KHALLI BEHERA Vs. STATE

JUDGEMENT

(1.) This is an appeal directed against a conviction Under Section 302/149, Penal Code, by the Additional Sessions Judge, Ganjam Nayagarh. The occurrence in respect of which, the appellant, Khalli Behera, was charged took place on the night of 11-10-1949 at about 7 P. M. on the Grand Trunk Road between Berhampur and Golanthra when the deceased, a jutka driver by name Kalia Behera, was attacked by a number of persons and done to death, The appellant, along with a number of other persons, was arrested on 12-10-1946, the day after the occurrence. Two days later, he was produced before a Magistrate as he was willing to make a confession. On 15-10 1949 his confessional statement was recorded. On 19-11-1916 he was charge-sheeted along with the other accused. On 19-12-1949 he was tendered pardon and he executed a bond agreeing to make a true and full disclosure of all the facts he knew about the occurrence and that he was willing to be exa mined as an approver. He was actually examined as an approver on 17-2-1947 in the Court of the Committing Magistrate. The case was later committed to the Court of Session and the approver was again examined as a witness (P. W. 13) in that Court, in Sessions case no. 10 of 1947. The appellant was examined on 3-71947 in the Sessions Court when he went back completely upon his earlier statements. The Public Prosecutor of Ganjam thereupon certified, under Schedule 39, Criminal P. C. that the appellant had forfeited the pardon and that he was liable to be put on his trial. The case which has given rise to this appeal is a sequel to the failure of the appellant to abide by the terms of the bond which he had executed. The appellant pleaded that he had not forfeited the pardon and that he was not guilty of the charge of murder.

(2.) The learned Additional Sessions Judge who tried the case held that the confession of the appellant made three days after his arrest was true and was supported by the other evidence in the case. He therefore accepted the appellant's confessional statement as evidence against him in spite of the fact that it was retracted later. He also relied upon the deposition of the appellant before the Committing Magistrate on 17-2 1947 as the facts mentioned therein had been corroborated by the other oral evidence. He held that the reasons given by the appellant for retracting the confession and the deposition were a tissue of falsehood and accordingly found the appellant guilty of the charge of murder and sentenced him to transportation for life.

(3.) Mr. Dibyasinga Misra who appeared amicus curiae for the appellant has urged in an able and painstaking argument that the confessional statement should be ruled out as inadmissible as it was not voluntary, that the deposition made by the appellant as approver amounts to a departure from the facts stated in his confessional statement inasmuch as it makes mention of a large number of details omitted in the confession and that the deposition itself, having been induced by the hope of a pardon, should not have been admitted in evidence.