BAHADUL ALIAS GHANSHYAM PADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the Orissa High Court dated 16th March, 1972, upholding the conviction of the appellant under Section 302 I.P.C. and sentence of life imprisonment awarded by the Sessions Judge. A detailed narrative of the prosecution case is to be found in the judgment of the High Court and it is not necessary for us to repeat the same all over again. The appellant is said to have assaulated Ushabati Padhan by means of an axe on 14-8-1967 at 7.00 a.m. following a dispute between the appellant and his party and Ushabati Padhan who laid some claim to the land which was being ploughed by the appellant. The central evidence against the appellant consisted of the following.

(2.) The trial court after considering the evidence refused to rely on the oral evidence led by the prosecution and disbelieved P.Ws. 1-7. The Sessions Judge further found that the confession was voluntary and he based his conviction on the confession alone corroborated as it was by the evidence of P.Ws. 11-12 before a Magistrate under Section 164 of the Code of Criminal Procedure. The appellant filed an appeal in the High Court which did not agree with the finding of the Sessions Judge on the assessment of oral evidence led by the prosecution and appears to have accepted the evidence of P.Ws. 1 to 7. In doing so the High Court tried to displace some of the reasons given by the Sessions Judge but seems to have overlooked one very important fact which completely demolishes the evidence of these witnesses. We would like to indicate this fact first. According to the statement of the eye-witneses P.Ws. 2 to 7 at the time of occurrence they were ploughing in the Atia land of Daitari which is a low lying area but which according to the statement of the witnesses made before the police was not visible from the place of occurrence nor any person standing there could be in a position to see the occurrence. P.Ws. 3 to 7 had tried to resile from the statement which they gave before the police but on being confronted the Investigating Officer has proved that each one of them has made that statement before the police, that they were at the low lying area where the occurrence took place and which was not visible from there, P.W. 2 has not admitted this fact before the police but from the evidence it appears that he was also ploughing the land at the same place where P.Ws. 3 to 7 were. In these circumstances the evidence of P.W. 2 also falls in the same category as those of P.Ws. 3 to 7. The learned Sessions Judge has dealt with the circumstances in great detail and going into this aspect observed as follows:-

(3.) In view of this finding of the Sessions Judge which has neither been reversed nor noticed by the High Court it is impossible for us to rely on the evidence of P. Ws. 2-7. As regards P.W. 1 we have been taken through the evidence of this witness who is a young girl of 15 years and has admitted that before going to the Police Station she had met her maternal uncle and one Purna Dahuri who had asked her to go to the Police Station and also instructed her as to what had to be reported. Thus the witness clearly admits that she was tutored by two persons and none of them has been examined by the prosecution to prove that there was no tutoring. Apart from this the Sessions Judge has pointed out that there are a number of contradictions in her evidence and the statement given by her in the F.I.R. On going through the evidence of P.W. 1 we feel that it is rather unsafe to rely on this evidence for the purpose of convicting the appellant on a murder charge. We would, therefore, exclude her evidence from consideration. This leaves us to the other two pieces of evidence, namely, the judicial confession made by the appellant before a Magistrate and the evidence of the production of tangia. As regards the confession, the High Court itself refused to act on it as it was satisfied that the confession was not a voluntary one. In this connection the High Court observed as follows:-