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CASE NO.: Appeal (crl.) 1301  of  2001 Appeal (crl.)   1302     of  2001 Appeal (crl.)   1303     of  2001

PETITIONER: KALPANA MAZUMDAR

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT:       30/07/2002

BENCH: D.P. Mohapatra, Y.K.Sabharwal.

JUDGMENT:

Y.K. Sabharwal, J.

       Subash Chandra Panda (A1), Kunja Ramana (A2), Narayan Mazumdar (A3) and Kalpana Mazu mdar (A4), the appellants before us, are facing death penalty.  The charge against them is o f kidnapping and murder of a child Ranjeet Mohanty @ Rana, aged four years.  They were charg ed 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 Apri l, 1997 and subsequently killed him.  According to the FIR on 1st May, 1997 in the early mor ning while he had gone out to attend the call of nature he observed that a person was bringi ng 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 n ot murdered the child alone but some other persons were also involved in the murder and he c an identify them.  He took all the persons to the house of A2 who finding A3 and others thre atened to assault everyone and his field servants also came with lathi and tangi.  At that t ime they came back but with the help of villagers  they again went to the house of A2 and th en found that there is none in the house.  In the prayer room of the house they found the na ils 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, A 1 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 hous e of A1.  There Simanchal Padhi "the tantrik" said that he had killed the boy and he can giv e 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 as sociates 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 Siman chal 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 w ere examined on behalf of the defence.  PW14, Hari Chand Sahu, was examined by the prosecuti on 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

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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 Addition al 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 b een confirmed by the High Court while disposing of the death reference and the criminal appe al 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 Cou rt for holding the appellants guilty is the testimony of PW14 as an eye-witness. PW7 has als o 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 wa s 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 sacri fice  to appease the deities yet their conviction is unsustainable as it is based on the sol e 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 conten tion 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 aspe cts 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 wa s recorded by the police after 19 days of the occurrence.  He left the place of occurrence a nd 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 tant rik 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 th e rickshaw puller.  A1, A3 along with the witness and rickshaw puller went to river side alo ng 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 A 1 to perform puja and they returned after performing the said puja.      Next day morning on e Dhanu Mistri was sent to the place of puja to dig a ditch.  On the third day rickshaw pull er 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.  T he tantrik told A3 that golden pot will not be available that day.      After about 2 days o n 30th April, 1997 he (PW14) heard that one boy was missing.  At about 7 p.m. PW14 was calle d 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 anybod y otherwise he will be killed.  At about 10 p.m., PW7 came in search of the boy.  He enquire d about the Witchcraft from A2 who told him that Witchcraft was not there.      Thereafter P W7 returned.  Simanchal Padhi thereafter started puja path at about 12 midnight.  All sat  i n the jeep, went to a place where ditch was prepared.  They all went to the ditch giving a t orch 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 ches t of the boy and tantrik was doing mantra path and A3 caught the neck of the child and the c hild 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 d ate of kidnapping and killing of the boy.  PW14 has further deposed that the tongue of the b oy 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 co mes at the place of occurrence.  This shows that PW14 was deputed to watch that when the fou r accused were killing the boy in the manner deposed by him, no one comes there.  In other w ords, it means that in case he finds someone coming while the accused were killing the boy e

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ither 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 circums tances 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 tard y 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 besi des testimony of PW14 what was the material to substantiate the motive attributed to him tha t he wanted a child for which he became party to the sacrifice of the boy on the asking of t he 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 th ey became common parties to the sacrifice of one human-being, one in lurement of a golden po t 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 th e 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 prose cution.  None bothered to investigate these aspects.  The prosecution rested its case entire ly 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 diff icult 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 circum stances, 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 s incere and anxious consideration to case against the third accused.      In our view even af ter discarding the testimony of PW14 there is ample evidence against him.  It is neither dis puted nor could be disputed, having regard to evidence on record, that this accused was caug ht red handed while throwing dead body of the deceased by the side of the tank.  To that eff ect there is clinching evidence of PW7 who saw A3  disposing of the body.  The FIR was regis tered 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 co nviction 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 establis hed 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 e vidence 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 h anded by PW7.  The testimony of PW1, PW2, PW3 and PW6 is also to the same effect.  The accus ed also made an extra judicial confession before them that he alone had not killed the boy b ut other appellants were also with him.  We have already given the reasons why the convictio n 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 sug gestion 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 convic tion 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 appr ehended 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 drawi ng a presumption against the third accused for having committed the murder of the child.  Ou r view gets sustenance from Mohan Lal and Anr. v. Ajit Singh and Anr. [AIR 1978 SC 1183]  wh erein 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, th

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e manner of their acquisition by the owner, the nature of the evidence about their identific ation, the manner in which the articles were dealt with by accused, the place and the circum stances of their recovery and the length of the intervening period and the ability or otherw ise of the accused to  explain the recovery are some of those circumstances.  Despite the af orenoted circumstance duly established against the third accused, it cannot be said that con viction in respect of the third accused under Section 302 is not liable to be maintained.  T hese 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 Sec tion 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 co nfirming that of Sessions Court and give benefit of doubt to accused No. 1 Subash Chandra Pa nda, 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 a llowed.  The appeals are disposed of in the above terms.