KALACHAND DAY ALIAS DEV ALIAS DE Vs. THE STATE
LAWS(ORI)-1988-4-34
HIGH COURT OF ORISSA
Decided on April 12,1988

Kalachand Day Alias Dev Alias De Appellant
VERSUS
THE STATE Respondents

JUDGEMENT

G.B. Patnaik, J. - (1.) THE Petitioner stood charged under Section 314/34 and 201/34 Indian Penal Code, along with the others for having caused the miscarriage of his sister in which process his sister died. The learned Trial Judge acquitted accused Haridasi Mandal and Dalal Mama but convicted to Petitioner under Sections 314 and 201, Indian Penal Code and sentence him to undergo rigorous imprisonment for two years for the offence under Section 314, Indian Penal Code, while he did not impose an separate sentence for the offence under Section 201, Indian Penal Code.
(2.) IN support of the prosecution case, as many as 9 witnesses were examined and defence had examined name. On a scrutiny of the entire evidence on record, the learned Trial Judge come to the conclusion that there was no direct evidence in the case to bring home the charge against the accused. But relying upon the alleged extra -judicial confession made by the Petitioner before P.Ws. 2, 3 and who were present in the village Panchayat, the Trial Judge has convicted the Petitioner both under Section 314 as well as under Section 201, Indian Penal Code. On appeal, the learned Sessions Judge has upheld the conviction and sentence passed by the learned Trial Judge. Mr. Ramdas, the learned Counsel for the Petitioner, contends that the extra -judicial confession is usually a weak piece of evidence and always requires corroboration to be acted upon. Since there is no corroboration in the present case, the conviction based solely on the extra judicial confession is bad in law. He further urges that what the accused stated to P.Ws. 2, 3 and 4 has not been indicated. On the other hand, the evidence of P.W. 3 discloses that it is accused Haddasi who was conducting the delivery and in course of such delivery the sister of the Petitioner died. From a scrutiny of the evidence of P.Ws. 2, 3 and 4, it transpires that the exact words used by the Petitioner Kalachand have not been stated by any of them. Further P.W.4 categorically stated: ...Accused Kalachand told P.W. 1 and us that his sister Bibharani died due to delivery on a mountain near Udapa village, when accused Haridasi and Dulal were present and she died while Haridasi was conducting delivery. If there was anybody who was responsible for the alleged miscarriage, then it would be accused Haridasi and certainly not the present Petitioner. Haridasi has been acquitted by the learned Trial Judge and there has been no appeal against the same by the State. This being the nature of the evidence, the so -called confession even if believed will not fasten the liability on the Petitioner. To attract the provision of Section 314, Indian Penal Cede, it must be established that the concerned person does any act which causes the death of such woman with intent to cause the miscarriage of a woman with child. The evidence of P.W.4 no where establishes that accused Kalachand, the present Petitioner, anywhere confessed that he did something as a result of which there was miscarriage of the woman and in consequence of which the woman died. In this view of the matter, apart from the fact that no positive words alleged to have been confessed by the Petitioner have been stated by the witnesses, the offence in question has not been established otherwise against the Petitioner.
(3.) I also find sufficient force in the contention of Mr. Ramdas that hen no express words used in the so -called confession have been stated by the witnesses and the confession has been made before a village Panch, would be unsafe to rely on the statements of such witnesses and to base a conviction without any corroboration from any quarters to the said extra -judicial confession. Admittedly, no corroboration to the so -called extra judicial confession from the materials on record is available. Accordingly the conviction of the Petitioner both under Section 314 as well as under Section 201, Indian Penal Code, cannot be sustained. The impugned order of conviction and sentence passed thereunder is accordingly set aside and is Criminal Revision is allowed. The bail bond furnished by the Petitioner stands cancelled.;


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