HARI DEHURY Vs. STATE OF ODISHA

JUDGEMENT

(1.) THIS appeal has been filed by the appellant challenging the judgment dated 12.7.2004 passed by the learned Sessions Judge, Sundargarh in S.T. Case No. 106 of 1998 convicting the appellant under Section 302 I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 2,000/ - in default to undergo rigorous imprisonment for one year. The court below further directed that the period of detention as U.T.P. be set off under Section 428 of Cr.P.C. The case of the prosecution is that on 26.12.1997 due to some dispute one Hadu Naik came to assault the appellant by means of a lathi but the appellant on a heat of passion assaulted Hadu Naik on his head by means of an axe causing his instantaneous death. The appellant disclosed the said fact before the Ward Member of Tilkala Village on 27.12.1997 at about 7.00 A.M. in the morning. On hearing the said fact, the Ward Member came to the spot and found that the deceased was lying under the Jackfruit Tree in between the house of the appellant and the deceased. Thereafter the Ward Member called upon the Villagers namely Sukadev Nayak, Kamar Dehury and Sukutu Nayak to the spot. There the appellant confessed his guilty before all of them that as the deceased attempted to attack him being angry by the said act of the deceased, he has killed the deceased. On 27.12.1997 the Ward Member of Tilkala Village lodged an F.I.R. before the Officer -in -Charge of Mahulpada Police Station at 5.00 P.M. which was registered as Mahulpada P.S. Case No. 15 of 1997 for commission of offences under Section 302 of I.P.C. and investigation commenced. The appellant also surrendered before the Officer -in -Charge of the concerned Police Station. In course of investigation the Investigating Officer examined the informant and other witnesses and sent the dead body for postmortem examination, seized the weapon of offence, blood stained earth from the spot and wearing apparels of the appellant as well as the deceased and forwarded all the material objects for chemical examination. After completion of investigation, charge sheet was submitted against the appellant under Section 302 of I.P.C.

(2.) THE prosecution in order to establish the charges examined as many as eight witnesses and exhibited several documents which were marked as Exts. 1 to 13. Out of the witnesses examined by the prosecution P.W. 1 is the seizure witness of weapon of offence. P.Ws. 2 and 3 are the Co -villagers of the appellant before whom he made extra judicial confession that he has killed the deceased. P.W. 4 is a post occurrence witness. P.W. 5 is the Doctor, who has conducted postmortem examination on the dead body. P.W. 6 is a witness to the seizure of wearing apparels of the deceased. P.W. 7 is the wife of the deceased, who turned hostile in course of trial and P.W. 8 is the Investigating Officer. However, the prosecution has not examined the informant on the plea that he has left the village after enquiry and his whereabouts was not known.

(3.) LEARNED counsel appearing for the appellant submitted that the so called extra judicial confession made by the appellant before P.Ws. 2 and 3 as held by the learned trial court is not sustainable as it is a weak piece of evidence and the same should not be accepted as an evidence as per the materials available on record. Therefore, the impugned judgment of conviction and sentence need be interfered with. In support of his contention he has relied on the decisions reported in : (2014) 58 OCR 392 and : (2011) 49 OCR (SC) 684.