PRADIP MOHANTY, J & B.K.PATEL, J. JCRA NO.56 OF 2000 (Decided on 09.09.2011) NAREN DEHURY … ……Appellant. .Vrs. STATE OF ORISSA ………Respondent. EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.24, 26. PENAL CODE, 1860 (ACT NO.45 OF 1860) – S.304-I For Appellant - Mr. Nayan Bihari Das. For Respondent - Mr. B.P.Pradhan Addl. Govt. Advocate PRADIP MOHANTY, J. This jail criminal appeal is directed against the judgment dated 04.01.2000 passed by the Additional Sessions Judge, Rairangpur in S.T. Case No.21/151 of 1999 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The appellant has been convicted for having committed murder of his wife Budhubari Dehuri on the basis of the FIR (Ext.3) lodged by Satyanath Munda P.W.2 on 05.02.1999. In the FIR the informant has stated that on the date of incident he was the Ward Member of the occurrence village. In the evening of 04.02.1999, Girish Dehury (P.W.5) of his village informed him that the appellant killed his wife at about 11:00 AM. At that time, all the villagers had gone to the forest. The appellant’s mother (P.W.4) and his two children were present in the house. Getting such information, the informant along with others went to the spot and found P.W.1 and other villagers present there. On being asked, the appellant confessed before them that his wife (deceased) gave him bad rice (JAU BHATA) to eat, for which a quarrel ensued between them and he dealt two slaps to the deceased. As the deceased again rebuked him, the appellant dealt blows to her by means of a wooden chatu (M.O.I), as a result of which she died. It is also stated in the FIR that while the appellant was assaulting the deceased, his mother was prohibiting him from doing so. On receipt of the written report, police registered the case, took up investigation and after its completion filed charge-sheet against the appellant under Section 302, IPC. 3. The defence plea is one of the complete denial and false implication. 4. In order to prove its case, the prosecution has examined as many as eight witnesses including the doctor and the I.O and exhibited six documents. The defence has examined none. 5. On completion of the trial learned Additional Sessions Judge carefully assessed the evidence on record and found the appellant guilty of committing the offence punishable under Section 302, IPC and sentenced him as hereinbefore stated inter alia basing upon the extra judicial confession made by the appellant and the leading to discovery of the weapon of offence (M.O.I). 6. Mr.Das, learned counsel for the appellant strenuously urged that the trial court should not have accepted the evidence of P.Ws.1, 2 and 3 with regard to the extra judicial confession said to have been made before them by the appellant, since there is nothing on record to show that the appellant had intimate relationship with them. The prosecution has miserably failed to prove leading to discovery of weapon of offence (M.O.I), as because except the I.O. no other witness has supported the same and on the other hand it is revealed from the evidence of P.W.1 that the wooden chatu (M.O.I) was produced by the police and he did not know wherefrom police brought the same. Therefore, the impugned judgment of conviction and sentence cannot be sustained. In the alternative, learned counsel for the appellant argued that if the entire evidence available on record is accepted to be true, the act of the appellant cannot come within the purview of Section 302, IPC and at the most it may attract Section 324 IPC, since the appellant allegedly by means of a wooden chatu assaulted to the belly of the deceased which is not a vital part of the body. In support of his contention, learned counsel for the appellant relied on the decisions in Sk. Yusuf V. State of West Bengal, AIR 2011 SC 2283 and Sunil Rai @ Pauna & others V. Union Territory, Chandigarh, AIR 2011 SC 2545. 7. Mr. Pradhan, learned Additional Government Advocate contended with vehemence that P.Ws.1, 2 and 3 are the co-villagers of the appellant and P.W.2 was the Ward Member of the village at the relevant point of time. All these witnesses have unequivocally stated that the appellant confessed before them that he killed his wife by means of M.O.I. There is nothing on record to show that these witnesses have any axe to grind against the appellant or in any way they have coerced the appellant to make such confession. Rather, these witnesses being his co-villagers and of them P.W.2 being the Ward Member, it can be safely presumed that the appellant must have posed confidence on them and made such confession voluntarily. The prosecution has clearly proved that the appellant while police custody made disclosure statement and led the police to the place of concealment from where police seized the M.O.I under Ext.2. Therefore, learned Additional Sessions Judge has rightly convicted the appellant and there is no scope for this Court to interfere with the impugned judgment. 8. Perused the L.C.R and the decisions cited by the learned counsel for the appellant. P.W.1 is a co-villager and a witness to the seizure of M.O.I as well as the inquest. He stated that on getting information from the brother of the appellant that the appellant killed his wife, he went to the spot. On the question of the villagers, the appellant stated that there was a quarrel between him and the deceased because the rice given by the deceased to eat was not good. The appellant further stated that he dealt one blow by means of a chatu (M.O.I) to his wife for which she died. In cross- examination, he admitted that he could not say from where police brought the wooden chatu. 2 P.W.2 is the informant of the case and at the relevant time he was the Ward Member of the village. In his examination-in-chief, he stated that on being informed by one of the villagers, he went to the house of the appellant. The villagers told him that the appellant killed his wife. To his question, the appellant replied that when his wife gave bad rice to him, there was a quarrel and he dealt a blow with M.O.I to his wife for which she died. Thereafter, he took the appellant to the house of the village Grama Rakhi. On the next date, he along with the Grama Rakhi produced the appellant at the police station and lodged the written report. He proved the F.I.R. (Ext.3). In cross-examination, nothing has been elicited from this witness to discredit his evidence. P.W.3 is another co-villager who stated that on the date of occurrence at about 6:00 PM the appellant came to his house and told him that he had killed his wife. After sometime, he came to the spot. To the question of the villagers, the appellant confessed before them that he had killed his wife by means of M.O.I. In cross-examination, a suggestion was given to this witness that he had not stated before the police that the appellant had gone to his house and told that he had killed his wife, but he denied the same. P.W.4 is the mother and P.W.5 is the grand-father of the appellant. They did not support the case of the prosecution. P.W.6 is the police constable in whose presence saree of the deceased was seized under Ext.4. P.W.7 is the doctor who conducted autopsy over the dead body of the deceased. He opined that the cause of death was due to massive haemorrhage leading to shock and the same might be due to rupture of left kidney by blunt injuries with hard object on the left lumbo sacral region. He proved the post mortem report (Ext.5). Nothing has been elicited from him in cross-examination and no suggestion was also given to him. P.W.8 is the investigating officer, who received the F.I.R. registered the case, examined the informant and other witnesses, visited the spot, held inquest over the dead body of the deceased and arrested the appellant. He stated that the appellant while in his custody confessed before him that he had killed his wife by means of M.O.I. He recorded the statement of the appellant under Ext.6 on which the appellant gave his L.T.I. He further stated that the appellant led him to the spot and produced M.O.I before him and he seized the same under Ext.2. After completion of the investigation, he filed charge sheet against the appellant under Section 302, IPC. In cross-examination, he admitted that the weapon of offence (M.O.I) was commonly available in villages. A suggestion was given to him that the weapon of offence was not produced by the appellant, but he denied the same. 9. This is a case where the appellant has been convicted solely basing on the circumstantial evidence. As it appears, theory of leading to discovery and extrajudicial confession are the two incriminating circumstances on which much emphasis has been laid by the trial court for recording the conviction. As regards the theory of leading to discovery, the trial court has evidently relied on the testimony of the I.O. (P.W.8) and P.W.1. On scrutiny of the evidence of these two witnesses, this Court finds that P.W.8 has stated that the appellant while in custody made disclosure statement before him and the witnesses and led them to his house and gave recovery of M.O.I which he seized under Ext.2. But, as a matter of fact, no independent witness has been examined on behalf of the prosecution to support the above evidence of P.W.8. Apparently P.W.1 is 3 the only witness whose evidence has been referred to by the trial court in this context. But, this P.W.1 in his examination-in-chief has not whispered a single word with regard to the disclosure statement said to have been recorded under Section 27 of the Evidence Act. He only stated that P.W.8 seized M.O.I in his presence under Ext.2 in which he put his signature. But the fact remains that in cross-examination he admitted that he could not say from where police brought the wooden chatu (M.O.I). In such view of the matter, this Court is of the opinion that the prosecution has utterly failed to prove the leading to discovery. 10. The next incriminating circumstance is the extrajudicial confession said to have been made by the appellant before P.Ws.1 to 3. A bare reading of the evidence of these witnesses would go to show that the appellant had confessed before them that he killed his wife. There is nothing on record to disbelieve their evidence. It is no doubt true that conviction can be based upon solely relying on the circumstance of extra judicial confession provided it passes the test of credibility. In Sk. Yusuf V. State of West Bengal, AIR 2011 SC 2283, which has been relied upon by the learned counsel for the appellant, it has been held that words of witness to whom extra judicial confession was made must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. In the instant case, the evidence of P.Ws.1 to 3, before whom the appellant had made confession, is very clear, unambiguous and clearly convey that the appellant was the author of the crime. During the course of hearing, the learned counsel for the appellant drew the attention of this Court to a decision of the apex Court in Sunil Rai alias Pauna (supra). But, on careful perusal of the said decision this Court finds that the facts of the said case are different from the facts of present case inasmuch as in that case the accused had no personal acquaintance much less any intimacy with the witnesses but here all the witnesses are co-villagers and known to the appellant and more so P.W.2 was the Ward Member of the village at the relevant point of time and there is also no material to show that these witnesses in any manner coerced the appellant to make such confession before them. For the discussions made above, this Court holds that the above circumstance of extrajudicial confession coupled with the medical evidence and other incriminating circumstances available on record clearly prove that the appellant was the author of the crime. 11. Now, the only question that falls for consideration is that whether the act of the appellant comes within the purview of Section, 302 or Section 304, IPC. From a bare reading of the evidence available on record, it reveals that due to quarrel between the deceased and the appellant, who are related as wife and husband, the appellant suddenly got provoked and assaulted to the belly of the deceased with a wooden chatu, which is not a deadly weapon. Therefore, it is presumed that the appellant had no intention to kill the deceased and out of sudden quarrel and anger he gave the blow. Under the circumstance, the act of the appellant cannot come within the purview of Section 302, IPC and it squarely attracts the offence punishable under Section 304-I, IPC. 12. In the result, the appeal is allowed in part and the conviction of the appellant made under Section 302, IPC by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.21/151 of 1999 by judgment dated 04.01.2000 is converted to one under 4 Section 304-I, IPC and he is sentenced to undergo R.I. for ten years. It is stated at the Bar that the appellant has been languishing in custody from the date of arrest and by now he has already completed more than ten years. If that be so, the appellant be set at liberty forthwith, if his detention is not required otherwise. Apple allowed in part. 5