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2014 DIGILAW 94 (ORI)

Mata @ Sama Chakia @ Ho v. State of Orissa

2014-02-05

BISWAJIT MOHANTY, PRADIP MOHANTY

body2014
JUDGMENT The appellant in this appeal challenges the judgment and order passed by learned Sessions Judge, Mayurbhanj in Sessions Trial No.13 of 1997 convicting the appellant for commission of offence under Section 302 IPC and sentencing him to undergo imprisonment for life. 2.Deceased Mani was the wife of the informant (P.W.1) and the appellant, who is alleged to have committed her murder, is the elder brother of the informant (P.W.1). The prosecution case, which has given rise to conviction of the appellant, is that on 27.08.1996 “Hero Parba” was being celebrated in village Ranibhol, which is adjacent to village Madkachasahi where both appellant and the informant reside with their respective families. In that afternoon, the informant along with the children of the appellant left the village Ranibhol to participate in the “Hero Dance”. The appellant, his wife and the deceased remained in the house. In the following early morning, the appellant went to village Ranibhol and told the informant and his (appellant’s) children that in the previous night after their departure from the house to village Ranibhol, he asked the deceased to give him ‘Handia’ and when the deceased denied, he got annoyed and assaulted her by means of a wooden ‘Pidha’ and a piece of fire wood, as a result of which the deceased succumbed to the injuries. On receipt of this information, the informant along with the children of the appellant came to their house and found the dead body of the deceased lying there. He informed the matter to the villagers before whom the appellant on being asked by them confessed to have killed the deceased, as she did not provide him ‘Handia’ on his demand. On the instruction of the villagers, the informant went to Thakurmunda P.S. in the company of Deoram P.W.3 and one Jadav and reported the matter orally to the ASI of Police (P.W.5), who reduced the same to writing, registered the case under Section 302 IPC and proceeded with the investigation. During the course of investigation he visited the spot, sent the dead body for post-mortem examination, arrested the appellant and forwarded him in custody to the Court. The C.I. of Police, Karanjia took charge of investigation from P.W.5 and on its completion submitted charge sheet against the appellant for commission of offence under Section 302 IPC whereafter the appellant faced trial. 3.During trial, the appellant took the plea of denial. The C.I. of Police, Karanjia took charge of investigation from P.W.5 and on its completion submitted charge sheet against the appellant for commission of offence under Section 302 IPC whereafter the appellant faced trial. 3.During trial, the appellant took the plea of denial. His specific plea was that in the night of occurrence he was not present in the house and he had been to the field to watch the paddy crop. In order to prove its case, the prosecution examined as many as seven witnesses and exhibited eight documents including FIR and post-mortem report. P.W.1 is the brother and P.W.2 is the daughter of the accused; P.Ws.3 and 4 are the co-villagers; P.Ws.5 and 6 are the investigating officers and P.W.7 is the doctor, who conducted autopsy over the dead body. The defence examined none in support of its plea. The trial Court on conclusion of the trial convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life with the finding that the prosecution has been able to bring home the charge under Section 302 IPC against the appellant beyond all reasonable doubt. 4.Mr. Das, learned counsel for the appellant submits that the judgment of the trial Court warrants interference by this Court for the following reasons. (i)The conviction of the appellant under Section 302 IPC is based only on extra judicial confession, which is a very weak piece of evidence, and in absence of any other corroboration the same cannot be sustained. (ii)There are major contradictions in the evidence of the witnesses to the extra judicial confession and they have not reproduced the version of the accused in exact verbatim. As such, in the eye of law the accused has not made any extra judicial confession. (iii)Even if the prosecution case is believed in its entirety, the act of the accused may at best come under Section 304 Part-II IPC, since the occurrence took place due to a sudden quarrel between the deceased and the accused as a result of non-supply of Handia by the deceased. 5.Mr. Agarwal, learned Addl.Standing Counsel submits that there is no infirmity or illegality committed by the trial Court in convicting the accused-appellant under Section 302 IPC., as the evidence of P.Ws.1 and 4 is very clear and cogent with regard to extra judicial confession made by the accused-appellant. 5.Mr. Agarwal, learned Addl.Standing Counsel submits that there is no infirmity or illegality committed by the trial Court in convicting the accused-appellant under Section 302 IPC., as the evidence of P.Ws.1 and 4 is very clear and cogent with regard to extra judicial confession made by the accused-appellant. Medical evidence corroborates the oral evidence inasmuch as the doctor P.W.7 stated that all the injuries are ante mortem in nature and the death was due to injuries on the vital organs like lungs and spleen. His further submission is that in any case the act of the accused-appellant cannot come under Section 304 Part-II IPC, since the accused-appellant assaulted the deceased with an intention to kill her. 6.This Court carefully perused the evidence of the witnesses available in the LCR. P.W.1, the informant, who is also the brother of the accused, stated in his examination-in-chief that on the date of occurrence at about evening time, he along with the sons and daughters of the accused went to village Ranibhol to attend a “parba”. The deceased and the accused were in the house. In the following early morning the accused went to village Ranibhol and told P.W.1 that in the previous night he asked the deceased to supply him Handia and as she did not oblige he assaulted her to death by means of a wooden “pidha” and wooden “Kathaphalia”. He immediately returned and saw the deceased lying dead in their house with injuries on her right side ear root and right side thigh. He then informed the matter to the villagers and on being asked by them the accused confessed his guilt. Thereafter, as advised by the villagers, he informed the matter in Thakurmunda Police Station orally. The ASI (P.W.5) reduced the same to writing, registered the case and proceeded with the investigation. In cross examination, nothing substantial has been brought out to discredit his testimony and he has also denied the suggestion put by the defence that accused appellant did not confess before him to have killed the deceased. P.W.2 is the daughter of the accused and the deceased. In cross examination, nothing substantial has been brought out to discredit his testimony and he has also denied the suggestion put by the defence that accused appellant did not confess before him to have killed the deceased. P.W.2 is the daughter of the accused and the deceased. She corroborated the evidence of P.W.1 to the effect that on the date of occurrence she had been to village Ranibhol along with her uncle (P.W.1), brothers and sisters, that accused and the deceased (her father and mother) remained in their house, that her father came to Ranibhol and told them that he killed the deceased by means of a wooden piece and wooden ‘pidha’, and that on their return to house she saw her mother lying dead. She specifically deposed that in the house her father told that he assaulted the deceased by means of a ‘pidha’ and a wooden piece, as a result of which she died. In cross-examination, she, however, admitted that it was dark when they arrived in their house and that at that time her father was in a state of sorrow. Even though she admitted that at Ranibhl her father (accused) did not tell her that he killed the deceased, but in the next sentence she denied the defence suggestion that she did not talk with her father and her father did not tell her that he killed the deceased. Be that as it may, her evidence with regard to confession of the accused has remained unshaken. P.Ws.3 and 4 are the co-villagers. Their evidence is that on the request of P.W.1, both of them accompanied him to his house and saw the deceased lying dead on a cot with injuries on her body. In their presence, the accused on being asked by the villagers confessed to have killed the deceased by means of a wooden piece (M.O.I.) and a wooden ‘pidha’ (M.O.II), when the deceased did not supply him Handia on his demand, and by so confessing the accused also showed them M.Os.I and II, which were lying there. Both these witnesses have proved seizure of M.Os.I and II and also identified those M.Os. in Court. P.W.3 is also a witness to inquest and he proved the inquest report Ext.1. Nothing substantial has been brought out to discredit the evidence of these two witnesses. Both these witnesses have proved seizure of M.Os.I and II and also identified those M.Os. in Court. P.W.3 is also a witness to inquest and he proved the inquest report Ext.1. Nothing substantial has been brought out to discredit the evidence of these two witnesses. P.W.5 in his examination-in-chief deposed that he, as the ASI of Thakurmunda P.S., on 29.08.1996 reduced to writing the oral report of P.W.1 vide Ext.3 and through the interpreter Deoram Palia read over and explained the contents thereof to P.W.1, who having satisfied put his L.T.I. thereon. He further deposed that in absence of OIC, he registered the case under Section 302 IPC and took up investigation. In course of investigation he held inquest over the dead body, seized M.Os.I and II from the house of the accused, arrested the accused, despatched the dead body of the deceased for post-mortem examination and forwarded the accused to Court in custody. In cross-examination, he admitted that the alleged incident occurred on 27.08.1996, but the FIR was lodged on 29.08.1996 at 2.00 P.M. and for such delay in lodging the FIR the informant did not explain any reason. P.W.6 is the Circle Inspector of Police, Karanjia, who took over the charge of investigation from P.W.5 and after completion of investigation submitted charge sheet against the appellant under Section 302 IPC. P.W.7 is the doctor, who conducted autopsy over the dead body of the deceased. He stated that on the dead body of the deceased no external injury could be detected as it was in advance stage of decomposition. However, on pressure of the left side of the chest fracture of lower 8 nos. of ribs was detected. On dissection it was found that in the chest cavity blood clots and liquid blood were present, the lungs was collapsed and blood clots were present in it and the spleen was enlarged and pierced by the fractured ribs. He opined that all the injuries were ante mortem in nature and the death was due to haemorrhage and shock as a result of injuries to the vital organs like lungs and spleen. He also opined that the injuries could be possible by the M.Os.I and II. He opined that all the injuries were ante mortem in nature and the death was due to haemorrhage and shock as a result of injuries to the vital organs like lungs and spleen. He also opined that the injuries could be possible by the M.Os.I and II. 7.It has been held by the apex Court in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 that extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. This Court in Beti Suka v. State, (1997) 13 OCR (SC) 120 held that an extra-judicial confession, if voluntary and true, and made in a fit state of mind can be relied upon by the Court. From the aforesaid, it is clear that extra-judicial confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of the witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that they may have a motive for attributing an untruthful statement to the accused. In the instant case, P.Ws.1 to 4 are witnesses to the extra-judicial confession. Their evidence in regard to confession of the accused has remained unshaken. P.W.1 is the brother and P.W.2 is the daughter of the accused-appellant. So, it cannot be said that they have a motive for attributing untruthful statement to the accused. P.Ws.3 and 4, before whom the accused confessed his guilt, are the co-villagers. There is nothing on record to show that they are biased and even remotely inimical towards the accused. In the circumstances, this Court finds that the evidence of the witness to the extra-judicial confession is truthful and trustworthy. Nothing has been illustrated to disbelieve their evidence. The contradictions appearing in their evidence are minor in nature and do not affect substratum of the prosecution case. In view of the law laid down in the decisions cited above, it is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence and it would depend on the credibility of the witnesses who speak to such a confession. In view of the law laid down in the decisions cited above, it is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence and it would depend on the credibility of the witnesses who speak to such a confession. The evidence of extra-judicial confession cannot be thrown out of consideration in absence of corroboration and exact reproduction of the version of the accused and, as such, the contention of the learned counsel for the appellant in regard to the same cannot be sustained. For all these reasons, this Court holds that the prosecution has been able to establish that the appellant is the author of the crime and no fault can be found with the trial Court in holding the appellant guilty. 8.Now, it is to be seen whether the act of the appellant comes under any of the exceptions provided under Section 300, IPC. From the evidence of P.W.1 it is borne out that on the date of occurrence both the deceased and the accused-appellant, who are Adibasis, had taken Handia in the morning so also in the evening. At the time of occurrence, when the accused demanded more Handia and the deceased refused to give, a quarrel ensued between them for which all of a sudden the accused assaulted the deceased with a Pidha resulting in her death. From the evidence of P.W.1 it can be safely inferred that the act of the appellant by which the death of the deceased was caused has been committed without pre-meditation in the heat of pasion upon a sudden quarrel but with the intention of causing death or of causing such bodily injury as is likely to cause death. Considering the evidence of P.W.1 and other attending circumstances including the nature of weapon used in the commission of offence, this Court comes to a conclusion that the act of the accused-appellant will come under Exception-4 of Section 300, IPC and as such in view of the decision of the apex Court in the case of Ram Karan and others v. State of Uttar Pradesh, AIR 1982 SC 1185 , the accused-appellant is liable for commission of offence under Section 304 Part-I, IPC. In the result, therefore, the conviction of the appellant under Section 302 IPC is converted to one under Section 304 Part-I, IPC and he is sentenced to undergo rigorous imprisonment for 10 years. 9.It is stated by learned counsel for the appellant that the appellant is languishing in custody from the date of his arrest and by now he has already completed more than 17 years and 5 months. If that be so, the appellant-Mata @ Sama Chakia @ He be set at liberty forthwith, unless his detention is required otherwise. 10.Jail Criminal Appeal is allowed in part and the impugned judgment of conviction and sentence is modified to the extent indicated. Appeal allowed in part.