1994 ALLMR ONLINE 1946
Orissa High Court

S. K. MOHANTY AND R. K. PATRA, JJ.

Luku Paike and others vs. State of Orissa

Petitioner Counsel: M/s D. Nayak, S. Swain, D. P. Pradhan and D. P. Patnaik, s
Respondent Counsel: Miss Meera Ghose, Addl. Govt. Advocate, .

Penal Code (1860), S. 300 - Evidence Act (1872), S. 24

R. K. PATRA, J. :-In this appeal the appellants challenge their conviction and sentence under Ss. 302/149 and S. 148 of the Indian Penal Code (for short, 'I.P.C.'). On the first count, each of them has been sentenced to undergo rigorous imprisonment for life. No separate sentence has been awarded for the second count.

2. Appellant No. 1 Luku Paike has meanwhile expired. As such, his appeal stands abated.

3. The seven appellants were charged under Ss. 148/302/149 of IPC on the allegation that they formed an unlawful assembly and in prosecution of the common object of such assembly, being armed with Lathis and axes caused the death of Kailash Dash. Along with the appellants, two other accused persons were charged under S. 415/302 of I.P.C. on the allegation of abatting the commission of offence of rioting and murder of the said Kailash. They have since been acquitted.

4. Prosecution case is that there was a long standing dispute over a piece of land called 'chaka Bhumi' located in village Kotahendi between Kailash and the appellant Luku Paike. Kailash belonged to village Katraduga whereas the appellant hailed from village Katchandi, where the disputed land is situated. On the date of occurrence, i.e., 2-11-1987 at about 12.00 noon the Assistant Sub-Inspector of Police, B. Singpur P.S. came to Katachandi and promulgated the order of attachment issued by the Executive Magistrate, Borigumma in a proceeding under S. 144, Cr. P.C. and restricted both parties from going upon the land. After promulgating the order, the Assistant Sub-Inspector of Police left the village. The allegation of the prosecution is that the labourers of Kailash cut the paddy crops standing on the disputed land for which the appellants chased them. P.W. 7 and others accordingly fled to village Chopadi where they took rest. P.W. 7 after sometime came towards his village on bicycle being followed by Kailash on another cycle. When they reached near the house of the Ward Kamber (P.W. 2), P.W. 7 saw all the appellants except appellant Luku being armed with different weapons. Appellant Chitra first gave a push to Kilash who after throwing his cycle ran away. He was chased and was assaulted by appellant Urdhab by means of an axe. In the evening appellant Luku Paike came with a blood-stained axe shouting that he had done away with the life of Kailash. The ward member, Balaram Pujari (P.W. 2), took the appellant Luku Paike to the house of Mohan Pujari (P.W. 1) before whom he confessed to have killed Kailash with the axe. Thereafter both P.Ws. 1 and 2 proceeded to B. Singpur P.S. along with the appellant Luku Paike and lodged report. On the basis of the report, a formal F.I.R. was drawn up and investigation was taken up.

6. Out of 14 witnesses examined by the prosecution P.W. 7 is the sole eye-witness. P.Ws. 5, and 6 are the witnesses who claimed to have seen appellants chasing Kailash. P. W s. 1, 2, 3 and 4 are the witnesses before whom appellant Luku made extra-judicial confession. P.W. 13 is the doctor who conducted post-mortem examination over the dead-body of Kailash. On the basis of the aforesaid evidence, the learned Additional Sessions Judge found the appellants guilty and convicted them for the offences under Ss. 148/302/149 of IPC.

7. P.W. 7 is the sole eye-witness. He stated that the Assistant Sub-Inspector of Police came to the village and attached the land of Kailash by beat of drums and put red flags directing that none should enter upon the land under attachment. At that time, appellant Luku, appellant Chitra, appellant Bhakta, appellant Domomali and appellant Bhagirathi were present near the land. He further

deposed that at the direction of the police, he. (P.W. 7) and others cut the ripe paddy crops. He stated that at that time about 20 to 25 persons of village Kalahandi by blowing stles and being armed with lathis chased them. Appellant Luku. appellant Urdhab, appellant Chitra. appellant Bhagirathi and appellant Probhudas were among those persons. According to P.W. 7 being chased he along with others fled away to village Chapadi. He stated that after sometime he came on a bicycle being followed by Kailash in another bicycle. At that time appellants Urdhab, Chitra, Bhakta and Bonomali were present being armed with axes and lathis. It was appellant Chitra who first gave a push to Kailash who after throwing the cycle ran way and the aforesaid appellants hased and assaulted him. Appellant Urdhob dealt blows by means of an axe on the nose, forehead and face of Kailash. From the evidence of P.W. 7, it would appear that there were two incidents, the first relating to chasing by some of the appellants immediately after the order of attachment was promulgated by the police and the second was with regard to the assault on Kailash. He has not indicated in his evidence as to the time when he and Kailash came to the village after they were first chased by some of the appellants. There is clear admission in his evidence that appellant Luku was not at all present when Kailash was assaulted. With regard to the assault, be has implicated appellant Urdhob by stating that he dealt blows by means of axe on the nose, forehead and face of Kailash. With regard to the participation of other appellants (as already noted he has excluded the presence of appellant Luku at the time of assault) his evidence is omnibus. He stated that out of fear he fled to Magada. In the cross-examination he gave a different story by stating that Kailash expired at the spot and he had not seen other appellants except Urdhob and Benemali who assaulted Kailash. He being the role eyewitness, his evidence requires close scrutiny. In view of his inconsistent and contradictory statements with regard to the participation of the appellants in the commission of the crime, no reliance can be placed on him. We may state here that the prosecution relied on the evidence of P.Ws. 5 and 6 to say that these witnesses have seen the appellants chasing Kailash. From the evidence of P.W. 6 it appears that he had not seen anything about the occurrence except that he saw appellant Luku going with an axe being followed by other appellants. He had not stated about the timing. P.W. 5 stated that at about 5 p.m. on the date of occurrence he saw the appellants being armed with lathis and appellant Luku armed with axe were chasing Kailash. His evidence runs counter to the evidence of P.W. 7 who has excluded participation of appellant Luku. This witness even has gone to the extent of saying that the appellants pelted stones at Kailash while chasing him which was nobody's case. The pelting of stones is a story introduced by him for the first time in the court. In these circumstances, the evidence of P.Ws. 5, 6 and 7 is of little help to the prosecution.

8. Another item of evidence which has been taken into account for conviction is the extra judicial confession made by appellant Luku before P.Ws. 1, 2 and 3. We have perused their evidence and found that P.W. 3 has not stated anything about appellant Luku making confession. P.W. 1 in his evidence stated that appellant Luku confessed before him to have killed Kailash by means of an axe and thereafter he (P.W. 2) and others took him to the police station. From the examination of Luku made under S. 313, Cr. P.C., it appears that no question was put to him if he had confessed before P.W. 1. On the other hand, a question was asked to him to the effect that if he moved on the road declaring that he murdered Kailash by means of an axe, P.W. 2 stated that appellant Luku was moving on the road to and fro declaring that he murdered Kailash by means of an axe. In view of such inconsistent evidence, it is not safe to rely on the so-called extra judicial confession. Counsel for the appellants relying on a Bench decision of this Court in Jadumani Khanda v. State, (1993) 75 Cut LT 652 : (1993 Cri LJ 2701) Contended that the extra-judicial confession having been not addressed to any particular person cannot be held to be a confession and as such, the evidence of P.W. 2 should be excluded from consideration. In para 6 of the judgment, the Bench observed as follows :

With respect, we beg to differ from the aforesaid statement of law. The expression 'confession' is not defined in the Evidence Act, 'Confession' is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word 'statement' is "act of stating; that which is stated; a formal account, declaration of facts etc. The word 'statement' includes both oral and written statement. Communication to another is not however an essential component to constitute a 'statement'. An accused might have been over-heard uttering to himself or saying to his wife or any other person in confidence. He might have also uttered something in soliloquy. He might also keep a note in writing. All the aforesaid nevertheless constitute a statement. It such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. This very question came up for consideration before the Supreme Court in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40 : (1966 Cri LJ 68). After referring to some passages written by well known authors on the "Law of Evidence" Subba Rao, J. (as he then was) held that "communication is not a necessary ingredient to constitute confession". In paragraph 5 of the judgment, the apex Court held as follows :

At this stage we may also refer to Sarkar on Evidence, Fourteenth Edition, 1993. At page 309 the learned author has stated :

9. In view of the aforesaid we have no hesitation to hold that extra judicial confession need not be addressed to any particular person. We may hasten to add that what weight to be attached to such evidence or statement is, however, a different matter. Ordinarily we would have referred the question for decision of a Full Bench as the case of Jadumani Khanda (1993 Cri LJ 2701) (supra) was decided by a co-ordinate bench. We, however, do not consider it necessary to adopt the said course in view of the authoritative pronouncement of the apex court in the matter.

10. Now coming to the facts of the case, we find that R.W. 2 although in his examination-in-chief deposed that appellant Luku while moving on the road to and fro was telling that he murdered Kailash by means of an axe, no other witness has supported him. In the cross-examination he admitted that he along with others were detained at the police station for 4 to 5 days after the occurrence and the Brahmin people threatened them with dire consequences unless they deposed in the case in favour of the prosecution. In the face of such evidence, no reliance can be placed on P.W. 2.

11. There being no other evidence to connect the appellants with the commission of the offence, their conviction cannot be sustained and has to be set aside.

12. In the result, appellants' conviction and sentence under Ss. 148/302/149 of I.P.C. are hereby set aside. They are acquitted of the charges. They may be set at liberty forthwith if they are in custody.