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2002 DIGILAW 406 (ORI)

GANDURU NAIK v. STATE OF ORISSA

2002-07-05

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - The conviction and sentence passed by the learned Additional Sessions Judge, Rourkela in S. T. No. 145/39 of 1994 u/s 302 of the Indian Penal Code (in short. 'IPC') directing the Appellant to undergo imprisonment for life is under appeal. 2. The horrendous story depicted by the prosecution is as follows: The deceased is admittedly the wife of the Appellant and they were residing with their adopted son in a one-roomed mud-walled house in a slum area of Rourkela town. Although a few children were born, but none of them could survive. Therefore, they adopted P.W.1 as their son. In the night of 16/17.11.1993 the Appellant is said to have seen a dream in which his late mother appeared and disclosed to him that the deceased had killed all the three sons by administering poison. On seeing such dream, the Appellant suddenly woke up an sat on the chest of the deceased, who was sleeping along with him and pressed her neck. Noticing such ugly scene, P.W.1 the adopted son who was sleeping by the side of the deceased woke up. The Appellant ordered him to bring a 'Dauli' so that he could cut the throat of the deceased. But P.W.1 out of fear, ran away and went to the house of his maternal uncle. P.W.2, who was residing at a distance of 100 yards from the house of the Appellant and explained the incident to him. P.W.2 on being informed by P.W.1 rushed to the house of the Appellant. By that time the Appellant had dragged the body of the deceased outside the house and had slit her throat. P.W.2 saw the deadbody of the deceased lying there and also saw the deadbody of the deceased lying there and also saw the Appellant standing with a Farsa and Dauli in his hand. Simultaneously few other villagers from the slum area assembled there. The Appellant is said to have made an extra-judicial confession before the villagers who assembled at the spot as to the reason why he had killed the deceased. Thereafter the villagers present at the spot tied the hands of the Appellant and sent information through P.W.2 to the police. Simultaneously few other villagers from the slum area assembled there. The Appellant is said to have made an extra-judicial confession before the villagers who assembled at the spot as to the reason why he had killed the deceased. Thereafter the villagers present at the spot tied the hands of the Appellant and sent information through P.W.2 to the police. During investigation, the weapon of offence, and the bloodstained wearing apparels (napkin) were seized, witnesses were examined, Appellant was arrested, the incriminating materials were sent for chemical examination and on completion of Investigation, the police submitted charge-sheet. 3. Although eight witnesses had been examined on behalf of the prosecution, but the trial Court has mainly relied upon the testimony of P.Ws.1 and 2. P.W.1 is none other than the adopted son of the Appellant who had no axe to grind against him. His presence at the spot was natural. His evidence disclosed that in the night of occurrence he slept along with the wife of the Appellant. At about mid-night, the Appellant as seen to have sat on the chest of the deceased and made an attempt to throttle her neck. While this exercise was continuing, P.W.1 woke up from sleep and noticed the Appellant grappling the deceased's neck. He ordered P.W.1 to bring a Daull, who being panic stricken rushed to the house of P.W.2. his maternal uncle and narrated the entire incident to him. The maternal uncle. P.W.2 also with P.W.1 came to the house of the Appellant they found the Appellant standing near his house while the deceased was lying dead with cut injuries. The other villagers were already present at that time. In a normal query by the villagers including P.W.2, the Appellant made an extra-judicial confession as to the reason why he had killed his wife. 4. From the facts situation, it has emerged that the prosecution case is based on circumstantial evidence. Therefore, the circumstance must be such from which a conclusion of guilt is to be drawn. The facts so established must be consistent with the hypothesis of the guilt of the accused alone and to tally inconsistent with his innocence keeping the aforesaid principle in mind, as laid down by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra we have to see how far the prosecution has been able to bring home the charge to the Appellant. 5. State of Maharashtra we have to see how far the prosecution has been able to bring home the charge to the Appellant. 5. Let us now advert to the evidence placed by the prosecution. We have already discussed the evidence of P.Ws.1 and 2. From their evidence it is unequivocally established that the Appellant was seen to have throttled the neck of the Deceased and sometimes thereafter, he was standing near the deadbody which was lying near his house with a Farsa and a Dauli in his hands. It has transpired that the weapon of offence was stained with blood. Therefore, there has been cinching evidence produced by the prosecution that the Appellant was seen at the place of occurrence* with the weapon of offence having been stained with blood. The villagers immediately tied the Appellant and kept him confined awaiting the arrival of the police. The place where the deceased was lying and the Appellant was seen was hardly 20 cubits away from the deceased was lying and the Appellant was seen hardly 20 Cubits away from the house of the Appellant. This has been vividly described in the F.I.R. From the cross-examination it has been further established that although five children were born to the deceased and the Appellant, unfortunately none of them could survive. P.W.3. whose house was situated close to the house of the Appellant, has stated that during the morning hours between 5.30 AM and 6.00 A.M. P.W.2 raised an outcry in the basti inviting the attention of Ors. by uttering that the Appellant had killed his wife. So, he immediately rushed to the house of the Appellant and from a distance of about 30 ft. he noticed the deceased lying dead with cut injuries on her throat under a tree close to his house. His testimony has further disclosed that the Appellant was found near the place of occurrence with a Farsa and a Dauli in his hands. He proved the weapons of offence as M.Os. I and II. It is the normal human conduct of a person who arrives at the scene of incident and finds a person lying dead, to become curious and ask the reason for which such crime was committed. He proved the weapons of offence as M.Os. I and II. It is the normal human conduct of a person who arrives at the scene of incident and finds a person lying dead, to become curious and ask the reason for which such crime was committed. On P.W.3's query, the Appellant stated to have killed his wife since in the dream his mother had told him that the deceased had killed all the three sons by administering poison. 6. There were three inmates in the house at the time of occurrence. P.W.1 is the adopted son who after seeing a part of the prosecution story rushed to the house of P.W.2 to call him by stating that his father was going to kill his mother. When P.Ws.1 and 2 came to the Appellant's house, they found the deadbody lying hardly 20 cubits away from the house under a tree and the Appellant was standing with a Farsa and a Dauli in his hands. Subsequently, other villagers too reached at the spot and to their query the Appellant made a disclosure about the reasons for killing his wife. It is true that the extra-judicial confession is a weak piece of evidence and it is for the Court in its normal prudence and wisdom to seek for further corroboration from other evidence. It is to be noted here that apart from the extra-judicial confession, the evidence of P.Ws.1 and 2 is so clear, cogent and confidence inspiring that there is no room for doubt that it was the Appellant who had committed the sinful act. 7. The weapon of offence, namely, the Dauli was seized from the possession of the Appellant and sent for chemical examination. On examination, it was found that it contained human blood of 'O' origin. Therefore, it is a further link to hold that the Appellant alone was responsible for causing the death of his wife. 8. An argument was advanced by the Learned Counsel appearing for the Appellant that the offence was committed without any intention and only under the impression that the deceased had killed his three children he had done away with her. Therefore, the conviction may be altered from Section 302, IPC to Section 304, either Part-I or Part-II, IPC. We are not at all persuaded by such an argument. 9. Therefore, the conviction may be altered from Section 302, IPC to Section 304, either Part-I or Part-II, IPC. We are not at all persuaded by such an argument. 9. In the result, the appeal fails and is dismissed, the conviction and sentence passed u/s 302, IPC directing the Appellant to undergo imprisonment for life is hereby confirmed. P.K. Misra, J. 10. I agree.