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Buty and ors. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1982CriLJ938
AppellantButy and ors.
RespondentState of Orissa
Cases ReferredRao Shiv Bahadur Singh v. State of Vindhya Pradesh
Excerpt:
.....deposed to the actual words spoken by the appellants in making the confession. the value of the evidence as to the confession just like any other evidence depends upon the veracity of the witnesses to whom it is made. if the rule is inflexible that the courts should insist only on the exact words, more often as not, this kind of evidence, sometimes not reliable and, useful, will have to be excluded; for, except perhaps in the case of a person of good memory, many witnesses cannot repeat the exact words of the accused. state of punjab air1975sc1320 their lordships laid down as follows (para 5): the evidence furnished by the extra-judicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant..........of the accused on the extra-judicial confession made by him before two independent witnesses, namely, gadkari and perulakar....13. in the present case, the witnesses who deposed about the extra-judicial confession are quite disinterested and independent witnesses. they bore no animus against the appellants. we see no justification for disbelieving their evidence particularly when the extra-judicial confession is corroborated by the evidence regarding recovery of the dead body and ornaments of the deceased in consequence of the statements made by the appellants.14. on a careful consideration of the entire evidence on the record, we are satisfied that the appellants acted in concert in causing the death of the deceased and throwing the dead body in the water reservoir with a view to.....
Judgment:

P.K. Mohanti, J.

1. The appellants have been convicted Under Sections 302 and 201, IPC both read with Section 34, IPC and sentenced to undergo imprisonment for life for the offence Under Section 302/34, IPC No separate sentence has been awarded for the offence Under Section 201/34, I. P.C.

2. Prosecution case was that on 25-6-1977 at about noon the deceased Saraswati Misra of village Fatabahel left for village Budelpalli for arranging straw and approached P.W. 5 purusottam Bhoi for the purpose. When he refused to give straw, she went to the house of the appellants to realise rice from them which they were to pay towards the interest of a loan incurred by them some months prior to the occurrence. Since the deceased did not return to the house till evening, her son Krushna-kanta (P.W. 11) sent P.W. 4 Srimati Matari and one Dusta to search for her. Those two persons informed Krushnakanta that they came to know from P.W. 5 Purusottam Bhoi that the deceased had gone to the house of the appellants and had returned to her house. On 26-6-1977, a meeting was held at village Budelpalli and the appellants were asked as to what happened to the deceased. They said that the deceased had left their house in the afternoon. On 27-6-1977 afternoon, another meeting was held by the villagers of Budelpalli and Fatabahal and the appellants are alleged to have confessed that they had killed the deceased in the afternoon of 25-6-1977 when she came t0 their house to demand payment of rice and there was altercation between them.

3. In the morning of 27-8-1977, P.W. 3 Rajanikant Mishra who is the son of the deceased and an employee in the Burla Engineering College approached the Circle Inspector of Police and gave a missing report (Ext. 4). The Circle Inspector forwarded the missing report to the Officer-in-charge of Sason Police Station and the latter deputed the A. S. I. (P.W. 12) in the afternoon of 27-6-1977 to equire into the matter. The A. S., I. reached the village Budelpalli at 6.30 p. m. of 27-6-1977 and learnt from the people present in the meeting that the appellants had already confessed that they had killed the deceased inside their house. Then the appellants were taken to custody. While in custody, they stated that they had concealed the dead body of the deceased in a water reservoir locally known as Kendghati Kata and so saying they led the A. S. I. and the witnesses to the water reservoir and brought out the dead body from the water reservoir. Krushnakant who was present at the time of discovery of the dead body found that some gold ornaments which the deceased had on her person were pissing. The A. S. I. then interrogated appellant No. 3 Stta Behera and she stated to have concealed the ornaments in her backyard and so saying she led the A. S. I. and the witnesses to her backyard and gave recovery of the ornaments which were seized by the A. S. I. under the seizure list Ext, 5. After usual investigation, the Officer-in-charge of Sason Police Station submitted charge-sheet against the appellants.

4. Appellants i and 2 are brothers. Appellant No. 3 is the wife of appellant No. 2. Their plea was a total denial of the occurrence.

5. On a consideration of the evidence led by the prosecution the trial court held the appellants guilty and inflicted the Sentences as indicated above. On appeal, it is urged that the order of conviction is not borne out by any reliable evidence.

6. The order of conviction is based mainly on (a) the retracted extra-judicial confessions of the appellants before P. Ws. 5, 7, 8 and 9; (b) the evidence of P. Ws. 5 and 6 that the deceased was last seen alive in the afternoon of 25-6-1977 while she was going to the house of the appellants; and (c) the statement of appellant No. 3 Sita Behera leading to discovery of the ornaments of the deceased from her backyard.

7. That the deceased died a homicidal death is clearly established by the evidence of the doctor P.W. 1, The doctor held the post-mortem examination over the dead body on 28-6-1977 at about 11.45 a. m. and found the following external injuries:

(1) One penetrating wound situated 3' below the lebule of the right ear.

(2) One curved wound below right eye,

(3) One linear injury on the dorsum of great toe at the root.

(4) Several round contusions on the forehead.

(5) One linear injury on the bridge of the nose.

Internal examination revealed fracture of the cornua of the hyoid bone and cornua of the thyroid cartilage. A few rings of trachea were also fractured. Since the body was in a decomposed condition no external injury could be detected on the neck. In the doctor's opinion the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. The doctor opined that the death was due to throttling which caused asphyxia. According to him the external injury No. (2) might have been caused by the hollow ends of the iron pipe (M. O, I) and the other external injury might have been caused by the pointed end of the iron rod (M. O. II). The internal injuries on the neck might have been caused by manual compression of the neck with hands. The doctor also opined that the death must have been instantaneous.

8. The crucial question for consideration is whether the appellants were responsible for the death. There is no eye-witness to the occurrence of murder. In order to fix the guilt on the appellants prosecution relied on the extra-judicial confessions of the appellants and some circumstantial evidence as indicated earlier.

9. The evidence of P. Ws. 5, 7, 8 and 9 shows that in the meeting of the villagers held on 26-6-1977 when the appellants were questioned as to what happened to the deceased the appellants 1 and 2 faltered. On suspicion their house was searched and it was found that the bedroom of appellant No. 2 Khunti had been freshly plastered with cowdung paste and some ashes were spread over it. A bundle of agarbati was burning there. On the next day, that is on 27-6-1977 another meeting was held in the village and the appellants were questioned, but they denied any knowledge about the deceased. Then P.W. 8 Haladhar Behera and P.W. 9 Sundar Bhoi took the appellants aside and interrogated them. Appellant No. 3 first disclosed before them that the deceased had come to her house in the afternoon of 25-6-1977 and in course of an altercation with her she dealt a blow On the deceased with an iron pipe and the other two appellants confessed that they had throttled the deceased to death. Then the appellants were taken to the meeting place where they repeated the confessions. On that day at about sunset time, the A. S. I. of Police visited the village and learnt that the appellants had already confessed their guilt. Then the appellants were taken to custody and while in custody they stated one after the other that they had concealed the dead body,of the deceased in Kendghati Kata. The appellants led the A. S. I. and the witnesses to the Kendghati Kata and brought out the dead body. Krushnakant identified the dead body and said that some gold ornaments which the deceased had worn were missing. Then appellant No. 3 Sita made a statement that she had removed the ornaments from the person of the deceased and had concealed the same in her backyard. She led the police A. S. I. and the witnesses to her backyard and gave recovery of the ornaments (M. Os. III to VI) which were identified by P.W. 11 Krushnakant as belonging to his mother. The evidence of P. Ws. 5, 7, 8 and 9 about discovery of the dead body from the water reservoir and the ornaments from the backyard of the appellant No. 3 is supported by the evidence of P.W. 11, the eon of the deceased and P.W. 12, the A. S. I. of police.

P.W. 5 is a close neighbour of the appellants, P.W. 7 is a respectable person of the locality being a Ward Member of the Grama Painchayat. P.W. 8 is a cousin of the appellants 1 and 2- P.W. 9 is a resident of Fata-bahal, the village of the deceased. There is nothing to show that these witnesses had any hostile animus towards the appellants. Their evidence does not suffer from any inherent infirmity or improbability. We see no cogent ground to disbelieve their evidence.

10. Much capital is sought to be made of the discrepancies in the evidence of the witnesses about the place where the confession was made. It was pointed out that P.W. 5 stated in his examination-in-chief that the appellants made the confessions at the meeting place whereas P.W. 7 stated that the appellants made the confessions at a place which is about 100 yards away from the meeting place and P.W. 9 stated that the appellants made the confessions at their house. The meeting place is not far away from the house of the appellants. The evidence of P. W, 9 shows that the meeting was held in front of the house of the appellants. In our opinion, the discrepancies are due to normal errors of memory due to lapse of time. P.W. 5 has specifically stated that when the appellants denied any knowledge about the deceased, the people present in the meeting directed P.W. 8 Haladhar Behera and P.W. 9 Sundar Bhoi to take the appellants aside and ask them as to what happened to the deceased. Some time thereafter, P. Ws. 8 and 9 returned to the meeting place and disclosed that the appellants had confessed their guilt. Similarly P.W. 7 stated that P. Ws. 8 and 9 took the appellants aside to a distance of about 100 yards from the meeting place and after some time they called the people present in the meeting to the place where the confessions were made by the appellants. When the persons present in the meeting went to that place, the appellants repeated their confessions before them. The evidence of P. W, 9 shows that appellants 1 and 2 said in the meeting that the deceased had come to their house and had gone away and so saying they left the meeting place and went towards the house. Then P. Ws. 8 and 9 went to the house of the appellants and called appellant No. 3 who came to her outer verandah and told them that in course of a quarrel with the deceased she dealt a blow on the bridge of her nose with an iron pipe and after she fell down the other two appellants pressed her neck and dealt fist blows as a result of which she died. Then they called appellants l and 2 who admitted one after the other that they had throttled the deceased to death. We have carefully gone through the evidence of the witnesses. On material aspects their evidence is clear, consistent and convincing. The facts spoken to by them strike as nothing but truth. Their evidence is also corroborated by the circumstances brought out in the case.

11. The confessions appear to have been made voluntarily. There is nothing to show that any threat, undue influence or coercion was brought to bear upon the appellants. Truth of the confessional statements is established by the fact of recovery of the dead body and the ornaments of the deceased in consequence of the statements made by the appellants. The confessional statement of appellant No. 3 Sita that she had dealt a blow with an iron pipe on the bridge of the nose of the deceased finds corroboration from the medical evidence. The doctor found one linear injury on the bridge of the nose and opined that the injury could be caused by the iron pipe (M. O, 1) which was seized from the house of the appellant No. 2 Khunti as per the seizure list Ext. 8. The evidence of p. Ws. 5. 7. 8, 9 and 11 also shows that the consequence of the statement made by appellant No. 3 Sita, the ornaments (M. Os. III to VI) were recovered from the backyard of the appellant No. 3 and the ornaments have been duly identified by P.W. 11 as belonging to his mother. The evidence of the witnesses also shows that they searched the house of the appellants on 26-6-1977 and found that the floor of the bedroom of appellant No. 2 Khunti had been freshly plastered with cowdung paste and a bundle of agarbati was burning there. This aroused suspicion in the minds of the witnesses. The evidence of P.W. 5 purusottam Bhoi shows that in the afternoon of 25-6-1977 the deceased came to his house and asked for straw and when he declined, she went towards the house of the appellants saving that she would realise rice from them. P.W. 5 stated to have seen the deceased going to the house of the appellants. There are only three houses intervening between his house and the house of the appellants. P.W. 6 Sudarsan Behara is a front door neighbour of the appellants. He also stated that in the afternoon of 25-6-1977 the deceased told him that she had gone there for realising rice from the appellants and then she entered into the passage leading to the house of the appellants. Thereafter the deceased was not seen alive. Thus, the circumstantial evidence as discussed above lends ample corroboration to the confessional statements of the appellants.

12. The learned Counsel for the appellants contended that it is unsafe to convict the appellants on the basis of the extra-judicial confession which, according to him, is a weak type of evidence and that the witnesses have not deposed to the actual words spoken by the appellants in making the confession. We regret our inability to accede to this contention. The value of the evidence as to the confession just like any other evidence depends upon the veracity of the witnesses to whom it is made. It is not an invariable rule that the Court should not accept the evidence if not actual words but the substance were given. We are in this view fortified by the decision in the case of Mulk Raj v. State of U. P. AIR 1959 SC 902:1959 Cri LJ 12191 wherein it was held as follows (para 11):..It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. If the rule is inflexible that the Courts should insist only on the exact words, more often as not, this kind of evidence, sometimes not reliable and, useful, will have to be excluded; for, except perhaps in the case of a person of good memory, many witnesses cannot repeat the exact words of the accused. It is for the Court having regard to the credibility of the witness, his capacity to understand the. language in which the accused made the confession, to accept the evidence or not....

In the case of Maghar Singh v. State of Punjab : AIR1975SC1320 their Lordships laid down as follows (Para 5):..The evidence furnished by the extra-judicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant caution, if the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be founded on such evidence alone as was done in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, : 1954CriLJ910 where their Lordships of the Supreme Court rested the conviction of the accused on the extra-judicial confession made by him before two independent witnesses, namely, Gadkari and Perulakar....

13. In the present case, the witnesses who deposed about the extra-judicial confession are quite disinterested and independent witnesses. They bore no animus against the appellants. We see no justification for disbelieving their evidence particularly when the extra-judicial confession is corroborated by the evidence regarding recovery of the dead body and ornaments of the deceased in consequence of the statements made by the appellants.

14. On a careful consideration of the entire evidence on the record, we are satisfied that the appellants acted in concert in causing the death of the deceased and throwing the dead body in the water reservoir with a view to causing disappearance of the evidence of murder. They were, therefore, rightly convicted Under Sections 302 and 201, I.P.C. read with Section 34, IPC

15. The appeal fails and is dismissed, the convictions and the sentences being maintained. The appellant No. 3 Sita Behera should surrender to her bail bond forthwith.

Behera, J.

16. I agree.


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