2002 Supreme(SC) 740

2002(5) Supreme 276
SUPREME COURT OF INDIA
(From Orissa High Court)
D.P. Mohapatra & Y.K. Sabharwal, JJ.
Kalpana Mazumdar -Appellant
versus
State of Orissa -Respondent
Criminal Appeal No. 1301 of 2001
With
Criminal Appeal Nos. 1302 of 1303 of 2001
Decided on 30-7-2002
Counsel for the Parties :
For the Appellant Nos. 3 and 4 : K.S. Bhati, A.C., Ms. Aishwarya Bhati, Advocate.
For the Respondent Nos. 1 and 2 : R.N. Mittal, Arvind Gupta and Rajjeet Roy, Advocates.
For the Respondent : Radha Shyam Jena and V. Malik, Advocates.

IMPORTANT POINT
The appellants 1, 2 and 4 cannot be convicted on the sole testimony of PW 14 who is an accomplice without any corroboration which is absent. They are acquitted. But A4 is guilty under Section 302 IPC also and not only under Section 201 IPC simplicitor. However, he is liable to life imprisonment and not death penalty.

Headnote:(i) Indian Penal Code, 1860-Sections 364, 302 and 201 r/w 34-Kidnapping of a child to murder him to appease the deities on the asking of a Tantrik and causing disappearance of dead body-Appellant 3 was caught red handed by PW 7 while throwing dead body in a pond-Murder by A1, A2 and A4 witnessed by PW 14, an employee of appellant 1-Trial Court awarding death penalty to all four-Confirmed by High Court-Appeal against-Whether sole testimony of PW 14 is sustainable who is an accomplice alone without any corroboration? (No)-Result-In its absence only A3 can be convicted-A1, A2 and A4 acquitted on benefit of doubt.

       Held : PW14 deposed to have witnessed all the details of the occurrence. He has given roles played by all the accused and also detailed accounts of the events of four days earlier than the date of kidnapping and killing of the boy. PW14 has further deposed that the tongue of the boy was cut who was alive when taken in the jeep to the ditch but he was not crying. The deposition of PW14 makes it abundantly clear that he was a witness to all the events up to the killing of the boy. PW14 stated that he was given a torch to watch if anybody comes at the place of occurrence. This shows that PW14 was deputed to watch that when the four accused were killing the boy in the manner deposed by him, no one comes there. In other words, it means that in case he finds someone coming while the accused were killing the boy either he should inform them or ensure that nobody comes. He is said to be doing all this on account of fear and also on account of his being an employee of A1. He did not narrate the incident to anyone for 19 days even when he was away to his village. Without going into the question whether PW14 was an accomplice or not, it is evident, on the facts and circumstances noticed above, it is not safe to convict the appellants on the sole testimony of PW14. Further, it is also to be borne in mind that investigation of the case has been most tardy and unsatisfactory. Despite the fact that PW14 deposed about the tongue of the boy being cut and PW7 deposed that the tongue, hair and nail of the boy were found in the house of A2, neither those articles were seized nor it was explained as to what has happened to the said articles. Moreover, the medical evidence does not support the cutting of the tongue. The age of A2 was more than 70. It was not explained whether A2 had a child or not and besides testimony of PW14 what was the material to substantiate the motive attributed to him that he wanted a child for which he became party to the sacrifice of the boy on the asking of the tantrik. It is also not explained as to what was the inter-connection between A1 and A2. There is nothing on record to show that either they were friends or relatives. How they became common parties to the sacrifice of one human-being, one in lurement of a golden pot and other a son. None of these aspects were enquired into. Further the age of A4 was about 17 years at the time of occurrence. If A3 was to get Rs.25,000/- as stated in the FIR of PW7 why the young girl of that age was involved. All these aspects remained in the realm of mysteries thus raising bona fide and reasonable doubt about the story of the prosecution. None bothered to investigate these aspects. The prosecution rested its case entirely on PW14 without any corroboration of his testimony on any of the material aspects. We have minutely examined the testimony of PW14 and for the reasons above noted find it difficult to affirm the conviction of the appellants on that basis alone. It is clear that if the sole testimony of PW14 is not relied upon there would be no evidence to connect the appellants except A3 with the commission of the offence. Under these circumstances, A1, A2 and A4 are entitled to the benefit of doubt. (Paras 13, 14, 15 and 16)

       (ii) Indian Penal Code, 1860-Sections 201 or 302-A3 found carrying dead body of a child who was murdered after kidnapping to appease dieties for reward-Whether can be convicted under Section 302 or only under Section 201 IPC? (under Section 302 IPC)-But no death penalty only life imprisonment can be awarded.

       Held : However the contention of learned counsel for the third accused was that the circumstance of throwing of dead body of deceased by A3 can only lead to his conviction for offence under Section 201 IPC and not under Section 302. We are unable to agree with the aforesaid contention of learned counsel. It stands established from medical evidence that the deceased died homicidal death. It was due to asphyxia on account of strangulation. None has questioned this finding. It is unquestionable on the evidence produced on record. It is also unquestionable and has also not been questioned that the prosecution has proved, as stated earlier, throwing by A3 the body of the deceased by the side of the tank on early hours of 1st May, 1997 and at that time he was caught red handed by PW7. The testimony of PW1, PW2, PW3 and PW6 is also to the same effect. The accused also made an extra judicial confession before them that he alone had not killed the boy but other appellants were also with him. We have already given the reasons why the conviction of other accused cannot be maintained. Insofar as this appellant is concerned, there are the following circumstances:

       (1) Extra judicial confession made to the prosecution witnesses.

       (2) Recording of the said confession also in First Information Report.

       (3) Caught red handed while disposing of the dead body.

       (4) Absence of explanation how the dead body came in his possession either by way of suggestion in the cross examination of prosecution witnesses or in his statement recorded under Section 313 of the Code of Criminal Procedure.

       We are conscious of the fact that extra judicial confession for making it a basis for conviction by itself is a weak piece of evidence, such evidence deserves strict scrutiny. At the same time, however, strong circumstantial evidence can get strength from extra judicial confession. That circumstance, in the present case, is the fact of third accused being apprehended red handed when he threw the dead body. It is an important piece of circumstantial evidence against him. Having regard to the facts of the case we see no reason for not drawing a presumption against the third accused for having committed the murder of the child. Our view gets sustenance from Mohan Lal and Anr. v. Ajit Singh and Anr. [AIR 1978 SC 1183] wherein this Court held that the question whether a presumption to be drawn is a matter which depends on evidence and circumstance of each case. The nature of the recovered articles, the manner of their acquisition by the owner, the nature of the evidence about their identification, the manner in which the articles were dealt with by accused, the place and the circumstances of their recovery and the length of the intervening period and the ability or otherwise of the accused to explain the recovery are some of those circumstances. Despite the aforenoted circumstance duly established against the third accused, it cannot be said that conviction in respect of the third accused under Section 302 is not liable to be maintained. These circumstances are presumptive evidence of charge of murder against the appellant. In view of the aforesaid insofar as the third accused is concerned, his conviction under Section 302 is maintained. As earlier noticed, death penalty on the third accused has been confirmed by the High Court. We have given to other appellants benefit of doubt having discarded the sole testimony of PW14. The conviction of this appellant has been upheld in view of evidence other than that of PW14. Under the circumstances, in our view, the death penalty imposed on third accused deserves to be converted into imprisonment for life. For the reasons aforesaid, we set aside the impugned judgment and order of the High Court confirming that of Sessions Court and give benefit of doubt to accused No. 1 Subash Chandra Panda, accused No. 2 Kunja Ramana and accused No. 4 Kalpana Mazumdar and allow their appeals. They shall be set at liberty forthwith if not required in any other case. While maintaining conviction of accused No.3, we set aside the death penalty imposed on him and instead impose on him imprisonment for life and to this extent his appeal also stands allowed. The appeals are disposed of in the above terms. (Paras 17, 18, 19, 20, 21 and 22)