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2008 DIGILAW 108 (ORI)

Mansingh Munda v. State of Orissa

2008-02-06

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT L. MOHAPATRA, J. — The appellant having been convicted by the learned Sessions Judge, Keonjar in S.T. Case No.99 of 1994 for commission of offence under Sections 302 of the Indian Penal Code (in short ‘I.P.C.’) and sentenced to undergo imprisonment for life, has preferred this appeal against such order of convic¬tion and sentence. 2. The case of the prosecution in brief is that the accused persons and the deceased Dama Munda belong to Adibasi community of village Deolhari. The appellant was suspecting that the deceased might have killed his two children by practicing witchcraft. On 24.2.1994 in the afternoon, when the deceased Dama munda was returning from Remuli weekly market, on his way near Nischintpur jungle, the appellant caught hold the deceased and committed his murder by assaulting him with lathi and stone, and with the help of the other two accused persons, namely, Niranjan Munda and Sudar Munda carried the dead body of the deceased and concealed the same inside the jungle. Pursuant to VHF message dated 17.2.1994 regarding missing of deceased from the village Deojhari, P.W. 2 conducted enquiries and searched at different places. Blood stains were found on the hilly path of Nischintapur forest towards Bhanya Parbat side inside the forest. In course of such enquiry it came to light that the appellant had committed murder of the deceased and concealed the dead body in the jungle, on the basis of which, a plain F.I.R. was lodged by P.W. 2 and investigation was taken up. On completion of investigation charge sheet was submitted against three accused persons for commission of offences under Sections 302/201/34 I.P.C. However, in course of trial, three accused persons have been tried for commission of offences under Sections 302/34 I.P.C. 3. The prosecution examined six witnesses to prove the charge, but none was examined on behalf of the defence. The plea of the defence is one of complete denial of the prosecution case. 4. Learned Sessions Judge on the basis of the evidence of P.W.4 with regard to extra judicial confession and leading to discovery of the dead body as well as weapon of offence found the appellant guilty of the charge and convicted him for commission of offence under Section 302 I.P.C. The other two accused persons were acquitted of the charges. 5. Mrs. 5. Mrs. Panda, learned counsel for the appellant assails the impugned judgment on the ground that the evidence of P.W.4 is not trustworthy, he having made different statements at dif¬ferent stages. It is further contended by the learned counsel that even if the extra judicial confession alleged to have been made by appellant before P.W. 4 is accepted, the same being a weak piece of evidence cannot be the basis of conviction without corroboration. 6. Learned counsel for the State relying upon the evidence of P.W. 4 submits that the extra judicial confession made by the appellant corroborates the evidence of P.W. 5 regarding the recovery of weapons as well as the dead body. Therefore, the trial Court is justified in convicting the appellant. 7. P.W. 1 is the doctor, who conducted the post-mortem examination on the deceased, has stated in his deposition that as the dead body was highly decomposed, it was not possible to ascertain the external injury or the internal injury. The cause of death of the deceased also could not be ascertained. P.W. 2 is the I.O. and the informant in this case. In examination-in-chief, he has stated that after arrest of the appellant and while in custody the appellant led him to the place where the dead body of the deceased was concealed and thereafter he recovered the dead body of the deceased. He also seized one lathi, a piece of stone stained with blood, blood stained earth, sample earth under seizure list Exts. 7 to 11. In cross-examination, he stated that the wooden lathi, M.O.-I and the dead body of the deceased were found inside the jungle wherefrom the local people used to collect fuel and wood. P.W. 4 is the witness on whom reliance was placed by the prosecution. He stated in his deposition that about 3 ½ years prior to the examination in Court, he had come to Remuli Market with his wife and Sudar Munda and the sister of Sudar Munda took Handia in the house of Ganga Munda. Near Ghat road, they met Pandu Munda and on the way, they also found the dead body of the deceased. They found the three accused persons sitting near the dead body. Out of them the present appellant asked them to help for carrying the dead body and throwing it away and threatened to kill him if they fail to help. Near Ghat road, they met Pandu Munda and on the way, they also found the dead body of the deceased. They found the three accused persons sitting near the dead body. Out of them the present appellant asked them to help for carrying the dead body and throwing it away and threatened to kill him if they fail to help. No one helped the accused persons in carrying the dead body and they saw the accused persons carrying the dead body of the deceased to¬wards the jungle. This witness turned hostile and at the instance of the prosecution, while answering a leading question, stated that the present appellant told him that he had committed murder of the deceased and therefore he had given such statement before the I.O. This witness was examined eight days after the occur¬rence. P.W.5 is another witness on which reliance is also placed by the prosecution. This witness has stated in his deposition that the extra judicial confession was made by the present appellant in the presence of police and, therefore, the trial Court did not rely on the evidence of P.W. 5 and 6 is the other Police Officer who has recovered the dead body of the deceased and the alleged weapons of offence. Since P.W. 4 did not say anything about the extra judicial confession, he was declared hostile by the prose¬cution and subjected the leading question put by prosecution. He stated that the present appellant admitted before him to have committed murder of the deceased. The statement of this witness regarding the extra judicial confession made before him is doubt¬ful considering the fact that in examination-in-chief, he did not say so and made such statement in answer to a leading question put by prosecution. This extra judicial confession also does not get corroboration from any quarters. Even the doctor-P.W. 1, who conducted the post mortem examination, could not ascertain the cause of death. The weapon of offence, namely, Bamboo Bahungi-M.O.II appears to be stained with blood but from the seizure list we do not find where from the M.O. II was seized. Ext. 7 speaks about the lathi but it does not speak about Bahungi. 8. Even the doctor-P.W. 1, who conducted the post mortem examination, could not ascertain the cause of death. The weapon of offence, namely, Bamboo Bahungi-M.O.II appears to be stained with blood but from the seizure list we do not find where from the M.O. II was seized. Ext. 7 speaks about the lathi but it does not speak about Bahungi. 8. In these circumstances, we are of the considered view that even if the evidence of P.W. 4 is accepted to the extent that the appellant had made extra judicial confession before him, such extra judicial confession does not get corroboration from any quarter and therefore, it will not be safe to rely upon the witness, who had not stated about the extra judicial confession in examination-in-chief and to convict the appellant without corroboration from any quarters. 9. In view of the reasons stated above, we allow the appeal, set aside the impugned judgment and order dated 5.9.1997 passed by the learned Sessions Judge, Keonjhar convicting the appellant for commission of offence under Section 302 I.P.C. and sentencing him to undergo rigorous imprisonment for life in S.T. Case No. 99 of 1994. It is stated that the appellant is still in custody. If that be so, the appellant-Mansingh Munda be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed.