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2008 (2) Crimes 690 (Ori.)
ORISSA HIGH COURT
L. Mohapatra and B.P. Ray, JJ.
Sunadhar Khilla—Appellant
versus
State of Orissa—Respondent
and
State of Orissa—Appellant
versus
Sunadhar Khilla—Respondent
Jail Crl. Appeal No. 64 of 2007 and Death Reference No. 6 of 2007
Decided on 7.1.2008
Counsel for the Parties:
For the Appellant (DSREF No. 6 of 2007):Addl. Govt. Advocate
For the Respondent (DSREF No. 6 of 2007): Mr. Gouri Sankar Pani.
For the Appellant (JCRLA No. 64 of 2007): Mr. Gouri Sankar Pani.
For the Respondent (JCRLA No. 64 of 2007):Addl. Govt. Advocate
IMPORTANT POINT
Evidence of confession by accused before panchayat when accused had been threatened by villagers before he admitted his guilt could not be relied to base conviction.
Headnote:Indian Penal Code, 1860—Section 302—Appellant convicted for committing murder of his wife and was awarded death sentence—Appellant and deceased both were drunk and appellant assaulted deceased with kicks and fists in her belly when she refused to cook food—Deceased vomited blood and died—Trial Court found accused guilty solely on evidence of PW5 and statement of accused recorded u/s 315 Criminal Procedure Code—Accused confessed before Panchayat after the incident and PW5 was witness to that fact—PW5 admitted that accused was threatened by villagers and then he admitted his guilt—Statement under threat and force could not be treated to be voluntary—Doctor who conducted post-mortem and Investing Officer were also not examined—Conviction could not be sustained.(Para 5)
Result: Appeal allowed.
JUDGMENT
L. Mohapatra, J.—The above reference has been made by the learned Additional Sessions Judge, Malkangiri for confirmation of sentence of death passed in Criminal Trial No. 34 of 2003 and the Criminal Appeal has been filed by the appellant challenging the order of conviction under Section 302 of the Indian Penal Code and sentence of death imposed by the Trial Court.
2. The case of the prosecution as revealed from the F.I.R. is that on 22.8.2002, which was Rakhi Purnima Day, there was an altercation between the deceased and the appellant. It is further alleged that the appellant being in a drunken state asked the deceased to cook food but the deceased, who was also drunk was not feeling well and requested her husband, the appellant, to cook food. On this issue, there was an altercation and the deceased went to sleep. The appellant being enraged by the conduct of the deceased, assaulted her by means of kick and fist blows to her belly and chest, as a result of which, she vomited blood and died. On these allegations, investigation was taken up and charge-sheet was submitted for commission of offence under Section 302 of the Indian Penal Code.
3. The prosecution examined ten witnesses to bring home the charge and the appellant himself was examined under Section 315 Cr.P.C. On the basis of the materials placed before the Court, the Trial Court convicted the appellant for commission of offence under Section 302 of the Indian Penal Code and sentenced him to death.
4. Learned counsel appearing for the State in support of conviction and sentence imposed by the Trial Court submitted that the appellant having admitted to have assaulted his wife by kick and fist blows resulting in her death, there is no reason as to why this Court should interfere with the judgment and order of conviction and sentence. The learned counsel appearing for the appellant assailing the legality of the judgment and order of the Trial Court submitted that except the evidence of PW5, there is no other evidence on record to convict the appellant. According to the learned counsel for the appellant, PW5 is a witness, who stated to have remained present at the village meeting, where it is alleged that the appellant admitted his guilt. In cross examination, this witness having admitted that the appellant was forced to make a statement, the same cannot be relied upon and in absence of any other material, the order of conviction and sentence is liable to be set aside.
5. As we find from the judgment of the Trial Court, the appellant has been found guilty for commission of the alleged offence solely on the evidence of PW5 and his statement recorded under Section 315 Cr.P.C. On examination of the evidence adduced before the Court, we find that PW1 is a witness to the inquest and he has specifically stated that he does not know how the wife of the appellant died. Similar is the evidence of P.Ws. 2 and 3. PW4 is a witness to the seizure of nail clippings of the appellant. PW5 is a witness on which much reliance has been placed by the Trial Court. This witness in his deposition has stated that after the occurrence, there was a village panchayat relating to death of the deceased and the appellant being asked admitted to have assaulted his wife to death. In cross-examination, this witness has stated that at the first instance, the appellant denied to have any knowledge about the death of the deceased but subsequently being threatened by the villagers, he confessed his guilt. If this part of the deposition of PW5 is taken into consideration, it can be safely held that the so-called confession made before the villagers is not voluntary and under threat he made such confession. PW6 has stated that he had no knowledge as to how the deceased died. Similar is the evidence of PW7 and this witness has further denied about the meeting in the village. PW8 is the constable, whose evidence is of no use to the prosecution. PW9 turned hostile and did not say anything about the inciden
