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2012 DIGILAW 14 (ORI)

Bisu Majhi @ Hansdah v. State of Orissa

2012-01-06

B.K.PATEL, L.MOHAPATRA

body2012
JUDGMENT• L. MOHAPATRA, J. - This appeal is directed against the judgment and order dated 29.4.2010 passed by the learned Sessions Judge, Keonjhar in S.T. Case No.53 of 2009 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (in short 'IPC') and sentencing him to undergo imprisonment for life. 2. Case of the prosecution as revealed from the F.I.R. is that the deceased Rath @ Rathia Majhi @ Hasda and the appellant are related as brothers. In the night of occurrence, i.e. 17.8.2008 there was a quarrel between the deceased and appellant. In course of such quarrel, the appellant assaulted the deceased by means of a lathi, as a result of which, the deceased sustained severe head injury. On the basis of a report lodged by the wife of the deceased, Keonjhar Town Police Station Case was registered for commission of offence under Section 302 of IPC and investigation was taken up. On completion of investigation, charge sheet was submitted against the appellant for commission of offence under Section 302 of IPC. 3. The prosecution in order to bring home the charge, examined as many as eight witnesses, but none was examined on behalf of the appellant. Defence plea was one of the denial. Out of eight witnesses examined on behalf of prosecution, P.W.1 is wife of the deceased, who lodged the F.I.R. and also deposed about the extra judicial confession made by the appellant before her. P.W.2 is the husband of younger sister of P.W.1, who had been informed about the incident by P.W.1, P.W.3 is the Doctor, who conducted post-mortem examination. P.Ws.4 and 5 are the witnesses to the inquest. P.W.6 is one of the Investigating Officers. P.W.7 is the father of appellant and deceased, who turned hostile and P.W.8 is another Investigating Officer, who submitted the charge sheet. The trial Court, on the basis of the extra judicial confession made before P. W.1 and the medical report, found the appellant guilty of the charge and convicted him thereunder. 4. Learned counsel for the appellant assailed the impugned judgment on the ground that the extra judicial confession being a weak piece of evidence, no conviction can be based on the extra judicial confession without corroboration from independent sources. 4. Learned counsel for the appellant assailed the impugned judgment on the ground that the extra judicial confession being a weak piece of evidence, no conviction can be based on the extra judicial confession without corroboration from independent sources. According to the learned counsel for the appellant, there is no corroboration to the so-called extra judicial confession made before P.W.1 from any other source and, therefore, the impugned judgment convicting the appellant for commission of offence under Section 302 of IPC solely on the basis of the extra judicial confession made before P.W.1 is unsustainable. Learned counsel for the State, on the other hand, relied on the extra judicial confession and the medical report to support the findings of the learned trial Court. 5. We have carefully examined the evidence of all the eight witnesses. P.W.1 is wife of the deceased. She deposed that in the night• of occurrence, the appellant came to Ramsingh's house and told her that because of a quarrel, he assaulted the deceased and due to such assault, the deceased died. In the night, she did not come to the house of the deceased. Next morning, she went to her sister's house and narrated the incident. Thereafter, she came to the Police Station and orally reported the matter, which was reduced to writing and was registered as an F.I.R. In cross-examination, she could not say the name of the person, who had scribed the F.I.R., nor could she say the contents of the F.I.R. She further stated that on many occasions taking liquor the deceased had fallen down and had injured himself. P.W.2 is the husband of the younger sister of P.W.1. He has only stated that P.W.1 came to their house and informed that the deceased was serious and there was mutual assault between the appellant and deceased. This witness in cross-examination has also stated that the deceased was taking liquor on certain occasion and she had fallen down and injured himself. P.W.3 is the Doctor, who conducted the postmortem examination, found two injuries, one laceration with fracture of post occipital bone of skull and another fracture of post occipital bone with expulsion of brain matter and there was bleeding inside the skull. He was of the opinion that the death was homicidal and the injuries were ante mortem in nature. He also opined that the injuries could be caused by bamboo lathi, M.O.I. P.Ws. He was of the opinion that the death was homicidal and the injuries were ante mortem in nature. He also opined that the injuries could be caused by bamboo lathi, M.O.I. P.Ws. 4 and 5 are the two witnesses to the inquest. P.W.6 is the Investigating Officer, who registered the case and conducted the investigation to some extent. P.W.7 is the father of the deceased and appellant, who turned hostile. P.W.8 is the Investigating Officer, who submitted the charge sheet. 6. On analysis of the entire evidence, it appears that the deceased died a homicidal death and the injuries on the body of the deceased found in course of postmortem examination could be caused by M.O.I. In absence of any direct evidence, the prosecution had to rely on the circumstantial evidence. Therefore, it is the duty of the prosecution to prove the chain of circumstances pointing at the guilty of the appellant. In the present case, the prosecution tried to prove one of such circumstance, such as, extra judicial confession made before P.W.1. From the evidence of P.W.1., it appears that she is the first wife of deceased. Since the deceased married another woman, she was sleeping in the house of Ramsingh Munda in her village. Though she deposed that in the night of occurrence, the appellant came to Ramsingh's house and told her that because of a quarrel, he had assaulted the deceased and due to such assault, the deceased died, a doubt arises as to why the appellant would make such extra judicial confession before P.W.1, who was no more staying with the deceased as the deceased had taken a second wife. Moreover, law is well settled that the extra judicial confession is a weak piece of evidence and the Courts ordinarily look for corroboration as a matter of prudence. There is no corroboration from any other independent source to the said extra judicial confession. The only other evidence is the evidence of P.W.3, who conduct postmortem examination. 7. On careful examination of the entire evidence, we also do not find any other circumstance against the appellant. We are therefore of the view that the prosecution has failed to establish the chain of circumstances pointing at the guilty of the appellant leaving-.no room to entertain a doubt. Having held that the prosecution has failed to establish the chain of circumstances, the impugned judgment cannot be sustained. We are therefore of the view that the prosecution has failed to establish the chain of circumstances pointing at the guilty of the appellant leaving-.no room to entertain a doubt. Having held that the prosecution has failed to establish the chain of circumstances, the impugned judgment cannot be sustained. We, accordingly, allow the appeal and set aside the impugned judgment and order dated 29.4.2010 passed by the learned Sessions Judge, Keonjhar in S.T. Case No.53 of 2009 convicting the appellant-Bisu Majhi @ Hansdah for commission of offence under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life. The appellant is acquitted of the said charge. It is stated that the appellant is still in custody. If that be so, he be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed.