CHHALA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant stood charged under section 302 of the India Penal Code with having committed the murder of Tikunu Bebera (to be described hereinafter as deceased) on January 14, 1980, at village Batisuan in the district of Dhenkanal. The case of the prosecution was that owing to previous enmity between the appellant on the one hand and the deceased on the other-of which there was no cogent proof the appellant attacked the deceased by means of an axe (M.O. I) and caused a number of external injuries on his person which resulted in his death owing to the consequent internal injuries. It has not been disputed at the Bar that the deceased had died a homicidal death. The order of conviction has been. based mainly on a dying declaration said to have been made by the deceased naming the appellant as his killer before P.Ws. 2 to 4, an extrajudicial confession said to have been made by the appellant before P.W. 1 while he was on his way to the police station to make a report regarding this incident and the statement of the appellant which had led to the discovery of M.O.I.

(2.) We may point out at the outset that there was no evidence that M.O. I was the weapon of attack. There was no evidence either that it belonged to the appellant. It had been recovered from an open space. Regard being had to these features in the evidence, the learned Standing Counsel has not seriously pressed into service the evidence with regard to recovery of M.O. I. There thus remain for consideration the evidence of P.W. 1 with regard to an extrajudicial confession made by the appellant, as testified by him and the dying declaration of the deceased, as deposed to by P.Ws. 2 to 4. Mr. Biswal has contended that the charge had not been established beyond reasonable doubt.

(3.) As regards the extrajudicial confession, it may be kept in mind that P.W. 1 was a close relation of the deceased. Evidence with regard to an extrajudicial confession needs, careful scrutiny. There must be reproduction of exact words and there should be evidence to show as to the reason or motive for an accused to make an extrajudicial confession and as to why he would select the person in whom confidence is reposed. Heramba Prahma and another v. State of Assam1. It was highly unlikely that while P. W. 1, a close relation of the deceased, was going to the police station to lodge a report, the appellant would blurt out an extrajudicial confession. There was no evidence of any, other witness in support of this theory. In our view, it would not be safe and proper to unreservedly accept the evidence of P. W. 1 in this regard and hold that the appellant did make an extrajudicial confession before P.W. 1.