IMPORTANT POINT
Cumulative effect of direct evidence of an eye-witness and circumstantial evidence of an extra judicial confession, recovery of weapon of offence, medical evidence and homicidal death leads to irresistible conclusion that appellant was murderer of old lady to whom he suspected to have applied witchcraft to his father for his ailments.

Headnote:Indian Penal Code, 1860 - Section 302 - Murder of a lady by Appellant - Conviction based on direct evidence, eye-witness and circumstantial evidence - Death homicidal - Recovery of weapon of offence, extra judicial confession and medical evidence - Motive whether needs interference in appeal – No Conviction and sentence- of life imprisonment affirmed - Case law referred (Cross Ref.: Evidence Act, 1872 - Section 27 - Criminal Procedure Code, 1973 - Chapter VII and Section 313)
       Held: It is true that Ext. 3 does not specifically mention in this regard but basing on the injuries such a finding can be arrived at by the trial Judge. Of course for not recording such a finding, prosecution case cannot be negatived. On perusal of the post-mortem report (Ext. 3) we are satisfied that the injuries found on the dead-body of the deceased are ante-mortem in nature and the deceased died a homicidal death and not suicidal one. The defence has never challenged the medical evidence on this aspect either. (Para 11)
       Now the pertinent question is, who is the assassin of the deceased. To answer this question, prosecution has relied on the evidence of P.W. 5 who claims herself to be an eye witness to the occurrence and the other circumstantial evidence connecting the accused Bijoy Soren with the complicity of the crime. (Para 12)
       Not only that but also the death of the deceased in the present case is due to the stab injury in respect of which there is no discrepancy between the medical evidence and the ocular version of P.W. 5. In view of our discussion made above, we are never in agreement with the contention raised by the learned counsel for the appellant and accordingly, the said contention stands rejected. (Para 13)
       Evidence of P.W. 2, as quoted above, clearly indicates that immediately after the occurrence the appellant went to him and confessed stating that he killed a person with the knife which he made over to him and went away. P.W. 2 being a young boy and co-villager of the accused the latter reposed confidence in him while making the confession with the hope that he would not disclose the occurrence to others. Despite inherent weakness, of extra-judicial confession as an item of evidence it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. (Para 17)
       In the instant case, we are bound to accept the extra-judicial confession made to P.W. 2 as it is corroborated by surrounding circumstances and other reliable evidence. (Para 18)
       Recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. (Para 19)
       Moreover, during examination under Section 313, Cr. P.C. the accused has failed to explain all the circumstances including the seizure of M.Os I and II made under Seizure list Exts. 9 and 10, all leading to an irresistible conclusion of the guilt of the accused beyond all reasonable doubt. (Para 21)
       Held findly: Therefore, in view of our discussion made above considering the direct evidence as well as the circumstantial evidence which has been cogently established by the prosecution, we are satisfied that the cumulative effect of the said evidence lead us to the conclusion that within all human probabilities the accused-appellant and none else had committed the crime in question by doing away with the old lady to whom he suspected to have applied witchcraft to his father (D.W.1) who was suffering from ailments for some time prior to the occurrence. (Para 22)
       In the ultimate result for the reasons recorded above, we confirm the conviction and sentence of the appellant under Section 302, I.P.C. and dismissed the appeal preferred from Jail. (Para 23)
       Result: Appeal dismissed.

JUDGMENT

M. Papanna, J. - Judgment of the learned Sessions Judge, Mayurbhanj Baripada, passed in S.T. No. 134 of 1992 convicting the appellant under Section 302, I.P.C. and sentencing him to undergo imprisonment for life is under challenge in this appeal preferred from Jail.

2. Facts of the prosecution case leading to the present appeal may be delineated tersely as follows:

One Deogi Majhi of Dumuria in the district of Mayurbhanj (hereinafter referred to as "the deceased") was known for applying sorcery to the people of her village. For some months prior to the occurrence, father of the accused persons was ill. So the accused persons suspected the-deceased to have applied sorcery to their father working under such notion, the accused persons went to her house on 5-4-1992 at about 2 P.M. At that time the deceased was sleeping on a cot in the outer verandah of her house. Taking advantage of this accused Bijoy Soren gave axe blows on her head. He also stabbed her with a knife. As a result, she succumbed to the said injuries. Her daughter-in-law, Bija Majhirushed to the spot seeing the occurrence. The accused persons fled away from the spot leaving the axe there. Thereafter neighbours reached the spot hearing her hulla. Son of the deceased. Champai Majhi who had gone for labour work at that time was sent for. After reaching the spot he learnt from his wife about the incident. Then he lodged information in Thakurmunda Police Station. Accordingly, Thakurmunda P.S. Case No. 6/92 was registered. During investigation, the I.O. having found prima facie evidence under Section 302/34, I.P.C. submitted charge sheet against the accused persons.

3. Accused persons pleaded innocence, complete denial of the allegation of the prosecution is the defence plea. That apart, defence propounded a theory that Bija Majhi daughter-in-law of the deceased killed her and implicated the accused persons falsely in this case.

4. To prove the charge ten witnesses have been put in the witness box on behalf of the prosecution. P.W. 1 is Rama Majhi, son of the deceased. P.W. 2 is Rabindra to whom the accused made extra-judicial confession. P.W. 3 is Banamali Patra to whom P.W. 2 told that accused Bijoy Soren gave him a knife which he threw in his back-yard. P.W. 4 is Champai Majhi (informant).P.W. 5 is Bija Majhi wife of the informant. P.W. 6 is Chandini Patra, a post occurrence witness. P.W. 7 is Lalmohan Mohant who went to the Police Station alongwith the informant for lodging information about the incident. P.W. 8 is the Doctor who conducted autopsy on the dead body of the deceased. P.W. 9 is the I.O. and P.W. 10 is a co-villager of the informant.

5. The defence, on the other hand, examined one Surdan Majhi, father of the accused person as D.W. 1 in support of its stand.

6. Relying on the evidence of the witnesses for the prosecution the learned Sessions Judge convicted Bijoy Soren the present appellant and sentenced him as aforesaid. However, he acquitted accused Pitambar Soren of the charge.

7. The learned counsel for the appellant has raised mainly the following two fold contentions:

(i) The extra-judicial confession made by the accused is not acceptable in the eye of law as P.W. 2 to whom he made it, has no where said that he has close relationship with him, and

(ii) The medical evidence as deposed to by P.W. 8 is contradictory to occular version of P.W. 5 so far as the number of blows corresponding to the injuries found on the deceased is concerned.

Basing on these contentions he submits that the prosecution case is to be viewed with suspicion and accordingly, persuaded us to allow the appeal.

8. The learned counsel for the State, on the other hand. Supported the impugned judgment.

9. The contentions raised by the learned counsel for the parties need careful examination. Having gone through the evidence account of the witnesses on record, we found that the prosecution claims to have proved the offence with which the appellant has been charged re

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