DASARA SOREN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 23.08.1999 passed by Sri A.K. Senapati, learned Sessions Judge, Keonjhar in S.T. Case No. 40 of 1995 by which the Appellant has been convicted under Section 302 of I.PC. and has been sentenced to imprisonment for life.

(2.) THE fact of the case in a nutshell is that one Mangal Soren (P.W.5), husband of Sapani (herein after called the deceased) used to live with his family in the house of the Appellant, his agnatic brother on rent. The Appellant suspected the death of his four children to be the outcome of witchcraft practiced by the deceased. Therefore, he asked P.W.5 and his family to leave his house and stay elsewhere. Accordingly P.W.5 constructed a hut in Belda Hillock and shifted there. In the process of shifting, when on 11.12.1994 at about 10 A.M. the deceased had come alone to take some household articles, the Appellant, who was in hiding, attacked her with a dowli (a sharp cutting weapon) on which the deceased raised hulla. Hearing the hulla of the deceased (P.W.5) rushed to the spot and from a distance saw the accused dragging away the deceased from the spot. P.W.5 did not dare to approach the Appellant and went to seek help. Later he found the dead body of the deceased to be lying at a little distance from the spot with the head missing. On the other hand, the Appellant went to Bamebari Out Post where he told to P.W.8 that he had committed murder of a woman. P.W.8 made a Station Diary entry and thereafter the Appellant took the A.S.I., Police Staff and witnesses to the spot where he had committed the murder of the deceased, where the dead body was lying without head and also to the spot where he had concealed the severed head of the deceased. P.W.5, who was called to the spot identified the dead body and the head to be of the deceased. P.W.8 sent the written report to Binesh Chandra Behera, P.W.9, O.I.C. of Joda police Station who treated the same as F.I.R. and registered a case under Section 302 I.P.C. He came to the spot and took up the investigation from P.W.8. P.W.8 had earlier seized the Dowli, M.O.I vide seizure list Ext.6. During the investigation, P.W.9 held inquest over the dead body, sent it for post -mortem examination and seized different articles including wearing apparels of the Appellant and the deceased. After completion of the investigation, charge sheet was submitted against the Appellant under Sections 302/201 I.P.C.

(3.) DURING argument, the learned Counsel for the Appellant submitted that the evidence of P.W.5, husband of the deceased, is not trustworthy in view of the material contradictions and that the learned trial court should not have believed the prosecution case and should have given the benefit of doubt to the Appellant. He specifically argued that since the accused was not arrested when he allegedly led the police party and gave recovery of the head of the deceased, his statement is not admissible under Section 27 of the Indian Evidence Act. The learned Additional Standing Counsel appearing on behalf of the State, on the other hand, strenuously supported the judgment of conviction.