BISI GOLARI Vs. STATE OF ORISSA

JUDGEMENT

(1.) ORDER of conviction under second part of Section 304, IPC vide the impugned judgment dated 18.10.1997 in Sessions Case No. 49 of 1997 of the Court of Additional Sessions Judge, Jeypore is under challenge. Admittedly, appellant is inside the jail since 19.1.1997. He has been sentenced to undergo rigorous imprisonment for seven years.

(2.) AS per the prosecution case on 17.1.1997 at about 8 P.M. deceased in intoxicated condition (after taking 'Salap' juice) was creating noise by shouting and the appellant, one of his sons staying with him, came and asked the former to not to shout and received the rebuke of the deceased. As a matter of retaliation, appellant dealt a blow to the right side head of the deceased by using a 'Katha Mutula'. Deceased sustained bleeding injury and died at the spot. Siri Golari (P.W. 1), a neighbour was hearing the quarrel between the deceased and the appellant and when he arrived at the spot, he found the deceased lying dead with bleeding and the appellant standing there with that weapon of offence. On being asked by P.W. 1, appellant made extra judicial confession about the crime. P.W. 1 intimated to the other son of the deceased, namely, Iswar Golari (P.W.2) and after his arrival also the appellant made extra judicial confession. Then the village headman and some other villagers were summoned to the spot of the occurrence for a customary meeting (which is usually being held in such instances in the tribal area of Koraput District) and before them also appellant made extra judicial confession by making similar statement. F.I.R. was lodged in the police station and the law was set into motion. After a routine investigation charge -sheet was submitted under Section 302, IPC basing on the aforesaid extra judicial confession and the post mortem report (Ext. 13) that the deceased suffered a homicidal death. Appellant was charged for the offence under Section 302, IPC and during the course of trial aforesaid P.Ws. 1 and 2 and the co -villagers were examined as P.Ws. 3, 4 and 5. The Doctor who conducted post mortem was examined as P.W. 10. The inquest report, seizure list etc. were relied upon and admitted as evidence and the weapon of offence was marked as M.O.I.

(3.) LEARNED counsel for the appellant puts emphasis on the lack of eye -witnesses to the occurrence as the trump -card for obtaining an order of acquittal and learned Standing Counsel resists to that argument on the ground of acceptability of the extra judicial confession and corroboration from the other circumstantial evidence relating to proof of the occurrence against the appellant. Learned counsel for the appellant also challenges the extra judicial confession to be not credible and simultaneously he also presses into service the plea of alibi which the appellant took in trial by stating that he was absent from the house in the occurrence night and after receiving the news of death of his father while returning to the village he discovered the dead body of the deceased from a 'Nala'. Learned Standing Counsel advances the counter argument stating that the defence plea is far away from reality and the trial Court justifiably rejected the same.