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2002 DIGILAW 171 (ORI)

Ghasia Harijan v. State of Orissa

2002-03-18

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT B. PANIGRAHI, J. — The conviction and sentence passed by the learned Addl. Sessions Judge, Jeypore under Section 302 of the Indian Penal Code, in short, ‘IPC’ in Sessions Case No. 101 of 1993 have been assailed in this appeal. 2. The skeletal picture of prosecution story is as follows: On 11.8.1993 the inform Sugri Gonda, wife of the deceased lodged an information at the Kotpad Police Station by stating that the appellant had killed her husband in his Bari. She fur¬ther narrated that on 11.8.1993 at about 5.30 P.M. Santi Gonda (P.W.1) came running to her while she was in the field and nar¬rated that the appellant had assaulted her husband in his Bari as a result of which he died instantaneously. Hearing this, the informant immediately rushed to the village and noticed that her husband was lying dead in a pool of blood in the Bari and the appellant had sustained bleeding cut injuries on his head and other vital parts of the body. At that time the appellant was only present in his house. Seeing this, she came to her house and disclosed the incident before her other relations, such as, Goralal Harijan, who arrived at her house some time thereafter Goralal Harijan informed about the incident to the Ward Member-Purna Pujari and others. All the persons went to the spot when the appellant came from his house and confessed before them that he had killed the deceased by means of an axe. 3. P.W.4 along with Goralal Harijan and Choukidar Maheswar Harijan came to Bada Ambada Out-post and orally explained the incident to the A.S.I. who reduced the report to writing as per Ext. 5. The A.S.I. of Police on the basis of Ext. 5 made Station Diary Entry vide No. 177 dated 11/12.8.1993 and sent it to Kotpad Police Station for registration of the case. On the basis of such report, the case was registered and the O.I.C., Kotpad Police Station took up investigation of the case, on completion of which he submitted chargesheet against the appellant under Section 302 of IPC. 4. The learned Additional Sessions Judge, Jeypore on a brief resume of the evidence held the appellant responsible for commission of offence of death of Chamaru Gonda and accordingly sentenced him as stated above. 5. The plea of the appellant was one of complete denial of commission of the crime. 6. 4. The learned Additional Sessions Judge, Jeypore on a brief resume of the evidence held the appellant responsible for commission of offence of death of Chamaru Gonda and accordingly sentenced him as stated above. 5. The plea of the appellant was one of complete denial of commission of the crime. 6. The learned counsel for the appellant has seriously contended that in this case there is no eye witness to the occur¬rence. Therefore, the learned trial Court should have scrutinised the evidence of the prosecution witnesses very carefully in order to find out the guilt or otherwise of the accused. P.Ws.1 and 2 are the post occurrence witnesses. It is no doubt true that they are not eye-witnesses and therefore, their evidence requires careful scrutiny before the same is accepted. 7. Merely because a relation of the deceased is examined, his evidence should not be discarded on account of such relation¬ship. A duty has been cast upon the Court to scrutinise the evi¬dence in a proper manner in order to find out the guilt, In this case though P.Ws.1 and 2 are the relations of the deceased, they have never been named as eye-witnesses to the occurrence. In her evidence P.W.1 has stated that he accompanied her grand- mother, P.W.2, who followed the deceased while he was going towards the house of the appellant from the tea stall. By the time they reached near the backyard of the appellant, they found the de¬ceased lying in a pool of blood and the appellant was standing nearby. None of them had attributed any overt-act to the appel¬lant save and except that he was standing there. 8. The prosecution has relied on another circumstance that the appellant made an extra-judicial confession with regard to the incident Extra-judicial confession by itself is not a clinching evidence but it can only used as a corroborative piece of evidence. The evidence of extra-judicial confession can neither be accepted nor can it be utilised against the accused without ascertaining its varacity. In this case there is no cogent, clear and unimpeachable evidence so as to base a convic¬tion against the appellant on the sole ground of extra-judicial confession. Further, it has not been proved by the prosecution the basis for which the accused selected the persons before whom he allegedly made the extra-judicial confession. In this case there is no cogent, clear and unimpeachable evidence so as to base a convic¬tion against the appellant on the sole ground of extra-judicial confession. Further, it has not been proved by the prosecution the basis for which the accused selected the persons before whom he allegedly made the extra-judicial confession. In this case, the prosecution has adduced no substantial evidence as to why he reposed confidence in those persons before whom he allegedly made such confession. 9. The prosecution has relied upon another circumstance that an axe was recovered at the instance of the appellant. But as we found, in the seizure list it has been stated that the axe was recovered from a Nala. From the evidence of P.W.3, it however appears that the axe was recovered from the Bari of the appel¬lant. On perusal of Ext. 4/1 it does not indicate that the axe contained human blood. In the above background of the fact, even assuming that the axe was seized at the instance of the appel¬lant, it cannot be taken as an incriminating circumstance against him. 10. The occurrence had taken place in the backyard of the appellant, but the prosecution did not adduce any evidence to establish that there was no person other than the appellant present at the time of commission of offence in the Bari of the appellant. Taking the cumulative effect of the above evidence into consideration, it cannot be said that the prosecution has proved its case against the appellant beyond all reasonable doubt. 11. For the reasons stated above, we are unable to agree with the learned Additional Sessions Judge and accordingly, upset his finding and acquit the appellant of the charge under Section 302, IPC. 12. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellant is set aside. He be released from jail custody and set at liberty forth¬with, if his detention is not required in connection with any other case. CH. P. K. MISRA, J. I agree. Appeal allowed.