JUDGMENT
P.K. Mohanty, J.
1. This is an appeal from jail by the convict under Section 302, I.P.C. undergoing sentence of life imprisonment by the Additional Sessions Judge, Sambalpur in Sessions Trial No. 26/9 of 1991.
2. Prosecution case, in brief, is that on 2-6-1960 at about 9.00 a.m. while Chanashyam Majhi (P.W. 1) the brother of the deceased Abhiram was doing carpentry work in the house of his uncle Thaku Majhi of village -Turki Niktimal, Bipin, Sual, the brother-in-law of the deceased informed that his brother was killed by accused Jagatram Magar by means of an axe. P.W. 1 rushed to the spot along with his uncle and found his brother dead with injuries on his person. P.W. 1 came to the village and related the incident to one Susanta Patel and then came to the Police Station in his scooter and reported the incident orally, which was reduced to writing by the officer-in-charge, Mahulapali Police Station and registered P.S. Case No. 27 of 1990 under Section 302, I.P.C. On examination of the informant and Susanta Patel at the Police Station, the I.G. came to the spot along with the constable for conducting, inquest over the dead body, examined the witness, sent the dead body to the Sub-Divisional Hospital, Kuchinda along with requisition for conducting postmortem examination. He seized various articles including blood-stained sample earth. At about 8 p.m. the same day while he was coming towards village Turki-Niktimal, A.S.I.A.G. Sahu produced the accused before him and he arrested the accused. While in police custody, the accused confessed to have killed the deceased and gave information leading to the recovery of an axe (M.O. I) from his bed room, whereafter the same was seized in presence of the witnesses. He also seized a stripped Lungi having stained with blood. On completion of investigation, the I.G. submitted charge-sheet against the accused under Section 302, I.P.C. Sub-Divisional Judicial Magistrate, Kuchinda committed the case to the court of Sessions Judge for trial and ultimately it has been tried by the Additional Sessions Judge, Sambalpur.
3. In all, prosecution examined 17 witnesses and filed certain documents in support of its case. P.W. 1 Ghanashyam Majhi is the informant and brother of deceased Abhiram. P.W. 2 Bipin Bihari Majhi is also the brother of deceased, P.W. 3 Suresh Kua is a co-villager. P.W. 4 Panu Behera is a witness about the confession of the accused. P.W. 5 Padmalochan Naik is a co-villager who had gone to the field along with the accused being engaged as a labourer by Baidyanath. P.W. 6 Bipin Bihari Suel is the brother-in-law of the deceased. P.W. 7 is Khidu Pradhan, a witness to the inquest. P.W. 8 Sunil Kumar Patel, P.W. 11 Chaitana Kua are the eye witnesses before whom the accused also made the extra-judicial confession. P.W. 9 is a seizure witness, P.W. 10 Padmalochan Harsal is a witness to the statement of the accused under Section 27 of the Evidence Act leading to discovery. P.W. 12 Raghumani Das is a witness to the seizure of Lungi etc. P.W. 13 is Sanatan Pradhan, Revenue Inspector, who prepared the site map and report. P.W. 14 is a witness to the seizure of the cycle. P.W. 15 is the doctor, who conducted post-mortem examination and submitted his report and P.Ws. 16 and 17 are the Investigating Officers.
4. The plea of the accused was one of denial. He denies having made any statement to the police in presence of the witnesses and having produced M.O. II. According to him, he had been falsely implicated in the case.
5. The learned Additional Sessions Judge, relying on the circumstantial evidence namely extra-judicial confession of the accused before P.Ws. 4, 8 and 11, the statement made by the accused before the Investigating Officer while in police custody and leading to discovery of the axe, M.O. II, and the evidence of doctor, P.W. 15, held the accused-appellant guilty of the offence and sentenced him to undergo imprisonment for life. 6. Heard Mrs. Misra, learned counsel for the appellant and Sri Jairaj Behara, the learned Additional Government Advocate. It is the submission of the learned counsel for the appellant that the main evidence on which the Additional Sessions Judge has placed reliance relied to convict the appellant was the purported extra-judicial confession said to have been made by the accused before P.Ws. 4, 8 and 11. But, a perusal of the evidence of P.Ws. 4, 8 and 11 would show that the evidence of these witnesses are inconsistent and contradictory to each other, on which no reliance ought to have been placed by the trial Court. It is the submission that P.W. 4 in her deposition has said that the accused and one Padmalochan P.W. 5 had gone to the field locally known as Gayabahal for the purpose of cultivation being engaged as labourers by her. Thereafter the accused came and enquired about her son who was then a school teacher. When P.W. 4 told that he had gone to the school, the accused told her "Mui Azi Lambaduri Gaikhai re Abhiku Budia re Mari Hani Deichi" and saying so, he left her house, whereafter he narrated the incident to Padma Lochan Naik, P.W. 5 and as such there could be no reason for the latter to make a confessional statement to the former. It is in evidence of P.W. 4 herself that only on that day for the first time the accused was engaged as a labourer. The other labourer who went along with the accused to the field has stated that while they were ploughing, the son of the accused arrived there with axe, spade and Bhara and told his father the accused to leave the place and he would cultivate the land. The accused left the place carrying with him the axe M.O. II, Bhara M.O. I and spade M.O. III. After sometime the daughter of the accused came there and asked her brother to come to the house. It is stated that Baidyanath Behera came there and told P.W 5 to unyoke the plough as the accused had murdered Abhi. Thus, the presence of Baidyanath at the field was between 8.00 a.m. to 8.30 a.m. after Sudarsan left the place. If that be so, then Baidyanath had already communicated the information about murder of Abhi by the accused, before he reached the house and therefore the story that his mother P.W. 4 narrated the incident to him does not appeal to reason. According to the learned counsel, this is a circumstance which raises serious doubt about the testimony of P.W. 4 and the testimony of P.W. 5 and as such, the evidence of P.W. 4 should not be relied upon being unreliable and untrustworthy.
7. The other witness before whom the accused made the confessional statement is P.W. 8 Sunil Kumar Patel, who was working as a clerk in the S.D.J.M.’s office, Kuchinda. It is the statement of P.W. 8 that on 2-6-1990, the office was functioning in the morning hours and when it was about to be closed at 12.30 p.m. the accused came to him while he was standing in the verandah and told him that he (accused) has committed the murder of Abhiram Majhi of his village by means of an axe. He wanted to surrender before the Magistrate. It is his specific statement that no third person was present in the verandah at the time, the accused made the aforesaid statement. P.W. 8 stated that he instructed the accused to go to the police station as the Magistrate was availing Summer Vacation. The statement of this witness has been recorded under Section 164, Cr.P.C. The very fact that the statement has been recorded under Section 164, Cr.P.C. speak about the nature of the evidence. There is no statement to the effect as to why and on what basis the accused could repose confidence on the witnesses P.W. 8 a stranger to disclose and confess that he had murdered Abhiram. On a reading of the evidence of P.W. 11, an independent witness before whom also the accused is said to have made a confessional statement, it appears that he was the orderly peon in the Sub-Judge’s office, Kuchinda. It is his statement that on 2-6-1990 at about 12.30 p.m. he went to the court of S.D.J.M. Kuchinda with dak and he found the accused was present in the varandah of S.D.J.M.’s office, Kuchinda. Seeing him, the accused came to him and told him that he has committed murder of Abhiram Majhi by means of an axe and he gave out that he wanted to surrender before the S.D.J.M., Kuchinda. This witness has further stated that after handing over the dak to Sheristadar of Sub-Judge’s office while he was coming back the accused followed him and this fact to the Sheristadar of Sub-Judge’s office and the accused also told the incident to some other persons present there. The Court Sub-Inspector came to know about the fact and took the accused to the Police Station. He also made the statement recorded before the Magistrate under Section 154, Cr.P.C. In cross-examination, it has been brought out from P.W. 8 that he is unable to recollect the name of the accused, but he said that the accused visited his house on many occasions and he also reciprocated the visits once or twice. Further, vital material statement of P.W. 11 is that P.W. 8 and others were present when the accused told him about the incident. But interestingly, P.W. 8 in his statement has clearly stated that there was no third person in the verandah when the accused made the confessional statement. This is a serious material discrepancy in the evidence of P.Ws. 8 and 11, to impeach the veracity of the confessional statement.
8. In view of the discussions made above, we are of the considered opinion that the evidence of witnesses P.Ws. 4, 8 and 11 are not free from doubt and thus cannot be safely relied on to come to a finding that in fact the accused had made the extra-judicial confession before these witnesses. True it is, if the evidence of witnesses to the extra-judicial confession creates ample confidence and the witnesses are found reliable and trustworthy. A court can rely on their statements to record a conviction but if the evidence is shaky, conflicting and inconsistent it is unsafe to rely on such statement to hold that the accused made a confession. A retracted confession without independent corroboration cannot sustain a conviction. A reference may be made to the decision of Supreme Court in Palanisamy v. State of Tamil Nadu, AIR 1986 SC 593 : (1986 Cri LJ 551), wherein it has been held that it is not safe to base a conviction solely on the extra-judicial confession without any independent corroboration. This Court in a case reported in 1984 (1) OLR 199: (1984 Cri LJ NOC 121), (Kotari Suri v. The State of Orissa) has taken the view that without independent corroboration, extra-judicial confession is of little value and no conviction can be based thereon. In the present case, however, we are not persuaded to accept the testimony of the so-called witnesses P.Ws. 4, 8 and 11 as it is not free from doubt nor does it inspire confidence. We do not think it proper to rely on the same.
9. The other circumstance relied on by the learned Additional Sessions Judge is, the statement of the accused before the Investigating Officer in presence of P.W. 10, while in police custody, leading to the discovery of M.O. II, the axe and the evidence of doctor, P.W. 15. Considering the evidence with regard to discovery of M.O. II, the axe kept in the room of the accused’s house, it is to be noticed that there is discrepancy in the evidence of P.W. 10 and the Investigating Officer, which the learned trial court has brushed aside on the ground that the incident occurred one year back and as such, minor discrepancies should be ignored. The evidence of the doctor, P.W. 15 shows that the doctor found several injuries on the body of the deceased, but in the autospy report the doctor has pointed out that the death was due to the multiple injuries with injuries to the great vessels and spinal cord leading to massive haemorrhage and shock. The death is homicidal. The injuries are also due to the blows with M.O. II. It is not the prosecution case that apart from the discovery given by the accused under Section 27 of the Evidence Act, there were any other incriminating circumstance to point out at the guilt of the accused.
9A. In any view of the matter, we are of the considered opinion that the conviction and sentence recorded by the learned Additional Sessions Judge cannot be sustained. The appeal accordingly is allowed, the accused-appellant is acquitted and we direct that the appellant may be set at liberty immediately.
P.C. Naik, J.
10.1 agree.