HIGH COURT OF ORISSA: CUTTACK JAIL CRIMINAL APPEAL No.11 of 2006 From the judgment and order dated 21.04.2005 passed by Sri Srikanta Nayak, Sessions Judge, Keonjhar in S.T. Case No. 197 of 2003. ---------- Sara Palei ………… Appellant -versus- State of Orissa ………… Respondent For Appellant : M. Chita Ranjan Sahoo For Respondent : Addl. Govt. Advocate P R E S E N T: THE HON’BLE MR. JUSTICE B.K.MISRA ---------------------------------------------------------------------------------------------- Date of Judgment: 15.11.2011 ------------------------------------------------------------------------------------------------------- B.K. Misra, J. The present appellant being aggrieved with the order of conviction and sentence recorded by the learned Sessions Judge, Keonjhar in S.T. Case No.197 of 2003 on 21.4.2005 under Section 304-Part-I of the Indian Penal Code (for short, the ‘I.P.C.’) has preferred this appeal while undergoing the sentence. The appellant has been directed to undergo rigorous imprisonment for 10 years. A.F.R. 2 2. The case of the prosecution is that on 4.7.2003 around 8.00 A.M. the informant Suresh Ch. Jena (P.W.8), who was the Sarpanch of Radhikadeipur while standing in front of his house along with Alekh Jena and one Kirtan Jena (P.W.1) at that time the appellant being armed with one axe came and reported that she had killed the deceased Sankar Naik with the axe which she was holding. On hearing that when P.W.8 enquired from the appellant as to why she killed Sankar Naik and where Sankar Naik was murdered, the appellant disclosed that the deceased Sankar asked her to sleep with him on the bed but when she declined, the appellant tore her blouse for which she being enraged murdered the deceased. P.W.1 on hearing the incident from the appellant sent for the ‘Gramarakhi’, Dwarikanath Jena (P.W.2) and handed over the appellant as well as the blood stained axe which she was holding. Thereafter, P.W.8 proceeded to the village Kendua i.e. the house of the appellant where he found the deceased Sankar Naik lying dead in a pool of blood. P.W.8 lodged report in writing before the I.I.C., Ghasipura Police Station about the incident, vide Ext.6. Police on receipt of the said information registered a case against the appellant under Section 302 of the I.P.C. and investigation was taken up. On completion of investigation getting prima facie materials against the appellant charge sheet was placed against her to stand trial. 3 3. The plea of the appellant was that of complete denial of the alleged occurrence. 4. The prosecution in order to bring home the guilt of the appellant, examined 9 witnesses in all and of them P.W.8 is the informant, P.W.7 was the doctor of Sub-Divisional Hospital, Anandpur, who held autopsy over the dead body of the deceased on 5.7.2003. P.W.9 is the Investigating Officer (I.O.), P.Ws. 1, 3, 4 and & 5 are the independent witnesses for the prosecution, who speaks about the extra-judicial confession made by the appellant before them about the occurrence. P.W.2 is another witness to the extra- judicial confession made by the accused before the Sarapanch in his presence as well as he is a seizure witness. P.W.5 speaks about the fact that the deceased was living with the appellant and the deceased was found lying dead in the house of the appellant and he also speaks about the extra-judicial confession alleged to have been made by the appellant. P.W.6 is a witness to the inquest which was held by the Police over the dead body of the deceased. The appellant declined to examine any witness in her defence. 5. The learned Sessions Judge formulated three points for determination, namely:- i) Death of a human being occurred. 4 ii) Such death occurred due to the act or in consequence of the act of the accused. iii) Accused did the act with the intention to commit murder. 6. On analyzing the evidence on record the learned Sessions Judge believed the case of the prosecution and held that the prosecution though failed to establish its case against the appellant under Section 302 of the I.P.C., but establishes a case under Section 304-Part-I of the I.P.C. and accordingly passed the impugned sentence which is under challenge before this Court. 7. The learned counsel appearing for the appellant contended that the extra-judicial confession of the appellant which has been pressed into service by the prosecution cannot at all be believed and relied upon as the prosecution has failed to establish as to why the appellant reposed confidence on the Sarapanch and others when they belong to a different village and besides that the last seen theory which has also been pressed into service by the prosecution cannot be believed and relied upon to warrant a conviction against the appellant. It was accordingly urged by the learned counsel for the appellant that the order of conviction and sentence is highly improper and illegal and the same should be set aside. 5 8. The learned Additional Government Advocate appearing for the appellant on the other hand supported the order of conviction and sentence imposed on the appellant by the learned Sessions Judge, Keonjhar and contended that when the extra-judicial confession of the appellant was a voluntary one and she having made such extra-judicial confession immediately after the occurrence, the Court had rightly believed the same to be voluntary in nature and more over when the appellant has failed to explain as to how the dead body of the deceased was found in a pool of blood in her house and in absence of any evidence that there were other persons living in the said house besides the appellant, those are some strong circumstances which weighed in the mind of the learned Sessions Judge in convicting the appellant. Accordingly, it was urged upon this Court to maintain the order of conviction and sentence without any interference. 9. It is a settled position of law that the conviction of a person in an offence is generally based solely on the evidence that is either oral or documentary but in exceptional cases conviction can be based solely on circumstantial evidence. It is also the trite law that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The same should be of conclusive nature and exclude all possible hypothesis except the one to be proved. The 6 facts so established must be consistent with the innocence of the accused and must show in all human probability the act must have been done by the accused (A.I.R. 2011 S.C. 1777, Kulvinder Singh & another V. State of Haryana, A.I.R. 1984 S.C. 1622, Sharad Birdhichand Sarada V. State of Maharashtra) and Paramjit Singh @ Pamma V. State of Uttarakhand 2011 S.C. 200. 10. In the instant case the prosecution solely relied upon the circumstantial evidence namely, the extra judicial confession made by the appellant soon after the occurrence before the witnesses. The next circumstance is that the dead body of the deceased was found in the house of the appellant and the last circumstance is the recovery of the blood stained ‘Tangia’ which the accused-appellant was holding with which she was said to have committed murder of the deceased. 11. In the instant case, the death of the deceased is an admitted fact. P.W.7 is the doctor who held autopsy over the dead body of the deceased which was identified to him by Police Constable no. 519-J. Behera. Nirakar Naik, the father of the deceased and one Deepak Naik. P.W.7 found one incised wound 4” x 3” on the back of the mid neck of the deceased. On exploring the said injury it was found the spine of second cervical vertebra besides other muscles cut. The injury to the spinal cord was opined to be ante-mortem in 7 nature and P.W.7 also opined that the cause of death was because of shock and haemorrhage and injury to the spinal cord and within 24 hours of his conducting the post mortem. P.W.7 proved the post mortem report prepared by him as Ext.4. It is also the evidence of P.W.7 that Police sent the weapon of offence namely axe (M.O.1) to him for his examination and opinion and after examining the weapon of offence he opined that the injury which was found on the person of the deceased could have been caused by M.O.1, which was sufficient to cause death instantaneously. Thus, this medical evidence definitely shows that the death of the deceased was a homicidal one. 12. Admittedly, there is no direct evidence to establish the culpability of the appellant and the prosecution heavily relied upon the extra judicial confession made by the appellant before P.Ws.1, 2, 4, 5 & 8. I have very carefully perused the evidence of P.Ws.1,2,4,5 & 8 and found that all of them have categorically stated that the accused appellant being armed with a Tangia on her shoulder came running on the village road and disclosed that she had assaulted Sankar with the Tangia. P.W.5 who is father of the deceased, his evidence appears to be of paramount importance for the prosecution as he deposed that the deceased was living with the accused for the last 5 years prior to the occurrence and they were living together as husband and wife. P.W.5 also deposed that on the date of occurrence 8 he found the accused going with a blood stained Tangia shouting that she had assaulted and killed Sankar. It is the further evidence of P.W.5 that he found the dead body of his son in the house of the accused with cut injury on his neck. P.W.3 also deposed that the appellant and the deceased were living together as husband and wife and the dead body of the deceased was found in the house of the appellant. P.Ws.1 to 5 and 8 have been cross-examined, but nothing could be elicited from their mouth to dis-believe their evidence that the appellant disclosed before them soon after the occurrence to have killed the deceased. As I have already disclosed above, there is nothing on record to dis-believe the evidence of P.Ws.1 to 5 & 8 as they have no axe to grind against the appellant. It is the settled position of law that “an extra- judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely 9 inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility”. (A.I.R. 2011 (S.C.) 1777, Kulvinder Singh & another V. State of Haryana & AIR 2003 (S.C.) 3601 State of Rajasthan –v- Raja Ram). 13. After going through the evidence of P.Ws.1 to 5 & 8, the inescapable conclusion that cannot be deduced is that P.Ws.1 to 5 & 8 being independent witnesses can be held to be biased or inimical to the appellant. There is nothing on record to indicate that they had any motive to falsely implicate the appellant or that there was any motive for attributing an untruthful statement to the accused. The evidence on record is crystal clear conveying that the accused had disclosed before P.Ws.1, 2, 4, 5 and 8 that she had committed murder of Sankar. 14 Learned counsel appearing for the appellant by placing reliance on a decision of the Apex Court as reported in A.I.R. 1994 S.C. 1594 Sakharam Shankar Bansode –v- Stae of Maharashtra contended that since the witnesses before whom the alleged extra 10 judicial confession was said to have been made by the appellant belongs to a different village and when there is nothing on record as to why the accused reposed confidence on them the so called extra judicial confession of the appellant cannot be relied upon. I have very carefully gone through the decision of the Apex Court in Sakharam Bansode (Supra) but the facts of that case are totally different from the facts of this case and with regard to the retracted extra judicial confession, the Apex Court dis-believed the evidence of P.W.11. But in the instant case, it is the consistent evidence on record that soon after the occurrence, the appellant came running with a blood stained ‘Tangia’ and confessed before P.Ws. 1 to 5 and 8 to have killed Sankar, the deceased. It is seen that the occurrence took place in a remote village of the tribal dominated district of Keonjhar. The appellant is a woman and belongs to the marginalized section of the society. There is nothing unusual if the appellant after committing the offence without suppressing the same immediately came and disclosed the same before the villagers and also before the P.W.8 who was a respectable person being the Sarpanch of the village. The learned Sessions Judge has elaborately discussed this aspect in his judgment and I do not find anything wrong in such appreciation of evidence and there is nothing compelling on record to take a different view and to set-aside the findings of the learned trial Court. 11 15. From the evidence of P.Ws.3 and 5 it is seen that the dead body of the deceased was found in the house of the accused where they were living as husband and wife. The inquest report which has been marked as Ext.2 shows that when inquest over the dead body was held on 4.7.2003 at 1.00 P.M. the dead body of the deceased was found lying on a cot in a room of the house of the present appellant and the I.O. P.W.9 also in his evidence deposed that the spot is the house of the accused. The appellant has not offered any explanation as to how the dead body of the deceased was found in her house. Thus when the dead body of the deceased was found in the house of the appellant and when there is no other person living in the said house except the appellant and the deceased and when evidence of P.Ws.3 & 5 shows that the appellant and the deceased were living as husband and wife, it is for the appellant to explain as to how the deceased died by sustaining injury on the back of his neck. This aspect of the prosecution case coupled with the extra judicial confession and recovery of the blood stained Tangia from the possession of the appellant i.e. M.O.1 and the chemical examination report which have been marked as Ext.11 which shows the presence of human blood on M.O.1 and also in the ‘lungi’ of the deceased and also on the saree of the appellant which were also sent for chemical examination, even though blood grouping could not be 12 opined but that cannot be a ground to discard the evidence of P.Ws.1 to 5 & 8 whose evidence otherwise inspires confidence of the Court. In that context, reliance can be placed on a decision of the Apex Court as reported in A.I.R. 2002 (S.C.) 1221 Keshab Lal –v- State of Madhya Pradesh. 16. Coming to the motive part of the crime committed by the appellant though the F.I.R. shows that immediately after the occurrence the appellant disclosed before P.W.8 to have killed Sankar and when P.W.8 asked the reason for that the appellant disclosed that the deceased in the early morning asked her to sleep with him and when she refused the deceased forcibly tore her blouse for which she killed her. It is true that P.W.8 did not utter a word while deposing before the Court about the motive part of the crime but that cannot be a ground to dis-believe the case of the prosecution. For determining as to whether the offence was committed is one of murder, it is to be seen the manner of causing injury, the nature of injuries caused, the part of the body where they were inflicted, the weapon of assault employed in commission of offence and the conduct of the accused (2001) 21 OCR (S.C.) 79 Karu Marika –v- State of Bihar. 17. Thus, from the aforesaid discussion of the evidence on record and on going through the impugned judgment and order of 13 conviction, I find that there is hardly any scope to interfere with the findings which have been arrived at by the learned Sessions Judge, Keonjhar. The judgment is a well discussed one and the evidence on record do not at all call for any interference and I do not find any compelling reason to differ from the findings of the learned Trial Court. 18. Accordingly, while concurring with the findings of the learned Trial Court and maintaining the order of conviction and sentence imposed on the appellant under Section 304-Part-I of the I.P.C., the appeal stands dismissed. …………………. B.K.Misra,J. Orissa High Court, Cuttack The 15th November, 2011/RNS