MANU/OR/0318/1992

Equivalent Citation: 75(1993)CLT781, 1994CriLJ552

IN THE HIGH COURT OF ORISSA
Jail Criminal Appeal No. 225 of 1987
Decided On: 18.08.1992
Appellants: Turuku Budha Karkaria
Vs.
Respondent: The State
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and D.M. Patnaik, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Tapan Mohanty, Adv.
For Respondents/Defendant: C.K. Mohanty, Addl. Standing Counsel
Subject: Criminal
Acts/Rules/Orders:
Indian Evidence Act, 1872 - Section 27; Indian Penal Code 1860, (IPC) - Section 201, Indian
Penal Code 1860, (IPC) - Section 302, Indian Penal Code 1860, (IPC) - Section 404
Cases Referred:
Mulk Raj v. The State of Uttar Pradesh, MANU/SC/0229/1959 : AIR 1959 SC 902 : 1959 Cri LJ
1219; Megher Singh v. State of Punjab, MANU/SC/0152/1975 : AIR 1975 SC 1320 : 1975 Cri LJ
1102
Disposition:
Appeal dismissed
Case Note:
Criminal - Conviction - Offence committed punishable under Sections 302, 404 and
201 of Indian Penal Code,1860 (IPC) - Held, prosecution had been able to bring home
the charges against the accused - Accused had knowledge about the place where the
dead body was lying hidden and gave information of the same to P.W. 1 - He had
removed gold ornaments from a dead body which clearly proved the applicability of
Sections 201 and 404 of IPC - Thus, appeal dismissed.
JUDGMENT
A. Pasayat, J.
1. In this appeal from the district Jail, Koraput, Turuku Budha Karkaria (hereinafter described as
the 'deceased' (accused?)) calls in question his conviction under Sections 302, 404 and 201 of
the Indian Penal Code, 1860 (in short, the 'IPC') and sentence of imprisonment for life as
awarded by learned Sessions Judge, Koraput, Jeypore for offence punishable under Section
302, IPC. No separate sentence for the offences punishable under Sections 404 and 201, IPC
was imposed.
2. Stated in brief, the prosecution case is that one Culuma Naikani (hereinafter described as the
'deceased') was a resident of village Bhatanagapadar. Sanurjaya Naik (P.W. 15) is the husband

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while Bhima Naik (P.W. 7) is the son of the deceased. A weekly market is held on Mondays at
Ambadola which is nearby village of the deceased. On 21-10-1985 which was a Monday, the
deceased went to the market wearing some gold and silver ornaments, and carrying a basket
and some cash. Her husband and son who were engaged in agricultural work did not
accompany her, and she went alone. Since the deceased did not return for a long time, they
searched for her in many places. While the search was continuing, accused met one Phulsara
Suna (P.W. 1) at Purnapani road crossing, and told him that they were wasting time because
the deceased had been murdered, and her dead body can be found in Akhapalanka jungle.
Since evening was fast approaching, P.W. 1 returned to his house and informed two other
villagers and sent information to the husband of the deceased. On the following day i.e. on a
Sunday, several villagers of village Bhatangpadar, Reghubari assembled on the foot-path near
Akhapalanka jungle and started searching for the deadbody. During search, P.W. 15 and some
others found the deadbody of the deceased inside a bush. All the members of the searching
party were called there. P.Ws. 7 and 15 noticed that the ornaments which the deceased was
wearing when she left her home, were missing from her person. Since the accused was aware
that the deceased had met her death, P.W. 1 went to accused's house which was near the spot
of occurrence and requested him to disclose the identity of the real culprit. The accused made
an extra-judicial confession to have killed the deceased. Immediately, P.W. 1 returned to the
spot and informed about the extra-judicial confession of the accused to the others. A report was
scribed and on the advice of some members of the searching party, one Kaladhar Suna was
sent to Ambadola P.S. to lodge the F.I.R. There was already a missing report available in the
police station in the shape of Station Diary Entry which had been made on the basis of
information Even by the husband of the deceased earlier. After getting information, a case was
registered and investigation was undertaken. After arrest, the accused while in police custody
gave discovery of some silver ornaments of the deceased. Further, on the basis of information
given by him, it was detected that gold ornaments of the deceased had been sold to a
Goldsmith C. Srearam Murty (P.W. 12). During investigation, it transpired that after concealing
silver ornaments in the back side of his house, at about 2 p.m. accused had got the gold
ornaments weighed in the shop of A. Tirupati Rao (P.W. 11). Thereafter, he went to the house
of P.W. 12 with whom he had previous acquittance and business dealings, and sold him the gold
ornaments giving out that his wife was seriously ill and he needed money to meet the costly
medical treatment. Test Identification Parade in respect of gold ornaments was held in the
Court of Judicial Magistrate First Class, Nissam-Cuttack and P.Ws. 7 and 15 identified the
ornaments to be of the deceased. After completion of investigation, chargesheet was submitted
and the accused faced trial.
3-4. Plea of accused was complete denial of the accusations. On the contrary, his plea was that
he has been falsely implicated at the instance of P.W. 1, and all the witnesses were inimical to
him. Though a prayer was made to summon some defence witnesses, the accused declined to
examine them after their attendance was procured by Court.
5. Sixteen witnesses were examined to further the case of prosecution and several documents
and material objects were exhibited. On evaluation of prosecution evidence, learned Sessions
Judge came to hold the accused guilty and convicted him as aforesaid. While coming to the
conclusion of the guilt of the accused, learned Sessions Judge held that though there was no
eye-witness to the occurrence, and prosecution version rests on circumstantial evidence, a
complete chain of circumstances existed which pointed out unerringly to the guilt of the
accused. The circumstances highlighted by learned Sessions Judge are as follows:
(i) Information given by the accused to P.W. 1 Phulasara Suna regarding discovery
of the dead body and as a consequence of that information, discovery of the dead
body was made on the following day.
(ii) Extra-judicial confession by the accused before P.W. 1.
(iii) The accused giving discovery of silver ornaments of the deceased and giving
statement relating to sale of gold ornaments of the deceased at Ambadola in the
house of P.W. 12 G. Sreeram Murty.

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(iv) Identification of three gold ornaments vide M.Os. IX and X by P.W. 7 Bhima
Naik and P.W. 15 Sanurjaya Naik.
6. In appeal, Mr. Tapan Mohanty, learned Counsel for accused has strenuously urged that the
fate of the accused depends on alleged extra-judicial confession and recovery of silver and gold
ornaments, and these are not sufficient to establish the guilt of the accused. Learned Counsel
for State submitted that learned Sessions Judge has pointed out material circumstances which
proved beyond a shadow of doubt that accused was guilty.
7. In order to appreciate the merits of rival submissions, it is necessary to refer to the evidence
of P.W. 1 before whom the accused allegedly made on extra-judicial confession. While dealing
with an extra-judicial confession, the Court has to be satisfied that the same was voluntary and
without any coercion and undue influence. Extra-judicial confession, can form the basis of
conviction if the witness appears to be unbiased and not even remotely to be inimical to the
accused. Nothing has been brought on record which may tend to indicate the motive to
attribute untruthfulness to statement of the accused. Though a suggestion has been given that
P.W. 1 was inimical to the accused, no material has been brought in this regard on record. Mr.
Mohanty for the accused submitted that the exact words alleged to have been stated before
P.W. 1 have not been reflected. In this context, it is to be seen that value of evidence of
confession just like any other evidence depends upon the veracity of the witnesses to whom it
is made. It is not an invariable that the Court should not accept the evidence if not actual words
as claimed to have been spoken are not reproduced and the substance is given. It will all
depend on circumstances of the case. If the substance itself is sufficient to prove the culpability
and there is no ambiguity about the import of the statement made by an accused, the evidence
can be acted upon even though substance and not actual words have been stated. Human mind
is not a tape recorder which records what has been spoken word by word. The witness should
be able to say as nearly as possible actual words spoken by the accused. That would rule out
the possibility of erroneous interpretation of ambiguous statements. If word by word repetition
of the statement of the accused is insisted upon, more often than not evidentiary value of
extra-judicial confession has to be thrown out as unreliable and not useful. That cannot be the
requirement in law. There can be some persons who have a good memory and may be able to
repeat the exact | words, and there may be many who are possessed of normal memory, and
cannot do so. It is for the Court to judge the credibility of witness's capacity and thereafter to
decide whether his or her evidence has to be accepted or not. If the Court believes the witness
before whom confession is made, and is satisfied that confession was voluntary, basing on such
evidence, conviction can be founded. Similar view was expressed by the Apex Court in Mulk Raj
v. The State of Uttar Pradesh MANU/SC/0229/1959 : AIR 1959 SC 902: 1959 Cri LJ 1219 and
Megher Singh v. State of Punjab MANU/SC/0152/1975. Judged in that above background, it is
seen that P.W. 1 has described in detail about confession made by the accused before him and
his testimony has not been shaken in the cross-examination and nothing material has been
elicited to discredit or impeach his evidence.
8. In addition, we find that on the basis of information given by the accused, recovery of some
silver ornaments was made. Section 27 of the Evidence Act is applicable in such a case. In this
context, evidence of P.W. 1 and the Investigating Officer, P.W. 16 is relevant. The seizure list
(Ext. 2) also is relevant. On the basis of information given by the accused while in police
custody, he was brought near his house. He dug out earth, and brought out the silver
ornaments which were seized. This aspect has been clearly stated by P.Ws. 1 and 16. Evidence
of P.W. 16 and seizure list (Ext. 2) also indicate necessary details as to how information was
given by the accused and recovery was made from the place by the side of his residence.
Additionally we find that on the basis of information given by the accused, gold ornaments were
seized from P.W. 12. This witness admitted that accused sold ornaments to him on the date of
occurrence. P.W. 11 has stated about weighment made by accused of such gold ornaments.
P.Ws. 7 and 15 identified the gold ornaments in a Test Identification Parade conducted by the
Judicial Magistrate First Class, Bisssam-Cuttack. In view of these circumstances, we are in
agreement with the view expressed by the learned Sessions Judge that the prosecution has
been able to bring home the charges against the accused. The accused had knowledge about
the place where the dead body was lying hidden and gave information of the same to P.W. 1.
He had removed gold ornaments from a dead body which clearly proved the applicability of

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Sections 201 and 404, IPC.

9. The conviction made and sentence awarded by learned Sessions Judge are affirmed. The
appeal fails and is dismissed.
D.M. Patnaik, J.
10. I agree.

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