JUDGMENT : B.K. Behera, J. - The appellant stands convicted under section 302 of the Indian Penal Code and sentenced thereunder to undergo imprisonment for life by the Court of Session after acceptance of the case of the prosecution that on October 27, 1979 at village Kadameri in the district of Kalahandi, the appellant, who had previous quarrels and dispute with Chamaru Majhi (to be referred to hereinafter as 'the deceased'), committed his murder by means of an axe (M.O.I). This occurrence had been witnessed by P.W. 1 a teacher in the village and P.W. 2, the sister of the deceased. The appellant had allegedly made an extrajudicial confession before P.W. 4 when he had carried M.O.I with him stained with blood. After commission of the murder, the appellant took to his heels and was absconding. Nearly two days thereafter, he was apprehended with M.O.I in his possession which was seized in the course of investigation started on the basis of the first information report lodged by P.W. 3. A Lungi (M.O. II) with suspected stains of blood had been seized from the possession of the appellant. The trial court has accepted the evidence of P.Ws. 1 and 2 with regard to the assault on the person of the deceased by the appellant and that of P.W. 4 as regards the extrajudicial confession made by the appellant. It has also relied on the recovery of M.O.I with stains of blood from the possession of the appellant and the fact of his absconding from the village for more than a day. 2. Mr. R.K. Mohanty, appearing for the appellant, has contended that the evidence of P.Ws. 1, 2 and 4 is not worthy of credence and if their evidence is taken out of consideration, there is no other evidence which can connect the appellant with the commission of the offence of murder. The learned Additional Government Advocate has submitted that the order of conviction is well-founded on the evidence on record. 3. It admits of no doubt from the evidence of the doctor (P.W. 8), who had conducted the autopsy over the dead body of the deceased and had noticed a number of external and internal injuries sufficient in the ordinary course of nature to cause death, that the death of the deceased was homicidal in nature. The question is as to whether the appellant was the author of the crime.
The question is as to whether the appellant was the author of the crime. 4. There was the evidence of P.W. 3 that all was not well between the appellant and the deceased and they had previous quarrels and dispute for which the matter had been reported to the police authorities. This had also been stated by D.W. 2. This, according to the prosecution, constituted the motive for the commission of the offence. 5. Although the trial court has accepted the evidence of P.W. 2, the sister of the deceased, who had testified that she had seen the appellant assaulting her brother, in view of the fact that she had not stated so when her statement was recorded under section 164 of the Code of Criminal Procedure in the course of investigation, it would not be reasonable and proper to accept her evidence. There is, however, the clear and acceptable evidence of P.W. 1 that the appellant was the assailant of the deceased. This witness had testified thus : ".... The occurrence took place at about 5 p.m. on 27-10-79. As it was a Saturday I had attended the school in the morning. At the time of occurrence I was taking rest in my house when I heard the sister of deceased shouting that her brother was being killed by the accused. I opened the door and saw the accused dealing one blow by means of an axe (tangia) on the neck of the deceased who was then lying on the ground. I saw the occurrence at a distance of about 5 cubits away from my house. The accused after inflicting the injury on the neck ran towards the northern side of the village holding the tangia in his hands which was stained with blood. I could notice three injuries on the person of the deceased and there was profuse bleeding from the injuries. The deceased was gasping for death. I asked the sister of the deceased to call other villagers and the villagers came. By the time the villagers came the deceased had already expired. M.O.I is the tangia used by the accused." Nothing substantial has been brought out in the cross-examination of this witness to discard his testimony. His evidence had found assurance from the medical evidence.
I asked the sister of the deceased to call other villagers and the villagers came. By the time the villagers came the deceased had already expired. M.O.I is the tangia used by the accused." Nothing substantial has been brought out in the cross-examination of this witness to discard his testimony. His evidence had found assurance from the medical evidence. P.W. 3 has testified that he had been informed by P.W. 1 after the occurrence that the appellant ran away after killing the deceased. A fantastic suggestion had been made to P.W. 1 that he had assaulted the deceased to death which he had denied. Even the appellant had not stated so when he was examined under section 313 of the Code of Criminal Procedure. We are at one with the learned trial Judge that P.W. 1 is a witness of truth and that his evidence can safely be accepted. 6. We are not impressed with the evidence of P.W. 4 that while he was working in his field, the appellant went to him while holding an axe and told him that he had killed the deceased, as the latter had previously quarrelled with him. There was no other evidence that the appellant had proceeded in that direction after the occurrence. In the absence of evidence of any close acquaintance of the appellant with P.W. 4, it was highly unlikely that the appellant would blurt out an extrajudicial confession before him. It was not in the evidence of P.W. 4 that he had informed anyone in the village about the extrajudicial confession of the appellant claimed by him to have been made by the appellant before him. Extrajudicial confession, to afford a piece of reliable evidence, must pass the test of reproduction of exact words, the reason or motive for the confession and the person selected in whom confidence is reposed. (See Rahim Beg v. State of U.P. AIR 1973 S.C. 343 and Heramba Brahma and another v. State of Assam AIR 1982 S.C. 1595 ). Judged in the light of the aforesaid principles, the evidence of P.W. 4 with regard to the extrajudicial confession said to have been made by the appellant would fall short of the mark and ought not to be accepted. 7.
Judged in the light of the aforesaid principles, the evidence of P.W. 4 with regard to the extrajudicial confession said to have been made by the appellant would fall short of the mark and ought not to be accepted. 7. There were the recovery of M.O.I. from the possession of the appellant and the recovery of M.O.II from his person with suspected stains of blood in them on the 29th, that is, two days after the occurrence, when he was apprehended. These two articles did contain blood as found by the Chemical Examiner, but the stains of blood were insufficient for test. It could be that the appellant had washed away some stains from these articles by the time he was apprehended. 8. The appellant had examined two witnesses in his defence and had taken a plea of alibi. For the reasons recorded in the judgment, the evidence of D.Ws. 1 and 2 has rightly been rejected. It is important to keep in mind that the appellant had not himself pleaded in his statement under section 313 of the Code of Criminal Procedure that he was away from the place. This would give a clear indication that evidence had been led at a belated stage in support of a plea of alibi which was the product of an after-thought. A plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence and it is for him to make out such a plea which may be spelt out of the prosecution evidence or established by examining witnesses for the defence. The evidence of D.Ws. 1 and 2 was not worthy of credence and the appellant had failed to establish this plea. 9. Regard being had to the nature of the injuries and the weapon used and the fact that the appellant had attacked on the vital parts of the deceased, we have no doubt in our minds that the appellant had caused injuries sufficient in the ordinary course of nature to cause death with the intention of causing the death of the deceased. He has properly been convicted under section 302 of the Indian Penal Code. 10. The appeal fails and is dismissed. R.C. Patnaik, J. - I agree. Final Result : Dismissed