Criminal Law Journal
1983 CRI. L. J. 692(2) confession made by the accused before the Magistrate
SUPREME COURT
(From : Orissa)*
S. MURTAZA FAZAL ALI , J.
and O. CHINNAPPA REDDY , J.
Criminal Appeal No.84 of 1976, D/- 3 - 2 - 1983
Kora Ghasi Appellant v. State of Orissa Respondent
Penal Code (45 of 1860), S.300, S.201 - Criminal
P.C. (2 of 1974), S.386 - Murder - Evidence against
accused found slender - View of Sessions Judge
while acquitting accused could not be said to be not
reasonably possible in the circumstances of case -
@page-CriLJ693
Order of High Court reversing order of acquittal,
even if it was possible to take different view, held, was
not proper in the circumstances of case - Conviction
of accused under S.201, in the absence of evidence set
aside.
Govt. Appeal No. 60 of 1971, D/-4-12-1974 (Orissa),
Reversed.
(Para1)
Mrs. S. Bhandare, Advocate, for Appellant (A.C.); Mr.
B. Parthasarathi and Mr. P.N. Misra, Advocates, for
Respondent.
* Govt. Appeal No.60 of 1971, D/-4-12-1974 (Orissa).
Judgement
1. JUDGMENT:-The appellant was charge-sheeted
under S.302, I.P.C. but on trial the learned Sessions
Judge acquitted the appellant on the ground that there
was no sufficient evidence against him to prove the
case beyond reasonable doubt. The State of Orissa filed
an appeal against the order of acquittal passed by the
Sessions Judge and the High Court, on appeal, reversed
the order of acquittal passed by the Sessions Judge and
convicted the appellant under Section 302, I.P.C. and
sentenced him to imprisonment for life. We have gone
through the judgment of the Sessions Judge and that of
the High Court and we are clearly of the opinion that the
evidence against the appellant is very slender. The main
evidence against the appellant consists of the retracted
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where he admitted to have assaulted the deceased with
a lathi as a result of some altercation with the deceased.
This confession has been held to be voluntary both by the
High Court and Sessions Court and nevertheless as the
confession was retracted corroboration was necessary.
According to the prosecution the confession was clearly
corroborated by the fact that the appellant pointed out
the weapon. These are the two main pieces of evidence
against the appellant. It was also suggested that three
witnesses P. Ws. 2, 4 and 5 bad last seen the deceased
and accused together. An important fact which has not
been noticed by the High Court is that whereas in the FIR
lodged by Hantal Podu P. W. 9 there is clear mention of
the names of P. Ws. 2, 4 and 5, the name of the appellant
is not disclosed in the FIR. On the other hand the names
of P. Ws. 2, 4 and 5 are mentioned in the FIR as being
suspected of killing the deceased. So far as the recovery
is concerned we cannot attach much importance to this
fact as it was from an open place accessible to all. At
any rate after going through the judgment of the High
Court and Court below it cannot be said that the view
taken by the Sessions Judge was not reasonably possible
in the circumstances of this case. It was not open to the
High Court in the circumstances of this case to reverse
the order of acquittal even if it was possible to take a
different view. The appellant has also been convicted
under Section 201, I.P.C. but we do not find any evidence
under S.201, I.P.C. and therefore the accused is acquitted
of that offence also We, therefore, allow the appeal,
set aside the conviction and sentence imposed on the
appellant under Ss. 302 and 201, I.P.C. The appellant
will be released forthwith.
2. We are very grateful to Mrs. S. Bhandare who assisted
us in deciding this appeal and she has drawn our attention
to some vital circumstances which have found favour
with us.
Appeal Allowed .
1