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2000 DIGILAW 163 (ORI)

PRATAP DEHURY v. STATE OF ORISSA

2000-03-24

L.MOHAPATRA, P.K.PATRA

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L. MOHAPATRA, J. ( 1 ) - The appellant has been convicted under Section 302. I. P. C. for committing the murder of his wife and has been sentenced to imprisonment for life. ( 2 ) THE case of the prosecution is that on a Thursday morning the appellant came to the house of his brother Mangulu Dehuri and disclosed before his mother brother, children and one Bhima Patra that in the previous night he killed his wife. He handed over the key of his house to his mother and requested her to take care of the children. The mother and the brother of the appellant and Bhima Patra came to the house of the appellant, opened the lock and found the deceased lying dead inside the house in a pool of blood with multiple injuries on her person. They further found blood on the ground in front of the house and two sticks lying nearby. Thereafter. Bhima Patra went to the police station and lodged the report and after investigation charge-sheet was submitted against the appellant. ( 3 ) THE plea of the appellant is denial of the prosecution allegations. ( 4 ) EIGHT witnesses were examined on behalf of the prosecution to bring home the charge. P. W. 1 is Bhima Patra before whom on extra -judicial confession was made when he was sitting alongwith mother of the appellant (P. W. 3) and brother of the appellant (P. W. 4 ). P. W. 2 is a co-villager who speaks about an earlier assault by the appellant on his wife. P. W. 6 is the doctor who conducted autopsy on the dead body of the deceased and P. W. 8 is the Investigating Officer. ( 5 ) THE Trial Court has convicted the appellant solely on the basis of the extra-judicial confession made by the appellant before P. Ws. 1,3 and 5 as well as an incident of assault prior to the date of occurrence which was narrated by P. W. 2. ( 6 ) ADMITTEDLY there are no eyewitnesses to the occurrence and the conviction has been based on extra judicial confession made before P. Ws. 1. 3 and 4 and an incident of assault by the appellant on his wife prior to the occurrence as stated by P. W. 2. So far as extra-judicial confession is concerned. ( 6 ) ADMITTEDLY there are no eyewitnesses to the occurrence and the conviction has been based on extra judicial confession made before P. Ws. 1. 3 and 4 and an incident of assault by the appellant on his wife prior to the occurrence as stated by P. W. 2. So far as extra-judicial confession is concerned. P. W. 1 in his evidence has stated that on a Thursday morning while he. P. Ws. 3 and 4 and the children of the appellant were warming themselves near a fire in the backyard of the house of P. W. 4. the appellant came there and said that due to quarrel he killed his wife and requested them to look after the children. Thereafter this witness asked the appellant as to whether he was serious and the appellant replied that he was serious and that he actually killed his wife. Thereafter. P. Ws. 1. 3 and 4 opened the house of the appellant and found the deceased lying in a pool of blood. P. W. 1 in his cross-examination has stated that the appellant did not say the reason for his, killing or that there were any squirrels between him and the deceased. This statement goes contrary to what P. W. 1 has stated in his examination-in-chief; Though in examination inchief P. W. 1 has stated that the appellant informed them about a quarrel before assault in cross examination he has stated that the appellant never said that there was a quarrel before the incident. PW. 3 in examination in-chief stated that when she and P. Ws. 1 and 4 were sitting by the side of a fire the appellant came there and said that he killed his wife. However in cross- examination she stated that on a Thursday morning the appellant came to them weeping and said. SABU SAKI GALA TUMEJAYA DEKHIBA TUMA BAHU MARIKI PADICHHI. She has specifically stated that appellant did not state before them that he killed his wife P. W. 4 has stated that on Thursday morning when he and P. Ws. 1 and 4 were sitting near a fire in backyard of his house the accused came there and said that his wife was no more and that she was dead. It is evident from the aforesaid evidence that P. Ws. 1 and 4 were sitting near a fire in backyard of his house the accused came there and said that his wife was no more and that she was dead. It is evident from the aforesaid evidence that P. Ws. 3 and 4 have not supported the prosecution case so far as the extra- judicial confession is concerned. P. W. 1 is the only witness who speaks about the extra-judicial confession but as pointed out earlier there is material contradiction in relation to the statement of the appellant alleged to have been made before them. In view of such contradiction it would not be safe to accept the evidence of P. W. 1 with regard to extra-judicial confession without corroboration. ( 7 ) THE learned Counsel appearing for the State has drawn the attention of the Court to the statements of P. Ws. 3 and 4 recorded under Section 164. Cr. P. C. There also we find that there are variations so far as the statement of the appellant before the said witnesses are concerned. P. W. 3 further in her evidence has stated that the appellant and his wife were leading a normal life but the appellant used to be violent on occasions when he consumed liquor or Handia, This statement can explain the conduct of the appellant as stated, by P. W. 2 and therefore the evidence of P. W. 2 cannot be a basis to hold that the appellant and his wife were quarrelling always. The learned Counsel for appellant submits that the extra-judicial confession alleged to have been made by the appellant has been retracted by him and therefore in absence of corroboration the so-called extrajudicial confession as stated by P. W. 1, cannot be accepted. ( 8 ) IT is well settled that extra-judicial confession if voluntary and true and made in a fit state of mind can be relied upon by the Court. The confession has to be proved like any other fact. The value of evidence as to confession like any other evidence depends upon the veracity of a witness before whom it has been made. The value of the evidence as to confession depends on reliability of the witness who speaks about such confession. The confession has to be proved like any other fact. The value of evidence as to confession like any other evidence depends upon the veracity of a witness before whom it has been made. The value of the evidence as to confession depends on reliability of the witness who speaks about such confession. In the present case as discussed earlier not only the extra-judicial confession alleged to have been made by the appellant was retracted but also the only witness P. W. 1 who speaks about such extra-judicial confession made before him has made contradictory statements. Therefore in absence of corroboration it may not be safe to rely on evidence of P. W. 1 alone and convict the appellant only on the basis of retracted extra-judicial confession. ( 9 ) IN view of such nature of evidence we are unable to agree with the finding of the Trial Court and accordingly the appeal is allowed and the order of conviction and sentence us set aside. The appellant be set at liberty forthwith if his detention is not, required in connection with any other case. Appeal allowed.