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2011 DIGILAW 564 (ORI)

Khetra Nayak v. State of Orissa

2011-11-16

B.K.PATEL, L.MOHAPATRA

body2011
JUDGMENT B.K. PATEL, J 1. The appellant having been convicted for commission of offence under Section 302 of I.P.C. and sentenced to undergo imprisonment for life by the learned Sessions Judge, Kandhamal-Boudh, Phulbani in S.T. No.87 of 1998 has preferred this appeal against the said order of conviction and sentence. 2. The case of the prosecution is that on 22.12.1996 in the morning the deceased with his brother informant-P.W.1 went to the hillock side for bringing charcoal. After returning in the afternoon at about 2.00 P.M., the deceased left home telling that he was going to Kutipada to consume liquor. However, he did not return in the night. On the following morning P.W.8, a resident of village Kutipada came and called P.W.1 to go to his locality saying that he would disclose something to him. Accordingly, P.W.1-the informant accompanied P.W.8 to the house of P.W.2. It is alleged that P.W.2 disclosed to P.W.1 that in the preceding night, the appellant came to his house and made extra judicial confession saying that he had committed murder of a person and the dead body was lying in his house. P.W.1 apprised some of the co-villagers of such information and along with them came to the house of the appellant. Finding the door of the house chained from outside, appellant's wife was called and she opened the door. Entering into the house P. W.1 and other noticed marks of blood leading from the entrance room to the kitchen and the dead body of the deceased was found lying inside the kitchen. On the basis of oral narration of the occurrence at Balliguda Police Station, P.W.9 the Officer-in-Charge prepared the F.I.R., registered the case and took up investigation. On completion of the investigation, charge sheet under Section 302 of I.P.C. was submitted against the appellant. 3. The plea of the appellant was denial of the prosecution case. The appellant in his statement recorded under Section 313 of Cr.P.C. took the plea that the deceased sustained fatal injuries when he accidentally fell down near his house and the heavy door frames which he was carrying fell on him. 4. The prosecution in order to prove the charge examined ten witnesses. Out of whom P.W.1 is the informant and brother of the deceased, P.Ws.2 and 4 are witnesses to the extra judicial confession made before them by the appellant. 4. The prosecution in order to prove the charge examined ten witnesses. Out of whom P.W.1 is the informant and brother of the deceased, P.Ws.2 and 4 are witnesses to the extra judicial confession made before them by the appellant. P.W.3 is a witness to the seizure of wearing apparels of the deceased. P.W.5 is a police constable and P.W.6 is the A.S.1. of police. P.W. 7 is the Doctor, who had collected appellant's nail clippings. P.W.8 is a witness to the seizure of weapon of offence 'PA-URANI MUNDA' M.O.I., a wooden handle by which paddy is crushed at the instance of the appellant. P.W.9 is the Investigating Officer. P.W.10 is the Doctor who conducted postmortem examination over the dead body of the deceased. No defence evidence was adduced. 5. Placing reliance on the evidence of P.Ws.2 and 4 with regard to extra judicial confession made by the appellant and the evidence of P. W.8 with regard to recovery of weapon of offence at the instance of the appellant coupled with the medical evidence, the trial Court held that the prosecution has successfully proved the charge against the appellant. 6. Mr. Mohapatra, learned counsel appearing for the appellant, assails the impugned judgment contending that neither P.W.2 nor P.W.4 deposed that the appellant confessed to have killed the deceased. It is further contended that neither P.W.2 nor P.W.4 had intimacy with the appellant for which there was any reason for the appellant in reposing confidence in them. With regard to recovery of weapon of offence, it is contended that neither the independent witnesses, P.W.8 nor P.W.9 deposed regarding place of recovery of 'PA-URANI MUNDA' M.O.1. On the contrary P.W.8 in his cross-examination expressed his ignorance regarding the place from which M.O.1. was recovered. It is argued that neither of the two vital circumstances having been proved by the prosecution and the impugned judgment is liable to be set aside. 7. Learned Addl. Standing Counsel for the State on the other hand referring to the evidence of P.Ws.2, 4 and 8 contends that the prosecution has duly proved the circumstances of extra judicial confession and recovery of weapon of offence in the house of the appellant at his instance. Both the circumstances are corroborated by medical evidence. Therefore, there is no infirmity in the impugned judgment. 8. We have carefully scrutinized the evidence available on record. Both the circumstances are corroborated by medical evidence. Therefore, there is no infirmity in the impugned judgment. 8. We have carefully scrutinized the evidence available on record. Admittedly there is no eyewitness to the occurrence. P.Ws.2 and 4 deposed regarding extra judicial confession made by the appellant. P.W.2 deposed that at about 4.00 A.M. on the date of occurrence the accused came to his house and called him when he was sleeping. On being questioned as to why he came at such odd hour of the night, the appellant stated that he having killed one man came to him. P.W.2 further deposed that later on P. WS.1 and 8 came to him and he told them that the appellant might have killed the deceased. In course of cross-examination P.W.2 admitted that the appellant did not repose confidence on him nor was there any intimacy and friendly relationship between them. It is also admitted by him that the appellant did not tell him that he committed murder of the deceased. P.W.4 admitted in his examination-in-chief that the appellant is not related to him. He deposed that in the night of occurrence when he was sleeping, the appellant called him for 'NASA' and when P.W.4 stated that he did not have 'NASA' the appellant stated to him that he had killed one man. On being asked by him as to whom he killed, the appellant stated that he had taken away the life of 'Bada'. In cross-examination P.W.4 stated that he did not tell before anybody that appellant made extra judicial confession admitting his guilt. He also admitted that the appellant did not repose confidence or faith to believe him. P.W.1 stated that it was P.W.8, who called and took him to the house of P.W.2 and thereafter P.W.2 disclosed regarding extra judicial confession made by the appellant. However, in cross-examination P.W.1 stated that P.W.8 did not tell anything to him on the day following the date of occurrence as to how the death of the deceased took place or anything else and that P.W.8 did not disclose the name of the appellant. P.W.1 further admitted that P.W.2 also did not tell anything to him as to who committed murder of the deceased. Thus the evidence of neither P.W.2 nor P.W.4 indicates that the appellant made confession implicating himself with murder of the deceased. P.W.1 further admitted that P.W.2 also did not tell anything to him as to who committed murder of the deceased. Thus the evidence of neither P.W.2 nor P.W.4 indicates that the appellant made confession implicating himself with murder of the deceased. Neither of the witnesses appears to be having any intimacy with the appellant which should have prompted the appellant to repose confidence on them. In such circumstances the evidence adduced by the prosecution in order to establish that the appellant made extra judicial confession before P.Ws.2 and 4 is found to be too vague to constitute a firm basis for recording a finding in criminal trial. The other link in the chain sought to be established by the prosecution is recovery of weapon of offence. P.W.8 was examined as an independent witness to seizure of weapon of offence M.O.-I. He stated that in his presence the appellant while in police custody made disclosure of the statement and led to discovery of M.O.I, However, in cross-examination this witness stated that he did not come to the house of the appellant on the date of seizure of M.O.-I. He expressed his ignorance regarding the place from which the appellant gave recovery of M.O.-I. P.W.9 the Investigating Officer stated that M.O.-I was seized from the house of the appellant. Evidence of P.W.9 therefore remains uncorroborated. Thus, the evidence of P.Ws.2, 4 and 8 are not found to be firm basis to record a finding that either the appellant made extra judicial confession before P.Ws.2 and 4 or the appellant led to recovery of weapon of offence. The two vital circumstances having not been proved by the prosecution the impugned judgment is liable to set aside. 9. We therefore, allow the appeal and set aside the impugned judgment and order of conviction dated 21.11.2000 passed by the learned Sessions Judge, Kandhamal-Boudh, Phulbani in S.T. No.87 of 1998 convicting the appellant - Khetra Nayak for commission of offence under Section 302 of I.P.C. The appellant is acquitted of the said charge. 10. It is stated by learned counsel for the appellant that the appellant is in custody. If that be so, the appellant be set at liberty forthwith, unless his detention is required otherwise. I agree. Appeal allowed.