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2018 Supreme(Ori) 632
IN THE HIGH COURT OF ORISSA
S. PANDA AND K.R. MOHAPATRA, JJ.
CRA No.198 of 1999
From the judgment and order dated 27.07.1999 passed by Md. Abdul Majid, Addl. Sessions Judge, Sonepur, in Sessions Case No.1/12 of 1999.
Decided on 17th July, 2018.
Keda Behera and another ... Appellants
Versus
State of Odisha ... Respondent
For Appellants : M/s.D.P. Dhal, A.K. Acharya, S.K.Tripathy, P. Uttarkabat, M.K. Dash, S. Mohapatra.
For Respondent: S.S. Mohapatra, Addl. Standing Counsel.
Headnote:PENAL CODE, 1860 - Sec. 302 and 201 - Conviction under - Appeal - Appreciation of evidence - Death of the deceased was homicidal - Appellants in the instant case have been given sufficient time for their reflection and the confession was voluntary - Confession of both the appellants is based on their confession only - Truthfulness and reliability of such confession attaches a great importance to their conviction - There appears some doubt with regard to the truthfulness in the confession made by both the appellants as they come up with a distorted confession - No materials is available on record to come to a definite conclusion that the appellant No.2 has committed the murder of his sister - Both the appellants retracted from their confession in the statements made u/s. 313 Cr.P.C. - Held, unsafe to record the conviction of the appellants on distorted confession - Directions issued.
In the instant case, there is no corroboration in material particulars to the judicial confession made by the appellants. Corroboration assumes a great importance, when the accused retracts from the confession made. Learned trial Court has lost sight of this important aspect of the matter. In that view of the matter, we are of the considered opinion that the impugned judgment of conviction and sentence is not sustainable. Accordingly, the impugned judgment of conviction and sentence is set aside. (Paras - 10 to 13)
JUDGMENT
K.R. MOHAPATRA, J. - Appellants in this appeal, seek to assail the judgment and order of conviction and sentence dated 27.07.1999 passed by learned Sessions Judge, Sonepur in Sessions Case No.1/12 of 1999 (arising out of GR Case No.87 of 1998 of the Court of SDJM, Biramaharajpur) convicting the appellant No.1, namely, Keda Behera under Section 201, IPC and sentencing him to undergo RI for three years as well as convicting the appellant No.2, namely, Sashi Behera for committing offence under Sections 302 and 201, IPC and sentencing him to undergo imprisonment for life for committing offence under Section 302, IPC and to undergo RI for seven years for committing offence under Section 201, IPC. It was further directed that the sentences against the appellant No.2 shall run concurrently.
2. One Sripati Dalai (informant/PW 1) lodged information before the Birmaharajpur Police Station stating that at about 4.00 PM on 07.08.1998, he had gone to his paddy field to bring back the bullocks. At that time, he saw that body of a lady was floating in the well situated at his Mahulmal paddy field. Her legs and hands were tied. Thereafter, he came back and informed the villagers about the same. The villagers along with the appellant No.1 identified the dead body to be of Seema Behera, the elder daughter of Keda Behera (appellant No.1). The body was decomposed. Suspecting murder of Seema, PW-1 lodged the FIR ( Ext.4). On receipt of the FIR, Birmaharajpur P.S. Case No.63 (8) dated 17.08.1998 was registered under Sections 302/201, IPC against unknown person. Since the FIR disclosed a cognizable offence, the OIC, Birmaharajpur P.S. (PW 14) took up investigation.
Upon receiving information, Investigating Officer (PW 14) visited the spot and examined the informant (PW 1). As it was night by then, he instructed Constable, Sri B.D.Sahu and Gramarakhi Sri Purna Chandra Haripal to guard the dead body. On the next morning, he again visited the spot; examined the witnesses present there; made inquest over the dead body in presence of the witnesses; prepared inquest report (Ext.6), and sent the dead body to District Headquarters Hospital, Sonepur preparing dead body challan (Ext.5) for postmortem. He also seized a rope and a stone lying near to the well of PW 1 vide seizure list Ext.7. On the same day at 2.00 PM, the I.O. seized the wearing apparels of deceased Seema Behera vide seizure list Ext.8. On 04.09.1998, the I.O. received the postmortem report (Ext.1) and on the same day he arrested both the appellants and forwarded them to Court on 05.09.1998 and made a prayer to record the confessional statement of both the appellants. Accordingly, learned SDJM, Birmaharajpur (PW 13) recorded the confessional statements of appellants on 07.09.1998. The said confessional statements of appellants are marked as Exts. 2 and 3. On his transfer, PW 14 handed over the investigation to ASI, Rabindra Kumar Panda (PW 12) who did not examine any other witness. On completion of the investigation, he submitted charge-sheet under Sections 302/201/34, IPC against the appellants. Accordingly, the appellants faced trial.
3. In support of its case, prosecution examined as many as fourteen witnesses. Apart from the aforesaid witnesses, prosecution also relied upon PWs 2 to 6, who are the witnesses to a part of occurrence and PWs 7 to 10, who are the witnesses to the inquest. PW 11 is the Doctor, who conducted the post-mortem. The prosecution also relied upon the aforesaid documentary evidence as well as MOs, viz. Rope, stone, saree, blouse and saya of the deceased marked as MOs.I to V respectively.
Although the confessional statements of the appellants were recorded under Section 164 Cr.P.C. by PW 13, they retracted from their confession during the trial and pleaded their innocence.
4. During trial, PWs. 2 to 10 did not support the case of the prosecution and were declared hostile. However, relying upon the materials on record including confessional statements ( Exts. 2
