Nityananda Sutar vs State Of Orissa on 27 January, 2018

[Cites 15, Cited by 0]

Orissa High Court

Nityananda Sutar vs State Of Orissa on 27 January, 2018

Bench: S.K. Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

JCRLA No. 47 Of 2004

An appeal under section 374 of the Code of Criminal Procedure
from the judgment and order dated 08.03.2004 passed by the
Additional Sessions Judge, Kendrapara in S.T. Case No.22/373 of
2002.
-----------------------------

Nityananda Sutar ......... Appellant

-Versus-

State of Orissa ......... Respondent

CRLA No. 80 Of 2004

Rahas Behari Moharana
and Gobardhan Sutar ......... Appellants

-Versus-

State of Orissa ......... Respondent

CRLA No. 228 Of 2004

Kartik Chandra Thatoi ......... Appellant

-Versus-

State of Orissa ......... Respondent

For Appellants: - Mr. Devashis Panda

For Respondent: - Mr. Bibekananda Bhuyan
(Addl. Govt. Advocate)
----------------------------
2

P R E S E N T:

THE HON'BLE MR. JUSTICE S.K. SAHOO
AND
THE HON'BLE MR. JUSTICE K.R. MOHAPATRA
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Date of Hearing and Judgment: 27.01.2018
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By the Bench The appellant Nityananda Sutar in JCRLA No. 47 of

2004, appellants Rahas Behari Moharana and Gobardhan Sutar

in CRLA No. 80 of 2004, appellant Kartik Chandra Thatoi in CRLA

No. 228 of 2004 along with co-accused Ramamani Sutar faced

trial in the Court of learned Additional Sessions Judge,

Kendrapara in S.T. Case No.22/373 of 2002 for offences

punishable under sections 364, 302/34, 109/34 and 120-B of the

Indian Penal Code on the accusation that in between 7.00 p.m.

on 5.12.2012 and 4.30 p.m. on 06.12.2001 at village Kharianta,

they in furtherance of their common intention kidnapped Sonu

@ Santanu Sahani (hereafter 'the deceased') and committed his

murder in pursuance of criminal conspiracy being abetted by

appellant Gobardhan Sutar.

The learned trial Court vide impugned judgment and

order dated 08.03.2004 though acquitted the co-accused

Ramamani Sutar of all the charges but found the appellants

Gobardhan Sutar and Rahas Behari Moharana guilty under
3

section 302 of the Indian Penal Code, appellants Kartik Chandra

Thatoi and Nityananda Sutar guilty under sections 302/120-B of

the Indian Penal Code, appellant Nityananda Sutar guilty under

section 364 of the Indian Penal Code and appellants Rahas

Behari Moharana, Kartik Chandra Thatoi and Gobardhan Sutar

guilty under sections 364/120-B of the Indian Penal Code.

The appellants Gobardhan Sutar and Rahas Behari

Moharana were sentenced to undergo R.I. for life each for the

offence under section 302 of the Indian Penal Code, appellants

Kartik Chandra Thatoi and Nityananda Sutar were sentenced to

undergo R.I. for life each for the offence under sections

302/120-B of the Indian Penal Code, appellant Nityananda Sutar

was further sentenced to undergo R.I. for one year for the

offence under section 364 of the Indian Penal Code and the other

appellants namely Rahas Behari Moharana, Kartik Chandra

Thatoi and Gobardhan Sutar were further sentenced to undergo

R.I. for one year each for the offence under sections 364/120-B

of the Indian Penal Code.

2. The prosecution case, in short, as per the First

Information Report dated 06.12.2001 lodged by P.W.3 Prakash

Chandra Sahani, the father of the deceased before the officer in

charge of Rajkanika Police Station, Kendrapara is that on
4

05.12.2001

at about 7 p.m. the deceased who was his only son and aged about five years was playing with other children on the village street in front of Mangala Temple situated close to his house. There was power cut in the village and thereafter the deceased was found missing. In spite of frantic search, the deceased could not be located and accordingly, at about 11 O' clock on 06.12.2001 a missing report was presented by Pratap Chandra Sahani (P.W.6). It is the further prosecution case that on 06.12.2001 at about 4.30 p.m. while some girls of the village had been to attend call of nature to the river bed, they found the dead body of Sonu near Kalam bushes and accordingly, they informed the matter in the village and the villagers rushed to the spot and found the dead body with injuries on the right ear, forehead and back head of the deceased. A brick was also found at that place with stains of blood. The deceased was wearing a locket in a black string which was found missing. It was suspected that either for commission of theft of the gold locket or for some other reason, some unknown culprits have committed murder of the deceased and threw his dead body near the Kalam bushes.

On the basis of such first information report, Rajkanika P.S. Case no. 66 of 2001 was registered on 5 06.12.2001 under section 302 of the Indian Penal Code against unknown persons. P.W.10 Sk. Akbar Ali, the officer in charge of Rajkanika Police station who had received the missing report of the deceased on the same day from P.W.6, took up investigation of the case. He visited the spot, examined the witnesses, held inquest over the dead body and prepared the inquest report Ext.2 on 07.12.2001. He sent requisition for the scientific team to visit the spot and sent the dead body for post mortem examination. P.W.8 Dr. Prafulla Chandra Sahu who was the Medicine Specialist, U.G.P.H.C., Aul conducted the post mortem examination over the dead body on 07.12.2001 and he opined the cause of death of the deceased was on account of multiple lacerated injuries on scalp, face along with underlined depressed fractures of scalp resulting in severe brain damage and death. The Investigating Officer accompanied the scientific team and police dog and seized blood stained earth, sample earth, blood stained brick with a bunch of hairs collected by the scientific team as per seizure list Ext.8. On 24.01.2002 some witnesses including P.W.6 came to the police station and stated before the Investigating Officer that the appellant Nityananda Sutar confessed before them to have committed the crime along with other appellants. Accordingly, the Investigating Officer arrested 6 the appellant Nityananda Sutar and basing on his statement, the other appellants along with the acquitted accused were also arrested. Appellant Nityananda Sutar while in police custody gave recovery of one Jerry bag in which a black string with gold locket was found which were seized under seizure list Ext.3. Appellant Rahas Behari Moharana gave recovery one Bhanarfala (M.O.XI) which was seized under seizure list Ext.4. The appellants along with acquitted accused were forwarded to the Court on 27.01.2002 and a prayer was made by the Investigating Officer to the Court for recording the confessional statement of appellant Nityananda Sutar under section 164 Cr.P.C. The learned J.M.F.C., Pattamundai who was examined as P.W.11 recorded the confessional statement of appellant Nityananda Sutar on 29.01.2002 as per Ext.11. The dress of the deceased which was produced by the constable after post mortem examination was seized as per seizure list Ext.14. The Investigating Officer made a query to the Medical Officer who had conducted the post mortem examination and he also made a prayer for sending the seized articles to State F.S.L., Rasulgarh and accordingly, the learned J.M.F.C., Pattamundai sent the articles for chemical analysis and obtained the chemical examination report. A prayer was made by the Investigating 7 Officer to the learned J.M.F.C., Pattamundai for holding a test identification parade in respect of the seized black string with locket and accordingly, the T.I. parade was conducted by P.W.11 on 18.5.2002 in his chambers. After completion of investigation, the Investigating Officer submitted charge sheet 24.05.2002 under sections 364/302/109/120-B/34 of the Indian Penal Code.

3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellants as aforesaid on 28.08.2002 and since the appellants refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.

4. During course of trial, in order to prove its case, the prosecution examined eleven witnesses.

P.W.1 Minati Sahani is the mother of the deceased Sonu and she stated that the deceased was playing with other boys in front of the Mangala temple of the village on the date of occurrence and also stated about the presence of the accused persons at that place. She further stated about the missing of the deceased during the evening hours and information given by the girls on the next day afternoon regarding locating the dead 8 body of the deceased inside a Kalam bush on the river bank. She further stated that injuries were noticed on the person of the deceased.

P.W.2 Sankutana Sahani is the paternal aunt of the deceased and she stated about the playing of the deceased with other children near the Mangala Temple on the date of occurrence and also about the presence of the accused persons at that place. She further stated about the location of the dead body on the next day afternoon by some village girls and further stated that the gold locket of the deceased was found missing.

P.W.3 Prakash Chandra Sahani is the informant in the case and he is the father of the deceased. He stated about the deceased playing with other children in front of Mangala temple of the village and he was found missing from that place after the restoration of electricity supply. He further stated about the village girls locating the dead body of the deceased inside a Kalama bush at the river bank and presence of injuries on the person of the deceased. He is a witness to the inquest.

P.W.4 Pradeep Kumar Sahani is the paternal uncle of the deceased and he stated about the deceased playing with other children at about 7 p.m. on the date of occurrence and the missing of the deceased from the place of playing after the 9 restoration of electricity. He further stated to have noticed injuries on the dead body of Sonu.

P.W.5 Amulya Behera stated about the deceased playing with other children near the place where Astaprahari Kirtan was going to be held and the presence of the accused persons at that place. He further stated about the missing of the deceased in the evening hours and noticing injuries on the dead body and missing of the gold locket of the deceased.

P.W.6 Pratap Sahani is the paternal uncle of the deceased and he stated about the deceased playing with other children at the place of Astaprahari function in the evening hours on the date of occurrence and missing of the deceased from that place after the restoration of electric supply. He further stated that on the next day of occurrence, some village girls located the dead body of the deceased in the Kalam bush near the river bank and there were injuries on the dead body and further stated about the missing of gold locket worn by the deceased.

P.W.7 Jagannath Prasad Das apart from stating that the deceased was playing with other children at the place of Astaprahari and was found missing from that place and location of his dead body by some village girls on the next day, further stated that the appellant Nityananda Sutar attempted to commit 10 suicide by stabbing himself for which he was hospitalized at Olaver Hospital as well as S.C.B. Medical College and Hospital, Cuttack. He further stated about the extra-judicial confession of the appellant Nityananda Sutar in presence of others including P.W.9 Adikanda Baraj. He is a witness to the inquest. He further stated about the recovery of a gunny bag and locket with a black string by the police on being led by appellant Nityananda Sutar as per seizure list Ext.3 and also about the recovery of Banarfala at the instance of appellant Rahas Behari Moharana which was seized under seizure list Ext.4.

P.W.8 Dr. Prafula Chandra Sahoo conducted autopsy over the dead body of Sonu at U.G.P.H.C., Aul on 07.12.2001 and he proved his report marked as Ext.5. He also answered to the query made by the Investigating Officer as per Ext.6 and Ext.7.

P.W.9 Adikanta Baraj apart from stating about the missing about the deceased on the date of occurrence from the place of his playing, further stated about the extra-judicial confession of appellant Nityananda Sutar before him, P.W.7 and others. He also stated about the recovery of a gunny bag and locket with a black string by the police on being led by appellant Nityananda Sutar as per seizure list Ext.3 and also about the 11 recovery of Banarfala at the instance of appellant Rahas Behari Moharana which was seized as per seizure list Ext.4.

P.W.10 Sk. Akbar Ali who was the officer in charge of Rajkanika police station is the Investigating Officer.

P.W.11 was the Judicial Magistrate First Class, Pattamundai who conducted test identification parade in respect of the gold locket attached with a black string on 18.05.2002 inside his chamber and submitted his report Ext.17. He also recorded the confessional statement of appellant Nityananda Sutar which has been marked as Ext.11.

The prosecution exhibited eighteen documents. Ext.1 is the written report, Ext.2 is the inquest report, Exts.3, 4, 8 and 14 are the seizure lists, Ext.5 is the post mortem report, Exts.6 and 7 are the query reports of P.W.8, Ext.9 is the statement of appellant Kartik Chandra Thatoi recorded by P.W.10, Ext.10 is the statement of appellant Gobardhan Sutar recorded by P.W.10, Ext.11 is the 164 Cr.P.C. statement of appellant Nityananda Sutar, Ext.12 is the forwarding report of J.M.F.C., Pattamundai, Ext.13 is the chemical examination report, Ext.15 is the prayer of P.W.10 for T.I. parade, Ext.16 is the spot map, Ext.17 is the T.I. parade report and Ext.18 is the chemical examination report. 12

The prosecution also proved eleven material objects. M.O.I is the gunny bag, M.O.II is the black string with locket, M.O.III is the pant of the deceased, M.O.IV is the shirt of the deceased, M.O.V and VI are two pieces of bricks, M.O.VII is the blood stained earth, M.O.VIII is the sample earth, M.O.IX is the gauze, M.O.X is the sample gauze and M.O.XI is the Bhanarfala.

5. The defence plea of the appellants was one of denial. Three witnesses were examined on behalf of the defence. D.W.1 Natabara Jena stated that the appellant Kartika Chandra Chatoi was never practising witchcraft rather he was a tailor and cultivator. D.W.2 Basanta Kumar Mallick was the Gramarakhi and he also stated that the appellant Kartika Chandra Chatoi was never practicing witchcraft. D.W.3 Ajaya Kumar Tungsamanta was the physical instructor of Saheed Nagar School and he proved the progress reports of the son of appellant Gobardhan Sutar which have been marked as Ext.A series.

6. The learned trial Court after assessing the evidence on record has been pleased to hold that there is no direct evidence in the case and the case is based on circumstantial evidence and he has formulated the circumstances as follows:-

(i) Extrajudicial confession of appellant Nityananda Sutar before P.W.7 and P.W.9;

(ii) Judicial confession of appellant Nityananda Sutar before J.M.F.C., Pattamundai;

(iii) Appellants and the deceased were found together at the Mandap and appellants were absent soon after the departure of the deceased;

(iv) Appellant Nityananda Sutar led the police party and gave recovery of gunny bag and a black string with a locket;

(v) Appellant Rahas Behari Moharana led the police party and gave recovery of Bhanarfala;

(vi) Appellants had a motive for the commission of crime.

The learned trial Court further held that Ext.5 is the post mortem report which clearly establishes that the death of Sonu was homicidal. It is further held that the evidence of P.W.7 and P.W.9 regarding extra-judicial confession supports the judicial confession which has been recorded by the Magistrate as per Ext.11. It is further held that appellant Nityananda Sutar made extra-judicial confession and not only he implicated himself but also implicated the other appellants and he has vividly described the part played by each of the culprits and the confession of the appellant Nityananda Sutar appears to be 14 voluntary and true and can be the basis to convict the appellants. It was further held that the extra-judicial confession and judicial confession received ample corroboration from the circumstances of the case and the confessional statement revealed that the dead body was thrown at Kalam bush and all the P.Ws. deposed that on the next day of occurrence, the dead body was recovered from Kalam bush and this circumstance shows the genuineness of the confession. The learned trial Court further held that P.W.1 to P.W.6 stood the test of cross- examination and their evidence shows that the accused persons were present at the Pendal where Sonu was playing and they were also found absent soon after the missing of Sonu and thereafter nobody had seen Sonu alive and this fact shows that the accused persons and the deceased were last seen together and the dead body was found on the next day. The learned trial Court further held that the recovery of the articles from the places also corroborate the judicial and extra-judicial confession. The learned trial Court further held that the evidence of P.W.2 and P.W.3 and Ext.11 taken together shows that the appellant Gobardhan had a motive and that the progress report of son of appellant Gobardhan which has been marked as Ext.A series shows the degradation of his mental condition. It is further held 15 that the circumstances brought out coupled with the extra- judicial confession and judicial confession of appellant Nityananda proves beyond doubt that appellants Gobardhan and Rahas committed murder of the deceased and the appellants Nityananda and Kartik conspired to commit the crime.

7. Mr. Devashis Panda, learned counsel appearing for all the appellants emphatically contended that the extra-judicial confession alleged to have been made before P.W.7, P.W.9 and others about one and half months after the occurrence in a public place cannot be accepted as no reason was ascribed by the prosecution as to why the appellant Nityananda Sutar would repose confidence on those witnesses to make such a confession. It is further argued that the contents of the extra-judicial confession as well as the judicial confession shows that it is more or less self-exculpatory in nature and it appears as if the appellant Nityananda Sutar was standing at the place of crime as a silent observer to the alleged crime committed by the other appellants and therefore, such confessions have got no evidentiary value in the eye of law. Learned counsel further contended that the reason for making the confession which has been put forth by the prosecution on the ground of repentance of appellant Nityananda Sutar for which he attempted to commit 16 suicide and was hospitalized in two hospitals has not been substantiated by proving any medical documents. It is further contended by the learned counsel for the appellants that there are contradictions in the two confessions and the post mortem finding runs contrary to the injuries alleged to have been sustained by the deceased as per the confessional statements. It is further contended that the evidence of the learned J.M.F.C., Pattamundai is silent about the precautions which were required to be taken by at the time of recording of the confessional statement and therefore, such a confession is no confession in the eye of law. Learned counsel further contended that the last seen theory as put forth by the witnesses P.W.1 to P.W.6 cannot be accepted inasmuch as other boys were also playing with the deceased and apart from the appellants, there were other villages present at the place where Astaprahari was going to be organised. It is further contended that the presence of the appellants immediately after the occurrence to perform the Astaprahari for three days proves their innocence. It is further contended by the learned counsel for the appellants that the recovery of the gunny bag with the black sting with locket as well as in the Bhanarfala at the instance of appellants Nityananda Sutar and Rahas Behari Moharana were not 17 consonance with section 27 of the Evidence Act and the black sting with locket which is stated to have been identified by the witnesses in the test identification parade conducted by P.W.11 was not shown to the identifying witnesses during trial for their identification and therefore, there is no substantive piece of evidence in that respect. Learned counsel further contended that the motive part is also a very weak piece of evidence and the same has not been proved beyond all reasonable doubt and therefore, in the case of this nature, where the prosecution is required to prove the circumstances clearly and beyond all reasonable doubt and further to establish that the chain of circumstances is so complete that it unerringly points towards the guilt of the appellants, in absence of such proof, on surmises and suppositions, the conviction of the appellants is not sustainable in the eye of law.

Mr. Bibekananda Bhuyan, learned Additional Government Advocate repelling the contentions advanced by the learned counsel for the appellants, on the other hand supported the impugned judgment and contended that the extra-judicial confession as well as the judicial confessional of the appellant Nityananda Sutar corroborate each other in material particulars and that in itself is sufficient to convict the appellants. He further 18 emphasized that the other circumstances like last seen, recovery of different articles also corroborate such confession. He further contended that the manner in which the ghastly crime was committed and a five year old boy was sacrificed on superstition, even if there is no direct evidence but in view of the clinching trustworthy materials on record, it cannot be said that there is any infirmity or illegality in the impugned judgment and therefore, the appeal should be dismissed.

8. Coming to the nature of death of the deceased, the doctor P.W.8 who conducted post mortem examination over the dead body of Sonu has stated to have noticed some lacerated injuries particularly on the head portion and opined the cause of death was due to multiple lacerated injuries on scalp, face etc. with underlined depressed fractures of scalp resulting in severe brain damage and death and all the injuries were ante mortem in nature. The post mortem report has been marked as Ext.5. The learned trial Court has come to a finding that the post mortem report and the evidence of the witnesses also reveal that the dead body of Sonu was lying in a Kalam bush and the evidence of P.W.8 has remained unshaken and his evidence and Ext.5, the post mortem report clearly establishes that the death of Sonu was homicidal one. This finding has not been challenged by the 19 learned counsel for the appellants. After perusing the evidence on record, the inquest report, the post mortem examination report and the statement of the doctor, we are of the view that the prosecution has successfully proved the death of the deceased to be homicidal in nature.

Extrajudicial confession of appellant Nityananda Sutar:

9. Adverting to the contentions raised at the Bar and coming first to the extra-judicial confession stated to have been made before P.W.7, P.W.9 and others, law is well settled that a confession should always be voluntary and not as a result of inducement, threat or promise and it should also show as to why confidence was reposed by the accused on the person before whom he allegedly made the confession. If there is no intimacy between the two and no reason is attributed for making such confession, the Court should be careful enough before accepting such evidence. An extra-judicial confession is a weak piece of evidence and the value attached to it would depend upon the reliability of the person before whom it is made, the interval between the occurrence and the confession, reproduction of the exact words of the person making confession to the crime.

The occurrence in question took place on 05.12.2001, the dead body was recovered on 06.12.2001. The 20 confession was alleged to have been made on 24.01.2002. The evidence of P.W.7 goes to show that appellant Nityananda Sutar was hospitalized in Olaver Hospital and S.C.B. Medical College and Hospital, Cuttack as he attempted to commit suicide by stabbing himself on the front side of his neck. This evidence was adduced perhaps to prove that the appellant Nityanada Sutar repented after commission of the crime for which he made extra- judicial confession. No medical documents have been proved by the prosecution to substantiate that the appellant Nityananda Sutar was hospitalized. The Investigating Officer has categorically stated that he visited the Olaver Hospital as well as the S.C.B. Medical College Hospital, Cuttack but he has not seized any paper relating to the medical treatment of Nityananda Sutar. Though P.W.7 has stated about the hospitalization of appellant Nityananda Sutar but it has been confronted to P.W.7 and proved through the I.O. that he has not stated that he attended Olaver hospital and the appellant Nityananda was not in a position to talk. Therefore, there is neither any medical evidence nor oral evidence that appellant Nityananda Sutar was hospitalized as he attempted to commit suicide after the occurrence.

The evidence of P.W.7 and P.W.9 indicates that while they along with others were discussing in front of Takurani temple as to how the murderers of the deceased could not be detected, at that point of time the appellant Nityananda Sutar reached there and made extra-judicial confession. There is absolutely no material about any close acquaintance or intimacy of the appellant Nityananda Sutar with any of the persons before whom the extra-judicial confession was stated to have been made in a public place except the fact that they were all co- villagers. The other two who were allegedly present at that point of time have not been examined in the case. When nobody had any idea as to how the crime was committed and even after one and half months of the occurrence, the investigating agency was clueless about the crime, it creates doubt that all on a sudden the appellant Nityananda Sutar would come up with an extra- judicial confession before the co-villagers. There is no evidence that those villagers were having any status in the society to help him in any manner rather there was possibility of putting him in deep trouble. There is absence of any cogent reasons on the part of the appellant Nityananda Sutar for making a confession of this nature. The repentance theory as put forth by the prosecution for prompting the appellant to make the confession is too difficult 22 to be digested. If after so many days of occurrence, the appellant started repenting and decided to make the commission of crime public, there was no reason why he should not have gone to the police immediately after taking such decision and reported about the same. The choice of persons like P.W.7 and P.W.9 to confess does not inspire confidence. The possibility of creating such evidence by the investigating agency just to see that let the crime not go unpunished after all their endeavour failed in tracing out the culprits cannot be ruled out.

In case of Sandeep -Vrs.- State of Haryana reported in (2001) 20 Orissa Criminal Reports (SC) 656, it was held that there was no necessity for the accused to go to the residence of Laxminarayan, more so when Laxminarayan was not closely acquainted with the accused nor having any status in the society so that he could be helpful to them. It was further held that the prosecution has not brought anything on record to point out the reason as to why the accused had gone to the house of Laxminarayan. Accordingly, the confessional statement was not acted upon.

In case of Mulak Raj -Vrs.- State of Haryana reported in 1996(1) Crimes 24 (SC), it is held that when there is no acquaintance of the accused with the witness, it is 23 unlikely that the accused would confide in the witness and confess his guilt.

In case of State of Punjab -Vrs.- Gurdeep Singh reported in 1999 (4) Crimes 142 (SC), it is held that disclosure by the accused before a person not so intimate regarding his involvement in the crime is doubtful.

It appears from the extra judicial confession that it is more or less exculpatory in nature. It appears that as if the appellant Nityananda Sutar was standing as a silent observer at the place of crime where the other appellants committed the crime. The overt act which he has attributed to himself in the extra-judicial confession is that he took the deceased from the place where he was playing by lifting him and handed over to appellants Gobardhan Sutar and Rahas Behari Moharana who put them inside a gunny bag. In the judicial confession (Ext.11), he has not stated about handing over the deceased to the appellant Gobardhan Sutar or the co-appellants putting the deceased inside a gunny bag in his front. The other overt act which he has attributed to himself in the extra-judicial confession that as per the direction of appellant Rahas Behari Moharana, he kept the gold locket inside the gunny bag and threw it inside the bush is not there in the judicial confession rather in the judicial 24 confession, he has stated that appellant Rahas Behari Moharana put the black sting with locket inside the gunny bag and threw it in the stream (Jora) of the river.

In case of Suresh Budharmal Kalani @ Pappu Kalani -Vrs.- State of Maharashtra reported in 1998 (4) Crimes 1 (SC), it is held that a bare perusal of the statement of the accused makes it abundantly clear that it is self-exculpatory and hence inadmissible in evidence as 'confession'.

In case of Gunanidhi Moharana -Vrs.- State reported in (1993) 6 Orissa Criminal Reports 158, it is held that the requirement of section 30 of the Evidence Act is that before it is made to operate against the co-accused, it should be strictly established. In other words, what must be before the Court should be a confession proper and not a mere circumstance or information which could be an incriminating one. Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of section 3 of the Act against the non-maker co-accused and lastly, its use depends on finding other evidence so as to connect the co-accused with the crime and that too as a corroborative piece. It is only when the other evidence tendered against the co-accused unmistakably points to his guilt then the confession duly proved could be used 25 against such co-accused if it appears to affect him as lending support or assurance to such other evidence. It is only when a person admits guilt to the fullest extent and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth and the legislature provides that his statements may be considered against his fellow accused charged with the same crime. In that case the Hon'ble Judges after reading Ext.24 which is the confession of accused Gobinda, held that there was no self-implication and in fact he has tried to extricate himself by stating that he was merely a witness to the occurrence and was not a participant.

In case of Champa Rani Mondal -Vrs.- State of W.B. reported in 2001 Supreme Court Cases (Criminal) 1514, it is held that exculpatory confession is inadmissible in evidence and conviction cannot be based on such confession.

Even though in the extra-judicial confession, it is stated that one hole was caused on the right ear root of the deceased and both the confessional statements indicate that the left little finger nail of the deceased was removed but on perusal of the post mortem report as well as the evidence of the doctor (P.W.8), it shows that there was no hole in the ear root of the deceased except one abrasion just behind the right ear and no 26 injury was noticed on the fingers of either hand. Therefore, the submissions of the learned counsel for the appellants that the manner in which the offence alleged to have been committed as per the extra-judicial confession as well as judicial confession is not fully corroborated by the medical evidence has got sufficient force.

Therefore, in view of the aforesaid discussions, we are unable to place any reliance on the evidence of P.W.7 and P.W.9 relating to the extra-judicial confession of appellant Nityananda Sutar before them.

Judicial confession of appellant Nityananda Sutar before J.M.F.C., Pattamundai:

10. P.W.11, learned J.M.F.C., Pattamundai recorded the confessional statement of Nityananda Sutar vide Ext.11 on 29.01.2002.

Section 164(2) of Cr.P.C. provides that the Magistrate before recording any confession shall explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the confession shall not be recorded unless, upon questioning the person making it, the Magistrate has reason to believe that it is being made voluntarily. Section 164(4) of Cr.P.C. states that 27 the confession shall be recorded in the manner provided in section 281 of Cr.P.C. for recording the examination of an accused person and shall be signed by the person making the confession. The Magistrate shall make a memorandum at the foot of such record that he had explained to the person that he was not bound to make a confession and that if he does so, any such confession might be used as evidence against him. The Magistrate has to make a further memorandum that the confession was voluntarily made and it was taken in his presence and hearing and it was read over to the person making it and it was admitted by the person concerned to be correct and that it contained a full and true account of the statement made by him.

The learned Magistrate has not stated any such procedure being followed before recording the confession as per Ext.11. Ext.11 also on the face of it nowhere indicates that any such procedure as mandated under section 164 of Cr.P.C. has been followed. The rubber stamp memorandum which is given at the foot of Ext.11 reads as follows:-

"Read over and explained to the witness who admits to be correct.

Magistrate"

Thus it is apparent that the confessional statement has not been recorded in accordance with law. Chapter VII of the 28 G.R.C.O. (Criminal), Vol-I, Part-I clearly lay down the procedure for recording the confessions and statements of accused. The function of the Magistrate in recording confession under section 164 Cr.P.C. is a very solemn act which he is obliged to perform by taking due care to ensure that all the requirements of section 164 Cr.P.C. are fully satisfied. The Magistrate recording a confessional statement should not adopt a casual approach and he must record the confession in the manner as laid down by the section. Omission to comply with the mandatory provision renders the confessional statement inadmissible and unreliable. The defect, if any, while recording such confession cannot be cured under section 463 of Cr.P.C.

In case of Nazir Ahmed -Vrs.- King Emperor reported in AIR 1936 PC 253, which has dealt with recording of 164 Cr.P.C. statement of accused by Magistrate, it was held therein that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. The other methods of performance being necessarily forbidden and the oral evidence of the Magistrate are not admissible.

In case of Dagdu -Vrs.- State of Maharashtra reported in A.I.R. 1977 S.C. 1579, it is held that there should be a strict and faithful compliance with section 164 of Cr.P.C. 29 and failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statement.

In case of Dhanajaya Reddy -Vrs.- State of Karnataka reported in 2001 Supreme Court Cases (Criminal) 652, it is held that judicial confession not recorded in accordance with law cannot be treated as confession.

In case of Shivappa -Vrs.- State of Karnatak reported in 1995 (1) Crimes 138, where the statement of the accused was recorded under section 164 of Cr.P.C. and the Magistrate did not disclose to the accused that he was a Magistrate, no inquiry was made to find out whether the accused had been influenced by anyone, the Magistrate did not lend assurance to the accused that he would not be sent back to the police custody in case he did not make confessional statement and the accused was not questioned as to why he wanted to make confession, it was held that the same could not be said to be voluntary and it would not be prudent to act upon such confessional statement.

In case of State of Uttar Pradesh -Vrs.- Singhara Singh and Ors. reported in A.I.R. 1964 S.C. 358, it is held as follows:-

"A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him."

In case of Rabindra Kumar Pal @ Dara Singh

-Vrs.- Republic of India reported in (2011) 48 Orissa Criminal Reports (SC) 504, it is held as follows:-

"29. The following principles emerge with regard to Section 164 Code of Criminal Procedure:

(i) The provisions of Section 164 of Code of Criminal Procedure must be complied with not only in form, but in essence.

(ii) 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 in such custody 31 in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.

(iv) The maker should be granted sufficient time for reflection.

(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.

(vii) Non-compliance of Section 164 of Code of Criminal Procedure goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be completely out of police influence. The Judicial Officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open Court.

(x) Confession of a co-accused is a weak type of evidence.

(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement."

The appellant Nityananda Sutar was produced in Court after his arrest on 27.01.2002. The order sheet of the learned J.M.F.C., Pattamundai indicates that on the same day, the officer in charge of Rajkanika police station prayed for recording the confessional statement of the appellant but the appellant was remanded to custody till 29.01.2002. On 29.01.2002 when the appellant was produced from the jail, the order sheet indicates some procedure was followed and some questions were put to the appellant and thereafter the learned Magistrate recorded the confessional statement as per Ext.11. When the appellant has retracted such confession, it was the duty of the prosecution to prove all the necessary formalities before recording such confession. It was the duty of the public prosecutor to adduce evidence during the examination of the learned J.M.F.C., Pattamundai regarding compliance of 33 procedural formalities at the time of recording the confession. A Magistrate recording confession of the accused or holding T.I. Parade is required to be examined during trial and he is also required to depose about the procedure followed while recording confession or holding T.I. Parade. In that event, the accused will get an opportunity to cross-examine the Magistrate to point out the lacunas in the procedure adopted. When the evidence of the learned J.M.F.C., Pattamundai is totally silent on such vital aspect and Ext.11 in itself does not indicate the compliance of mandatory requirements, we are not inclined to place any reliance on such confession.

If the confession of appellant Nityananda Sutar would have been believed to be voluntary and true, under section 30 of the Evidence Act, it could have been used also against the other appellants but then the question is what would have been its evidentiary value against the others. The question was succinctly answered by the Hon'ble Supreme Court in case of Kashmira Singh -Vrs.- State of Madhya Pradesh reported in A.I.R. 1952 S.C. 159 with the following words :

"The proper way to approach a case of this kind is first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is 34 believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though if believed, it would be sufficient to sustain a conviction. In such an event, the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

In case of Hari Charan Kurmi -Vrs.- State of Bihar reported in A.I.R. 1964 S.C. 1184, it is held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. Though confession may be regarded 35 as evidence in that generic sense because of the provisions of section 30 of the Evidence Act, the fact remains that it is not evidence as defined by section 3 of the Evidence Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co- accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilty which the judicial mind is about to reach on the said other evidence. The statements contained in the confessions of the co-accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements. The stage to consider the said confession statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the Court has to adopt in dealing with these two types of evidence is thus clear, well- understood and well-established.

Since in view of the glaring infirmities in the extra- judicial confession as well as judicial confession, we are not 36 inclined to accept such evidence, now it is to be seen whether the other circumstances have been satisfactorily established by the prosecution or not and if so, whether those circumstances are sufficient to establish the guilt of the appellants. Last seen of the appellants with the deceased:

11. Coming to the next circumstance adduced by the prosecution that the appellants were last seen with the deceased at the place of Astaprahari, the evidence in that respect has been deposed to by P.W.1 to P.W.6. The evidence of these witnesses indicates that while the deceased was playing with other children in front of Mangala temple of the village where a tent was being erected for Astaprahari Puja, not only the appellants but also the other villagers were present there. P.W.2 has stated that the deceased was playing with ten to fifteen other children within the age group of five to ten years and she has further stated that twenty to thirty co-villagers were present near the place where the children were playing. The learned trial Court has come to the conclusion that since the deceased was playing and the accused persons were present at the Pendal and they were found absent soon after the missing of the deceased, that shows the accused persons and the deceased were last seen together. As per the evidence of P.W.1, Astaprahari function was celebrated 37 on 5th, 6th and 7th and Palla was held on 7th and the appellants were very much present there and participated in the function.

It has been confronted to P.W.1 and proved through the Investigating Officer that she has not stated before him that all the accused persons except appellant Kartik Chandra Thatoi was present at the place where tent was being tied. It has been confronted to P.W.5 and proved through the Investigating Officer that he has not stated before him that at the time of tying of the tent, all the accused persons were present there and the deceased and other children were playing. It has been confronted to P.W.6 and proved through the Investigating Officer that he has not stated before him that all the accused persons were present at the place where Astaprahari was held and that while returning, he did not find the accused persons and the deceased at the place of function.

In view of such evidence on record, when the other children were present with the deceased while he was playing and twenty to thirty persons were also present at the place of 'Astaprahari', this circumstance cannot be utilized as last seen of the appellants in the company of the deceased. The evidence on record indicates that the appellants were very much available in the village from the date of occurrence onwards and they 38 participated in the Astaprahari which is another factor to show their bonafide conduct. Therefore, we are of the view that the evidence relating to the last seen as held by the trial Court cannot be accepted.

Recovery of gunny bag and a black string with locket at the instance of appellant Nityananda Sutar:

12. Coming to the recovery of gunny bag and the black string with locket at the instance of appellant Nityananda Sutar, neither P.W. 7 nor P.W. 9 have stated regarding any statement made by the appellant Nityananda Sutar in relation to the recovery of such articles.

In case of Bhaga Gouda -Vrs.- State reported in 1988(1) Orissa Criminal Reports 400, it is held as follows:

"What is admissible under Section 27 of the Evidence Act is the information received from an accused as relates distinctly to the fact thereby discovered. In other words, the pre-condition to bring Section 27 into operation is that the discovery of a fact must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. "Information" used in Section 27 means the content or substance of a statement.

Therefore, the exact information given by the accused while in custody or in other words, the 39 statement made by the accused must be recorded by the Investigating Officer and if pursuant to such information or statement, recovery is made, then that information or statement becomes admissible under Section

27."

When the discovery statement has not been deposed to either by P.W.7 or P.W.9, though they have stated about the extra-judicial confession of the appellant Nityananda Sutar and though the Investigating Officer has stated that he recorded the statement of appellant Nityananda Sutar in verbatim before he led to give recovery of the gunny bag and the locket with string but no such statement has been marked as exhibit in this case. Even though in the seizure list Ext.3 which relates to the recovery of such articles, under the circumstances of seizure, the confessional statement of appellant Nityananda Sutar has been recorded but such confessional statement is inadmissible. Even otherwise also, the recovery of the black string with the locket at the instance of appellant Nityananda Sutar is no way helpful for the prosecution inasmuch as though it was placed in the T.I. Parade conducted by P.W.11 and P.W.11 has stated that the P.Ws. 1, 2, 3, 4 and 6 participated in the T.I. parade and they identified the black string with locket but when all these witnesses were examined during trial, neither anything was 40 brought out from their evidence that they participated in the T.I. Parade and identified the black string with locket nor the black string with locket was shown to them for the purpose of identification and to mark it as a material object. It was only proved when P.W.9 was examined. Therefore, the T.I. Parade report of P.W.11 relating to the identification the black string with locket as per Ext.17 cannot be accepted as substantive piece of evidence and therefore, no reliance can be placed on such recovery.

Recovery of Bhanarfala at the instance of appellant Rahas Behari Moharana:

13. It appears from the evidence P.W.9 that the Bhanarphala was lying near the mango tree and it was an open place. P.W.7 has stated that the police brought the accused persons to the village and they led to the places. The recovery of Bhanraphala is not in consonance with the provision under section 27 of the Evidence Act. Therefore, such recovery cannot be utilized as an incriminating material against the appellant Rahas Behari Moharana.

Motive on the part of the appellants for the commission of crime:

14. The last piece of circumstantial evidence which has been relied upon by the learned trial Court is the motive of the appellants behind the crime. The learned trial Court has noted down that since there was degradation of the mental condition of the son of appellant Gobardhan Sutar, for his betterment, the crime was committed. The learned trial Court has relied upon the Ext.A series which have been proved by D.W.3. On perusal of the evidence of D.W.3, it reveals that he was the physical instructor of the Saheed Nagar School and he proved the progress reports of son of the appellant Gobardhan Sutar namely Sanjeeb Sutar which has been marked as Ext.A series. D.W.3 has specifically stated that the son of the appellant Gobardhan Sutar was not mentally unsound and he had also joined the N.C.C. and he was a smart body. The mark sheets indicates that in the year 1999-

2000, the boy had scored 370 marks and in the year 2000-01, he had secured 216 marks. So from such evidence, it was not proper on the part of the learned trial Court to come to a conclusion that there was degradation of the mental condition of the son of appellant Gobardhan Sutar which was the motive behind the commission of the crime.

Conclusion:

15. In case of Jaharlal Das -Vrs.- State of Orissa reported in (1991) 4 Orissa Criminal Reports (SC) 278, it is held that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof.

The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. The Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of 'may be true' but there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions."

In case of Dhananjoy Chatterjee -Vrs.- State of West Bengal reported in 1994 (2) Supreme Court Cases 220, it is held as follows:-

"7. It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof."

In view of the foregoing discussions, we are of the view that the circumstances have not been established by the prosecution clearly and beyond all reasonable doubt. We are also of the view that the circumstances do not form a complete chain so as to unerringly point towards the guilt of the appellants. There are several infirmities and irregularities in the investigation as well as in holding the trial by the public prosecutor. The reasoning assigned by the learned trial Court in convicting the 44 appellants seems to be based on conjecture and suspicion which have no place in the matter of legal proof of guilt of accused persons in a criminal trial and we are of the view that the impugned verdict is nothing but a sheer moral conviction.

Therefore, the impugned judgment and order of conviction of all the appellants passed by the learned trial Court and the sentence passed thereunder is not sustainable in the eye of law and the same is hereby set aside and the appellants are acquitted of all the charges.

16. In the result, all the three appeals are allowed. It appears that the appellants Rahas Behari Moharana and Nityananda Sutar are in jail custody. They shall be set at liberty forthwith, if their detention is not required in any other case. So far as appellants Gobardhan Sutar and Kartik Chandra Thatoi are concerned, they are on bail by virtue of the orders of this Court. They are discharged from liability of their bail bonds. The personal bonds and the surety bonds stand cancelled.

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S. K. Sahoo, J.

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K.R. Mohapatra, J.

Orissa High Court, Cuttack The 27th January 2018/ Pravakar/Kabita/Sisir/Sukant

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