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1962 Supreme(Ori) 19
ORISSA HIGH COURT
R.K. DAS, G.K. MISRA, JJ.
Ram Chandra Sahu and others - Appellants
v.
The State - Respondent.
Criminal Appeal No. 136 of 1961
Decided On : 20-3-1962
H. Kanungo, for Appellants; Standing Counsel, for Respondent.
A retracted confession can be taken into consideration against a non-confessing accused if it is corroborated in material particulars.
Headnote:
CRIMINAL LAW - MURDER - CONVICTION - EVIDENCE - SUFFICIENCY - POST MORTEM REPORT - INJURIES - ABSENCE - EXPLANATION - RELEVANCY - STATEMENT OF DECEASED - ADMISSIBILITY - CONFESSION - RETRACTED - CORROBORATION - SECTION 302/34, 201, INDIAN PENAL CODE.
Fact of the Case:
Appellants Ramchandra Sahu and Hajari Kondh were charged under S. 302/34 and S. 201, I.P.C. Ramchandra was convicted under S. 302, I.P.C. and sentenced to undergo imprisonment for life and acquitted of the charge under S.201, I. P. C. Hajari was convicted under Sections 302 and 201, I. P. C. and sentenced to imprisonment for life and R. I. for three years respectively, both the sentences to run concurrently. Keshab Jhoria was convicted under S.201, I. P. C. and sentenced to R.I. for 3 years. Rupsingh Majhi was acquitted of the charge under S. 201, I. P. C.
Finding of the Court:
The prosecution proved beyond reasonable doubt that Ramchandra and Hajari were responsible for the murder of Pitambar. The motive for the murder was that Ramchandra wanted to put pressure on Pitambar for realization of the dues against Nilambar, Pitambar's step-brother, who had taken an advance from Ramchandra for supply of bricks but left the village without supplying the bricks. The assault on Pitambar at the bhati both at 4 p.m. as well as at 9 p.m. was well established. Soon thereafter, Hajari, Keshab, and Rupsingh were found carrying the dead body and putting it on the verandah of the deceased at an unusual hour of the night.
Issues: 1. Whether the evidence was sufficient to prove the guilt of the appellants beyond reasonable doubt? 2. Whether the retracted confession of Keshab Jhodia was admissible against Ramachandra to import knowledge of the factum of murder? 3. Whether the convictions of Hajari and Keshab under Section 201 Indian Penal Code were justified?
Ratio Decidendi: 1. The evidence of eyewitnesses, the post-mortem report, and the circumstances of the case established the guilt of the appellants beyond reasonable doubt. 2. The retracted confession of Keshab Jhodia was not admissible against Ramachandra to import knowledge of the factum of murder as it did not amount to a confession of an offence under Section 302 Indian Penal Code. 3. The convictions of Hajari and Keshab under Section 201 Indian Penal Code were justified as their confession, though retracted, was corroborated by the evidence of P.W. 7.
Final Decision: The appeal was dismissed. The convictions of Ramachandra and Hajari under Section 302 Indian Penal Code were altered to one under Section 302/34 Indian Penal Code, and the sentences passed by the learned Sessions Judge were upheld.
JUDGMENT
MISRA, J. :- Appellants Ramchandra Sahu and Hajari Kondh were charged under S. 302/34 and S. 201, I.P.C. Ramchandra has been convicted under S. 302, I.P.C. and sentenced to undergo imprisonment for life and has been acquitted of the charge under S.201, I. P. C. Hajari has been convicted under Sections 302 and 201, I. P. C. and has been sentenced to imprisonment for life and R. I. for three years respectively, both the sentences to run concurrently. Keshab Jhoria has been convicted under S.201, I. P. C. and has been sentenced to R.I. for 3 years. Rupsingh Majhi has been acquitted of the charge under S. 201, I. P. C. Admittedly Hajari Kondh, Rupsingh Majhi and Keshab Jhodia were the servants under Ramchandra Sahu in his liquor bhati.
2. The prosecution case is that Nilambar Naik (P. W. 10) is the step-brother of deceased Pitambar. Nilambar took an advance of Rs. 300/-from Ramchandra for supply of bricks. Both Pitambar and Nilambar also took advance of Rs. 450/- from the Manager for supply of bricks. Nilambar did not supply the bricks and left the village. Prosecution case is that Ramchandra put pressure on Pitambar for realisation of the dues against Nilambar. Accordingly at about 4 p.m. on December 7, 1960 Ramchandra called Pitambar to the Bhati. Hajari dragged Pitambar inside the bhati and Ramchandra gave shoe beating to Pitambar for production of Nilambar. Pitambar left the Bhati and at about 9 p.m. on the same day Hajari went to Pitambar's house and called him to the liquor bhati. On his arrival Ramchandra and Hajari assaulted Pitambar in the treasury room of the bhati. About an hour thereafter Hajari, Keshab and Rupsingh carried the dead body and left it on the verandah of Pitambar and ran away. Moti Domuni (P. W. 7), the stepsister of Pitambar, saw these persons running away and made a hulla which aroused Pitarnbar's mother (P. W. 6). They saw the dead body on the verandah and made hulla as a result of which many persons gathered. The dead body was removed inside the house. Thereafter F. I. R. (Ex. 2) was lodged at about mid-night which was followed up by investigation of the case.
3. The defence is one of complete denial of the occurrence.
4. Durjodhan Gond (P. W. 3 and Choukidar), Ghasiram Dumoni, the mother of the deceased and P. W. 6, and Moti Dumani (P. W. 7) are witnesses to the assault on Pitambar at the bhati at about 4 p.m. P. Ws. 6, 7 and Raghunath Naik (P. W. 8) are witnesses to the fact that at about 8 p.m. Hajari called Pitambar from his house to the bhati. The fatal assault is alleged to have taken place at about 9 p.m. and P. Ws. 1and 4 are the eye-witnesses to the assault and P. W. 9 spoke to the presence of the deceased at the bhati at 9 p.m. P. Ws. 6, 7 and 8 are the witnesses to the carrying of the dead body by Hajari, Keshab and Rupsingh. P. Ws. 4 and 9 are the sons of P. W. 3. Nothing substantial has been suggested against them. P. Ws. 1 and 8 are two independent witnesses and there is no allegation against them excepting that they are the caste men of the deceased. The deceased and all those witnesses are Adibasis.
5. Dr. J. N. Das (P. W. 2) conducted the post mortem examination on December 8, 1960. He found rigor mortis present all over the body. Marks of dried saliva were found dribbling from left angle of mouth towards the left ear. Trachea and Larynx were congested and contained froth. There were three superfluous scratch marks on the left side of the chest wall without signs of bleeding - size 3" x 3½" x 4". No mark of injury was visible on the back. There was one ligature mark ½" broad 7½" in length lower down on the neck. It commenced 2 : "below and 1" behind vertical line drawn from the lobule of the left ear passing horizontally and encircling the front of the neck below thyroid cartilage extending to the side of the neck left side 2½" below and 1" behind the vertical line drawn from the lobule of the left ear. The ligature mark is ante-mortem. Both ligature marks on the side of the neck
