S. Acharya, J.
1. This is an appeal under Section 417(1), Criminal P. C. against the judgment of acquittal passed by the Sessions Judge, Koraput, in Sessions Case No. 43 of 1969 acquitting the accused, respondent herein, of the charge under Section 302, L P. C.
2. The prosecution case in short is that in the night of 26/27-3-1969, the accused, who was in adulterous relationship with P. W. 6, the wife of Raghunath Behera, the deceased, was sharing the bed with P. W. 6 in the house of the deceased. At that time Raghunath returned to his house and tapped at the door asking his wife (P. W. 6) to open the same. P. W. 6 after opening the back door of the bed room in which she and the accused were sleeping, opened the front door enabling her husband to get inside the room. As the room was very dark, Raghunath asked P. W. 6 to light up a lamp. While P. W. 6 was in search of fire to light up the lamp, the accused, who was concealing himself in that room, picked up an axe and dealt a blow with the same on the left scapular region of Raghunath as a result of which Raghunath fell down at the spot and died after a few hours. The accused after dealing the blow on Raghunath fled away from that place leaving the axe in that room. Thereafter, P. W. 6 began to cry aloud, which attracted the attention of persons in the neighbourhood. Many villagers including P. Ws. 1 and 2, respectively the Grama Rakhi and the Sarpanch, came to that house and enquired from P. W 6 and the injured about the incident. They then could only know that some unknown person assaulted Raghunath and fled away from that place. Raghunath died at about 4 a. m. in the morning.
Early next day morning, P. W. 2, the Sarpanch, and some others of the village including P. Ws. 4 and 7 assembled near the house of the deceased and asked P. W. 6 all about the incident of the previous night. P. W. 6 then informed them that it was the accused who assaulted the deceased with an axe inside that room. On their query as to why she did not disclose the name of the accused during that night, she said that she did not do so due to extreme fear and mental agony. The accused thereafter was sent for to that place, and he too in the presence of P. Ws. 2, 4 and 7 and some other villagers present there confessed that he assaulted the deceased apprehending danger to his own life. P. W. 1 had earlier left for the police station, and on his written report (Ext. 1) at the Tentulikhunti P.S. on 27-3-1969 at 9 a.m. at first a station diary entry (Ex. 6/1) was drawn up, and on the same the I. O., P. W. 12, drew up the formal F. I. R. (Ext. 6) on 28-3-1969. P. W. 12 thereafter visited the spot held inquest over the dead body and forwarded the dead body of the deceased for post-mortem examination. That very day he examined the witnesses and also the accused, after arresting him. He seized the axe (M. O. I) under seizure list (Ex. 8) and also seized certain other articles relevant for the purpose. After further investigation and the commitment proceeding, the accused was tried for a charge under Section 302, I. P. C, but the learned Sessions Judge acquitted him of the said charge on giving him the benefit of doubt.
3. The accused pleaded not guilty to the charge. He denied to have made any extra-judicial confession before anybody but admitted to have made a judicial confession before P. W. 15, a Magistrate, 1st Class, but he stated that ho made that statement because of threat and coercion by the Police.
4. P. W. 5, the doctor, who held the post-mortem examination of the deceased on 29-3-1969 found one incised gaping wound 3' x 1' x 3' just below the left scapula. He opined that the said injury was an ante-mortem one and might have been caused by a blow with an axe like M.O.I. On dissection he found that the seventh left rib was completely cut below the said wound. The pleura and the left lung to the extent of 3'x1/2'x1/2' the above wound,opined that the internal injuries were the result of the external injury on the deceased and that the death of the deceased was due to shock and haemorrhage as a result of the said injury. The doctor proved his post- mortem report (Ex. 2).
From the Post-mortem report and the doctor's evidence there is no doubt there is no doubt that the death of the deceased was homicidal.
5. The prosecution in order to bring home the charge under Section 302, IPC against the accused mainly de eye-witness account of P. W. 6 the extra-judicial confession of the accused before 4, 6 and 7; and the judicial co (Ex. 13) of the accused recorded by a Magistrate (P. W. 15).
The learned Sessions Judge appreciation of the evidence on record has not placed reliance on the evidence of P. Ws. 2 and 6 On a perusal of the discussion of their evidence in the impugned judgment we find that their evidence has been discarded on flimsy grounds and uncalled for or incorrect considerations, assumptions and surmises.We shall refer to the same while discussing the relevant evidence on record.
6. P. W. 6 states that in the night of her house Her husband, the deceased, re-turned home during the night and tapped at hT door which was closed from inside, PW 6 at first opened the back door and asked 'the accused to slip away from the room through that door. Thereafter she opened the front door to allow her husband to get into the room. After her husband got inside the room he asked P W 6 to light up a lamp When P W. 6 'was' going to light up a lamp, the accused, who was concealing himself somewhere in that room, suddenly came up and gave a blow with a Tangia on the husband of P. W. 6, and ran away from that place leaving the Tangia in that room, Seeing all this, P. W. 6 was completely bewildered and stunned, and she began to cry out in agony. Very soon some villagers in-eluding P Ws 1 and 2 arrived at that place, After some time her husband breathed his last She also states that on the next day morning a Panchayati was convened at the instance of the Sarpanch P. W. 2, which was attended amongst others by P. Ws. 4 and 7. P. W. 6 was called to that Panchayati and she was asked to narrate all that actually happened in the previous night culminating in the death of her husband. There P. W. 6 the death of her husband told that it was the accused who killed her husband. The accused also was called to that Panchayati, and on being questioned he confessed before P. Ws. 2, 4, 6 and 7 and others present that he was in the house of the deceased in the night of occurrence and when the deceased suddently came back to his house that night he apprehended that the deceased probably would kill him and so he killed the deceased. There is nothing sub stantial in the cross-examination of P. W. 6 to discredit her evidence to the above effect.
7.Her evidence has been disbelieved by the Court below mostly on the grounds that she did not disclose the name of the assailant during the night of occurrence; that she washed the Tangia with which the deceased was assaulted; that she did not admit the the accused on being called by P.W. 2 and others, watched the dead body during the night of occurrence; which fact was stated by P. W. 2 before the committing Court; and that she was a women of unclean character. The Court below considers the disclosure made by P. W. 6 in Court about her illicit relationship with the accused in the night of occurrence as a factor to disbelieve believe her evidence.
P. W. 6 early next day morning gave a convincing reason for not disclosing the name of the accused in the night of occurrence. P.W. 2 states that next day morning, P. W. 6, on being questioned, stated that she did not divulge the name of the accused in the previous night due to extreme fear and mental agony. The manner and the context in which the incident took place, it was but natural h P W 6 that P. W. 6 would have become stunned and completely perplexed. Moreover, at that point of time it was not unnatural for her, a married woman in illicit sexual relationship With the accused just before the incident to try to hide the truth as much as possible. The mental reaction of P. W. 6 at that point of time to throw the blame on an unknown person cannot be ruled out, as in that case her clandestine act of entertaining the accused on her own bed in the night of occurrence would not come to light. We therefore do not attach much importance to the above-mentioned fact.
The Court in disbelieving P. W. 6 has taken note of the evidence of P. W. 12, the Investigating Officer, to the effect that she stated before him that she washed the Tangia, with which the accused assaulted the deceased, out of fear, apprehending that she might be blamed for the murder as the Tangia belonged to her, whereas in Court she did not admit to have stated so before the police. She does not deny that she did not wash the Tangia during that night. In cross-examination she merely stated that she did not tell the police of having washed the Tangia. It is just possible that after one year of her examination by the police when she deposed in the trial Court she had forgotten all that she had actually stated before the police. Considering her evidence as a whole we do not attach much of importance on her statement to the above effect, as the intrinsic merit of her evidence stands otherwise unassailed.
The Court below has unnecessarily attached much importance to the denial of P. W. 6 of a suggestion to her in cross-examination that the accused watched the dead body in the night of occurrence, a fact deposed to by P. Ws. 1 and 2 in the committing Court. Inconsistencies of this nature are bound to occur in the testimony of witnesses examined at different times and at different stages of a proceeding. Considering as a whole the evidence of P. W. 2 in the proper perspective we are unable to attach any importance to the above-mentioned denial of P. W. 6.
The suspicion entertained by the Court below regarding the independent character of the evidence of P. W. 6, because she has frankly disclosed about her illicit sexual behaviour with the accused in the night of occurrence, is uncalled for and unduly assumptive.
8. P. W. 6 has been subjected to a lengthy cross-examination. Nothing substantial could be elicited from her, on which one can say that she has perjured in the witness box and has falsely implicated the accused. The accused himself has admitted in his Section 342 statement that P. W. 6 stated before the Panchayati on the very next day morning that it was the accused who assaulted the deceased in the night of occurrence as stated above. Besides P. W. 2, two other witnesses i.e. P. Ws. 4 and 7 who have not been disbelieved by the Court, have corroborated the evidence of P. W. 6 to the above effect. In her cross-examination P. W. 6 has reiterated at several places that it was the accused who assaulted the deceased. She has stoutly denied the defence suggestion that to save herself and on being man-handled and threatened by the police she falsely foisted the guilt on the accused. Her evidence read as a whole inspires confidence.
9. P. W. 2 was the Sarpanch of the local Grama Panchayat at the relevant time. He on oath states that at about 12 in the night of occurrence, on receiving information from P. W. 3 that the inmates of the house of the deceased were weeping, he came to the house of the deceased. There he saw the deceased lying in a room in his house with a profusely bleeding injury on his person, and his wife, P. W. 6, who was in that room was weeping loudly. On the query of P. W. 2, P. W. 6 told him that someone assaulted her husband and went away from that place. After sometime he sent P. W. 1 to the police station to lodge a report about the incident. Next day morning P. W. 2 and others assembled in front of the house of the deceased and called P. W. 6 to that place and asked her to narrate all that happened during the previous night. At this P. W. 6 disclosed that the accused after assaulting her husband with a Tangia fled away from that place. On being questioned as to why she did not disclose the name of the accused in the night of occurrence, she stated that she did not do so due to extreme fear and mental agony. The accused also was called to that place, and on being asked he admitted that he assaulted the deceased with a Tangia. The accused also stated that he was in illicit relationship with P. W. 6, and in the night of occurrence he was sleeping with her in her room in the same bed when the deceased came back home. When the deceased came inside the room after the door was opened, the accused did not find any way to escape from that place and so he (the accused) took a Tangia which was in that room and with the same he assaulted the deceased, P. W. 2 states that no policeman was present at the time when the accused made the aforesaid extra-judicial confession before P. W. 2 and others present there. He has also stated about the inquest and seizure made later by the police.
P. W. 2, besides being the Sarpanch of the local Grama Panchayat, is an elderly man of about 50. Nothing even has been suggested to him, much less elicited from him, as to why he should perjure against the accused thereby implicating him in an offence of this nature. There is nothing against his veracity. The trial Court wrongly entertains doubt about his veracity as it incorrectly finds that he disowned his previous statement in the committing Court that the accused watched the dead body in the night of occurrence. Instead of disowning his statement to the above effect he has said in the trial Court that 'It is a fact that I deposed in the committing Court that the accused watched the dead body in the night.' He has of course said that it is not a fact that he called the accused during the night of occurrence to watch the dead body. He had not said anything to this effect in the committing Court. Thus the Court below was not justified in disbelieving the evidence of P. W. 2 on the above ground.
On a careful perusal of his evidence in the trial Court as also in the committing Court (brought under Section 288, Criminal P. C), and comparing the same along with other evidence on record we are thoroughly satisfied that he is a witness of truth and his evidence is reliable,
10. The Court below has not disbelieved the evidence of P. Ws. 4 and 7. Against them there is absolutely no suggestion of interestedness or inimical disposition or any reason as to why they would perjure against the accused. There is nothing on record to discredit their veracity. P. W. 4 was an aged man of 63, and P, W. 7 was 50 when they deposed in the Court. The Court merely at places touched their evidence but did not state the effect of the same.
11. P. W. 4 is one of those who attended the said Panchayati, He also states that P. W. 6 stated that it was the accused who assaulted the deceased with a Tangia on the previous night. He has also stated about the extra-judicial confession made by the accused in that Panchayati, as deposed to by P. Ws. 2 and 6. I shall refer to the extra-judicial confession later. Nothing could be elicited from him in cross-examination to any Way discredit his evidence in examination-in-chief. The defence suggestions that the police Was present at the Panchayati when P. W. 6 informed about the incident of the previous night; that the accused made the aforesaid extra-judicial confession in the presence of the police: and that he took an active part in extorting the aforesaid extra-judicial confession from the accused, have been very stoutly denied.
12. P. W. 7 if another person who was also present in the said Panchayati. Ha too has deposed about all that was stated by P. W. 6 and the accused before the said Paschayati almost in the same manner as deposed to by P. Ws. 2, 4 and 6. More-over, his evidence to the above effect stands practically unassailed in cross-examination. Only a few stray questions were put to Mm and in answer to the same he has stated that the police came to the village after the Panchayati was over; that the accused confessed having dealt the blow on the deceased without any threat given to him by anybody in the aid Panchayati. The unassailed and unchallenged evidence of this witness inspires confidence.
13. Thus on the above discussion it ii established beyond reasonable doubt that P. W. 6, the eye-witness to the occurrence, disclosed before P. Ws. 2, 4, 7 and others, the name of the accused and stated that it was he who assaulted her husband; the deceased, in the night of occurrence with an axe and fled away from that place.
The deceased died at about 4 a.m. and P. W. 6 disclosed all that very soon after the daybreak. It is not established if she was subjected to any threat or coercion to make the aforesaid statement. Stray suggestions to that effect have been stoutly denied by her. In the Sessions Court she has made a clean breast of the entire incident which took place in the night of occurrence. We do not find anything convincing or significant to disbelieve her evidence about the occurrence proper and about the truth of the afore-said statement made by her before P. Ws. 2, 4, 7 and others on the next day morning.
14. The non-examination of the son of the deceased, admittedly present in the house at the time of the occurrence, has been considered as a circumstance militating against the truth of the prosecution case. There is nothing on record to show that Ramachandra, the son of the deceased, was present in the room in which the occurrence took place. P. W. 2, who came to the house of the deceased soon after the occurrence, has stated that in the night of occurrence he en- quired about the incident only from P. W. 6 and her husband as there was none else in that room. Moreover, as in the night of occurrence the accused was sharing the bed along with P. W. 6 in the room in which the occurrence took place, it was not expected that P. W. 6 would allow her son to remain in the same room. As the occurrence took place very soon after the deceased entered the room, the possibility of the presence of his son in that room in the aforesaid con text has to be ruled out
15. Apart from the above eye-witness account of the occurrence and the evidence of disclosure of the name of the accused early next day morning, it is also established on the evidence of P. Ws. 2, 4, 6 and 7 that the accused confessed before them in the Panchayati that it was he who assaulted the deceased with an axe in that night of occurrence. P. W. 2 was the Sarpanch of the local Grama Panchayat. According to him he and some others of the village including P. Ws. 4 and 7, assembled near the house of the deceased early next day morning. There they, at first, were told by P. W. 6 that the accused assaulted the deceased with an axa and fled away from that place. After receiving this information the accused was called to that place. There the accused in the presence of the above-mentioned persons confessed that it was he who assaulted the deceased with a Tangia. He also divulged that he was in illicit relationship with P. W. 6, the wife of the deceased, and during the night of occurrence while he was in adultery with P. W. 6, the deceased came inside the house after the door was unchained from inside, and as he (the accused) did not find a way out of the room to escape, he took a Tangia and assaulted the deceased with the same. P. Ws. 4, 6 and 7 have made substantially similar statements regarding the aforesaid extra-judicial confession as deposed to by P. W. 2.
It was commented that as the back door of the room had been opened by P. W. 6 before the deceased came inside that room through the front door, the accused could not have ascribed his act of assault on the aforesaid ground as deposed to by P. W. 2. It is difficult to say as to in what particular place and position the accused was hinding himself in that room when the deceased came inside the room. The accused certainly was also in a bewildered state of mind at that point of time, and his inability to find a convenient way to escape out of that room may be due to his perplexed mental condition surcharged with apprehensions of dire consequences.
16. There is no material contradiction or discrepancy with regard to the accused's statement to that effect in the evidence of P. Ws. 2, 4, 6 and 7. The father of the accused was a field servant of P. W. 2. Nothing convincing has been suggested to, much less elicited from P. W. 2 on which it can be said that a man of the status of a Sarpanch of the locality would, by imputing such a statement to the accused, falsely implicate the accused in an offence of this nature. Against P. Ws. 2, 4 and 7 there is absolutely no suggestion of interestedness of inimical disposition or any other reason from which it can be said that they had reason to falsely impute such a statement to the accused thereby implicating him in such a grave offence. As stated above, there is absolutely nothing on record to discredit their veracity and the reliability of their evidence. Their evidence to this effect has not been shaken in any manner and they corroborate each other to the above effect. On a perusal of the evidence of P. Ws. 2, 4, 6 and 7 we are convinced that the accused made the said extra-judicial confession.
The accused in his Section 342 statement has admitted that there was a Panchayati in the village on the next day morning and that P. W. 6 disclosed in the said Panchayati that it was he (the accused) who assaulted the deceased with a Tangia in the night of occurrence. He however does not admit the fact that he made the aforesaid confessional statement in the said Panchayati. As discussed above on the evidence of P. Ws. 2, 4 and 6, who have no axe to grind against the accused, considered along with the evidence of P. W. 6 it is established beyond reasonable doubt that the accused made the aforesaid extra-judicial confession. All these witnesses have separately and categorically asserted that when the accused made the aforesaid confessional statement, the police had not come to that place and that the accused was not subjected to any threat or coercion in that direction and connection and no promise was held out to him. The defence has not been able to show anything on record on which the presence of police at the Pancbayati can be inferred even though not established. The accused has not stated that he made the aforesaid statement due to police threat or coercion or due to any other outside influence. He, as stated above, merely denied to have made the aforesaid statement.
On the above considerations and on the evidence of P. Ws. 2, 4, 6 and 7 we are convinced that the extra-judicial confession made by the accused admitting the fact that it was he who assaulted the deceased with a Tangia in the night of occurrence is voluntary and true, and accordingly one can reasonably act on the same, even though the accused resiled from the same at the trial stage.
Thus on the above-mentioned eye-witness account of P. W. 6, on the evidence of P. Ws. 2, 4 and 7 discussed above and on the aforesaid extra-judicial confession made by the accused, we are satisfied that the prosecution has been able to prove beyond reasonable doubt that it was the accused who assaulted the deceased with an axe, inflicting on him the injury on his left scapular region in the night of occurrence, as a result of which he died a few hours thereafter. On this finding and on the evidence of P. W. 6 and that of the doctor P. W. 5, who held the post-mortem examination, an offence under Section 302, IPC is clearly established against the accused-respondent in this appeal. Thus in disagreement with the Court below we hold that the accused is guilty of the offence of murder punishable under Section 302, IPC
17. There is also on record evidence of a judicial confession made by the accused before P. W. 15 a Magistrate, 1st Class. Mr. Patnaik, the learned Counsel for the defence, urges that the said judicial confession suffers from infirmities, illegalities and irregularities, and so it cannot legally be taken into consideration against the accused. In connection with his above submission he drew our attention to certain things on record to show that police was present near about the place where the aforesaid confessional statement was recorded and was watching the accused when he was making the statement. He also commented that the Magistrate before recording the confession did not explain to the accused that he was not bound to make a confession and that if he would make a confessional statement that would be used as evidence against him. The Magistrate also did not make an honest effort to ascertain if he was subjected to any extraneous pressure, coercion, threat or inducement. He also did not tell anything to the accused on which, before making a statement he would have felt mentally secured to make a statement of his own free will. He also commented about the very short time given to the accused for reflection. In view of the fact that on the evidence already discussed in the preceding paragraphs it is established beyond reasonable doubt that the death of the deceased was caused by the accused in the manner stated above, we need not deal with the correctness of all the comments made by Mr. Patnaik regarding the said judicial confession made by the accused, as even if the judicial confession is discarded, the charge under Section 302, IPC against the accused stands proved on the other evidence as found above.
18. On our finding that the charge under Section 302, IPC is established against the accused beyond reasonable doubt, the order of acquittal passed by the Court below in favour of the accused, respondent herein, is hereby set aside, and he is convicted under Section 302, IPC On a consideration of the facts and circumstances under which the accused committed the aforesaid offence, we sentence him to undergo R. I. for life for the aforesaid offence. The accused, if on bail, must surrender to his bail bond immediately and undergo the above sentence of imprisonment passed against him.
19. The appeal accordingly is allowed.
G.K. Misra, C.J.
20. I agree.