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ORISSA HIGH COURT
P. K. MOHANTI AND B. K. BEHERA, JJ.
PADAN PRADHAN
VERSUS
STATE
Criminal Appeal No. 126 of 1978,
Decided on : 2 -12 -1981.
CRIMINAL LAW - MURDER - CONFESSION - ADMISSIBILITY - SECTION 25 OF THE EVIDENCE ACT - CONFESSION MADE TO A POLICE OFFICER - INADMISSIBLE - EXT. 11 - CONFESSIONAL FIRST INFORMATION REPORT - CANNOT BE USED AGAINST THE MAKER WHEN HE BECOMES AN ACCUSED - SECTION 21 OF THE EVIDENCE ACT - ADMISSION - ORAL CONFESSION BY AN ACCUSED PERSON NOT EXCEPTED UNDER SECTIONS 24, 25 AND 26 OF THE EVIDENCE ACT IS AN ADMISSION MADE BY HIM AND BEING A RELEVANT FACT MAY BE PROVED AT THE TRIAL - SECTION 8 OF THE EVIDENCE ACT - CONDUCT OF THE APPELLANT - ADMISSIBLE - SECTION 27 OF THE EVIDENCE ACT - PROOF OF CONFESSION EXCLUDED BY ANY PROVISION OF LAW - ENTIRE CONFESSIONAL STATEMENT IN ALL ITS PARTS INCLUDING THE ADMISSIONS OF MINOR INCRIMINATING FACTS MUST ALSO BE EXCLUDED - SUSPICION, HOWEVER GRAVE, CANNOT TAKE THE PLACE OF PROOF - IN THE ABSENCE OF LEGAL PROOF OF A CRIME, THERE CAN BE NO LEGAL CRIMINALITY.
Fact of the Case:
The appellant was convicted of murder under Section 302 of the Indian Penal Code for killing the deceased by tying his hands and legs and dealing successive blows on him with a knife. The conviction was based primarily on a report (Ext. 11) made by the appellant at the police station, which the trial court characterized as an admission admissible under Section 21 and as a piece of conduct of the appellant admissible under Section 8 of the Evidence Act.
Finding of the Court:
The court held that Ext. 11 was inadmissible as evidence against the appellant because it was a confession made to a police officer and was thus barred by Section 25 of the Evidence Act. The court further held that the other evidence, including the evidence of recovery of the murder weapon and the appellant's bloodstained clothes, was insufficient to sustain the conviction.
Issues: 1. Whether Ext. 11 was admissible as evidence against the appellant. 2. Whether the other evidence was sufficient to sustain the conviction.
Ratio Decidendi: 1. A confession made to a police officer is inadmissible as evidence against the accused under Section 25 of the Evidence Act. 2. An oral confession by an accused person not excepted under Sections 24, 25 and 26 of the Evidence Act is an admission made by him and being a relevant fact may be proved at the trial under Sec. 21 of the said Act. 3. A statement not amounting to a confession made to a police officer can be used against the maker as an admission under Sec. 21. 4. The entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other Section such as S.27 of the Evidence Act. 5. Suspicion, however grave, cannot take the place of proof. In the absence of legal proof of a crime, there can be no legal criminality.
Final Decision: The appeal was allowed, the conviction and sentences passed against the appellant were set aside, and the appellant was ordered to be set at liberty forthwith.
JUDGEMENT
Behera, J. :- On Jan. 27, 1976, at 1 p.m., a station diary entry (Ext. 11) was made at the Angul Police Station in the district of Dhenkanal on the report of the appellant, who now stands convicted under S.302 of the I.P.C. and sentenced to undergo imprisonment for life, to the effect that to feed fat his grudge against Indramani Pradhan (to be described as the deceased hereinafter), he took the deceased to a place by the side of the river Lingara and after tying his hands and legs, dealt successive blows on him by means of a knife and left him on that spot. PW 14, then attached to the police station at Angul as Sub-Inspector of Police, being accompanied by the Assistant Sub-Inspector of Police (PW 12), proceeded to the spot and noticed patches of fresh blood on the ground. The injured Indramani had by than been removed to the hospital for treatment and PW 14 found him lying in a precarious condition. The plain paper first information report (Ext. 15) was drawn up by PW 14 who up the investigation in the course of which the appellant was arrested and taken to the spot and a dagger (MO I), a shirt (MO II) and a pant (MO III), suspected to have stains of blood, were seized by PW 14 on production by the appellant from his cabin. The injured Indrarnani succumbed to the injuries on the same day. In the course of investigation, PW 14 examined a number of witnesses and on 26-3-1976, made over charge of the investigation to the Circle Inspector of Police (PW 13) who took steps for sending the incriminating and other articles for chemical examination and placed a charge-sheet against the appellant who, after commitment, stood trial being charged under S.302 of the I.P.C.
2. To bring home the charge to the appellant, the prosecution had examined fourteen witnesses. Of them, PWs 1 to 5, 7, 10 and 11, some of whom had been examined as witnesses to the occurrence and some others to prove incriminating movements of and circumstances again the appellant, did not support the case of the prosecution and were cross-examined by the prosecution under S.154 of the Evidence Act, PW 6, the father of the deceased Indramani, was examined to establish the strained relationship between the appellant and the deceased. His evidence would show the notoriety and extreme bad character of the deceased and his involvement in a number of cases of theft for which he (PW 6) had severed connections with him and his bitter feelings towards the deceased would be exhibited from his conduct in not even going to see his injured son Indramani lying in the hospital and he did not even go when, the dead body was brought nor did he go to the burial ground. This then was the character of the deceased, as deposed to by his father. PW 8 was the Doctor who had conducted the autopsy over the dead body of the deceased Indramani, vide Ext. 7, the post mortem report and she had noticed a number of external injuries and consequent internal injuries and her evidence would undoubtedly establish that the death of Indramani was homicidal in nature. PW 9, a Revenue Inspector, had prepared the spot map (Ext. 9). PWs 12 to 14 were police officers. The appellant, whose case was one of denial and false implication, had not examined any witness in his defence.
3. We may at this stage point out a disquieting feature in the procedure adopted by the learned Sessions Judge while recording the statement of the appellant. Unfortunate as it might seem, the learned Judge asked the appellant to explain many circumstances of which there was no substantive evidence although some of the prosecution witnesses had made statements in that regard under Ss.161 and 164 of the Code of Criminal Procedure which could not be treated as substantive evidence. Circumstances appearing in the evidence against an accused person can only be put to an accused person while examining him. What was done by the learned Sessions Judge was in flagrant violation of this elementary principle of law.
4. The learned Sessions
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