Amrush Barla vs State of Orissa

M. Papanna, J.—This Jail Criminal Appeal is directed against the judgment of the learned Additional Sessions Judge, Rourkela in S. T. No.

11/7 of 1993. The accused (hereinafter referred to as ""the appellant"") has been convicted u/s 302 of the Indian Penal Code by the learned trial

Judge. He was sentenced to under Rigorous Imprisonment for life.

The case of the prosecution is very simple. On 14.8.1992 at about 8 P.M. the occurrence took place, At the material time, the deceased, his

son and one Herman were returning from Katepur weekly market. The appellant was also with them. On the way, he got angry with the deceased.

He assaulted on his head by means of a lathi. Son of the deceased and Herman took him to their village. The deceased died before he was shifted

to the hospital. On the report of his son, Bisra P. S. Case No. 28 of 1992 was registered. Police held inquest over the dead body. It was sent for

autopsy. On completion of investigation, the appellant was charge sheeted u/s 302 of the Indian Penal Code,

Charge has been denied by the appellant.

Eleven witnesses have been examined for the prosecution to prove the charge against the appellant. P.W. 1 is the informant. P.W. 2 is a seizure

witness. P.W. 3 is cousin of accused as well as the deceased. P.W. 4 is a witness to the inquest held over the dead body of the deceased. P.W. 5

is a Police Constable. P.W. 7 is an eye witness to the occurrence. P.W. 8 is the Doctor who conducted autopsy. P.Ws. 9 and 10 are the seizure

witnesses whereas P.W. 11 is the Investigating Officer.

Defence examined no witness.

The learned trial Judge believed the evidence of witnesses for the prosecution. He convicted the appellant for committing murder of the

deceased. He sentenced him to R. I. for life.

The learned counsel for the appellant challenged the impugned judgment on several grounds. According to him, the evidence of the witnesses

relied upon by the trial Judge is not clear, cogent, consistent and trustworthy. The learned trial Judge ought not to have relied upon the said

evidence. On the whole guilt of the appellant has not been brought home to him beyond reasonable doubt. On the other hand, the learned

Additional Government Advocate supported the judgment impugned before us.

In view of above contentions raised by learned Counsel for the parties, we are called upon to revaluate the evidence of witnesses on record.

This being a murder case, trial Court has to find out if the victim died a homicidal death. The Doctor (P.W. 8), who conducted the autopsy, has

proved Post Mortem Report (Ext. 7). It shows the following external injury on the victim :

(I) Lacerated wound 3"" x 1/2"" x bone deep anterior to posterior over right lateral and posterior aspect of head starting from 2"" above the right

ear.

P.W. 8 dissected the dead body. He found some internal injuries in it as follows :

The scalp was lacerated below the external injury compound fracture of right parietal and occipital bones 2"" x 2"" x deep inside to right parietal

lobe just below the injury No. 1 and it was grievous in nature.

He has opined that the injury was ante-mortem in nature and probably caused by hard and blunt weapon. According to him cause of death of the

victim was shock due to circulatory failure. It was resulted excessive intracraniel haemorrhage and also neurogenic shock due to damage of brain

materials. The haemorrhage and brain damage was due to injury No. 1 which was sufficient to cause instantaneous death. Time since death was 24

to 36 hours by the time of Post-Mortem Examination. He examined the lathi (M.O.I) referred to him by the I.O. He has opined that external injury

No. 1 could be possible by M.O.I. Basing on medical evidence the learned Additional Sessions Judge, came to hold that the injury found on the

victim is homicidal in nature and he died a homicidal death. We do not interfere with the finding of the learned trial Judge as the medical evidence

could not be assailed before the trial Court nor challenged by the learned Counsel for the appellant before us in this appeal.

We have perused the judgment impugned before us along with the relevant evidence of witnesses on record. The learned trial Judge based

conviction of the appellant on the testimony of eye witnesses such as P.Ws. 1 and 7. That apart, the learned trial Judge relied upon extra-judicial

confession made by the appellant to P.W. 3 coupled with evidence of eye witnesses in holding the appellant guilty of charge.

Evidence of P.W. 1 is very clear, cogent and consistent. For better appreciation we quote it thus :

On that day, which was a Friday, myself, my father, my elder brother-in-law Herman and the accused had been to Katepur Weekly market. In

the evening at about 7 to 8 P.M. while we four were returning from that Weekly market, on the way all on a sudden, the accused assaulted on the

head of my father by means of a lathi as a result of which my father sustained severe bleeding injury on head.

During cross-examination by the defence, this witness stood by his testimony. No part of it could be assailed by the defence. The appellant is his

own paternal uncle. He had no axe to grind against him. No enemity nor strained relationship between him and his uncle has been brought about

during cross-examination. We do not find any reason to discard and disbelieve his version regarding assault on the deceased committed by the

appellant. His testimony finds corroboration in the evidence of P.W. 7, another eye witness to the occurrence. Statement of P.W. 7, is quoted

below for better appreciation:

On the day of occurrence myself and my brother-in-law William (P.W. 1) had been to a weekly market. In the evening hour myself and P.W. 1

were returning from that market. On the way we found the deceased Gabriel was also returning from that market. After some time this accused

also came and joined with us in the return journey. While returning I halted on the way to pass urine and P.W. 1 also stood nearby whereas

Gabriel and this accused proceeded ahead. When they proceeded for about 100 yards from us we found this accused was assaulting Gabriel by

means of lathi and the lathi blow fell on the head of Gabriel. Seeing that myself and P.W.1 immediately rushed near them and intervened and I

snatched away the lathi from the hand of the accused and threw it away.

During cross-examination his evidence remained unassailed. He happens to be the relation of the accused as well as the deceased. There was no

inimical relation between this witness and the appellant. Therefore, we have every reason to rely on his testimony regarding assault on the victim by

the appellant. That apart, the learned trial Judge has relied on the extra-judicial confession made by the appellant to P.W. 3 who is their agnetic

brother. His testimony runs as follows :

In the night of occurrence, the accused came to my house and told me as ""Mor bhai Gabrieike marideli sie padigala, muin palai asili"" (I assaulted

for killed brother Gabriel who fell down and I came away).

The learned counsel for the appellant has contended that the learned trial Judge has committed wrong relying on the extra-judicial confession

said to have been made by the appellant to P.W. 3 particularly when there is no reason or motive for such confession. He has relied on 1987 (II)

OLR 220 (Arjun Sahu v. State of Orissa) in support of his contention. We do not agree with the contention of the learned counsel for the appellant

particularly when the [earned trial Judge based conviction of the appellant on the evidence of P.Ws. 1 and 7 and by the by relied on the evidence

of P.W. 3 to whom the appellant made extra-judicial confession soon after the occurrence. Had the trial Judge based conviction of the appellant

solely on extra-judicial confession, the matter would have been different. On scrutiny of evidence of P.W.3, we are convinced that the appellant

made extra-judicial confession to P.W. 3 as he is his cousin brother. He reposed confidence on him. He made confession before him soon after the

occurrence. The said extra-judicial confession is, in our opinion, true and voluntary.

The term ''confession'' is not defined in the Indian Evidence Act. Section 24 of the Evidence Act says that confession caused by inducement,

threat or promise is irrelevant in criminal proceedings. Confession means admission of a crime by the accused charged with a crime. Such

confession is an evidence against the maker of it. In the present case, the appellant who is said to have made confession before P.W. 3 has

retracted the same subsequently. As such, question arises whether such retracted confession can be of any help to the prosecution to reach a

conclusion of the guilty of the accused. In the case of Dasa Marandi Vrs. State of Orissa 1 997 (13) OCR 204, the Division Bench of this Court

has held as follows:

Retracted confession may form the legal basis of conviction if the court is satisfied that it was true and was voluntary. The requirement for

corroboration is a ""rule of prudence and not a rule of law"". The proper approach is to consider the confession as a whole on its merit and use it

against the maker thereof if the Court unhesitatingly comes to the conclusion that it was made voluntarily and the reasons for making the confession

and its retraction must be weighed and if the retraction is found to be an after thought, the retraction should not weigh with the court. An extra

judicial confession if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The same is to be proved like any other

fact. Where there is nothing to so that a witness had any motive to implicate the accused falsely, the evidence relating to extra judicial confession

can be relied upon. If the witnesses examined to prove such confession is found to be dependable and trustworthy, the extra judicial confession

alone can form the basis of conviction.

In the present case, on scrutiny of evidence of P.W. 3, we are satisfied that the appellant made extra-judicial confession voluntarily and the

same being found to be true, we rely on the same and use it against him. Evidence of P.W. 3 does not suffer from any legal infirmity. The

confession made by the appellant has not been procured under coercion or pressure. In 2000 (3) Supreme 402 (Guru Singh Vrs. State of

Rajasthan), the Apex Court has taken the view that extra judicial confession if true and voluntary, can be relied upon by the Court to convict the

accused for commission of the crime as alleged.

The evidence of P.W. 2 has proved the seizure of weapon of offence, a lathi (M.O.I) and other incriminating materials. We have found that he

is a truthful witness. His evidence remained unassailed during cross-examination and the learned trial Judge has properly relied on his evidence. P.

W. 4 proved the inquest report (Ext. 3). Similarly, P.W. 5 has proved seizure of blood stained Lungi and Napkin of the deceased vide Seizure List

(Ext. 4). He has proved the said Lungi as MOIL and the Napkin as MR. III. A perusal of evidence of P.W. 11 goes to indicate that he has played

his role well as the low. In the investigation of the case. Having found prima facie evidence against the appellant he submitted charge sheet against

him u/s 302, IPC.

On the whole, on the basis of evidence of P.Ws. 1, 3 and 7 and other evidence as stated above, the learned trial Judge has rightly found the

appellant guilty of the charge u/s 302 I.E. We do not find any infirmity in his judgment of conviction and sentence passed against the appellant. As

such, we uphold the impugned judgment in this appeal.

In the result, the Jail Criminal Appeal is devoid of any merit. It fails for the reasons recorded above. We dismiss it accordingly.

B.P. Das, J.

I agree.