L. MOHAPATRA ,J & B.K. PATEL,J JCRA. NO.70 OF 2000 (Decided on 25.10.2011). PRASKA LAKU ……Appellant .Vrs. STATE OF ORISSA ……Respondent EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.24. For Appellant : Mr. S.K. Nayak-3 For Respondent : Addl. Standing Counsel L. MOHAPATRA, J. This appeal is directed against the judgment and order dated 27.11.1999 passed by learned Additional Sessions Judge, Rayagada in Sessions Case No.30 of 1997 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (for short ‘the I.P.C.’) and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that about 15 to 16 years prior to the date of occurrence the appellant had been convicted for commission of murder of one Dhanapati Takri and had been sentenced to undergo imprisonment for life. After serving sentence for about 15 years he was released and started staying with the deceased, who is his elder brother. It is alleged in the F.I.R. that the appellant was frequently quarrelling with the deceased on petty matters and on 8.2.1996 at about 8.00 P.M. the wife of the deceased P.W.6 served rice and mutton curry to the deceased first. Taking exception to such conduct of P.W.6, the appellant started quarrelling and assaulted the deceased by means of an axe. Due to such assault the deceased fell down whereafter the appellant cut the throat of the deceased by means of a knife causing instantaneous death of the deceased. Immediately after the occurrence wife of the deceased P.W.6 informed the village Barika P.W.1 and the village Nayak P.W.2. Thereafter, P.Ws.1 and 2 called other villagers and went to the house of the deceased and found the deceased lying dead with profuse bleeding injuries and also saw the appellant coming out of the house of the deceased and washing the knife which was stained with blood by water. When the villagers asked the appellant as to why he committed murder of his brother, he stated that since P.W.6 served mutton and rice first to her husband and she delayed in serving food to him, he shouted and when the deceased picked up quarrel, he got annoyed and assaulted him. Thereafter P.W.2 the headman of the village being accompanied by some villagers went to the Muniguda Police Station and orally reported about the occurrence at about 7.30 A.M. on 9.2.1996. The said oral report was reduced into writing by P.W.9, O.I.C., Muniguda P.S., a formal F.I.R. was drawn up and investigation was taken up. On completion of investigation, charge sheet was submitted for commission of offence under Section 302 of the I.P.C. 3. The prosecution in order to bring home the charge, examined nine witnesses, but none was examined on behalf of the appellant. The plea of the appellant is complete denial to the allegation of the prosecution. The trial court relying on the evidence of eye witness P.W.6 who happens to be the wife of the deceased and sister-in-law of the appellant coupled with the evidence with regard to extra-judicial confession and leading to recovery of weapons of offence found the appellant guilty of the charge and convicted him thereunder. 4. Sri Nayak, learned counsel for the appellant referring to the evidence of P.W.6 submits that the sole eyewitness to the occurrence has stated in her evidence that the appellant assaulted the deceased by means of a tangia on his neck as a result of which the deceased sustained profuse bleeding injuries. Thereafter, the appellant cut the throat of the deceased by means of a kati as a result of which the deceased died at the spot. According to the learned counsel for the appellant statement of P.W.6 does not corroborate the evidence of P.W.4 the doctor who conducted post-mortem examination. It is also contended by the learned counsel for the appellant that extra-judicial confession not being voluntary, the same cannot be used against the appellant. 5. Learned counsel for the State placed reliance on the evidence of P.W.6 as well as P.W.4 and submits that there is no contradiction in the evidence of these two witnesses. It is also contended by the learned counsel for the State that the appellant not only made extra-judicial confession before P.Ws.1 and 2 but also led to recovery of weapons of offence while in police custody. 6. We have carefully examined the evidence of all the nine witnesses examined on behalf of the prosecution. P.W.4 is the doctor who conducted post-mortem examination. He found incised looking laceration over front of neck 1-1/2” deep cutting across the wind pipe just above the thyroid cartilage. He also found another incised wound extending from left side neck starting from the above injury till middle of upper part of sternum over chest. P.W.4 was of the opinion that possible cause of death would be neurogenic shock and central failure and the injuries were ante mortem in nature. He also opined that the injuries could be caused by both weapons of offence, i.e., M.Os. I and II. It is, therefore, clear from the evidence of P.W.4 that the deceased met with homicidal death. The prosecution relied on direct evidence of P.W.6 as well as circumstantial evidence such as, extra-judicial confession and leading to recovery of weapons of offence at the instance of the appellant while in police custody. P.W.6 is the wife of the deceased. She in her deposition stated that on the date of occurrence at the relevant time she served rice and mutton curry to her husband. By that time the appellant told her as to why she served the meal to her husband first, and so saying the appellant assaulted the deceased by means of a tangia on his neck as a result of which the deceased sustaining profuse bleeding injuries fell down inside her house. Thereafter, the appellant by means of a kati cut the throat of the deceased as a result of which the 2 deceased died at the spot. In cross-examination nothing has been brought out to disbelieve the testimony of this witness. An attempt was made by the defence to prove that another person to whom P.W.6 got married after death of the deceased was the culprit. However, the defence has miserably failed to prove such plea. Learned counsel for the appellant submitted that there are some contradictions in the evidence of P.Ws.4 and 6. With regard to evidence of P.W.4 it is contended by the learned counsel for the appellant that the injuries on the neck could be caused by repeated blows and there is no evidence from the side of P.W.6 that the appellant had dealt several blows on the neck so as to cause the said injuries. We are unable to accept such contention for the reason that P.W.4 found two incised wounds nearby the neck and one of the injuries had extended to upper part of sternum over chest. Both the injuries were inflicted by two different weapons and, therefore, more than one blow had been inflicted for causing the said injuries. Apart from the above evidence of P.W.6 we find from the evidence of P.W.1 that the appellant confessed before him saying that he had killed the deceased, as the wife of the deceased P.W.6 without serving him rice and meat first, gave the same to her husband. P.W.2 also speaks about the said extra-judicial confession. P.W.3 has stated that when the appellant was brought to the middle of the street and was asked by villagers he confessed to have killed the deceased. Similar is the evidence of P.W.5 also. Thus, from the evidence of P.Ws.3 and 5 it appears that the statement made before the villagers may not be a voluntary statement. From the evidence of P.Ws.1 and 2 also it appears that the appellant was brought from his house to the middle of the street and was asked by the villagers as to how the deceased died and thereafter the appellant confessed to have killed the deceased. Therefore, we are in agreement with the learned counsel for the appellant that the said statement made by the appellant before the villagers cannot be treated as a voluntary statement. Though the prosecution has not been able to establish the circumstance of extra- judicial confession alleged to have been made by the appellant, it has successfully proved the recovery of the weapons of offence at the instance of the appellant while in police custody through the evidence of P.W.1 and disclosure statement (Ext.4) of the appellant. 7. In view of the discussion made above, the prosecution has been able to prove the allegation made against the appellant through direct evidence of P.W.6 and circumstance of recovery of weapons of offence at the instance of the appellant while in police custody. From the chemical examination report also we find that the wearing apparels of the appellant had contained human blood but no explanation has been offered by the appellant as to how wearing apparels were stained with human blood. Taking all the circumstances into consideration coupled with direct evidence of P.W.6, we find no infirmity in the judgment and order of conviction passed by the trial court convicting the appellant for commission of offence under Section 302 of the I.P.C. Accordingly, we find no merit in the appeal and dismiss the same. Appeal dismissed. 3