MADI GANGA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant was tried and acquitted by the learned Sessions Judge, Koraput, of a charge under Section 302. Indian Penal Code. On appeal by the State of Orissa, the High Court set aside the order of acquittal, convicted the appellant under Section 302, Indian Penal Code and sentenced him to imprisonment for life. The case of the prosecution was that when the deceased was sleeping in his hut in the night of 12-13 November, 1969, the accused struck him with a big stone on the head and killed him. The occurrence was said to have been witnessed by the ten year old son of the deceased, who immediately went to the house of his father's cousin and told him about the occurrence. Next day there was a Panchayat in the village and on being questioned by the elders, the accused admitted that he had killed the deceased by throwing a stone on his head. Thereafter a report was made to the police and investigation started. The accused who was arrested on 15th was produced before the learned 1st Class Magistrate, Malkangiri Sub Division, Koraput District for recording a confessional statement. The accused was given time for reflection and his confessional statement was recorded by the learned Magistrate on 21st after the usual warnings were administered to him. P. W. 10 the Investigating Officer seized M. O. 1, the stone at the scene of offence. The Medical Officer who conducted the autopsy found one lacerated wound surrounded by a deep red bruise on the left side of the head, with cartilage of the left ear torn off. There was another lacerated bruise just behind the injury No. 1. On dissection the left mastoid portion of the left temporal bone was found fractured for a length of one inch. The occipital bone was found perforated on the left side. The left temporal arteries were found crushed. The left stemomastoid muscles were found crushed. The opinion of the doctor was that the death was due to profuse bleeding and haemorrhage and shock on account of the fracture of the left temporal and occipital bones.

(2.) The learned Sessions Judge rejected the evidence of the alleged eye-witness P. W. 1. He rejected the evidence of P. Ws. 2 to 5 in regard to the extrajudicial confession on the ground that it was not voluntary but was the result of inducement and influence. He also rejected the confessional statement made to the Magistrate on the ground that the Magistrate had not appended a certificate that the confession was not the result of any threat or inducement. The High Court reversed the findings of the learned Sessions Judge. The eye-witness account of P. W. 1, the extra-judicial confession spoken to by P. Ws. 2 to 5 and the confessional statement to the Magistrate were accepted and the accused was convicted and sentenced as already stated.

(3.) Shri R. K. Jain, learned counsel for the appellant urged that the High Court was wrong in reversing the judgment of the learned Sessions Judge. He submitted that the evidence of P. W. 1 should not have been accepted. He urged that the extra-judicial confession made to the village elders should not have accepted as it was the result of inducement. He submitted that though P. Ws. 2 to 5 were not persons in authority in the sense that they had no official position, as village elders they certainly were. persons in authority in the eyes of the accused who was an Adivasi. With regard to the confessional statement made to the Magistrate his submission was that it should have been excluded from the evidence as the Magistrate was not examined to prove it.