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IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.30 OF 2018 In the matter of an Appeal under section-383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 03.02.2018 passed by the 1st Additional Sessions Judge, Rourkela in Sessions Trial No.144 of 2016. Jyoti Ram @ Nag ….. Appellant ---- -versus- State of Odisha ….. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================= For Appellant - Mr. Prasant Kumar Routray, Advocate, For Respondent - Mr. Prasanna Kumar Mohanty, Addl. Standing Counsel. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:03.07.2023 :DATE OF JUDGMENT:24.07.2023 D.Dash, J. The Appellant by filing this Appeal from inside the jail has challenged the judgment of conviction and order of sentence dated 03.02.2018 passed by the learned 1st Additional Sessions Judge, Rourkela in Sessions Trial No.144 of 2016 arising out of G.R. Case No.977 of 2016 corresponding to Uditnagar P.S. Case No.144 of 2016 JCRLA NO.30 OF 2018 Page 1 of 12 {{ 2 }} of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Panposh-Rourkela. The Appellant (accused), thereunder has been convicted for committing offence under section-302/201 of the Indian Penal Code, 1860 (for short ‘the IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months for commission of offence under section-302 of the IPC and also sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/- in default to suffer further rigorous imprisonment for one month for commission of offence under section-201 of the IPC with the stipulation that the substantive sentences shall run concurrently. 2. The prosecution case is that on 18.06.2016, it was around 9.30 am, one Katu Singh (Informant-P.W.4) and his wife (P.W.1) left their house and went to their place of work leaving their son (Bajrangi Singh) aged about two and half years. When they returned home in that evening, they found their son missing. So, they went for search of their son, but it was in vain. On next day morning, the dead body of their son was found lying near the embankment of a pond situated by the side of their house. They could know that the culprit/ culprits having committed the murder of their son had thrown his JCRLA NO. 30 OF 2018 Page 2 of 12 {{ 3 }} dead body at that place. Katu Singh (P.W.4), who is the father of the deceased then, lodged a written report with the Inspector-In-Charge (IIC), Udit Nagar Police Station. The IIC having received the same treated it as F.I.R. and registering the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.9) examined the Informant (P.W.4), his wife (P.W.1) and other witnesses. He visited the spot and prepared the spot map (Ext.9). He then held inquest over the dead body of the deceased (Bajrangi) and prepared the inquest report (Ext.3) in presence of the witnesses. The dead body was then sent for postmortem examination by issuing requisition. On 20.06.2016 morning, receiving the credible information that accused has made extra judicial information as to have committed the murder of Bajrangi, he went to her house and examined her. He then sent a requisition to the Sub-Collector to depute an Executive Magistrate to remain present for recording the confessional statement of the accused. This I.O. (P.W.9) then in presence of Executive Magistrate (P.W.7) recorded confessional statement of the accused. The accused then stated to have informed this P.W.9 that he had kept concealed the Chunri (a piece of cloth of narrow width) and then led this P.W.9 and others to the pond and identified the place where she had thrown the dead body and gave JCRLA NO. 30 OF 2018 Page 3 of 12 {{ 4 }} recovery of the Chunri which was seized. It is also stated that accused then produced two sarees over which she had kept the dead body and the night dress which she was wearing at the relevant time. The incriminating articles were sent for chemical examination through Court and on completion of investigation, Final Form was submitted placing the accused to face the Trial for commission of offence under section-302 of the IPC. 4. Learned S.D.J.M., Panposh-Rourkela receiving Final Form, took cognizance of the above offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing charge for the said offence against the accused. 5. In the Trial, the prosecution in total has examined 10 witnesses. Out of them as already stated P.W.1 is the mother of the deceased whereas P.W.4 is the Informant and father of the deceased, who had lodged the F.I.R. (Ext.4) which had been scribed by P.W.3. P.W.2 is the witness to the disclosure made by the accused before police when it is said that the accused had led the police and others including this P.W.2 to the pond and shown the place where she had thrown the dead body. Informant (P.W.4) under whose custody the deceased-child at the relevant time was and before whom the JCRLA NO. 30 OF 2018 Page 4 of 12 {{ 5 }} accused is stated to have confessed as to have killed the deceased. The Executive Magistrate which service had been requisitioned had come to the witness box as P.W.7; whereas Doctor who had conducted postmortem examination over the dead body of the deceased has examined as P.W.10 and the I.O. at the end has come to the witness box as P.W.9. The prosecution besides leading the evidence by examining the above witnesses has proved several documents which have been marked as Ext.1 to Ext.16. Out of those important are the F.I.R., Ext.4, inquest report, Ext.3, spot map, Ext.8, postmortem report Ext.-16 and the chemical examiners report, Ext.15. 6. The accused has not led any evidence in support of his plea of complete denial and false implication. 7. The Trial Court upon examination of the evidence of the prosecution witnesses and on going through the documents admitted in evidence, upon their analysis at its level had held that the prosecution has proved the charge against the accused beyond reasonable doubt. Accordingly, the accused has been convicted for the offence under section-302 of the IPC and sentenced as aforestated. JCRLA NO. 30 OF 2018 Page 5 of 12 {{ 6 }} 8. Learned Counsel for the Appellant (accused) submitted that there is no direct evidence to support the case of the prosecution. He submitted that the prosecution in order to establish the complicity of the accused relies upon three (3) items of evidence which are:- (a) extra judicial confession of the accused said to have been made before P.W.6; (b) confessional statement recorded by P.W.9 in presence of the Executive Magistrate (P.W.7); and (c) the statement of the accused in leading P.W.9 and others to that pond in showing the place where she had thrown the dead body and thereafter giving recovery of the Chunri, which was seized. He submitted that none of these three items has been established through clear, cogent and acceptable evidence. It was submitted that so called extra judicial confession of the accused before P.W.6 is highly suspicious and cannot be believed for a moment. He further submitted that the statement of the accused having been recorded by P.W.9 on the face of the provision contained in section-25 of the Evidence Act, when it is the confession statement of the accused, it cannot be made admissible simply because the Executive Magistrate (P.W.7) was then present and for his presence the bar contained under section-25 of the Evidence Act is not getting avoided. He further submitted that very JCRLA NO. 30 OF 2018 Page 6 of 12 {{ 7 }} statement of the accused recorded by P.W.9, which has been admitted in evidence and marked Ext. 1 being composite statement has to be eschewed from consideration. He further submitted that the evidence with regard to the recovery of that Chunri even if accepted for a moment, its nexus with the commission of the crime having not been established by furthering evidence; it is of no aid to the prosecution. 9. Learned Counsel for the Respondent-State submitted all in
Legal Reasoning
favour of the finding of the Trial Court. According to him, the Trial Court has rightly accepted the evidence of P.W.6 as regards the extra judicial confession of the accused made before him. He submitted that all such tests with regard to acceptability of the evidence of P.W.6 successfully pass through. He further submitted that evidence of P.W.6 coupled with the evidence of recovery of Chunri at the instance of the accused pursuant to her statement are enough to hold the accused guilty of commit the murder of Bajrangi. 10. Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.10 and have perused the documents which have been marked Exts.1 to 16. JCRLA NO. 30 OF 2018 Page 7 of 12 {{ 8 }} 11. In order to address the rival submission as regards the first item as indicated above, the evidence of P.W. 6 is required to be analyzed. This P.W.6 is the grandmother of the deceased and the Informant (P.W.4) is her son-in-law; whereas P.W.1 is her daughter. This witness was present in the house, when the parents of the deceased had left the house by leaving the deceased. She has stated that having seen the deceased playing in the house for some time, when she remained engaged in household work and then after some, the deceased was found missing. So, she searched for him but could not find. She has further stated that in the evening, P.W.1 and P.W.4 returned home and the fact of missing of their son was told to them, when they also went for search. She states that on the next morning, the dead body was recovered from the pond and it was brought and kept at home. On the next morning as per the evidence of this witness, the accused who is her adjacent neighbour confessed before her and other Basti people by saying ‘HUM MEREHEIAN’ which the cart translated as “I killed the child”. This translation itself is faulty. When P.W.6 has stated that the accused told ‘I have killed’; how it was so related to the child. It is further stated by the witness that the accused had stated to have tied the mouth of the child by a cloth and threw on the ground causing his death. The evidence of JCRLA NO. 30 OF 2018 Page 8 of 12 {{ 9 }} this witness on a plain reading is extremely hard to believe. Knowing fully well that the P.W.6 is the grandmother of the deceased; the accused for no reason would come and confess before her is completely against the conduct on a normal man. Simply because the accused is a neighbour of this P.W.6, when she had no reason to repose confidence upon P.W.6, she coming to her and confessing is not believable. Then also the conduct of the P.W.6 is highly suspicious, as she is not disclosing / saying after hearing P.W.6 about that her grandson was killed by the accused. For her not to react after hearing and not taking any action speak volume on the veracity of her evidence on that score. P.W.1 is not saying that husband of the accused having come to him, he had taken him to his wife and there the accused confessed to have killed the child. It is stated that such confession was made on the next day of lodging of the F.I.R. during morning hour around 8 am, but P.W.4, the father is not stating anything about that. Therefore, the evidence in support of the first item falls far short of acceptance. 12. The second item is the statement of the accused before the police (P.W.9) in presence of the Executive Magistrate (P.W.7). The JCRLA NO. 30 OF 2018 Page 9 of 12 {{ 10 }} least said about such step being taken in course of investigation in a case of murder of a child, the better. The P.W.9 has absolutely no rudimentary knowledge of law as it appears as he himself has sat over to record the confessional statement of the accused; by keeping the Executive Magistrate as the witness by his side as if the presence of Executive Magistrate would make the statement of the accused admissible and legal bar as contained under section-25 of the Evidence Act would not come into play. Without further discussing on this issue, the answer is that such item has no legal sanction. 13. The Investigating Officer who is of the rank of Inspector of Police appears to have not even bothered to look at the provisions contained in section-164 of the Code of Criminal Procedure, 1973 as to who is competent to record confession of an accused and how the confession is recorded as also in such matter, what should be the steps and his role. We are pained to state here that in a case of murder, a Police Officer being ignorant of the bare minimum provision of law with which he is supposed to come across every day when takes up the investigation and the disastrous consequence follows for his ignorance or otherwise, the time is not too far that the victims being JCRLA NO. 30 OF 2018 Page 10 of 12 {{ 11 }} frustrated may come on road to take the law into their hands, resulting lawlessness in the society. We hope that the Top Bosses of the Police Administration shall look into all these aspects and do the needful at the earliest to save such situations. Accordingly, expressing our concern; we direct the Director General of Police, Odisha to immediately take all such remedial measures by looking into the investigation part of serious cases with seriousness and see that the standard of investigation marks improvement through training of the Police Officials and then actions against those who commit the blunders consciously or otherwise. 14. The last item as to the recovery of Chunri at the instance of the accused even if accepted for a moment, we find that the same would not improve the prosecution case since we have already held that there is no evidence for the first and second item to stand. Furthermore, when there is no independent evidence to connect that Chunri with the commission of the crime; that itself cannot establish the prosecution case beyond reasonable doubt in holding that it is the accused who is guilty of commission of offence under section- 302/201of the IPC in intentionally causing death of deceased- JCRLA NO. 30 OF 2018 Page 11 of 12 {{ 12 }} Bajrangi Singh. The finding on that point of guilt as has been rendered by the Trial Court is thus liable to be set aside. 15. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 03.02.2018 passed by the learned 1st Additional Sessions Judge, Rourkela in Sessions Trial Case No. 144 of 2016 are hereby set aside. Since, accused-Jyoti Ram @ Nag is in custody, she be set at liberty forthwith, if her detention is not required in any other case. The Registry is directed to send a copy of this judgment to the Director General of Police for information and needful action. Dr. S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 24-Jul-2023 15:08:57 JCRLA NO. 30 OF 2018 Page 12 of 12