Kalpana
Mazumdar Vs. State of Orissa [2002] Insc 315 (30 July 2002)
D.P.
Mohapatra, Y.K.Sabharwal. Y.K. Sabharwal, J.
Appeal (crl.) 1302 of 2001 Appeal (crl.) 1303 of 2001
Subash
Chandra Panda (A1), Kunja Ramana (A2), Narayan Mazumdar (A3) and Kalpana Mazumdar
(A4), the appellants before us, are facing death penalty. The charge against
them is of kidnapping and murder of a child Ranjeet Mohanty @ Rana, aged four
years. They were charged for offences under Sections 364, 302 and 201 read with
34 IPC.
The First
Information Report was registered at the instance of Chitranajan Mohanty, PW7.
He reported that the four appellants and Simanchal Padhi had kidnapped his
nephew on 30th April,
1997 and subsequently
killed him. According to the FIR on 1st May, 1997 in the early morning while he
had gone out to attend the call of nature he observed that a person was
bringing something on his shoulders and he came towards the pond. The person
was A3. PW7 caught him and an alarm was raised. People gathered there. Some are
named in the FIR. They found that A3 was carrying the dead body of the deceased
and on being asked he said that he has not murdered the child alone but some
other persons were also involved in the murder and he can identify them. He
took all the persons to the house of A2 who finding A3 and others threatened to
assault everyone and his field servants also came with lathi and tangi. At that
time they came back but with the help of villagers they again went to the house
of A2 and then found that there is none in the house. In the prayer room of the
house they found the nails of the dead child lying with the blood as also the
hair of the child. A3 told them that in the room the nail, hair and the tongue
of the child were cut and Simanchal Padhi offered prayers whereafter they took
the child alive in the jeep of A2 to the house of A1 where the child was
murdered by holding his leg and hand and throttling his neck. Simanchal Padhi,
A1 and A2 told A3 that they will pay Rs.25,000/- to throw the boy. When he was
throwing the boy in the pond PW7 caught him red handed. After hearing this they
all went to the house of A1. There Simanchal Padhi "the tantrik" said
that he had killed the boy and he can give life to him. He offered prayers near
the body for three hours and told everybody to wait but he failed to give life
to the boy and ran from the house. But he was caught with his associates and
handed over to the police.
The
four appellants were charged for the offences as aforesaid, the tantrik Simanchal
Padhi having already died. It is on record that PW7 was an accused in the case
of murder of Simanchal Padhi though we do not know as to what was the result of
that case.
The
prosecution in order to bring home the charges examined 15 witnesses. Three
witnesses were examined on behalf of the defence. PW14, Hari Chand Sahu, was
examined by the prosecution as an eye-witness to the occurrence.
According
to the prosecution, the deceased was kidnapped and murdered as the accused
wanted to offer a human sacrifice to appease the deities on the asking of the tantrik
who told them that as a result of the sacrifice A1 will get a gold pot and A2
will be blessed with a son. A3 was to get Rs.25,000/-, A4 is daughter of A3.
PW14
was an employee of A1. He deposed to have seen everything but did not speak out
on the threat that on so doing he would be killed. PW7 claims to be an
eye-witness having seen A3 throwing the body of his deceased nephew and caught
A3 red handed, A3 is stated to have made extra-judicial confession before PW7
and PWs1, 2, 3 & 6.
On
appreciation of evidence in particular the testimony of PWs7 and 14, the
learned Additional Sessions Judge held appellants guilty of the offences
earlier noticed and considering the case to be rarest of rare imposed on the appellants
death penalty. The death penalty has been confirmed by the High Court while
disposing of the death reference and the criminal appeal filed by the
appellants challenging their conviction and sentence.
The
main evidence that has been relied upon by the High Court as well as by the
Sessions Court for holding the appellants guilty is the testimony of PW14 as an
eye-witness. PW7 has also been relied upon in respect of matters noticed
hereinbefore as an informant leading to FIR being registered. PW14 has given a
detailed account of the role of each of the accused. The submission urged
before the Additional Sessions Judge and the High Court that PW14 was an
accomplice and was not a witness to the offence was not accepted. PW14 was held
to be a mere mute spectator. The same submission has been urged before us.
Learned
counsel for the appellants submitted that although they do not dispute the factum
of kidnapping and brutal murder of a young child ostensibly with a view to
offer a human sacrifice to appease the deities yet their conviction is
unsustainable as it is based on the sole testimony of an accomplice alone
without any corroboration. It is contended that it would be highly unsafe to
rely upon the testimony of PW14 and convict the appellants. The contention is
that if the testimony of PW14 is discarded there would be no evidence to
connect the appellants with the offences. It has also been contended that in
none of the material aspects on which PW14 deposed there is any corroboration.
Let us
first see as to what PW14 has deposed.
For
appreciating the testimony of PW14, it has also to be kept in view that his
statement was recorded by the police after 19 days of the occurrence. He left
the place of occurrence and went to his own village. Admittedly he did not
narrate the incident to anyone even when he was in his village. He was working
in the hotel of A1 for the last five years. PW14 was examined in court on 13th December, 1999. PW14 stated that about three years
back tantrik abovenamed came to him and asked him about the house of A1 which
he told him. A1 called him and one rickshaw puller at 10 p.m. and gave a torch light to him and one crow-bar to
the rickshaw puller. A1, A3 along with the witness and rickshaw puller went to
river side along with puja articles. The river was crossed at 12 midnight. A1 performed puja on his land. Next day at 10 p.m. A1 and the tantrik along with the witness again went
to the land of A1 to perform puja and they returned after performing the said puja. Next
day morning one Dhanu Mistri was sent to the place of puja to dig a ditch. On
the third day rickshaw puller was sent to dig that place. On Sunday morning tantrik
told A1 to collect a black cock. On the same day at night they all went to the
ditch with the cock. A1 asked PW14 to cut the cock in the ditch. PW14 did
accordingly. The tantrik placed cross-bar inside the ditch and became
unconscious. PW14 entered the ditch on the directions of A1 and stood there out
of fear and thereafter he was asked by A1 to come out. Accused A3 also went
into the ditch. The tantrik told A3 that golden pot will not be available that
day. After about 2 days on 30th April, 1997 he (PW14) heard that one boy was
missing. At about 7
p.m. PW14 was called
by A1 to his house. There A1 also came in a jeep and A3 brought one child
covered with a cloth. A4 caught the boy and directed PW14 to go to the jeep.
PW14 along with tantrik and A1 sat in the jeep of A2. They all went and stayed
in the house of A2. All of them stayed in one room and PW14 in another room.
They told PW14 not to tell about the matter to anybody otherwise he will be
killed. At about 10
p.m., PW7 came in
search of the boy. He enquired about the Witchcraft from A2 who told him that
Witchcraft was not there. Thereafter PW7 returned. Simanchal Padhi thereafter
started puja path at about 12 midnight.
All sat in the jeep, went to a place where ditch was prepared. They all went to
the ditch giving a torch to PW14 to watch if anybody may come.
PW14
has deposed that A4 caught the leg of the boy, A1 pressed his belly, A2 caught
the chest of the boy and tantrik was doing mantra path and A3 caught the neck
of the child and the child died there. They all returned in a jeep. He further
deposed that hearing that the boy was caught out of fear he went to his
village.
PW14
deposed to have witnessed all the details of the occurrence. He has given roles
played by all the accused and also detailed accounts of the events of four days
earlier than the date of kidnapping and killing of the boy. PW14 has further
deposed that the tongue of the boy was cut who was alive when taken in the jeep
to the ditch but he was not crying.
The
deposition of PW14 makes it abundantly clear that he was a witness to all the
events up to the killing of the boy. PW14 stated that he was given a torch to
watch if anybody comes at the place of occurrence. This shows that PW14 was
deputed to watch that when the four accused were killing the boy in the manner
deposed by him, no one comes there. In other words, it means that in case he
finds someone coming while the accused were killing the boy either he should
inform them or ensure that nobody comes. He is said to be doing all this on
account of fear and also on account of his being an employee of A1. He did not
narrate the incident to anyone for 19 days even when he was away to his
village. Without going into the question whether PW14 was an accomplice or not,
it is evident, on the facts and circumstances noticed above, it is not safe to
convict the appellants on the sole testimony of PW14. Further, it is also to be
borne in mind that investigation of the case has been most tardy and
unsatisfactory. Despite the fact that PW14 deposed about the tongue of the boy
being cut and PW7 deposed that the tongue, hair and nail of the boy were found
in the house of A2, neither those articles were seized nor it was explained as
to what has happened to the said articles. Moreover, the medical evidence does
not support the cutting of the tongue. The age of A2 was more than 70. It was
not explained whether A2 had a child or not and besides testimony of PW14 what
was the material to substantiate the motive attributed to him that he wanted a
child for which he became party to the sacrifice of the boy on the asking of
the tantrik. It is also not explained as to what was the inter-connection
between A1 and A2. There is nothing on record to show that either they were
friends or relatives. How they became common parties to the sacrifice of one
human-being, one in lurement of a golden pot and other a son. None of these
aspects were enquired into. Further the age of A4 was about 17 years at the
time of occurrence. If A3 was to get Rs.25,000/- as stated in the FIR of PW7
why the young girl of that age was involved. All these aspects remained in the
realm of mysteries thus raising bona fide and reasonable doubt about the story
of the prosecution. None bothered to investigate these aspects. The prosecution
rested its case entirely on PW14 without any corroboration of his testimony on
any of the material aspects.
We
have minutely examined the testimony of PW14 and for the reasons above noted
find it difficult to affirm the conviction of the appellants on that basis
alone.
It is
clear that if the sole testimony of PW14 is not relied upon there would be no
evidence to connect the appellants except A3 with the commission of the
offence. Under these circumstances, A1, A2 and A4 are entitled to the benefit
of doubt.
Regarding
the third accused Narayan Mazumdar his position is different. We have given our
sincere and anxious consideration to case against the third accused. In our
view even after discarding the testimony of PW14 there is ample evidence
against him. It is neither disputed nor could be disputed, having regard to
evidence on record, that this accused was caught red handed while throwing dead
body of the deceased by the side of the tank. To that effect there is clinching
evidence of PW7 who saw A3 disposing of the body. The FIR was registered on the
report of PW7. However the contention of learned counsel for the third accused
was that the circumstance of throwing of dead body of deceased by A3 can only
lead to his conviction for offence under Section 201 IPC and not under Section
302.
We are
unable to agree with the aforesaid contention of learned counsel. It stands
established from medical evidence that the deceased died homicidal death. It
was due to asphyxia on account of strangulation. None has questioned this
finding. It is unquestionable on the evidence produced on record. It is also
unquestionable and has also not been questioned that the prosecution has
proved, as stated earlier, throwing by A3 the body of the deceased by the side
of the tank on early hours of 1st May, 1997
and at that time he was caught red handed by PW7. The testimony of PW1, PW2,
PW3 and PW6 is also to the same effect. The accused also made an extra judicial
confession before them that he alone had not killed the boy but other
appellants were also with him. We have already given the reasons why the
conviction of other accused cannot be maintained. Insofar as this appellant is
concerned, there are the following circumstances:
(1)
Extra judicial confession made to the prosecution witnesses.
(2)
Recording of the said confession also in First Information Report.
(3)
Caught red handed while disposing of the dead body.
(4) Absence
of explanation how the dead body came in his possession either by way of
suggestion in the cross examination of prosecution witnesses or in his
statement recorded under Section 313 of the Code of Criminal Procedure.
We are
conscious of the fact that extra judicial confession for making it a basis for
conviction by itself is a week piece of evidence, such evidence deserves strict
scrutiny. At the same time, however, strong circumstantial evidence can get
strength from extra judicial confession. That circumstance, in the present
case, is the fact of third accused being apprehended red handed when he threw
the dead body. It is an important piece of circumstantial evidence against him.
Having regard to the facts of the case we see no reason for not drawing a
presumption against the third accused for having committed the murder of the
child. Our view gets sustenance from Mohan Lal and Anr. v. Ajit Singh and Anr. [AIR
1978 SC 1183] wherein this Court held that the question whether a presumption
to be drawn is a matter which depends on evidence and circumstance of each
case. The nature of the recovered articles, the manner of their acquisition by
the owner, the nature of the evidence about their identification, the manner in
which the articles were dealt with by accused, the place and the circumstances
of their recovery and the length of the intervening period and the ability or
otherwise of the accused to explain the recovery are some of those
circumstances. Despite the aforenoted circumstance duly established against the
third accused, it cannot be said that conviction in respect of the third
accused under Section 302 is not liable to be maintained. These circumstances
are presumptive evidence of charge of murder against the appellant.
In
view of the aforesaid insofar as the third accused is concerned, his conviction
under Section 302 is maintained.
As
earlier noticed, death penalty on the third accused has been confirmed by the
High Court. We have given to other appellants benefit of doubt having discarded
the sole testimony of PW14. The conviction of this appellant has been upheld in
view of evidence other than that of PW14. Under the circumstances, in our view,
the death penalty imposed on third accused deserves to be converted into
imprisonment for life.
For the
reasons aforesaid, we set aside the impugned judgment and order of the High
Court confirming that of Sessions Court and give benefit of doubt to accused
No. 1 Subash Chandra Panda, accused No. 2 Kunja Ramana and accused No. 4 Kalpana
Mazumdar and allow their appeals. They shall be set at liberty forthwith if not
required in any other case.
While
maintaining conviction of accused No.3, we set aside the death penalty imposed
on him and instead impose on him imprisonment for life and to this extent his
appeal also stands allowed. The appeals are disposed of in the above terms.
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