Allowed

Buta @ Bidyadhar v. State

Orissa HC9 Dec 2020CRA/50/2001

Case brief

AI extract

What is this about?

Appeal against conviction for murder, conspiracy, causing disappearance of evidence and forgery, based purely on circumstantial evidence. The court held the prosecution failed to prove the death was homicidal or the recovered bones belonged to the deceased, found the retracted extra-judicial confession involuntary and unproved, and held the recoveries unconnected to the crime. Conviction set aside

What did the court decide?

Appeal allowed; judgment of conviction and order of sentence passed by the Sessions Judge, Keonjhar in S.T. No.100/1996 set aside; appellants acquitted and directed to be set at liberty forthwith.

Buta @ Bidyadhar Vs State — Murder and Culpable Homicide | Orissa HC (2020)

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HIGH COURT OF ORISSA ; CUTTACK

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CRA NO.50 0F 2001

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From the judgment and order of conviction dated 12.2.2001 passed by the learned Sessions Judge, Keonjhar in S.T. Case No.100/1996.

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----------Buta @ Bidyadhar Parida and another … Appellants Versus State of Odisha … Respondent ----------For Appellants : M/s. Arun Kumar Acharya

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For Respondent : Addl. Government Advocate.

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------------ P R E S E N T :

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THE HONOURABLE MR. JUSTICE S.K.MISHRA AND THE HONOURABLE MISS JUSTICE SAVITRI RATHO

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Date of judgment: 09.12.2020

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S.K.Mishra,J . In this appeal, the appellants have challenged

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the judgment and order of conviction dated 12.2.2001 for the offence under Sections 120B/302/201/419/420/468 of the I.P.C. (hereinafter referred to as the “Penal Code” for brevity) passed by the learned Sessions Judge, Keonjhar in S.T. Case

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No.100/1996. Appellant No.1 has been convicted for the offence under 120-B/302/201/419/420/468 of the Penal Code and appellant no.2 has been convicted for the offences under Sections 120-B/302/201/34 of the Penal Code. They have been sentenced to undergo imprisonment for life for the offence under Sections 302/34 of the Penal Code, two years R.I. for the offence under Section 201/34 of the Penal Code, one year R.I. for the offence under Section 120-B of the Penal Code, two years R.I. for the offence under Section 419 of the Penal Code, three years R.I. for the offence under Section 420 of the Penal Code and three years R.I. for the offence under Section 468 of the Penal Code.

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The case of the prosecution can be stated briefly as follows:

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The deceased-Santosh Kumar Pradhan and accused-Bidyadhar Parida, appellant No.1, were jointly executing contract work at Bhaliadal standing in the name of Binoda Parida (D.W.1), the brother of appellant no.1. In that connection Santosh was putting up at Champei, the village of appellant no.1 and also at the work site i.e., Bhaliadal. On 3.1.1996 Santosh Pradhan went to his native place at Madalia under Barakote Police Station in the district of Deogarh to bring money

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from his father-Prasanna Kumar Pradhan. Prasanna Kumar Pradhan gave the Pass Book and two blank withdrawal forms being signed by him. That was the practice followed to provide money when money was required by Santosh for the work.

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On 27.1.1996 Prasanna Kumar Pradhan received an interview call letter of Santosh which was scheduled to be held on 4.2.1996. So Prasanna came to the house of appellant no.1, but learnt from the family members that Santosh has not yet returned form his village since 3.1.1996. Thereafter Prasanna waited and further searched. Again on 18.2.1996 Prasanna came to village Champei and ascertained from appellant no.1 that Santosh had gone to Barbil. Being suspicious, Prasanna went to the Bank on 18.2.1996 and found the amount has been withdrawn by use of the withdrawal slips issued by him. On 20.2.1996 at Barkote P.S. and on 21.2.1996 at Suakati Out Post, information was lodged which was recorded in the respective Station Diary Registers and in the man missing register. During that period, Prasanna was residing at Mishra Lodge, Keonjhar for searching Santosh along with his relations Hrudananda Parida and Lokanath Parida. Appellant no.1, his brother Binoda and their two maternal uncles,

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Natabar Barik and Nisakar Barik, came to Mishra Lodge on 23.2.1996 night. Being advised by Police to trace out Santosh and in that connection they had discussions at Mishra Lodge. There appellant no.1 confessed before them to have committed murder of Santosh Pradhan along with co-accused Prafulla Barik with the help of a bala on 7.1.1996 night on their way from Bhaliadal, after enjoying the feast, to Bada Ghagara near a small hillock. Appellant no.1 further confessed that seeing the blank withdrawal forms signed by Prasanna in possession of Santosh he could not control his temptation and hatched up the plan to commit the murder for withdrawal of the money and accordingly committed the murder. After commission of the murder, on 8.1.1996 Rs.20,000/- was withdrawn and on 15.1.1996 Rs.25,300/- was withdrawn by forging the signature of Santosh Kumar Pradhan. These facts were reported in writing by Prasanna Pradhan at Keonjhar Sadar P.S. on 24.2.1996 which led to the investigation.

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During investigation, the incriminating articles like, bones, were seized from the spot being led by the accused persons, weapon of offence, namely, bala was seized, cash of Rs.2100/- from the house of accused Prafulla Barik –appellant no.2 and other articles from

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appellant no.1 were seized. Records and Registers of the Bank and Ledger were seized. Specimen writings of appellant no.1 were collected and thereafter the incriminating articles were sent for examination by the chemical examination and handwriting expert. After completion of investigation, charge sheet has been submitted by the I.O. against the appellants under the above noted sections.

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The defence took the plea of simple denial.

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In this case, two defence witnesses have been examined. One of them is Binoda Parida, the brother of appellant no.1, and another is the father of appellant no.2. The later had deposed admitting seizure of Rs.2100/- from his house but stated that it was the sale proceeds of buffaloes. Though admitted that he was the contractor for execution of the work at Bhaliadal, but neither appellant no.1 nor Santosh Pradhan were ever entrusted to execute the work or to supervise the same. Even D.W.2 and the appellants have gone to the extent of denying any acquaintance with deceased Santosh.

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In order to prove its case the prosecution has examined as many as twenty two witnesses. P.W.3 Bainshi Naik, who supplied a Bala/tangia (small axe) to both the appellants for killing a fowl. He also deposed

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that the weapon was returned after three days which was seized by police some days thereafter. P.W.4-Baji Ghana, who supplied a fowl of Rs.100/- to both the appellants. P.Ws.6, 7 and 14, namely, Satyanarayan Mohapatra, Ghanashyam Mishra and Sugyani Chandra Dash, are the employees of the Bank. P.W.13-Akshya Kumar Dash, the S.I. of Police, who seized those documents of the Bank. P.W.8 is Nabakishore Mohanta of Chawada Lodge, Keonjhar a formal witness. P.Ws.9 and 10, namely, Adikanda Munda and Chintamani Behera, are the witnesses who were working under contractor Binoda Parida. P.W.9 is a hostile witness. Evidence of P.W.10 is formal. P.W.19-Sashibhusan Deo is the Manager of Chawada Lodge, Keonjhar. His evidence has been left unchallenged. P.Ws.18,20,21 and 22, namely, Sri Banamali Bej, A.S.I., Digambar Khutia, A.S.I., Sushil Kumar Mohanty, S.I. and Narayan Biswal, S.I. are the investigating officers.

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Apart from the above witnesses, prosecution has further examined seven more vital witnesses who are P.Ws.1,2,5,11,12,16 and 17, namely, Nishakar Barik, Umkanta Barik, Akshyaya Kumar Pradhan, Hrudananda Parida, Purna Chandra Pradhan, Lokanath Parida and Prasanna Kumar Pradhan. Out of them

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P.W.1 has turned hostile. P.W.1 is the maternal uncle of appellant no.1. It is alleged that the extra judicial confession was made by appellant no.1 and the latter had also led to recovery of the incriminating articles and it seizure. P.W.17 is the informant, father of the deceased-Santosh.

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The learned Sessions Judge, in this case, having accepted that there is no eye witness to the occurrence and the case is based solely on the circumstantial evidence, relied upon the following circumstances and held that the prosecution has established the same.

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(I) Motive for committing murder of the deceased:- The appellant having seen the blank signed withdrawal slip in the possession of the deceased became allured to grab the money. Accordingly, he hatched up a plan with appellant no.2 to eliminate the deceased from their way.

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(II) On 8.1.1996 and 15.1.1996 by using the withdrawal slips issued by the informant and further by impersonating himself as Prasanna Kumar Pradhan, the appellant no.1 had withdrawn Rs.20,000/- and Rs.25,300/- from the account of the informant.

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(III) The appellant no.1 made an extra-judicial confession on 23.2.1996 confessing his guilt in presence of P.Ws.1,11,16 and 17 and one Natabara Barik.

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(IV) The appellant no.1 while in police custody on 24.2.1996, led the Police to Badaghagara and gave recovery of the incriminating materials, such as bones, blood stained earth and some wearing apparels.

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(V) The appellant No.2 while in custody gave recovery of Rs.2,100/from his house.

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(VI) Recovery of a Bhalla from Bainsi Nayak. The said Bhalla said to have been taken by the appellants for killing of a fowl.

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Learned Sessions Judge has accepted all these

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circumstances to have been established fully by the prosecution. He has also come to the conclusion that all the circumstances form a complete chain unerringly pointing towards the guilt of the accused persons and, therefore, he proceeded to convict the appellants for the offences mentioned in the previous paragraphs.

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Mr. Arun Kumar Acharya, learned counsel appearing for the petitioner, argued that in a case of murder punishable under Section 302 of the Code, the prosecution must establish that it was the deceased whose murder is alleged by the prosecution was done to death, and secondly the death of the deceased was definitely homicidal in nature. In this case, there is no evidence regarding the same.

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Mrs. S. Pattnaik, learned Additional Government Advocate, argued very emphatically that the extra judicial confession made by appellant no.1 before the witnesses, proves that the deceased was done to death by the appellants.

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However, in order to establish corpus delicti or the substance of the crime, though it is not always necessary to produce the dead body of the victim of the murder for autopsy, such production of the dead body, its autopsy or post mortem examination and the opinion of the doctor that it is a case of homicide, goes a long way in proving the prosecution case of the murder. In a case where the prosecution alleges that a person has been done to death, then it is the duty of the prosecution to prove the homicidal nature of the death

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and the dead body of the deceased to be the dead body of the deceased, a positive identification is necessary.

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It is the case of the prosecution that some bones and skull of the deceased were recovered at the instance of appellant no.1. However, there is no scientific examination with respect to the skull and bones found in course of investigation of the case. No DNA profiling has been done though the Investigation Officer has stated that the remains of the dead body was taken for forensic examination by the department of Forensic Medicine Toxicology, SCB Medical College, no evidence is forthcoming about the result of the same. There is no material on record to show that the skull and bones seized in this case in fact belong to the dead body of the deceased. In a case where the prosecution vests its case solely on circumstantial evidence, its failure to establish that the deceased was done to death and his death was homicidal in nature creates a reasonable doubt in the mind of the court at the outset.

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The first and second circumstances relate to the motive for committing the offence which is stated to be the appellant no.1 having seen the blank signed withdrawal slip in the possession of the deceased became allured to grab the money and, therefore, he

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hatched up a plan with appellant no.2. The second circumstance is that by using the withdrawal slips issued by the informant and further by impersonating himself as Prasanna Kumar Pradhan, the appellant no.1 had withdrawn Rs.20,000/- and Rs.25,300/- from the account of the informant.

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The prosecution has established that there are two withdrawals from the Central Cooperative Bank, i.e. on 8.1.1996 and 15.1.1996. But no Bank official was examined in this connection to identify appellant no.1 to be the person who went to the Bank and presented withdrawal sheet for withdrawal of the money.

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The prosecution has made an attempt to establish the circumstances relying upon the report of the handwriting expert to the effect that the admitted signature of appellant no.1 matches with the disputed handwriting. However, while discussing the materials on evidence, the learned Sessions Judge has not discussed regarding the collection of the admitted signature of the accused. There is no material on record regarding the production of the admitted signature of the deceased before the Investigating Officer. There is no evidence how the admitted signature of the deceased came to the possession of the investigating agency.

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We have carefully examined the statement of the accused-appellants recorded under Section 313 of the Code of Criminal Procedure Code, 1973(hereinafter referred to as the “Code” for brevity). Not a single question has been asked about the specimen handwriting and collection thereof from appellant no.1. So any material which is not put to the appellants in their examination under Section 313 of the Code cannot be used by the prosecution for securing any conviction of that person. Moreover, the result of the handwriting expert’s examination has not been put to the appellants in their statements under Section 313 of the Code. It is the duty of the learned Sessions Judge to put all the incriminating materials to the accused persons. So that they can have an opportunity of explaining the materials available against them. This is not an empty formality. It is an integral part of the criminal justice delivery mechanism as administered in India. Failure on the part of the Sessions Judge in putting such questions thus make the case of the prosecution vulnerable and conviction is liable to be set aside. So it was argued by the learned Addl. Government Advocate that in such case the appellate court should remand the matter to the learned Sessions Judge.

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However, we see that the occurrence allegedly took place in the month of January 1996 and in the mean time 24 years have elapsed. The appellants were in custody since from the date of their arrest and they have been released on bail pursuant to the order passed by this Court in June and August, 2005. So, we are of the opinion that this is not a case where the matter should be remanded back to the learned Sessions Judge, Keonjhar for filling of the lacuna committed by the Court while conducting the trial.

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As far as the third circumstance is concerned, it is the case of the prosecution that appellant no.1 made an extra judicial confession on 23.2.1996 confessing his guilt in presence of P.Ws.1,11,16 and 17 and one Natabara Barik. Natabara Barik has not been examined this case. P.W.1, who is stated to be the relation of appellant no.1, has not supported the case of the prosecution. He was cross-examined by the prosecution, but nothing substantial has been brought out from his mouth to support the case of the prosecution. However, it is proved that he had made certain statements regarding the extra judicial confession made by appellant no.1 before the

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Investigating Officer. However, he has not stated so in the Court. The statement made in presence of the accused persons to the Presiding Judge of a trial court is the substantial evidence. Any statement recorded under Section 161 of the Code is only a previous statement which can be used only for the purpose of contradicting the prosecution witness, it cannot be used for the purpose of corroborating the prosecution witness. Nor such a statement is used for the purpose of contradicting or corroborating a defence witness.

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In this case, the prosecution heavily relies upon the extra judicial confession component of the evidence as led before the learned Sessions Judge. Section 24 of the Indian Evidence Act, 1872 is relevant for the purpose of appreciation of this case. It reads as follows:

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“24.Confessions caused by inducement, threat or promise, when irrelevant in criminal proceeding.- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority

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and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”

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Over the years through judicial pronouncements, Courts in India have laid down the guidelines for appreciation of retracted extra judicial confession, it can be summarized as follows:

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(I) The Hon’ble Supreme Court in the

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case of Sahadevan & Anr Vs State of Tamilnadu , as per the judgment delivered on 8^th May, 2012 in Criminal Appeal No.1405 of 2008, after analyzing several judgments stated the principles regarding appreciation of extra-judicial confession in the following manner:-

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(I-a) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with great care and caution.

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(I-b) It should be made voluntarily and should be truthful.

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(I-c) It should inspire confidence.

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(I-d) An extra-judicial confession to be the basis of conviction, it should not suffer

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from any material discrepancies and inherent improbabilities.

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(I-e) Such statement essentially has to be proved like any other fact and in accordance with law.

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In case of Ram Lal Vs. State of Himachal

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Pradesh ; the Hon’ble Supreme court as per the judgment delivered on 3^rd October, 2018 in Criminal Appeal No.576 of 2010 observed that there is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma @ Thimma Raju v. State of Mysore (1970)2 SCC 105].

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(II) In our opinion whether extra judicial confession is a weak piece of evidence or not, it depends upon the facts of that particular case and it should be examined by the Court with great care and caution. If from the very nature of the confession itself, to the person it was made, and under the circumstances it has been made, a slightest doubt arises to the mind of the Court, then it shall be proper on the part of the Court to proceed with the presumption that the extra judicial confession in that case is a weak piece of evidence by itself.

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(III) The confession should be shown to have been made voluntarily and it should be truthful. It should inspire confidence; to examine whether it should inspire confidence or not, the Court should examine the following:-

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(III-A) If the witness proving the confession generally reliable ?

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(III-B) If the relation of the witness with the accused is of such a nature that the later would confine in him ?

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(III-C) Is there any motive for the witness to implicate the accused persons ? (Witness might be trying to save itself or someone else by laying the blame on the accused).

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(III-D) Is the witness interested in the outcome of the criminal trial being a relation of the deceased or having any interest in the affairs of the deceased ? and (III-E) If the confessional statement consistent with the other circumstances brought on record ?

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If all the four questions are answered in favour of the prosecution, then it shall be safe appropriate and expedient to accept such retracted extra judicial confessions to record a conviction of the accused arraigned of committing the offence.

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(IV) The extra judicial confessions attains greater credibility if it is

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supported by clear and cogent circumstances and further corroborated by other evidence.

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(V) The extra judicial confessions to form the basis of conviction should not suffer from any material discrepancy and inherent improbabilities.

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(VI) Such confession has to be proved like any other fact in accordance with the provisions of the Evidence Act.

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So keeping in view this settled principles, we have examined the materials available with respect to the extra judicial confession component of the evidence led by the prosecution. P.W.1-Nisakar Barik has not supported the case of the prosecution. He has been cross-examined and nothing substantial has been brought to help the prosecution case. This witness is the uncle of the appellant no.1-Bidyadhar Parida. Another relation of appellant No.1, Natabar Barik, though stated to be present at the time of the extra judicial confession by appellant no.1 has not been examined in this case. So, the evidences of P.W.11-Hrudananda Parida, P.W.6Satyanarayana Mohapatra and P.W.17-Prasanna Kumar Pradhan have to be carefully assessed for the purpose of coming to the conclusion about the sufficiency of the same to uphold the conviction recorded by the learned

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Sessions Judge. P.W.11-Hrudananda Parida has stated on oath as follows:-

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“xxx xxx xxx

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At Chawda Lodge in course of our search, from its register we could know name of Santosh Pradhan and Bibekananda Sharma have been entered in their register. On further enquiry the Lodge Manager told that persons had a mike set with him and he can identify him if produced. I took Bidyadhar Parida with me to the Chauda Lodge and there the Hotel boy identified Bidyadhar Parida to the person who stayed in the Chouda Lodge with mike and signed as Santosh Pradhan. Binod Parida ws also then present. Our suspicious became stronger and told Binod to his uncle, Natabar Barik and Nishakar Barik, for further confirmation. In fact we called for Natabar Barik and Nishakar Barik to Mishra Lodge where myself, Bidyadhar, Binod were putting up. On repeated asking by Natabar Barik and Nishakar Barik in our presence at least Bidyadhar Parida at about 1 A.M. in the night gave out to have committed murder of Santosh Pradhan. He also gave out that by assaulting with Ballah from the back of the head, he caused the injury and thereafter along with Prafulla smashed stone to the head of Santoshsh and caused his death at Badaghagara dam project at about 10 to 11

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P.M. I am not remember the exact date of occurrfence given by Bidyadhar.

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xxx xxxxx xxxx.”

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In cross-examination this witness has admitted that his father and grand father of Bidyadhar are two brothers. They have lands jointly recorded in their names. He denied the defence suggestion that because of the land dispute for possession, there was litigation between them for five to seven years. However, the dispute was started about two years prior to the trial and in fact G.R. Case No.705/1997 has been initiated against Bidyadhar by his brother Lokanath and the case was still subjudice at that time. In paragraph-5 of his cross-examination, he has stated that on joint query Bidyadhar did not state anything, but gave out that he will disclose only if Natabar Barik remains in the room. So, the witness further states, they all of them came out of the room leaving Natabar and appellant no.1Bidyadhar in the room. The witness further states that after disclosing the commission of crime before Natabar Barik alone, when they knew from Natabar, they all went into the room again in there presence Bidyadhar admitted to have committed the murder of Santosh. It may be noted here that Nababar Barik has not been

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examined in this case. This witness did not reproduce the sum and substance of the alleged extra judicial confession made by appellant no.1.

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Regarding his statement recorded under section 161 of the Code, this witness has denied the defence suggestion that he has not stated before the I.O. that Binod was present as their suspicion become stronger, they called for the uncle of the Binod i.e., Natabar and Nisakar to Mishra Lodge where they were staying; Bidyadhar gave out before him that he has committed murder of Santosh to withdraw money from the pass book of the father of Santosh.

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A reference to the evidence of P.W.21-Santosh Kumar Mohanty, C.I. of Police reveals that he has examined P.W.11-Hrudananda Parida and the witness has not stated before him that on his query the Lodge Manager told that the person had a mike set with him; and that he can identify him if produced and that therefore he took Bidyadhar Parida with him to Chawda Lodge; and that the Hotel boy identified Bidyadhar Parida as Santosh Pradhan in the Register. The witness has further stated that P.W.11 has not stated before him that Binod Parida was present with him and as such the suspicion became stronger they called the

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uncle of Binod viz. Natabar Barik and Nisakar Barik to Mishra Lodge. He has further stated that P.W.11 did not state before him that Bidyadhar gave out before him to have committed murder of Santosh to withdraw money from the pass book of the father of Santosh. But the witness has stated that P.W.1 has stated before him that Bidyadhar gave out to have committed the murder of Santosh and later to have withdrawn the money from the pass book of his father.

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P.W.16-Lokanath Parida, at paragraphs-2 and 3 of his examination-in-chief, states about the extra judicial confession made by appellant no.1. We consider it appropriate to reproduce the same.

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“xxx xxx xxx

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So, suspicion centered round Bidyadhar Parida and we enquired from him about Santosh when Bidyadhar was putting up at Mishra Lodge of Keonjhar Town. He denied his knowledge first. Thereafter we entrusted one Natabar Barik to discuss the mater with Bidyadhar further and they talked with him at closed room in the Hotel/Lodge. Returning from that room Natabar Barik gave out that Bidyadhar admitted before him that he has committed the murder

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of Santosh Pradhan and he is no more available.

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Therefore, I along with Binod Parida went into the room where Bidyadhar Parida was and before us to our query he gave out to have murdered Santosh Pradhan at Ghagara along with Prafulla Barik. We kept Bidyadhar Parida in the Lodge in that night and on the following morning handed over him at Keonjhar Town P.S. Along with me Binod Parida, Natabar Barik, Nishakar Barik, Hrudananda Parida were persons present before whom Bidyadhar Parida confessed to have murdered Santosh Pradhan and we all took him to Police Station.”

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This witness in paragraph-8 of the cross-examination has admitted and stated before the I.O. that Santosh gave out before him to have invested 50% of the amount in the contractor work of Binod Parida and that Bidyadhar and Santosh were looking after the execution of work at the work site; and that after search it was ascertained that Santosh was last seen at the work site and thereafter his whereabouts were not traced and for that suspicion centered around Bidyadhar Parida. He denied the defence

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suggestion that he has not stated before the I.O. that they entrusted Natabar Barik to discuss the matter further with Bidyadhar in the closed room of the Lodge and Natabar Barik after discussion returned from the rook and gave out that Bidyadhar Parida was admitted before him to have committed murder of Santosh Pradhan. Thereafter, he along with Binod Parida went into the room where Bidyadhr Parida was and to their query Bidyadhar Parida gave out to have murdered Santosh Pradhan at Ghagara along with Prafulla Barik; and that they kept Bidyadhar Parida in the room of the Lodged and handed over him at Keonjhar Town Police Station.

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P.W.17-Prasanna Kumar Pradhan happens to be the father of the deceased and informant in this case. He has stated in examination-in-chief on oath that on 20.2.1996 he reported at Barkote Police Station. On 21.2.1996 he also lodged information at Suakathi Out Post about missing of his son and from there came to Mishra Lodge and stayed there for searching of his son. While he was there, Binod Parida, Bidyadhar Parida(appellant no.1), Nabatabar Barik and Nishakar Barik came to the Lodge for discussion with him to

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trace out Santosh as they were directed accordingly by the Police. On 23.2.1996 night appellant no.1 confessed before all of them to have committed murder of Santosh Pradhan and after hearing from them when the informant asked appellant no.1, he specifically stated before him to have committed murder of Santosh Pradhan by dealing blows by Ballah at his neck at Ghagara along with Prafulla Barik. Appellant No.1 has also admitted before the informant that he has withdrawn money from the Bank by forging the signature of Santosh Pradhan. A cross reference to the evidence of P.W.21, the I.O., reveals that that though the case diary reveals that he has recorded the statement of P.W.17- Prasanna Kumar Pradhan under Section 161 of the Cr.P.C. as per separate sheet, such statement was not available on record at the time of trial, thereby denying the defence an opportunity of cross examining him with reference to his previous statement and to bring out contradictions, if any.

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Thus, from the analysis of the material evidence available on record in this case regarding the extra judicial confession made by appellant no.1, this Court observes the following salient features in this case.

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(i) P.W.1, Nishakar Barik, has not supported the case of the prosecution. Natabara Barik has not been examined by the prosecution and no explanation has been put forth why he has not been examined.

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These two witnesses are the relations of appellant no.1 and their evidence regarding extra judicial confession would have gone a long way to show the veracity of the same. Natabar Barik has not been examined by the prosecution and Nisakar Barik, P.W.1, not having supported the prosecution case, the case of the prosecution about the extra judicial confession has to be viewed with suspicion.

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(ii) P.W.11 happens to be the agnate of appellant no.1. It is admitted that there was a litigation between his family and the family of appellant no.1. So there is no reason why appellant no.1 made a confession before the witness Hrudananda when their relationship is not so cordial. There is no material on record to show that the appellant by making an extra judicial confession before P.W.11

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would gain any advantage or avoid temporal evil in reference to the proceeding against him. Moreover, the evidence of P.W.11 is fraught with the contradictions in material particulars regarding retracted extra judicial confession made by the accused.

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(iii) P.W.16, Lokanath Parida’s evidence also cannot be relied upon without any reservations because of the contradictions he has made with respect to the previous statement recorded under section 161 of the Code.

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(iv) As far as P.W.17 is concerned, his statement recorded under Section 161 of the Cr.P.C. is not forthcoming in this case. So the defence is denied of any opportunity of cross-examining him with respect to his statement before the Investigating Officer at the time of investigation of the case. Moreover, he presents a different picture of the extra judicial confession. While P.Ws.11 and 16 state that in a closed room, appellant no.1 made a confession before Natabar Barik, P.W.17 has not stated about such

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confessional statement being made to

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Natabar in a closed room and thereafter the same being made to Natabar and others in the said room. So the evidence available on record appears to be at variance and discrepancies are forthcoming.

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(v) Moreover, P.W.17 being the father of the deceased has an interest in the outcome of the criminal trial and his evidence cannot be taken into account without a pinch of salt.

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(vi) It is further borne out from the record that the so call extra judicial confession made by the appellant no.1 in the Mishra Lodge was as a result of persistent questioning and repeated asking. So from the very nature of it, it does not appear to be a free and voluntary one. It is not the case of the prosecution that the appellant no.1 of his own accord made a voluntary statement about the commission of crime by him and appellant no.2. On the contrary, the prosecution case is that on being insisted by P.Ws.1,11, 16 and 17, he has admitted his

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guilt, such factual aspect makes the so called statement a non voluntary statement.

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In the result, we are of the opinion that the so called retracted extra judicial confession has not been proved to be true, voluntary and reliable, to have been made to the persons of confidence of appellant no.1 and there is no material to indicate that such a statement has been made by the appellant no.1 to gain any advantage or avoid any evil of a temporal nature in reference to the death of Santosh Pradhan. Hence the extra judicial component of the prosecution case cannot be relied upon to uphold the conviction recorded by the learned Sessions Judge.

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The next important item of a component of evidence is the recovery of the bones, blood stained earth and some wearing apparels at the instance of appellant no.1 while he is in police custody, on a supposed statement recorded under Section 27 of the Evidence Act.

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(a) Firstly, no separate statement has been recorded by the Investigating Officer in this case of appellant no.1 while is in custody under Section 27 of the Evidence Act. The I.O. relies on the observation

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made in the seizure list regarding the statement made by appellant no.1.

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(b) Secondly, the incriminating materials like the bones, blood stained earth and wearing apparels from the place where it was concealed has not been connected with the deceased. There is absolutely no material to establish that the bones and wearing apparels were seized at the spot were that of the deceased. No doubt there are blood stained earth and the grouping has been determined, but at the same time the blood group of the deceased has not been determined. As observed earlier no DNA profile has been made so there is no material to show that the recovered articles were in any way connected to the crime or the deceased.

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(c) The next circumstance on which the learned Sessions Judge heavily relied upon is recovery of Rs.2100/- from the house of the appellant No.2. It is not established by the prosecution that this Rs.2100/-, in currency notes, was the same money that was withdrawn from the Bank. So this circumstance itself will not prove anything. Recovery of money from a person who is in gainful employment will not prove any criminal offence or his involvement in criminal offence

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unless it is shown that the money is directly related to the crime. In this case that has not been done. We are unable to accept that this circumstance is one of the incriminating circumstance to establish the prosecution case.

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(d) The last circumstance is recovery of one bala from one Bainsi Naik. The said bala had been taken by the appellants for killing of a fowl and was subjected to chemical examination. No blood was found on it.

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Thus, on a conspectus of the materials available on record, together with the reasonings resorted to by the learned Sessions Judge, keeping in view the submissions made by the learned counsel for the appellants and learned Addl. Government Advocate, we are of the opinion that in this case, the prosecution has not established its case beyond all reasonable doubt by establishing the incriminating circumstances which formed a complete chain unerringly pointing towards the guilt of the accused-appellants. There are no material against the Appellant no.2, other than the confession of the co-convict, i.e., Appellant no.1. Such material is not admissible against Appellant no.2.

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Hence, we are of the opinion that the learned Sessions Judge committed error by accepting the case of the prosecution and recording a conviction under Sections 120-B/302/201/419/420/468 of the Penal Code against appellant no.1 and offence under Sections 120-B/302/201/34 of the Penal Code against appellant no.2 for which the appeal has to be allowed.

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Hence, we allow the appeal. The judgment of conviction and order of sentence passed by the learned Sessions Judge Keonjhar in S.T. No.100/1996 is hereby set aside. The appellants are held not guilty of the offences and are acquitted thereof. They are on bail. They be set at liberty forthwith by cancelling the bail bonds executed by them.

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