Kalka Sira vs State of Orissa

Heard.

Appellant challenges the order of conviction in Sessions Case No. 233 of 1995 as per the impugned judgment passed on 17.8.1996 by learned Sessions Judge, Koraput at Jeypore. Appellant was convicted for the offence u/s 302 I.P.C. and sentenced to imprisonment for life. Appellant preferred the appeal from jail and as we are informed he is continuing in jail when this appeal is being heard.

Prosecution case is that on 16.4.1995, Appellant with this wife, i.e., deceased went to Dangar land. They did not return to their house in the night or on the following day. Informant (P.W. No. 2), who is the son of the Appellant and the deceased, was absent from his house on 16.4.1995 being in the house of her married sister, P.W. No. 3. On the following day, P.W. No. 2 returned to his house and, thereafter, P.W. No. 3 went to Sarupali Monday weekly market where her father informed her that on the previous day he killed his wife and P.W. No. 3 should intimate this fact to P.W. No. 2. P.W. No. 3 intimated the fact to P.W. No. 2. P.W. No. 2 proceeded to the spot and discovered the dead body with the aid and assistance of the co-villagers and his brother-in-law, P.W. No. 4. On completion of a routine investigation charge sheet was submitted and consequently charge was framed against the Appellant u/s 302 I.P.C.

Appellant pleaded not guilty and claimed for trial.

To substantiate the charge, prosecution relied seven witnesses, out of whom, as indicated above, P.W. Nos. 2 and 3 are the son and daughter of the accused and the deceased, P.W. No. 4 is the son-in-law of the accused and the deceased, P.W. No. 7 is the doctor, who conducted the post mortem examination on the dead body of the deceased, P.W. No. 6 is the Investigating Officer and P.W. No. 1 is a Police Constable, whereas P.W. No. 5 is a co-villager of the accused and is a witness to the inquest and seizure of the articles and the weapon of offence. Amongst exhibited document, Ext.1 is the F.I.R. and Ext.12 is the post mortem report, whereas Ext.10/1 is the opinion report of the doctor and Ext.13 is the report of the Chemical Examiner, Ext.5 is the spot map and Ext.2 is the inquest report. P.W. Nos. 2 and 3 supported the prosecution and basing on their evidence learned Sessions Judge found that the circumstantial evidence of extra-judicial confession corroborated by the discovery of the dead body and the factum of homicidal death and the seizure of M.O.1, Tangia, have proved the charge against the Appellant and accordingly, he convicted the Appellant.

While challenging the aforesaid order of conviction, learned Counsel for the Appellant appreciably participates to put forth the contention in support of the Appellant to the maximum possible extent by stretching and steering the principle from different citations in support of his contention.

His contention is that the conduct of P.W. No. 3 as the daughter and the conduct of P.W. No. 2 as the son are not probable to remain silent on receiving the information about death of their mother at the hand of their father and more particularly the conduct of P.W. No. 3 in not verifying about cause of death and return to her village is sufficient to warrant presumption that they are not truthful witnesses. It may be noted here that the accused and the witnesses are Gond by tribe living in remote part of the Koraput district under Laxmipur Tahasil. The criticism could have been appreciated if there would have been questions put and answers obtained on the conduct. Since there is no evidence to take note of such conduct with a view to draw adverse inference on their credibility, we find no merit in the criticism as against the conduct of P.W. Nos. 2 and 3.

Learned Counsel for the Appellant states that in view of the evidence of P.W. No. 3 in the cross examination that his father was in a drunken state at the time of making extra-judicial confession, the observation of the apex Court in the case of C. K. Raveendran Vs. State Of Kerala, would be attracted so as to grant benefit in favour of Appellant. We may note here that in the cited case, basing on circumstantial evidence of last seen theory and extra-judicial confession, the apex Court found that conviction of the Appellant by the trial and the appellate Courts was not correct because there was no clear and cogent evidence that the deceased suffered homicidal death. In other words, there could not have been an extra-judicial confession when there was no proof that a crime was committed, i.e., the homicide. We do not read from the said decision that any person who consume alcohol if makes extra-judicial confession that is not to be accepted. Such a principle has not been enunciated therein.

Learned Counsel for the Appellant relying on the case of Kailash Naik v. State of Orissa reported in 2001 OCR 438, further argues that a retracted extra-judicial confession being a weak piece of evidence, in absence of corroboration, such evidence is not acceptable. In the cited case, the homicidal death was not in dispute but extra-judicial confession, which was proved through evidence of P.W. No. 2. was not made voluntarily but on the quarries made by P.W. No. 2. Nobody informed the accused about the weekly market nor any body compelled him to make confession. The confession was voluntary and that to it was made before his daughter. Under such circumstances, the extra-judicial confession of the accused is proved and acceptable in this case.

Learned Counsel for the Appellant argues that in the opinion of intoxication by Modi Medical Jurisprudence, consuming alcohol leads to the state of delirium and therefore act of confession of Appellant under such circumstance is not acceptable. The theory highlighted on the issue of delirium is not entertainable at all. Therefore that argument has no merit.

No other point is raised or argued as against findings in the impugned judgment or in support of innocence of Appellant.

On perusal of the evidence on record, we find that the fact of death of the deceased in the hands of Appellant is proved through circumstantial evidence of extra-judicial confession coupled with the discovery of the dead body of the deceased and also seizure of the weapon of offence. Non-detection of blood from the weapon of offence as indicated in Ext.13 due to improper preservation of that weapon is not sufficient in this case to doubt veracity of P.W. Nos. 2 and 3 or exclude the Appellant from the alleged crime. For the reasons stated above, we find no impropriety or illegality in the judgment and, therefore, the appeal is dismissed.