SUDAM BADI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Over and after a petty quarrel between the members of the families of Ainthu Bag (hereinafter to be referred to as the deceased) and of the appellant Sudam and the co-accused Brusabha for plucking of the fruits of a tree standing in between their houses in village Debadihi in the district of Sambalpur, on February 8, 1979, in the course of which the appellant and the co-accused, one of them, namely, Sudam, being armed with a lathi (M. O. I), threatened to pull out the baard of the deceased and the deceased challenged them as to how they would do it, the appellant Sudam, it was alleged, dealt a blow by means of M.O. I. on the head of the deceased which resulted in his death and in the course of the occurrence, the co-accused Brusabha allegedly caught hold of the beard of the deceased and attempted to deal slapi on him. Both the appellant and the co-accused stood charged under Section 302 read with Section. 34 of the Indian Penal Code (the Code, for short) with having committed the murder of the deceased in furtherance of their common intention. The trial court held that the charge of murder had not been brought home to them and there was no case against the co-accused, but accepted the case of the prosecution against the appellant and held that he was liable to be convicted under Section 304, Para II of the Code and accordingly he was convicted and sentenced there under to undergo rigorous imprisonment for a period of three years while the Co accused was acquitted of the charge.

(2.) The order of conviction has been rested mainly on the evidence of P.Ws. 5, 9 and 10 out of the eleven witnesses examined for the prosecution. It is not disputed at the Bar that the deceased died a homicidal death. The order of conviction has been assailed on behalf of the appellant as unfounded on facts and unsustainable in law as the appellant's act, even accepting the case of the prosecution as true was protected by the right of private defence of his person. The learned Additional Standing Counsel has not seriously pressed into service the evidence of P. W. 5 with regard to an extra judicial confession said to have been made by the appellant. He has submitted on behalf of the State that the evidence of P. Ws. 9 and 10 was no doubt, discrepant and some persons named as witnesses to the occurrence in the first information report had not been examined, but the substantial parts of the evidence of P. Ws.9 and 10 implicating the appellant as the author of the crime were not to be discarded.

(3.) Coming first to the extra judicial confession said to have been made by the appellant before P. W. 5, it is noticed that according to this witness, when he told the appellant that the villagers had been telling that he had killed the deceased, the appellant gave out that if the villagers had been accusing him of having killed the deceased, he was guilty. P. W. 5 had further deposed that later the appellant had given out that when the deceased gave a lathi on him, he (appellant) gave a lathi blow in return as a result of which the deceased died. As has rightly been submitted on behalf of the appellant, the evidence of P. W. 5 had not received any corroboration from any other evidence and none of these two statements allegedly made by the appellant would amount to an extra judicial confession because the first statement would not amount, in law, to a confession and the second one would indicate that the appellant had claimed to have the right of private defence of his person and thus contained a self-exculpatory part which, if accepted, would negative the offence. A confession must either admit, in terms, the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory part is of some fact which, if true, would negative the offence alleged to be confessed. (See Pakala Narayana Swamy V/s. Emperor, 1939 AIR(PC) 47).