MATHIAS KULLU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appeal preferred against the judgment dated 28.10.1999 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No. 170 of 1997 convicting the appellant under Sections 201 and 302,1.P.C. and sentencing him under Section 201, I.P.C. to undergo R.I. for five years and under Section 302, I.P.C. to capital punishment and the reference made by the learned Sessions Judge under Section 366 of the Code of Criminal Procedure. 1973 were heard together and are disposed of by this common judgment.

(2.) THE facts of the case which gave rise to this appeal are as follows : The appellant and two others, namely, Jabhiar Soreng and Sylvestar Lakra stood charged for the offences under Section 302, 201 read with Section 34, I.P.C. for committing murder of Lajrus Kullu, the brother of the appellant, Katirna Kido alias Kullu, the wife of Lajrus Kullu and Ruben Kullu, the son of Lajrus Kullu sometime in the month of August, 1996. The case against the appellant is that he was not pulling on well with his brother Lajrus Kullu as there was dispute between them relating to landed property. In the month of August, 1996 the co villagers of the appellant found Lajrus Kullu, his wife and son missing from the village. Initially they thoughtjthat as usual Lajrus with his wife and son might have gone to some other village for work. On enquiry the appellant also told the villagers that his brother with his wife and son to have gone to some other village for work. Some months thereafter, the villagers saw this appellant cutting the paddy crop from the land of his brother. When they asked him as to why he was cutting the paddy from his brother's land, he told them that he would give the paddy to his brother on his return. A few months subsequent thereto when they saw the appellant removing the door frame and shutters from the house of his brother, they suspected foul play. So they convened a meeting of the villagers which was also attended by the appellant. There in the meeting before the villagers the appellant confessed that he along with two of his male cousins Jabhir Soreng and Sylvestar Lakra assaulted his brother, brother's wife and son to death by means of a lathi. He also disclose, that they burried their dead bodies along with the lathi used in assaulting them little away from the house of Lajrus Kullu in a pit. It is also alleged that he led the villagers to the place where the dead bodies of the three deceased persons were buried. Coming to know about the incident, one of the villagers, namely, Khristarfar Barua went to the police station and lodged a written report. The matter was investigated into and the appellant with the other two co accused named above were charge sheeted for the alleged offences under Sections 302 and 202 read with Section 34, I.P.C. After commitment, they were charged for the above offence to which they pleaded not guilty.

(3.) THE learned counsel appearing for the appellant contended that the finding recorded by the learned Sessions Judge regarding the guilt of the appellant on the basis of the circumstantial evidence including the eoctra j udicial confession is highly improper and is the outcome of his failure to appreciate the evidence in its proper perspective. It is submitted that the learned Sessions Judge has failed to ta.ke into consideration the evidence adduced by the witnesses which show that the entire prosecution case against the appellant is a concocted one. He further submitted that there is no reliable evidence to come to a conclusion that the appellant confessed before the villagers to have killed his brother, brother's wife and son. According to the learned counsel, the circumstances relied on by the prosecution having not been proved satisfactorily, the learned Sessions Judge should not have accepted the same to come to the conclusion about the guilt of the accused. The learned Addl. Government Advocate, however, argued in support of the findings recorded by the learned Sessions Judge.