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2013 Supreme(Ori) 321
HIGH COURT OF ORISSA
PRADIP MOHANTY AND D. DASH, JJ.
DSREF NO.2 of 2013
State of Orissa - Complainant
Versus
Minaketan @ Tekaru Seth – Respondent
Advocate Appeared
For Complaint – Mr. B.P. Pradhan, Addl. Government Advocate
For Respondent –M/s B.K. Ragada and L.N. Patel
CRLA No. 274 of 2013
Minaketan @ Tekaru Seth - Appellant
Versus
State of Orissa – Respondent
DSREF No.2 of 2013 & CRLA No. 274 of 2013
Decided on: 20th December, 2013
Advocate Appeared
For Appellant – M/s. B.K. Ragada and L.N.Patel
For Respondent - Mr. B.P. Pradhan, Addl. Government Advocate
Headnote:1. PENAL CODE, 1860 - Secs. 302, 376 - Cr.P.C. - Sec. 366 - Conviction for commission of offence under Secs. 376 and 302 IPC - Death sentence - Confirmation - Deceased met the homicidal death and also that she was sexually assaulted prior to that - Whether the prosecution has established its case beyond reasonable doubt against the accused that it is he, who committed sexual assault on the deceased and then has done her to death by throttling ? - No eye witness to the occurrence - Prosecution relies on the evidence of P.Ws. 7 and 8 who are the star witnesses and before whom it is said that the accused confessed to have sexually assaulted the deceased and done her to death by throttling - Evidence of P.Ws. 2 to 6 that P.W. 7 and 8 had discussed about the extra judicial confession by accused before them is rendered suspect - Evidence of P.Ws. 7 and 8 totally differ from the evidence of P.W.6 before whom they claim to have first disclosed - Held, prosecution has not been able to establish beyond reasonable doubt that it is the accused who on 10.10.2010 morning hours had confessed before P.Ws. 7 and 8 that he had committed the crime of sexual assault and murder of the deceased - Prosecution has not been able to establish the charges beyond reasonable doubt against the accused by leading clear, cogent and acceptable evidence - Accused is found entitled to be acquitted - Conviction and sentence set aside - Death reference discharged. (Paras - 10 to 18)
2. CIRCUMSTANTIAL EVIDENCE - Conviction can be based upon circumstantial evidence - Court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case - The circumstances from which the conclusion of guilt is to be drawn should be fully established - The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty - The circumstances should be of a conclusive nature and tendency - 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. (Para - 10)
3. EXTRA JUDICIAL CONFESSION - Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and require appreciation with great caution - Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind - The words of the witness must be clear, unambiguous and clearly convey the accused is the perpetrator of the crime - The "extrajudicial confession" can be accepted and can be the basis of a conviction if it passes the test of credibility.
An extra-judicial confession, if voluntary and true, and made in a fit state of mind can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession.
Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and. unmistakably convey that the accused is the perpetrator of the crime and nothing in omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passed the. test of credibility. (Para - 12)
JUDGMENT :
D. DASH, J. - This proceeding for confirmation of death sentence and the Criminal Appeal having arisen out of the judgment of conviction and sentence dated 19.03.2013 and 22.03.2013 respectively passed by the learned Ad hoc Additional Sessions Judge, Jharsuguda in S.T. Case No. 38/44 of 2010 have been heard together and are thus disposed of by this common judgment.
2. The prosecution case is the followings:
On 09.10.2009 it was around 9.00 A.M., deceased, a minor girl had been to the field carrying food for her father (P.W.1) who was working there. After her father took his food, the deceased left for home carrying steel tiffin carrier and the bucket. Father of the deceased after finishing the work in the field when returned home around 2.00 P.M. was surprised to find out that his daughter even by then had not returned. So he with his friends, namely, Hemanta (P.W.18) and Arjuna (P.W.19) went for search. At about 5.00 P.M. they found one chappal of the deceased lying in the agricultural land of Jagannath Bhoi. At Sukarmal Chhack at a little distance they further saw the tiffin carrier and the bucket which the deceased had carried and brought back with her, to be lying. Lastly the search ended when they recovered the half unrobed dead body of daughter of P.W.1 with her undergarment (chadi) lying near by. While tracking the dead body, marks of dragging over the standing paddycrops on the field were also seen. The dead body was lying there with froth coming out of the lips with blood and sticking thereto. A swollen ligature mark around the neck. Father of the deceased (P.W.1), immediately lodged the written report (Ext. 1) at Kandheikela Out Post, whereafter the investigation commenced.
Police in course of investigation visited the spot, held inquest over the dead body of the deceased daughter of informant, examined witnesses and recorded their statements. The dead body was sent for post mortem examination and the incriminating articles were sent through Court for chemical examination.
3. It is pertinent to state here that P.W.1 while lodging the FIR had pointed the finger of suspicion at one Sudam Sha @ Sudarshan who has been 'examined during trial from the side of prosecution as P.W.4. So initially the case was registered against him. However, in course of investigation police arrested the accused on 13.10.2009 and he was forwarded in the custody to Court. On completion of investigation, police placed charge sheet against him for facing trial in the Court of law.
4. Charge sheet having been received, the learned S.D.J.M., Jharsuguda took cognizance of offence under Sections 376 and 302 IPC and committed the case to the Court of Session, whereafter it came to be tried by the Ad hoc Additional Sessions Judge (FTC), Jharsuguda who has rendered the judgment of conviction and sentence as stated above.
5. During trial prosecution in order to bring home the charges against the accused has examined in total twenty three witnesses. P.Ws, 1 and 2 are the parents of the deceased whereas P.W.3 is her paternal uncle. P.W.4 is the person against whom P.W.1 had first pointed the suspicious finger about his complicity in the crime. P.W.5 is the witness who claims that in his and in presence of others the accused confessed to have committed crime. P.Ws. 6 and 15 have been examined to prove certain post occurrence conduct of the accused. P.Ws. 7 arid 8 are the other witnesses to the extra judicial confession said to have been made by the accused before them. So also before P.Ws. 8, 14, 18 and 19 who are the witnesses to prove the later conduct of accused and his confessional statement before them. P.W.9 is a formal witness, who had produced wearing apparels of the deceased after post mortem examination, and so also P.W.10 produced the sample bottle containing nail blood sample and hair of the accused for their seizure. P.Ws. 11 and 13 are the witnesses to the seizure of the wearing chadi, chappal, steel tiffin carrier and bucket lying near
