Odisha Mamita Murder: Picture Abhi Baaki Hai, No Volunteering By Accused Gobinda Sahu For S 164 CrPC

The sensational Mamita Murder is not an open and shut case. While DIG Deepak Kumar claimed that Odisha police have the necessary corroborative evidence to convict the key accused Gobinda Sahu, it seems the picture is still very hazy.

As per DIG Deepak Kumar, the Odisha police had recorded statements of over 100 witnesses under section 161 of the Criminal Procedure Code (CrPC) and statements of 10 were recorded under section 164 of CrPC.

Significantly, Odisha police had made two accused in the sensational case. And Police had made them accused solely on the admission (not confession) of crime by the accused Gobinda Sahu in police custody - which is construed as a statement under 161 CrPC.

In fact, as per senior advocates, examination of accused u/s.161 CrPC is known as interrogation. And Indian Evidence Act terms is admission, not the confession.

As per Section 25 of the Indian Evidence Act, confession recorded by a police officer is inadmissible in evidence, which even the DIG today admitted in the Press Conference.

Since the cracking of the case is based on the statement of the accused under section 161 CrPC, for Police proving it in the court of law will be an Achilles' hill.

The Legal Ground

Are statements recorded under section 161 CrPC have evidentiary value? As per the Indian Evidence Act, Section 161 statements cannot be used as evidence, unless they fall under section 27 or section 32 of the Indian Evidence Act.

While Section 32 will not be applicable in this case, it seems the police had recorded the statement of the accused under S 161 CrPC u/s sec 27 of the Indian Evidence Act.

However, as per the following two judgements, the evidentiary value of the entire busting of the crime stands on shaky ground.

• In the State of Maharashtra V Mohd. Inayatullah, the SC had held that For the application of section 27 the statement must be split into its components and to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected.
• In Kamal Kishore v. State (Delhi Administration), Delhi HC ruled that a fact discovered in a piece of information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused.

In the current case, Odisha Police haven't put in the public domain any new 'discovered fact' other than the evidence given by the accused.

As per senior advocate Nishikant Mahapatra, unless police produce new facts of evidence other than what was given by Gobinda Sahu, Courts will not admit that as evidence.

"Here statements of only 10 were recorded under S 164 CrPC. The statements of 100 odd under S 161 CrPC cannot be termed as evidence by the prosecution. So, as of now the evidentiary value in the case is very small. And police have not independently identified the motive of the crime. In a criminal case, the intention of crime is the foremost requirement for conviction," he explained.