UJADA MAJHI BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Upon hearing Mr. Jena, the learned counsel appearing for the appellant and Mr. Indrajit Ray, the learned Additional Government Advocate, I am of the view that the order of conviction recorded by Mr. D. Panigrahi, then the Additional Sessions Judge, Bhawanipatna. holding the appellant to be guilty of the charge under section 436 of the Indian Penal Code, accepting the case of the prosecution that during the absence of Narayan Pradhan (P.W. 5) and while his mother Usha (P.W. 3) and wife Sita (P.W. 4) were in his house at village Terasinglla the appellant knocked the door, asked P. W 3 for some fire and on her refusal. threatened to set fire to the straw heap and by burning a matchstick, set fire to the straw heap and the cattle-shed of P.W. 5 after driving the cattle away and on the day following, made an extra judicial confession in a meeting. If the Panchayat, cannot be maintained on facts and sustained in law for the following reasons.

(2.) The story presented by P.Ws.3 and 4 that the appellant knocked the door and asked de for some fire and on refusal by P.W. 3 to the accede to his request, set fire to the cattle shed ac and straw heap was, on the face of it, too unreal and fantastic to be accepted as with the intention to commit mischief by setting fire, the appellant would certainly not create evidence against himself by knocking the door, ask for some fire and then set fire to the cow-shed and the straw heap within the view of P.Ws. 3 and 4. There was no evidence that when during the night a number of villagers came, either P.W. 3 or P.W. 4 had told them that she had seen the appellant setting fire to the cow-shed or the straw heap. Evidence had been led by the prosecution through P.Ws. 5, 6 and 7 that the appellants had made an extra judicial confession of having set fire to the cattle-shed and the straw heap having first denied to have done so in a meeting of the Panchayat which, as testified by P.W. 1, had, been made after persuasion. Evidence with regard to the extra judicial confession is evidence of a weak character. See State of Punjab v. Bhojan Singh and others. The Supreme Court in Heramba Brahma and another v. State of Assam, relying on the principles laid down in Rahim Beg v. State of U.P. has laid down the test for acceptance of an extra judicial confession and it has been observed that extra judicial confession, to -afford a piece reliable evidence, must pass the test of reproduction of exact words, the reason or motive for confession and the person selected in whom confidence is reposed. In the instant case, by the time the Panchayat was held, no finger of accusation had been raised against the appellant. There was no material to show that P.Ws. 1, 5, 6 and 7 were persons in the confidence of the appellant so that he would make a confession before them implicating himself. There was no reason, on the facts and in the circumstances of the case, to come a conclusion that owing to repentance or penitence, the appellant had made an extra judicial confession. Merely because some witnesses had testified about it and the appellant had not shown as to how and why they should depose against him their evidence with regard to the extra judicial confession was not to be accepted.

(3.) One very important aspect of which no due notice had been taken by the trial court was that in the first information report lodged by no other person than P.W. 5 after the meeting of the Panchayat where the appellant bad-allegedly confessed, it bad not been stated either that P.Ws. 3 and 4 had witnessed the occurrence and had implicated the appellant as the author of the crime or that the appellant had made an extra judicial confession. As has been laid down by the Supreme Court in Ram Kumar Panda v. The State of Madhya Pradesh, the first information report, strictly speaking can be used to corroborate or contradict its maker, but omissions of important facts affecting the probabilities of the case are relevant under section 11 of the Evidence Act in judging the varacity of the prosecution case. In the normal course of human conduct and action, P.Ws. 3 and 4 would have informed P.W. 5 that the appellant was the author of the crime if they had really seen that the appellant had set fire to the straw heap and cattle-shed and in that case that fact would not be conspicuous by its absence in the first information report. P.W. 5 was himself said to be present when the extra judicial confession had been made Strangely however, even this fact had not been mentioned in the first information report. The learned Additional Sessions Judge took no notice of these infirmities and suspicious features in the evidence and recorded an order of conviction which cannot be sustained.