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2012 DIGILAW 248 (ORI)

Arsu Murmu v. State of Orissa

2012-05-15

C.R.DASH, L.MOHAPATRA

body2012
JUDGMENT L. MOHAPATRA, J. This appeal arises out of the judgment and order dated 25.6.2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 130 of 2001 convicting the appellant for commission of offence under Section 302 of I.P.C. and sentencing her to imprisonment for life. 2. P.W.1-Arjun Murmu appeared in Jashipur Police Station on 26.12.2000 at about 3.00 P.M and reported that he was the eldest amongst the three brothers and they were leaving in separate mess for 20 to 25 years in village Podagarh prior to the occurrence. His youngest brother Surai Murmu (the deceased) had married the appellant 15 to, 20 years prior to the occurrence but they had no issue. Normally the deceased used to sit near the house by making a little fire and also used guard fowls in the threshing floor. On the date of occurrence P.W.1 did not find the deceased nor did he find any fire in the threshing floor. Therefore he went in search of the deceased thinking that he might have gone to the market. He made some enquiries from the villagers and when he came back to the house of the deceased, he found the house opened and the deceased was lying dead on his bed inside the house. There were cut Injuries on the heard and neck of the deceased. One axe was found lying near the dead body of the deceased stained with blood. The appellant, who is the wife of the deceased, was not found in the house and accordingly he went and reported the matter to the village Headman. Thereafter some other villagers appeared near the house of the deceased and found the appellant sitting on the back side verandah of the house. When they enquired from her as to how the deceased died, she confessed to have killed him on the ground that the deceased was eating away goats and fowls. Thereafter he went to the Police Station and lodged the report on the basis of which investigation was conducted and on completion of investigation charge sheet was submitted against the appellant for commission of offence under Section 302 of I.P.C. 3. The prosecution in order to establish the charge examined ten witnesses whereas none was examined on behalf of the appellant. The plea of the appellant was complete denial of the prosecution case and she also complained of false implication. The prosecution in order to establish the charge examined ten witnesses whereas none was examined on behalf of the appellant. The plea of the appellant was complete denial of the prosecution case and she also complained of false implication. 3.1 Out of the ten witnesses examined on behalf of the prosecution, P.W.1 is the eldest brother of the deceased and is also the informant in the case. P.W.2 is a post occurrence witness, who came to the spot after hearing about the incident from the village Headman. Similarly P.W.3 is also a post occurrence witness. P.W.4 is a witness to the seizure of the axe-M.O.I and seizure of other articles under Ext.3. P.W.5 is the Headman of the village, who came to the spot after hearing about the incident from P.W.1. Similarly P.Ws. 6 and 7 also came to the spot after they heard about the incident. P.W.8 is the Officer-in-charge and the Investigating Officer of the case. P.W.9 is a Home Guard and is also a witness to the seizure. P.W.10 is the Doctor, who conducted postmortem examination. 4. The trial court found the appellant guilty of the charge under Section 302 of I.P.C relying on the evidence of P.Ws. 1, 2, 3, 5, 6 and 7, who stated about an extra judicial confession made by the appellant in their presence, the evidence of P.W.10, the Doctor, who conducted the postmortem examination as well as the chemical examination report, which proved availability of human blood on the axe. 5. Learned counsel appearing for the appellant assailed the impugned judgment on the ground, that the extra judicial confession is alleged to have been made by the appellant in presence of several persons and the same cannot be said to be a voluntary act on the part of the appellant and accordingly no reliance can be placed on such extra judicial confession. It was further contended by learned counsel for the appellant that the evidence of post occurrence witnesses with regard to the nature of injury seen by them does not corroborate the injuries found by P.W.10 at the time of postmortem examination and therefore, no reliance can also be placed on these post occurrence witnesses who stated to have seen the dead body of the deceased in the house of the deceased with cut injuries on the neck. It was also contended by learned counsel for the appellant that though human blood was found on the axe seized from the spot, the blood grouping having not been done it cannot be conclusively held that the blood found on the axe is that of the deceased. It was further contended that in absence of any direct evidence, the prosecution having relied upon circumstantial evidence as stated above, the circumstances on which reliance is placed cannot be accepted for the reasons indicated and accordingly the appellant could not have been convicted for commission of offence under Section 302 of I.P.C. 6. Learned Addl. Standing Counsel placed reliance on the evidence of all the witnesses before whom an extra judicial confession was made by the appellant where she specifically admitted to have killed the deceased as the deceased was eating away goats and fowls. According to learned Addl. Standing Counsel such extra judicial confession made by the appellant is corroborated by the evidence of P.W.10 as well as the chemical examination report. 7. We have carefully examined the evidence of all the ten witnesses. Undisputedly none of the witnesses had seen the occurrence. P.W.1 is the eldest brother of the deceased and be deposed that on the date of occurrence when he went to the house of the deceased, he found the appellant in the house and when he enquired about the deceased the appellant told him that the deceased was suffering from fever and was sleeping in-side the room. Thereafter he entered inside the room and found, the deceased lying dead and he also noticed cut injuries on his neck and side of the head. Thereafter he went to the village Headman and called him. Other people of the village also assembled in the house of the deceased and on being questioned the appellant confessed to have killed the deceased by means of the axe as the deceased was eating away goats and fowls. 7.1 Similarly P.W.2, who is a post occurrence witness, deposed that he had found cut injuries on the right side neck of the deceased and the appellant also confessed to have killed the deceased. 7.2 Similar is the evidence of P.Ws. 3, 5, 6 and 7. 7.1 Similarly P.W.2, who is a post occurrence witness, deposed that he had found cut injuries on the right side neck of the deceased and the appellant also confessed to have killed the deceased. 7.2 Similar is the evidence of P.Ws. 3, 5, 6 and 7. When all these witnesses say that they had noticed cut injuries on the neck of the deceased, P.W.10, who conducted the postmortem examination found one lacerated injury on the right stern clavicular and another-injury on the right side of the head. He did not find any cut injury on the neck as deposed to by the above two witnesses. P.W.10 further stated that the cause of death was due to injury to the vital organ like brain and the said injury could be caused by a hard object. Therefore we find considerable force on the submission of learned counsel for the appellant that the evidence of the above witnesses, who claimed to have seen cut injuries on the neck of the deceased is not corroborated by P.W.10, who conducted the postmortem examination. 7.3 So far as extra judicial confession is concerned, we find from the evidence that such extra judicial confession was made in presence of all the above witnesses where after the appellant was tied by the villagers. Law is well settled that extra judicial confession by itself is a weak peace of evidence and therefore as a matter of prudence the Court always looks for corroboration from independent sources. Therefore even if we accept the evidence of the above witnesses to the extent that the appellant made an extra judicial confession before them admitting to have killed the deceased, there is no corroborative evidence to establish the charge. 8. Learned Addl. Standing Counsel placed much reliance on the chemical examination report and submitted that the axe found at the spot and seized by the police contained human blood. On examination of such report, we find that though human blood was found on the axe but no blood grouping had been done and therefore in absence of any evidence it cannot be held that the blood found on the axe is that of the deceased. 9. On examination of such report, we find that though human blood was found on the axe but no blood grouping had been done and therefore in absence of any evidence it cannot be held that the blood found on the axe is that of the deceased. 9. We are therefore of the view that solely relying on the extra judicial confession alleged to have been made before several villagers it will be unsafe to convict the appellant for commission of offence under Section 302 of I.P.C in absence of any corroborative evidence. 10. For the reasons stated above, we allow this appeal and set aside the impugned judgment dated 25.6.2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T Case No. 130 of 2001 convicting the appellant for commission of offence under Section 302 of I.P.C and sentencing her to imprisonment for life 11. 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 her detention is required in any other case. The Jail Criminal Appeal is disposed of. C.R. DASH, J. I agree. Appeal disposed of.