motion by an information given by Gobinda Dharua, P.W. 4, which was reduced to writing by P.W. 13, the then O. I. C., Lusinga Police Station. It is alleged that in the early morning of 24th December, 1994 the dead body of Khedu Dharua was found lying with pool of blood on the floor of the temple of Lord Radha Krishna Jew situated at Badibahal. Hearing the said news, several villagers gathered so also Purna Dharua, P.W. 5, the nephew of the deceased. Noticing the said scene, he rushed to his house and intimated the other inmates of the family. Then he went to the police station with his brother Gobinda Dharua, P.W. 4 and lodged the F.I.R. On the basis of the said F.I.R., Lusinga P. S. Case No. 113 of 1994 was registered, which was subsequently converted to G. R. Case No. 291 of 1994 in the Court of JMFC, Lusinga and P.W. 13, the O. I. C, took up investigation.

3. In course of investigation, P.W. 13 visited the spot, prepared spot map (Ext. 10), seized a pair of chapal, scrapings of the blood stains of the cemented floor and the R. O. R., which was kept in a bag, held inquest over the dead body and sent the same for post-mortem. He also examined number of witnesses. P.W. 5 in the F.I.R., had given the names of some suspects including the name of the accused Surendra Dharua. The O. I. C. called all the suspects to the police station for interrogation. It is alleged that on 30th December, 1994 when the accused was in his custody, he confessed to have killed khedu Dharua arid also disclosed where he had kept the Bhujali used as a weapon. P.W. 13 took the accused to his house where on production, It is alleged, he seized the Bhujali (M. O. II), one rag and an envelope containing xerox copy of the judgment in T. 5. No. 85 of 1994 under the seizure list marked Ext. 8. He also seized the wearing appare, i.e., lungi of the accused under seizure list, Ext. 15. He produced the accused before the J. M. F. C, Lusinga with a prayer to record his statement under Section 164, Cr. P.C. on 29-12-1994 and thereafter on 31 -12-1994 when the statement was recorded. After sending the M. Os. including the wearing apparels and Bhujali to R. F. S. L., Sambalpur, he submitted the charge-sheet. On the basis thereof, the case was committed to the Court of Session and registered as S. C. No. 61 of 1995.

To substantiate the case, the prosecution got examined 15 witnesses and exhibited 19 documents. On behalf of the defence, neither any oral evidence was adduced nor was any document marked. Out of the prosecution witnesses, P.W. 5 is the informant, P.W. 6 is the priest of the temple of Lord Radha Krishna Jew, P.W. 7 is the doctor, who conducted the autopsy vide Ext. 5, P.W. 15 is the J. M. F. C, Lusinga who recorded the statement of the accused under Section 164, Cr. P.C. vide Ext. 19, P.Ws. 12, 13 and 14 are the police officers (P.W. 13 being the I. O.), P.W. 2 is a witness to the inquest, P.W. 10 is a witness to the seizure of Bhujali (M. O. II) seized under the seizure list, Ext. 8, P.W. 9 speaks about the extra-judicial confession said to have been made before him. All the other witnesses, mostly speak about the existing enmity between the family of the accused and deceased regarding certain landed properties.

4. Khedu Dharua was a man of 75 years and as it appears from the records, on 23rd December, 1994 he slept on the floor of the temple of Lord Radha Krishna Jew and his dead body was found with pool of blood on the next day morning. Admittedly, there is no eye-witness to the occurrence. The entire prosecution case hinges upon the confession said to have been made by the accused vis-a-vis other circumstantial evidence.

5. Perusal of the evidence of P.W. 7, the doctor, who conducted autopsy as well as post-mortem report, Ext. 5 clearly reveals that multiple injuries over the head, face, nec, limbs were inflicted on Khedu Dharua and his face was disfigured due to said incised wounds. Thus, it is evident that the death of Khedu Dharua was homicidal in nature and was casued by inflicting injuries by sharp cutting weapon. The Sessions Court after discussing the evidence and relying upon the judicial confession, extra-judicial confession as well as the circumstances leading to the seizure of the alleged weapon of offence from the house of the accused and seizure of the chappal from the place of occurrence and presence of blood in the wearing apparels of the accused, came to the coriclusion that the prosecution was able to substantiate the allegations made against the accused and convicted him for commission of offence under Section 302, IPC.

6. There being no eye-witness to the occurrence, the case entirely rests on circumstantial evidence. According to Mr. Das, learned Counsel for the appellant, chain of circumstances highlighted by the prosecution neither leads to an inevitable conclusion nor rules out probabilities of commission of the offence by some other person. It is submitted that the main basis of conviction, i.e., the confession said to have been made by the accused, which was recorded under Section 164, Cr. P.C. by the J. M. F. C, Lusinga, suffers from several infirmities and cannot be relied upon, more so because the same was subsequently retracted by the accused in his statement recorded under Section 313, Cr. P.C. It is further submitted that no reliance whatsoever can be placed also upon the extra-judicial confession said to have been made by the accused before P.W. 9, who happens to be a friend of the accused, as there are several discrepancies in the said statement. It is further submitted that the recovery of chappal from the place of occurrence also cannot be believed in view of the statement of P.W. 9 in Court. Last but not the least, it is submitted that no reliance can also be placed upon the seizure of the alleged weapon of offence (Bhujali) as the same was seized, even according to the prosecution in the dead of the night and contained no blood stains. The rag by which the weapon was said to have been cleaned/though seized, was neither sent for the forensic examination nor produced in Court, thus leaving a wide gap and scope for presumptions.

7. Learned Counsel for the State, on the other hand, supported the judgment passed by the learned Sessions Judge and submitted that the confession said to have been made by the accused before the J. M. F. C. read with the evidence of P.W. 13 and the evidence of P.W. 9 before whom the accused said to have made extra-judicial confession, coupled with the seizure of chappal from the place of occurrence and seizure of weapon of offence from the house of the accused, on being produced by him, makes the chain of circumstance complete. Added to that, it is submitted that there are enough evidence to reveal that enmity existed between the family of the accused and the deceased, which proves the motive. According to learned Addl. Government Advocate, the Sessions Court had taken into consideration all the facts and circumstances and vividly discussed the evidence both oral and documentary and the conclusions arrived at are just, proper and in consonance with cogent evidence and thus, needs no interference.

8. Before analyzing the factual aspects, it may be prudent to bear in mind that to prove a crime, it is not always necessary that the same must have been seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining eye-witnesses, who have seen its commission. In given circumstances, the offence can also be proved by circumstantial evidence. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from facts and circumstances of a case. In other words, circumstantial evidence though not direct on the point of commission of offence, but consists of evidence of various other facts, which are so closely associated with the fact in issue, and taken together, they form a chain of circumstances from which commission of offence can be legally inferred or presumed.

9. It has been consistently laid down by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan : AIR 1977 SO 1063 : 1977 Cri LJ 639, Eradu and Ors. v. State of Hyderabad : AIR 1956 SC 316 : 1956 Cri LJ 559, Earabhadrappa v. State of Karnataka : AIR 1983 SC 446 : 1983 Cri LJ 846, State of U. P. v. Sukhbasi and Ors. : AIR 1985 SC 1224 : 1985 Cri LJ 1479, Balwinder Singh v. State of Punjab : AIR 1987 SC 350 : 1987 Cri LJ 330, Ashok Kumar Chatterjee v. State of M.P. : AIR 1989 SC 1890 : 1989 Cri LJ 2124.

10. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab : AIR 1954 SC 621 : 1954 Cri LJ 1645, it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such so as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

11. In the case of C. Chenga Reddy and Ors. v. State of A.P. : (1996) 10 SCC 193 : 1996 Cri LJ 3416, it has been obvserved thus:

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....

12. In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 : 1990 Cri LJ 605, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.

13. In the case of State of U. P. v. Ashok Kumar Srivastava : 1992 Cri LJ 1104 : AIR 1992 SC 840, it was pointed out that great care must be taken in evaluating circumstanctial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

14. Sir Alfred Wills in his admirable book 'Wills' Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence; (1) the facts alleged as the basis of any legal inference must be clearly proved beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.'

15. In the case of Hanumant Govind Nargtundkar v. State of Madhya Pradesh : AIR 1952 SC 343 : 1953 Cri LJ 129, it was observed thus:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

16. In the case of Sharad Birdhichan Sarda v. State of Maharashtra : AIR 1984 SC 1622 : 1984 Cri LJ 1738, the Supreme Court while dealing with a case based on circumstantial evidence held that onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent, in the words of the Supreme Court is that before conviction could be based on circumstantial evidence the prosecution must establish:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

17. After recapitulating the law, now we propose to deal with the evidence in the case in hand and examine the same on the touchstone of the authoritative pronouncements referred to above..

18. The circumstances highlighted to fasten the guilt on the accused in this case mainly are as follows:

(1) Judicial confession said to have been made by the accused before the Judicial Magistrate First Class (P.W. 15).

(2) Extra-judicial confession said to have been made by the accused before one of his friends, P.W. 9.

(3) Seizure of chappals from the place of occurrence i.e., the temple.

(4) Admission said to have been made by him before the O. I. C. while in police custody.

(5) Statement made by the accused leading to discovery of the weapon of offence (Bhujali).

(6) Human blood being found on the wearing apparel of the accused; and

(7) Statement said to have been made by the deceased on earlier occasions.

19. With regard to the judicial confession said to have been made by the accused under Section 164, Cr. P.C. before P.W. 15, it appears from the evidence of I. O., P.W. 13 that the accused was apprehended by the I. O. on 29th December, 1994. On the same day the I. O. approached P.W. 15 and prayed to record the confession. It is not known as to why the same was not recorded on the same day. There is also no material to reveal that on 29th December, 1994 he was produced before the J. M. F. C. It appears that the accused was produced be-fore the J. M. F. C, Lusinga by the I. O. (P.W. 13) only on 31st December, 1994, which was a holiday. The evidence of P.W. 15 reveals that on being produced, he put some questions to the accused and then kept him in charge of the Court Sub-Inspector. Later on, the accused was called and his statement was recorded in presence of the Court Sub-Inspector. It is needless to say that in the statement made by the accused under Section 313, Cr. P. C, he had clearly denied the confession said to have been made by him before the Magistrate. The deposition of P.W. 15 reveals that the learned Magistrate was not sure as to whether the accused was produced from police custody or from judicial custody. It further appears that the accused was detained by the police from 29th December, 1994, but was arrested only on 30th and on the next day he was produced before the Magistrate by the police for recording of his confession. It appears, he was never sent to judicial custody.

20. Learned Counsel for the appellant strenuously took this Court through different provisions of the Code of Criminal Procedure as well as the Evidence Act and the procedure laid down to record confessional statements under Section 164, Cr. P.C. and submitted that the Magistrate had not followed the mandatory requirements of law or procedure. Neither he had put relevant questions to ascertain as to whether the accused was free from police coercion nor he was cautioned that any statement made by him may be used against him. It is further submitted that as the rules framed by this Court as well as the provisions of Section 164, Cr. P.C. were not kept in mind by the learned Magistrate, . the confessional statement, which was retracted later on has absolutely no evidentiary value.

21. Law requires that before recording of judicial confession made by the accused while in police custody, the first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency. The provisions of Section 164, Cr. P.C. may be complied with not only in tetters but also in spirit. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving while in custody in order to ensure that there is no scope for doubt that any sort of extraneous influence by any source interested in the prosecution. He should also be told that if he is not inclined to make a confession, he shall not be sent to police custody.

22. In the case in hand, the accused was detained by the police with effect from 29-12-1994, he was however shown to have been arrested only on 30-12-1994 and on the next day, i.e., on 31-12-1994 he was produced before the Magistrate in police custody for recording his confession. The learned J. M. F. C. though initially was not sure as to whether the accused was produced from jail custody or police custody, later refreshes his memory and stated that the accused was produced from police custody for recording his confession. The learned J. M. F. C. has also admitted in his statement that the accused was produced by police from the police station. It appears that after recording the statement, he was to be given back to the custody of the police. Perusal of the entire deposition of P.W. 15 reveals that as per the requirement of Section 164, Cr. P.C. the Magistrate had not taken care to ascertain whether any third degree methods were used by the police against him to extract a confession. A reading of the deposition of P.W. 15 reveals that though he had questioned the accused and later confirmed that he was making a statement voluntarily without any pressure, but then Ext. 9, the confession recorded does not reveal that any specific question was put to the accused as to whether any physical or mental pressure was put on him by the police. The most pertinent fact, which is lacking in the confession recorded by P.W. 15 is that he had not asked the accused as to why the latter wanted to make a statement, which would go against his interest in the trial. It further reveals that he was not granted sufficient time for reflection. He was also not assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. A reading of the entire evidence of P.W. 15, the learned J. M. F. C, reveals that no precaution was taken by him before recording the judicial confession. Ext. 9 reveals that confession was recorded in a printed form rather as a matter of course.

23. It has been held by the Supreme Court in the case of Bhagwan Singh v. State of Madhya Pradesh (2003) 3 SCC 21 : 2003 Cri LJ 1262 as follows:

A judicial confession not given voluntarily is unreliable, more so when such a confession is retracted. It is not safe to rely on such judicial confession or even treat it as a corroborative piece of evidence in the case. When a judicial confession is found to be not voluntary and more so when it is retracted judicial confession.

24. Apart from the discussions made above, it clearly appears from the deposition of P.W. 15, the J.M. F. C. who recorded the confession that the accused after being produced before him was kept in charge of the Court Sub-Inspector, who produced him before the Magistrate and was also present in his chamber when confessional statement was recorded. Law is well settled that a confession made before a Police Officer is not admissible. Presence of the police, when confession is being recorded does not free the mind of the accused from police influence. Hence, such statement has little evidentiary value. The Court Sub-Inspector is admittedly an uniformed police officer attached to the Court. Law being well settled that any confession recorded in presence of a police officer is a nullity and no reliance can be placed upon Ext. 9, the confession said to have been made by the accused, which he subsequently retracted in his statement made under Section 313, Cr. P.C.

25. So far as the extra-judicial confession said to have been made by the accused before P.W. 9 is concerned, it is well settled that extra-judicial confession for being accepted as a piece of reliable evidence must pass the test of reproduction of exact words. (See : Heramba Brahma v. State of Assam AIR 1982 SC 1595 : 1983 Cri LJ 149 and Rehim Beg v. State of U.P. AIR 1973 SC 343 : 1972 Cri LJ 1260.

26. It is pertinent to refer to the relevant portion of the deposition of P.W. 9, which reads as follows:

The accused told me that he has killed the deceased in a lonely place of the embarkment of the village tank. He told me that he has left his pair of chappal at the spot and requested me not to disclose it to anybody.

(Emphasis supplied)

27. As would be evident from the statement of P.W. 9, the accused said to have confessed before him that he had killed the deceased in a lonely place of the embarkment of the village tank whereas the dead body was found on the floor of the temple of Lord Radha Krishna Jew. Thus, there is apparent discrepancy with regard to the place of occurrence, which is not explained otherwise. Therefore, the version as per the extra-judicial confession is inconsistent with other evidence. It is no more res integra that an extra-judicial confession should be taken as a whole and should not suffer from any infirmity. In this case, extra-judicial confession which was subsequently retracted, becomes doubtful in the light of other evidence with regard to the place of occurrence. There is also discrepancy with regard to the chappal said to have been used by the accused.

In view of the aforesaid discrepancies, no reliance can be placed upon the evidence of P.W. 9 or the extra-judicial confession said to have been made before him.

28. A reading of the evidence of P.W. 9 reveals that the pair of chappal which was seized near the place of occurrence belonged to him. It is stated that the accused had borrowed the same. But then, no material has been produced to substantiate such a plea. It also appears that P.W. 9 did not disclose before the police that the said chappal belonged to him. In cross examination, a suggestion has been made to the effect that in order to save himself the said witness has taken a plea that the chappal had been taken or borrowed by the accused. Be that as it may, perusal of the entire evidence of P.W. 9 leads to a conclusion that on the basis of the alleged extra-judicial confession, no conviction can be based as the same suffers from material contradictions.

29. So far as the statement made by the accused while in police custody with regard to the weapon of offence, leading to recover, it appears from the evidence of I. O., P.W. 13 that on 30-12-1994 while in police custody, the accused voluntarily disclosed the place where he has kept the weapon of offence (Bhujali). The said statement, it appers, was made in presence of Bibhuti Bhusan Pradhan (P.W. 10) and Narasinga Behera (not examined). After recording the statement vide Ext. 14, he took the I. O. to the place of concealment. It is stated that the accused went inside the house and brought out the Bhujali kept in a wooden box and produced the same. He also produced a blood stained rag from the tiled roof of his house. Both the materials were seized under the seizure list, Ext. 8 and the Bhujali was marked as M. O. II. It further appears that Bhujali (M. O. II) did not contain any blood stain. Explanation is given to the effect that the same was cleaned or wiped out with the rag. The I. O. though admitted that the rag was produced by the accused in presence of the witness and the same was seized, it was not sent for chemical examination. Surprisingly, the said rag was also not produced before the Court, thus, throwing a cloud of suspicion with regard to the truthfulness of the seizure. The seizure witness was examined as P.W. 10. According to him, he did not know the accused, he was called to the police station in the night of 30-12-1994 and before him the accused made the confession. Thereafter, they went to the house of the accused at about 12 O'clock in the night. It is stated that the accused brought out a Bhujali from a wooden box and produced the same before the I. O. along with the blood-stained rag from the the tiled roof. The said witness however, states that one Narasingha Behera was also present. But then, the said Narasingha was not examined. As stated earlier, Bhujali did not contain any blood stain and no witness has been examined by the prosecution to connect Bhujali with the alleged crime. The wooden box in which the Bhujali said to have been concealed was not seized. The statement said to have been made by the accused with regard to concealment of weapon of offence was admittedly made in the police station. The said statement being hit by the provisions of Section 25 of the Evidence Act, is inadmissible in evidence.

30. No explanation is given by the I. O. with regard to the missing rag. It appears that the wearing apparels of the accused were sent for chemical examination. The report reveals that the same contained human blood. No attempt was made by the prosecution to tally the blood group. The only other material relied upon by the prosecution is the statement said to have been made by the deceased long before the incident with regard to the disputes existing between the family of the accused and the deceased. Admittedly, the accused and the informant are related to each other. It also appears that an F.I.R. was also lodged by the deceased mentioning that the family members of the accused are threatening to kill him. The trial Court has based upon the said statement and considered the same to be a dying declaration said to have been made under Section 32 of the Indian Evidence Act. Unfortunately however, none of the family members of the deceased have highlighted the motive behind the crime. The deceased had also not named the accused in his earlier F.I.R. and only omnibus allegations were made.

31. As has been stated earlier, there is no eye-witness to the alleged occurrence and the prosecution completely relied upon the circumstantial evidence, more particularly, the confession said to have been made by the accused under Section 164, Cr. P. C, which suffers from several infirmities. As discussed earlier, the said confession having been made, on being produced from police custody and in presence of a police officer, cannot be accepted. If the confession is discarded, it appears, there is no other material or acceptable evidence. It is the duty of the prosecution to establish all the circumstances conclusively to hold that the accused alone and no other person had committed the offence. As stated in the case of State of U.P. v. Ramesh Prasad reported in AIR 1996 SC 2766 : 1996 Cri LJ 4002 witnesses are prone to speak falsehood, but the circumstantial evidence will not. It is, therefore, the duty of the Court to scan through the evidence on the anvil of human conduct, the probabilities and attending circumstances, extent of doubts in favour of the accused. Before convicting a person under circumstantial evidence, three tests have to be satisfied. (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards gult of the accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;

32. After going through the evidence, as has been discussed above, this Court finds that the prosecution has failed to satisfy the aforesaid three tests. The evidence is not sufficient to lead to an irresistible conclusion that the accused has committed the alleged crime. Thus, this Court feels that benefit of doubt tilts heavily in favour of the accused and it is a fit case where he cannot be convicted for' the commission of the offence. Consequently, the appeal is allowed. The judgment and order of conviction passed by the learned Sessions Judge, Bolangir in S. C. No. 61 of 1995 is set aside.

S.C. Parija, J.

33. I agree.