JUDGMENT
R.K. Dash, J.
1. Paulus Oram (hereinafter referred to as ‘the accused’) on the accusation of having committed gruesome murder of seven persons, including three children, has been held guilty by the Additional Sessions Judge, Rourkela, under Section 302, Indian Penal Code and sentenced to capital punishment. Challenging the order of conviction and sentence he has preferred appeal from jail. The learned trial Judge after awarding the capital punishment has made the aforesaid reference under Section 366, Criminal Procedure Code, 1973. Both Criminal Appeal and Death Reference were heard together and are disposed of by this common judgment.
2. The prosecution case culled out during trial may briefly be stated thus :
Johani (mother of the accused), Magi alias Margaret and Berha were three daughters and Phulamani was the widow of one Staines. Magi’s husband was Joseph. Phulamani, Paduni and Harman were the daughters and son respectively of Nagi. After death of Staines there was dispute among the three daughters over the properties left by Staines. Some time before the incident, Johani, mother of the accused, convened a village Panch for settlement of the dispute. In the said meeting it is alleged, both accused and his father had declared that there would be blood-shed. At the relevant time, Magi with her husband and three children, sister Berha and mother Phulamani were living in the house of Staines. In order to grab all the properties left by Staines, the accused trespassed into the house in the night of 12/13-7-94 and mercilessly killed all the inmates, namely, his maternal grand-mother Phulamani, mother’s sisters Berha and Magi alias Margaret, Margaret’s husband Joseph and her three children, and thereby eliminated the entire family. On the next day hearing the lowing and bleating of cows and goats emanating from the house, the villagers rushed inside and to their utter dismay found that the entire family members had been brutally killed. On a written report being lodged by one Bigna Kujur at Bisra Police Station, the Officer-in-charge N.C. Adhya, P.W. 13 registered a case and proceeded with the investigation, in course of which he held inquest over the dead bodies, sent the same for postmortem examination, seized blood-stained earth, examined the witnesses, arrested the accused who, while in custody, gave recovery of a Bhujali and an axe stained with blood which were seized in presence of witnesses, collected nail clippings and the sample blood of the accused, seized the wearing apparels of the accused and also a Lungi on his production, sent the blood-stained earth, Bhujali, etc. for chemical examination and on completion of investigation, placed charge-sheet against the accused to stand his trial under Section 302, IPC.
3. The accused denied the prosecution allegation and pleaded that he has been falsely implicated in the alleged incident.
4. The prosecution, in order to bring home the charge to the accused, examined as many as 15 witnesses and the learned trial Court on consideration of the evidence, held the prosecution to have proved the case against the accused beyond reasonal doubt and consequently convicted and sentenced him as hereinbefore stated.
5. Shri D. Nayak, learned counsel for the accused, challenging the Impugned judgment and order of conviction strenuously contended that the prosecution case being based on circumstantial evidence and all the circumstances taken together having not satisfactorily proved that the accused was the author of the crime, the learned trial Court was not justified in recording a finding of conviction against the accused. Elaborating his argument Shri Nayak submitted that one of the circumstances relied upon by the prosecution is the alleged extra-judicial confession said to have been made by the accused and in order to prove the same, reliance was placed on the evidence of P.Ws. 7 and 9, of which P.W. 7 was unworthy of credence and the next witness on whose evidence the prosecution banked upon was P.W. 9 and if his whole statement is considered along with other attending circumstances, the only irresistible conclusion would be that whatever he stated about the accused having made confession admitting his guilt, was untrue and unbelievable. Therefore, if this part of the prosecution case is excluded from consideration, there remains two other circumstances, namely, the motive for the crime and seizure of blood-stained Lungi which contained human blood of Group ‘A’ which was the blood group of one of the deceased. So far as motive part is concerned, the prosecution evidence is silent that the accused bore grudge against his maternal grand-mother and others and in order to feed fat his grudge he committed the dastardly crime and eliminated the entire family members. Coming to the find of blood on a Lungi alleged to have been seized during investigation, Shri Nayak would contend that there is noclinching evidence that the Lungi that was seized on production belonged to the accused, particularly when as borne out from the evidence it was a joint family house inhabited by the accused, his father and brothers.
6. Controverting the aforesaid submissions, learned Additional Government Advocate would urge that the accused acted in an inhuman manner and committed gruesome and dastardly crime by killing seven persons, including three innocent children of a family, and keeping the gravity of the offence in mind, the learned Court below scanned the evidence with regard to each item of circumstantial evidence, accepted the prosecution version that it was the accused and accused alone who committed the murder and there being no justifiable reason to take a contrary view and upset the findings recorded by it, no interference is called for in the present appeal.
7. A person facing criminal charge is presumed to be innocent. It is for this reason law casts heavy burden upon the prosecution to bring home the charge by leading cogent and reliable evidence. In the case in hand, the accused has been charged of having committed murder of seven innocent persons. Their life thread was taken away while they were fast asleep in the night. No doubt the act is cruel and diabolic one. But then, in order to find the culpability of the accused, the Court instead of being guided by emotions should decide objectively disengaging itself of every influence or prediliction. To repeat with, there is no eye-witness account of the incident and the prosecution case is entirely based on circumstantial evidence, namely : (i) motive, (ii) extra-judicial confession, and (iii) find of human blood on a Lungi recovered from the house of the accused. It need not be emphasised that the Supreme Court time out of number has observed that while appreciating circumstantial evidence, the Court must adopt a very cautious approach and should record a conviction only if all the chain of circumstances point to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating the circumstantial evidence and if the evidence is capable of two inferences, the one in favour of the accused must be accepted. (see Sharad Birdhichand Sarada v. State of Maharashtra, AIR 1984 SC 1622 : 1984 Cri LJ 1738 and State of U.P. v. Ashok Kumar Srivastava, 1992 Cri LJ 1104 : AIR 1992 SC 840. Keeping the aforesaid settled position of law in mind, we propose to deal with the circumstances as enumerated above, in seriatim.
8. MOTIVE : Motive is always known to the perpetrator of the crime. Therefore, it is not the bounden duty of the prosecution to prove motive which impelled the accused to commit the offence. But once prosecution has ascribed motive, burden lies upon it to prove the same by leading acceptable evidence. In the present case the prosecution in order to prove motive examined P.Ws. 2 and 3 to show that there was land dispute between the parents of the accused on one hand and Phulamani, one of the deceased, on the other regarding the properties left by latter’s husband. P.W. 2 would say that in connection with land dispute there was a meeting in the village where the accused’s parents declared that there would be a bloodshed and 4 to 5 months thereafter the present incident occurred. He did not implicate in his evidence that the accused was present in the meeting and had threatened to eliminate all the family members of Phulamani. The next witness is P.W. 3. While corroborating that part of the evidence of P.W. 2 with regard to property dispute between the parties, he stated that in the village meeting held for resolution of the dispute, besides the parents of the accused, the accused also was present and they all threatened that there would be a blood-shed. He, however, admitted during cross-examination that in his earlier statement to the police during investigation he had not stated of the accused having given threat in the village meeting to commit bloodshed. This being the sum total of evidence of the prosecution, it is difficult to believe that the accused had nutured any motive to eliminate his maternal grand-mother and others.
9. EXTRA-JUDICIAL CONFESSION : The prosecution relied upon the evidence of P.Ws. 7 and 9 to prove that the accused made a confessional statement admitting to have committed the murder of seven persons. Law with regard to what value should be attached to extra-judicial confession is no longer res integra. It is well settled that evidence of extra-judicial confession in all cases does not require corroboration. What is involved is rule of caution and prudence. When extrajudicial confession is proved by independent and trustworthy witness to be voluntary and unambiguous, inspiring confidence, the same can be accepted and made the basis of conviction even without corroboration. See AIR 1977 SC 2274 : 1977 Cri LJ 1941, Piara Singh v. State of Punjab; (1992) 3 SCC 204 : 1992 AIR SCW 1480, Madan Gopal Kakkad v. Naval Dubey; and IV (1995) CCR 434, Virender Kumar Yadav & Mukhtiar Yadav v. State). This being the position of law, we will now proceed to scan the evidence of the aforesaid witnesses to find whether the same has passed through the test of judicial scrutiny to record a finding of guilt in absence of any corroboration.
10. P.W. 7, a co-villager and independent witness stated that in the village a meeting was convened where the accused admitted to have committed the murders. His previous statement to the Investigating Officer was confronted to him which of course he denied that he had not stated about such confessional statement having been made by the accused. The Investigating Officer, P.W. 13 when questioned during cross-examination admitted that P.W. 7 did not state that the accused had confessed his guilt in the village meeting.
The next witness is P.W. 9. In his examination-in-chief he supported the prosecution case and stated that in the meeting called by the Sarpanch the accused admitted to have killed those persons. During cross-examination the learned defence counsel confronted him his earlier statement made to the police which of course he denied, that he had not stated of the accused having confessed his guilt. However, this part of his evidence was not brought to the notice of the I.O., P.W. 13 with reference to his earlier statement recorded under Section 161, Cr.P.C. Since the evidence of the prosecution with regard to extra-judicial confession was accepted by the trial Court and the accused has been convicted for commission of the offence of murder and awarded capital punishment in exercise of power conferred under Section 391 of the Code of Criminal Procedure we, by order dated 6-4-1999 directed issue of summons to the then Investigating Officer to appear before us for the purpose of confronting him with the previous statement of P.W. 9. Necessity for his re-examination was apparent from the records of the case and for the ends of justice. Accordingly, he (the then Investigating Officer) appeared on 23-4-1999 and we re-examined him. On being so examined, he (P.W. 13) would say that P.W. 9 did not state before him that the accused had confessed to have killed the deceased in the village meeting. This being the material omission, the evidence of P.W. 9 as aforesaid given for the first time in Court is incredible and unacceptable.
In view of discussions made above, the evidence of P.Ws. 7 and 9 about extra-judicial confession of the accused does not inspire confidence and, therefore, we are unable to rely upon the same and act upon it. Besides, if at all, as deposed to by P.W. 9, the Sarpanch had called the accused to the meeting where he confessed his guilt, then in all fairness the prosecution should have examined the Sarpanch and that having not been done, adverse inference has to be drawn against the prosecution for his non-examination.
11. FIND OF HUMAN BLOOD IN A LUNGI SEIZED FROM THE HOUSE OF THE ACCUSED : Ext. 11 is the seizure list under which the Investigating Officer, P.W. 13, on the basis of disclosure statement of the accused, seized one Bhujali and one axe. Besides, he also seized a Lungi stained with blood on being produced by the accused. The witnesses to the said seizure are Mangu Oram and Pahalu Singh, P.W. 9. As stated by Pahalu Singh, P.W. 9, the police seized one Tangia and one Bhujali stained with blood under the seizure list, Ext. 11 on being produced by the accused from a heap of Sabai grass. He, however, did not say that the accused had given recovery of a Lungi stained with blood. We may now turn to the evidence of P.W. 13, the I.O. According to him, the accused made disclosure statement and gave recovery of Bhujali and axe stained with blood from a heap of Sabai grass and produced one blood-stained Lungi from the entrance room. We may note that the Serologist’s report, Ext. 31 does not indicate that the aforesaid weapons were stained with human blood. In that view of the matter, the evidence of seizure thereof on the basis of the disclosure statement of the accused as deposed to by P.W. 13 is of little consequence. So far as the seizure of blood-stained Lungi is concerned, we find that the fact of seizure was supported by P.W. 13 only and not the independent witnesses, P.W. 9. From the Serologist’s report, it transpires that the said Lungi was stained with human blood of group ‘A’ which is the blood group of one of the deceased. In view of such evidence, the question arises whether the same alone is sufficient enough to raise accusing finger at the accused that he was the author of the crime. Law is well settled that recovery of a bloodstained articles of an accused can be used to corroborate other evidence and it cannot by itself prove the accusation with which he stands charged. (See Manju alias Mohan Das v. State, 1985 1 Orissa LR 194. This being the position of law, seizure of the Lungi stained with human blood of group ‘A’ which was the blood group of one of the deceased per se is not sufficient to bring home the charge to the accused. On facts also we do not find any material that the said bloodstained Lungi belonged to the accused. It is neither stated in the seizure list, Ext. 11 nor borne out from the evidence of any witness that the said Lungi belonged to the accused and he had worn the same in the night of the incident. Rather we find from the evidence of P.W. 9 that the house wherefrom the seizure was made was in occupation of the accused, his parents and three brothers. In other words, the house was not in the exclusive possession of the accused wherefrom recovery was made. So when it is a common house belonging to the accused and his other family members, even if we accept the evidence of seizure of blood-stained Lungi as deposed to by the I.O., P.W. 13, we cannot accept the same as a piece of evidence in support of the prosecution.
To our utter surprise we find that the learned trial Judge allowed the prosecution to lead evidence that the accused confessed before the I.O. (P.W. 13) of having committed murder of seven persons. Not only that he also allowed the prosecution to bring on record the whole statement of the accused recorded under Section 161, Cr.P.C. as Ext. 12 and reproduced in the evidence the whole statement made to the I.O. On a reading of the impugned judgment it is noticed that the aforesaid statement of the accused, Ext. 12 influenced the learned trial Judge for recording a finding of conviction against him. We are shocked to find that he being a senior judicial officer has treated the aforesaid statement as substantive evidence and made a reference thereof in his judgment. Presumably he did so being guided by emotions since because it was a ghastly murder of seven innocent persons. Whatever may be the nature and gravity of the offence, it should not be lost sight of that judicial determination has to be made on the basis of evidence led during trial and not otherwise. It need be stated, legal conscience must be founded upon law and conscience of a Judge in law Court depends upon law. We hope and believe that such a gross and fundamental mistake will not recur in future, lest justice will be a casualty and the innocent person may be sent to gallows.
12. In view of discussions made above, we are inclined to hold that the prosecution has miserably failed to bring home the charge to the accused beyond reasonable doubt. Resultantly, the conviction and sentence imposed on the accused are hereby set aside. He is, accordingly, acquitted of the charge. He be set at liberty forthwith, if his detention is not required in any other case.
The reference is discharged and the appeal is hereby allowed.
R.K. Patra, J.
13. I agree.
