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2007 DIGILAW 936 (ORI)

Gokulananda Dubey v. State of Orissa

2007-12-19

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT :- Appellant challenges the order of conviction and sentence under Section 302, I. P. C. recorded against him by learned Addl. Sessions Judge, Jharsuguda on 16-3-2000 in Sessions Trial Case No. 79/ 54 of 1999. 2. According to the allegation of the prosecution, on 14-4-1997. appellant committed murder of his wife Fulfuli (hereinafter referred to as the 'deceased'). At about 6.00 p.m., P. W. 5 arrived at the spot in course of a stroll and gathered information about the occurrence from the accused and the neighbours and accordingly lodged the F. I. R., Ext. 9, on receipt of information, P. W. 10, the Investigating Officer undertook the investigation and on completion of the same, submitted charge-sheet. In course of investigation, as deposed by him he has made spot visit, made inquest over the dead body and forwarded the dead body for postmortem examination. He also seized the blood-stained cement and other incriminating materials from the spot. Such seizures include seizure of the wooden plank (M. O. 1) lying in the house, which was pointed out by the accused to be the weapon of offence, the wearing apparels of the accused which he was wearing at the time of the alleged incident and the wearing apparels of the deceased M. Os, II and III, which was seized after the post-mortem examination. Accused denied to the charge under Section 302. I, P. C. and claimed for trial. In course of the trial, ten witnesses were examined, amongst them, P. W. 2 is the doctor, who conducted autopsy on the dead body. P.W. 3 is the police constable, who escorted the dead body for post-mortem and rest of the witnesses are the villagers including PWs. 6 and 9, who are respectively, the father-in-law and the brother-in-law of the accused, Each of the aforesaid witnesses was confronted with the facts situation of the extra-judicial confession said to have been made by the appellant. 3. On assessment of the evidence on record and the documents, i.e. post-mortem report, Ext. 1. opinion report, Ext. 2/1, the F. I. R. Ext. 9, report of the R. F. S. L., Ext. 11 and the statements recorded under Section 161, Cr. P. C. confronted to the witnesses and Exts. 12 to 17, learned Addl. 3. On assessment of the evidence on record and the documents, i.e. post-mortem report, Ext. 1. opinion report, Ext. 2/1, the F. I. R. Ext. 9, report of the R. F. S. L., Ext. 11 and the statements recorded under Section 161, Cr. P. C. confronted to the witnesses and Exts. 12 to 17, learned Addl. Sessions Judge recorded the finding that though the witnesses turned hostile to the prosecution not only on proof of the extra-judicial confession but also on the relationship between the accused and the deceased, presumption of residing together was absolutely available and therefore the conduct of the accused in not reacting on seeing the dead body of the deceased makes it inferable that he is the author of the crime. Recording such finding and relying on some decisions in that respect, learned Addl. Sessions Judge found the appellant guilty and sentenced him to undergo rigorous imprisonment for life for his conviction under Section 302, I. P. C. 4. Learned counsel for the appellant patiently submits before us the entire evidence led by the prosecution. After placing such evidence, he does not dispute to the evidence of P. W. 2 and the opinion thereof that the deceased suffered homicidal death due to the head injury, which was possible by a weapon, like M. O. I. Therefore, the finding on homicidal death recorded by the trial Court is approved and accepted. 5. Learned counsel for the appellant states that P. Ws. 1, 4, 5, 6, 7, 8 and 9 have not supported the prosecution relating to any connection between the crime and the accused. Learned Standing Counsel, in course of his reply, also admits to that fact situation being apparent on the record. Learned counsel for the appellant criticizes the finding and conclusion recorded by the learned Addl. Sessions Judge on the culpability of the appellant, because of his conduct in not reacting in a particular manner after discovering the dead body of the deceased. He argues that on a particular fact situation, different persons react in different manner and on seeing the dead body if the accused did not rushed to the Police Station that cannot be treated as a circumstance to conclusively record a finding that he is the culprit of murder. Such reasoning is fallacious, (Though learned Standing Counsel found no reason of conviction by the learned Addl. Sessions Judge). Such reasoning is fallacious, (Though learned Standing Counsel found no reason of conviction by the learned Addl. Sessions Judge). We find correctness in the criticism of the appellant on such finding. In other words, in absence of any positive evidence so as to make any inference that, with a guilty mind the accused did not react the death by seeking help from the neighbours or for rushing to the Police Station, it cannot be held conclusively so as to pass the sentence under Section 302, I. P. C. on him, merely because, he remained dumb on seeing the dead body of his wife. The trial Court has forgotten for a moment that P. W. 6 is the father-in-law of the accused and the P. W. 9 is the brother-in-law and both of them have not supported the prosecution on the cause of death of the deceased, though they have stated in their evidence that at times appellant and the deceased had quarrel between themselves. (Notwithstanding such relationship between the accused and father-in-law and brother-in-law, no one can finger the appellant for the death of the deceased.) 6. When there is no evidence to prove the extra-judicial confession made by the accused and when prosecution has not brought any evidence about the last seen theory, therefore, even if the deceased suffered homicidal death, finding cannot be recorded that accused is the author of that crime. The benefit arising out of the circumstance should go in favur of the accused and it is so extended by us. Accordingly, the order of conviction is set aside and the appellant is acquitted. The Criminal Appeal is allowed accordingly. Since the appellant is in the jail custody, he may be set at liberty forthwith, if his detention is not required in any other criminal case. Appeal allowed.