K.R. Mohapatra, J.—This appeal has been entertained on the basis of a petition for appeal sent by the convict (appellant) incarcerated in District Jail, Keonjhar, through the Superintendent of Jail. In this appeal, the appellant seeks to challenge the judgment and order of conviction and sentence dated 15.12.2004 passed by the learned Ad hoc Addl. Sessions Judge (F.T.), Champua in S.T. Case No. 25/26 of 2004-01 State v. Bairagi Munda convicting him under Section 302 I.P.C. and sentencing him to undergo R.I. for life.
2. The F.I.R. story in brief is that on 20.5.2000, the informant (Guru Munda) while getting ready to go to his paddy field heard the cries of his niece, namely, Sukanti Munda, in her court-yard and she was screaming, "AYA APUNI GAYA ANA" (in Munda language), which means "My Father is Dead". Hearing her scream, the informant went to the spot and saw his elder brother, namely, Tumuru Munda, lying dead in a pool of blood in the court-yard of his house with injuries caused by piercing of three arrows on his chest. Seeing such incident, the informant come back to his house and informed the incident to his father, namely, Jatia Munda. Later, on the same day, the villagers belonging to Munda Community and Bhuyan Community convened a meeting where the Ward Members, namely, Sambhu Naik, Debara Naik, Gura Naik, Jhadeswar Pradhan, Bhaktabandhu Dehury, Sukura Munda and Butu Munda and others were present. In the said meeting, the appellant (Bairagi Munda) was also present. At the commencement of the meeting, Debara Naik asked the gathering to disclose who had committed the crime saying that the sin could not be concealed; the truth would come out one day or other. Hearing this, the appellant confessed his guilt and said that he had shot arrows at the deceased as he had gone to his house in the previous night to have illicit relation with his mother and when the appellant saw the deceased, he left the place. So, with anger, in the mid night, the appellant shot three arrows at him when the deceased was sleeping, which caused his death. The appellant also led the gathering to the spot. After confessing the guilt before the gathering, the appellant left the place saying that he would inform the incident to Police. The Ward Members of the village, namely, Sambhu Nayak and Daba Munda also accompanied the appellant and left the place. As the appellant had gone to the Police Station to report the incident, the informant did not lodge any report on that date. When the police did not reach the village till the day following the occurrence, the informant went to the Police Station along with Gura Nayak and Jhadeswar Pradhan and lodged the report orally, which was reduced to writing. On receiving such report, the police registered Joda P.S. Case No. 70 dated 21.5.2000 under Section 302 I.P.C. and took up investigation. The Investigating Officer visited the spot same day, i.e. on 21.5.2000, examined the witnesses present there and made inquest over the dead-body of the deceased (Tumuru Munda) in presence of the witnesses. Thereafter, the dead-body with pierced arrows was sent to the Sub-Divisional Hospital, Champua by the Investigating Officer for post-mortem. He also prepared a spot map and obtained sample and blood stained earth as well as an axe (M.O. VIII) from the spot. After post-mortem, the Investigating Officer seized the wearing apparels of the deceased and three numbers of arrows (M.Os.I to III) on 22.5.2000 on production by the constable accompanying the dead-body. On 26.5.2000, the Investigating Officer arrested the appellant and examined him. The appellant while in police custody confessed his guilt and led the Investigating Officer to recover the Bow with which he had shot the arrows at the deceased, in presence of the witnesses. On completion of the investigation, the Investigating Officer submitted charge-sheet under Section 302 I.P.C. against the appellant in G.R. Case No. 136 of 2000 of the court of learned J.M.F.C, Barbil. The case was committed to the Court of Session on 5.2.2001 and the appellant faced the trial.
3. The plea of the appellant was of complete denial of his involvement in the alleged occurrence and he pleaded his innocence.
4. The Medical Officer (P.W. 8), who conducted post-mortem over the dead-body of the deceased, submitted his report (Ext. 13) which disclosed following external as well as internal injuries on the dead-body.
External Injuries
i) An average body built of 40 years, eyes closed, toungue bitten by teeth, limbs extended, rigour notice absent.
ii) The body is in decomposed state with blisters over the whole body and studded with maggots.
iii) 3 arrows pierced the left side of chest having 3 external injuries (a) One punctured wound of 2 x �"x4" over left 5th intercostals space with the arrow incide the wound; (b) one punctured wound of same size 2"x1''4"x4" over left 3rd intercostals space with arrow in the wound; (c) one punctured wound of same size 2"x �"x4" over left 2nd intercostals space with the arrow inside the wound.
iv) The handles of the arrows were seen to outside.
Internal Injuries
1. The left ventricle of the heart is pierced by the first arrow causing perforation of lateral wall of the left ventricle;
2. The lower lobe of the left lung is pierced by the second arrow causing laceration of lower lobe;
3. The third arrow pierced the left upper lobe of lungs causing laceration of left upper lobe. Clots of blood were filled in the chest clavity.
5. The Medical Officer (P.W.8) opined that the cause of death was due to shock from haemorrhage to vital organs like heart and lungs and in ordinary course of nature, the injuries would cause death of a person. He also opined that the injuries were ante-mortem in nature and death was homicidal.
6. The learned Ad hoc Addl. Sessions Judge accepted the report of P.W. 8 and held the death to be homicidal in nature. This finding of the learned Ad hoc Addl. Sessions Judge was not challenged by the appellant. As such, we proceed to scrutinize the materials on record accepting the death of the deceased to be homicidal.
7. Smt. Sahoo, learned counsel for the appellant seeks to assail the impugned judgment and order of conviction and sentence on the following grounds:
i) There is no eye witness to the occurrence and the appellant has been convicted only on circumstantial evidence, which is highly suspicious.
ii) The confession stated to have been made before the Panch can not be relied upon.
iii) The evidence available on record, if accepted on its face value, would justify a conviction under Section 304 (Part-I) and not under Section 302 IPC and therefore the conviction and sentence impugned herein are not sustainable.
8. Mr. L. Samantaray, learned Standing Counsel, however, supported the impugned judgment and order of conviction and sentence and prayed for dismissal of the appeal.
9. The Investigating Officer (P.W. 7) in the inquest report (Ext. 2) stated that at the time of inquest, he found three arrows pierced on the left side of the chest of the deceased. The iron portion of the arrows had been pierced into the body and chest of the deceased. P.Ws. 1 to 5 also in their evidence unequivocally corroborated the same. Neither the statement of P.Ws. 1 to 5 nor the statement of P.W.7 (I.O.), to the above aspect, was contradicted during trial. In course of investigation, the Investigating Officer vide Ext. 11 had made a query to the Doctor (P.W. 8) as to whether the death could be caused with three arrows (M.Os. I to III) and the injuries found on the body of the deceased could be inflicted with those arrows. The reply of P.W. 8, marked as Ext. 11/2, disclosed that the injuries on the chest of the deceased could be possible by M.Os.I to III, which is sufficient to cause death of the deceased. The post-mortem report (Ext. 13) also disclosed distinct injuries caused by each of the arrows. Though a blood stained axe was seized from the spot (M.O.VIII), the defence did not make any suggestion to P.W. 8 with regard to possibility of injuries with axe (M.O.VIII). On the other hand, P.W. 8 completely ruled out the possibility of infliction of the injuries on the body of the deceased by stabbing with a knife, as suggested by the defence. Thus, the irresistible conclusion, which emanates from the aforesaid discussion is that the death was caused due to the injuries inflicted by M.Os. I to III.
10. The next question which arises for consideration is whether the appellant had shot three arrows (M.Os.I to III) at the deceased with an intention to cause death or such bodily injuries as would likely to cause death or with the knowledge that such bodily injuries in normal course would cause death of the deceased. Admittedly, there is no eyewitness to the occurrence. There is also no denial to the fact that the arrows were shot at the deceased at about 12 mid-night when he was sleeping. The case of the prosecution stands on the circumstantial evidence as well as the alleged extra judicial confession made by the appellant before the village Panch where P.Ws. 2, 3 and 5 were present.
11. It is trite law that the Court should not proceed with the presumption that an extra judicial confession is always a weak piece of evidence. It always depends upon the nature of the circumstances and the time when the confession is made and the credibility of the witnesses who makes statement of such a confession (See AIR 1985 SC 1678). An extra judicial confession if true and voluntary can be relied upon by the Court to convict the accused for commission of the crime alleged. The Division Bench of this Court in a decision in the case of Nachika Deruku v. State of Orissa, reported in (2002) 23 OCR 308, relying upon the case laws reported in 2000 (3) Supreme 402 and AIR 1985 SC 1678 laid down the following test of an extra judicial confession to stand scrutiny, as follows:
(i) Is the witness proving the confession generally credible ?
(ii) Is his relation with the accused of such nature that the latter could confide in him ?
(iii) Is there any motive for the witness to implicate the accused falsely (the witness might be trying to save himself or some one else by laying the blame on the accused) and
(iv) Is the confessional statement consistent with other facts and circumstances brought on record ?
12. P.Ws. 1 to 5 led evidence to prove confession made by the appellant before the Panch. The evidence adduced does not disclose that there was enmity or ill-feeling between the appellant on the one hand and P.Ws. 1 to 5 on the other. The informant (P.W.1) is the younger brother of the deceased. During cross-examination, he deposed that he had good relationship with the deceased (Tumuru) and the accused-appellant (Bairagi). He testified that the appellant confessed before the Panch that he had committed murder of the deceased (Tumuru). He (the appellant) also confessed that the deceased (Tumuru) went to the house of the appellant to have illicit relationship with his mother. So, out of anger, he shot the arrows aiming at the deceased which caused his death. P.W. 1 also identified M.Os.I to III, which were shot at the deceased, in Court. No suggestion was put to him with regard to any coercion or compulsion or threat to the appellant to make such a confession before the Panch. Likewise, P.W. 2 also corroborated the testimony of P.W.1 regarding confession of the appellant. No suggestion with regard any compulsion, coercion or threat for such confession was put to P.W. 2. However, a suggestion was put to P.W. 3, who was the Ward Member and Head of the Panch, that the appellant was forced to confess before the Panch regarding the alleged crime to which he denied. P.Ws. 4 and 5 also corroborated the statements of P.Ws. 1, 2 and 3 and deposed that no one had compelled the appellant to confess his guilt before the Panch. Therefore, it can be safely said that the confession made by the appellant before the Panch was true and voluntary, which is without any coercion or compulsion. Moreover, there is no evidence on record to suggest that the informant as well as witnesses (P.Ws. 1 to 5), who deposed about the confession of guilt by the appellant, had any motive to implicate him (the appellant) in the alleged crime. The inquest report (Ext.2), the dead-body challan (Ext. 6) and the post-mortem report (Ext. 13), revealed that the dead body was all along with three arrows pierced on its left side chest till those were removed during autopsy. Further, the appellant led the Investigating Officer along with the witnesses, to recover the Bow with which he confessed to have shot the arrows. The post-mortem report also disclosed that there were three identical injuries with dimension 2" x �" x 4" on the left side chest of the deceased. P.W. 8 further opined that such injuries could be possible with arrows marked as Ext. M.Os.1 to III. Thus, there is no escape to the conclusion that the confessional statement of shooting three arrows at the deceased by the appellant is consistent with other facts and circumstances available on record and the death occurred due to the injuries caused by the arrows (M.Os. I to III). Thus, ground nos. 1 and 2 raised by Smt. Sahoo do not hold good.
13. In such a situation, it is to be seen whether the appellant had any intention to commit murder of the deceased or he had knowledge or he had caused injuries with knowledge that such injuries in ordinary course of nature would cause death of the deceased.
14. It is the admitted case of the prosecution that there was no eye-witness to the occurrence. The entire case is based on the extra judicial confession of the appellant as well as circumstantial evidence. We have already recorded the finding that extra judicial confession made by the appellant is true and voluntary and the same was made without any coercion, compulsion or threat. The confession of the appellant disclosed that the deceased had gone to the house of the appellant with an immoral intention. When the appellant detected it, deceased left the place. With anger, the appellant at about mid-night, went to the house of the deceased and shot three arrows when he was sleeping. No evidence is available on record to show that the appellant had, in fact, any intention to commit murder of the deceased, but certainly, he had caused injuries with the knowledge that it would, in ordinary course, cause death of the deceased. In that view of the matter, the alleged offence committed by the appellant will come under Section 304 Part-I of the I.P.C.
15. We have taken the view that the crime will not bridge the scope of Section 304 Part-I also for the reason that the confessional statement of the appellant cannot be bifurcated into bits and fragments and accept one part and reject the other. The said confessional statement either is to be accepted as a whole or rejected as a whole. Examining the confessional statement with such opinion, it emanates that appellant had fired three arrows at the deceased to avoid the faux pas and temerity to the entire family as the deceased was approaching his mother with sexual assault. The mental agony and the tormentation under which the appellant must be reeling would not have palliated or douse down with the passage of time. Sexual assault on the mother would have tormented the appellant and must have aggravated his revengeful psyche. Unable to bear the mental trauma that the appellant opted for mid-night to take revenge from the deceased. In such a view, there was enough reason for the appellant to act in a fit of anger and consequently it can be safely inferred that he acted under grave and sudden provocation. Scanning of ours'' as above also leads us to conclude that the case will be within the ambit of Section 304 Part-I and not Section 302 IPC.
The appellant had already served imprisonment since 26.05.2000 and has already undergone more than 16 years of imprisonment and therefore in our considered opinion period of sentence already undergone by him will meet the ends of justice and therefore we hereby impose such sentence on him.
16. Thus, in final analysis, we allow the appeal in part, alter the conviction of the appellant from Section 302 I.P.C. to Section 304 Part-I, I.P.C. and sentence him to the period of imprisonment already undergone by him. The appeal is allowed in part to the extent stated above. We direct that the appellant shall be released from the jail custody immediately in connection with S.T. Case No. 25/26 of 2004- 01 of learned Ad-hoc Addl. Sessions Judge, (Fast Track), Champua, if he is not required in any other case.
Vinod Prasad, J.—I agree.
