STATE OF ORISSA Vs. ADIKANDA SWAIN

JUDGEMENT

(1.) Both the appeals arising out of the same judgment and order passed by Mr. K.C. Kar, Additional Sessions Judge, Cuttack, have been heard together and will be governed by this common judgment. The accused-appellant in the Criminal Appeal who is the respondent in the Government Appeal (to be described hereinafter as the 'appellant') stood charged under S.302 of the Indian Penal Code (for short, the 'Code') with having committed the murder of Sananda Samal (to be referred to hereinafter as the 'deceased') on the 10th Feb. 1976 at Village Gopalpur in the district of Cuttack by hitting his head by means of a lathi (M.O.I.). To bring home the charge, the prosecution had examined eleven witnesses. The appellant's plea was one of denial and false implication. He had examined one witness in his defence. Of P.Ws. 2 and 3 examined as witnesses to the occurrence, P.W. 3 did not support the case of the prosecution for which he was put leading questions under S.154 of the Evidence Act. The prosecution had also relied on an extra-judicial confession said to have been made by the appellant before P.Ws. 1, 2, 4 and 8. Of them, P.Ws. 4 and 8 did not support the case of the prosecution in this regard. Relying on the evidence of P.W. 2 and holding on the basis of his evidence that the appellant was the assailant of the deceased and on the basis of the extra-judicial confession said to have been made by the appellant coupled with the medical evidence, the learned trial Judge has found that the appellant had killed the deceased by means of M.O.I. But in the circumstances of the case, he has held that the offence would be one of culpable homicide not amounting to murder punishable under the second part of S.304 of the Code. The appellant has accordingly been convicted under S.304 Part II of the Code and sentenced to undergo rigorous imprisonment for a period of five years.

(2.) The State is in appeal against the order of acquittal in respect of the charge under S.302 of the Code.

(3.) It has been contended on behalf of the appellant that there is no evidence of any witness identifying the appellant as the assailant of the deceased and no order of conviction can be based on the retracted extra-judicial confession said to have been made by the appellant before P.W. 1 as being the brother of the deceased, P.W. 1 is a highly interested witness and it would not be safe, reasonable and proper to accept his evidence and hold the appellant to be guilty only on the basis of an extra-judicial confession said to have been made before him.