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2008 DIGILAW 325 (ORI)

Jasoda Patra v. State of Orissa

2008-04-15

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT L. MOHAPATRA, J. — The appellant having been convicted for commission of offence under Section 302 of the Indian Penal Code (in short ‘I.P.C.’) and sentenced to undergo R.I. for life, has preferred this appeal against the order and judgment of convic¬tion and sentence passed by the learned Addl. Sessions Judge, Deogarh in S.T. Case No.18/8 of 2001. 2. The accusations on the basis of which the appellant and three others were tried for commission of offence under Section 302 I.P.C. are that the appellant is the wife of the deceased. Initially the appellant had good relationship and had been blessed with three children out of whom one expired by the time the appellant was in her parental house. The deceased was addict¬ed to liquor and few years after the marriage they got to run into rough weather. Few months prior to 24.6.2000, the appellant left the house of the deceased and started staying with her parents in village Bania-Khilinda. The deceased made sincere effort to bring her back to his house, but failed. On 24.6.2000 the deceased again came to the house of the accused persons and approached the appellant to go back along with him to his house. The appellant refused to go and there was a quarrel between the appellant and the deceased which continued from 7 P.M. to 8 P.M. In that next morning dead-body of the deceased was found lying under the ‘mahua’ tree adjacent to the house of the accused persons. Satyananda Patra, a home guard of that village reported the matter to the O.I.C. Deogarh Police Station, whereafter an U.D. case was registered and investigation was taken up. From the post-mortem examination, it was revealed that the cause of death of the deceased was homicidal and accordingly a case was regis¬tered for commission of offence under Section 302/34 I.P.C. and ultimately after completion of investigation, charge-sheet was filed against four accused persons including the appellant for commission of aforesaid offences. 3. Prosecution examined ten witnesses to bring home the charges but none was examined on behalf of defence. Out of the ten witnesses examined on behalf of the prosecution, P.Ws. 1, 3, 4, 6 and 7 turned hostile. P.W.2 is a witness to the quarrel between the deceased and the appellant and P.W.5 is a seizure witness. P.W.8 is the doctor, who conducted post-mortem examina¬tion and P.W.9 is the Investigation Officer. Out of the ten witnesses examined on behalf of the prosecution, P.Ws. 1, 3, 4, 6 and 7 turned hostile. P.W.2 is a witness to the quarrel between the deceased and the appellant and P.W.5 is a seizure witness. P.W.8 is the doctor, who conducted post-mortem examina¬tion and P.W.9 is the Investigation Officer. P.W.10 is the daugh¬ter of the appellant and the deceased, who was sole eye-witness to the occurrence. 4. The plea of the defence is that the deceased was in the habit of assaulting the appellant in drunken state, for which, the appellant was staying in her parents house. On the date of occurrence, the deceased came in a drunken state and approached the appellant to go with him and the appellant refused to go with him. The deceased went away, whereafter how he died was not known. 5. The trial Court on the basis of the version of P.Ws.2 and 10, medical report and recovery of stone alleged to have been used in commission of offence found the appellant guilty of the charge under Section 302 I.P.C. and convicted her thereunder. However, rest of the three accused persons were acquitted of the charges. 6. Learned counsel for the appellant assailing the im¬pugned judgment submits that the evidence of P.W.10 cannot be accepted considering the fact that whatever she stated as eye-witness to the occurrence had not been stated by her in course of investigation before the police. Therefore, her statement made in Court is found to be development of the prosecution case, which could not be acted upon without corroboration. It was further contended by the learned counsel for the appellant that the material available on record is that in the evening of occurrence there was a quarrel between the deceased and the appellant for about one hour whereafter the deceased left the house of the appellant and there being no evidence as to how the deceased died, merely on the basis of recovery of stone from the house of the appellant and the medical report, the trial Court could not have convicted the appellant for commission of offence under Section 302 I.P.C. 7. Learned counsel for the State relying upon the evidence of P.W.10 and post-mortem report, supports the impugned judgment. 8. We have carefully examined the evidence adduced on behalf of the prosecution. Learned counsel for the State relying upon the evidence of P.W.10 and post-mortem report, supports the impugned judgment. 8. We have carefully examined the evidence adduced on behalf of the prosecution. P.W.1 turned hostile because of his statement that the police seized one piece of stone lying by the side of the house of the accused persons and prepared the seizure list in his presence. He had stated in his evidence that the appellant was living with her parents few months prior to the incident. He also stated that on the date of occurrence the deceased had come to the house of the accused persons and requested the appellant to go back with him but the appellant refused to go back with him and there was a quarrel between them from 7 P.M. to 8 P.M. in the house of the accused persons. In cross-examination, he has stated that the deceased was addicted to liquor. On many occasion, he was coming to the house of the accused persons and quarrelling with the accused persons in intoxicated state. He has further stated that whenever he was quarrelling with the accused persons he was sleeping under the mohua tree. The evidence of P.W.2 appears to be relevant for the purpose of deciding the case. P.W.2 has stated that on the date of occurrence he found the deceased in the house of the accused persons. The deceased requested the appellant to go back to his house, but the appellant refused and quarrel ensued between both of them and it continued till 8 P.M. In the next morning at about 8 A.M., when he was going to work he found the deceased lying under the mohua tree which was at a distance of 8 to 10 cubits from the house of the appellant. Thereafter he called the appellant to administer water thinking that the deceased was lying unconscious under the influence of liquor. The appellant refused to give water stating that the deceased was pretending. Thereafter he went on his own way to the place of working. He has specifically stated that by then deceased was moving his leg and to his knowledge the deceased was alive. At about 9 A.M. to 10 A.M. he was informed that the deceased died. In cross-examination, this witness has stated that he did not mark any injury on the deceased. He has specifically stated that by then deceased was moving his leg and to his knowledge the deceased was alive. At about 9 A.M. to 10 A.M. he was informed that the deceased died. In cross-examination, this witness has stated that he did not mark any injury on the deceased. P.W.3 also speaks about the quarrel, which according to this witness took place in between 4 P.M. to 5 P.M., but he has specifically stated that after the quarrel the deceased went out of the house of the accused persons towards his village and next morning the dead-body of the deceased was found under the mohua tree. In cross-examination this witness has stated that in course of quarrel, deceased was often physically assaulting the appellant, but the appellant was not assaulting the deceased. P.W.4 is the brother of the deceased who heard about the incident from wife of brother-in-law of the deceased. P.W. 5 was declared hostile and he did not support the case of the prosecution. P.W.6 was examined as seizure witness but he has stated that nothing was seized in his presence. Police obtained his signature on some papers. P.W.7 also turned hostile and did not support the case of the prosecution. P.W.8, the doctor, who conducted post-mortem examination, found three abrasions and a contusion. He was of the opinion that the cause of death of the deceased was due to liver injuries caused because of assault on abdomen by hard and blunt weapon and the nature of death is homicidal. In cross-examination this witness further stated that the injuries found on the dead-body of the deceased are possible by one stroke with the stone. P.W.10, the sole eye-witness to the occurrence is the daughter of the appellant and the deceased. Though in examination-in-chief she has vividly described the manner in which the deceased was assaulted by the appellant, but in cross-examination she has stated that in course of her exami¬nation by police during investigation she had not stated before the I.O. as to how the deceased was killed. She had also not disclosed about the incident before any of the villagers. In cross-examination she has stated that when the deceased was sitting on the verandah, he was assaulted by the appellant, the possibility of which is completely ruled out by P.W.8, the doc¬tor, who conducted post-mortem examination. She had also not disclosed about the incident before any of the villagers. In cross-examination she has stated that when the deceased was sitting on the verandah, he was assaulted by the appellant, the possibility of which is completely ruled out by P.W.8, the doc¬tor, who conducted post-mortem examination. P.W.8 in his cross-examination has specifically stated that the injuries were not possible when the injured was sitting. P.W.9 is the I.O., who in his cross-examination has specifically stated that P.W.10 did not state anything about the mark of violence as stated in Court. On over all analysis of the evidence, it appears that P.W.10 who was projected as the sole eye-witness to the occurrence cannot be relied upon, she having not stated about the incident during investigation. Though in examination-in-chief she vividly de¬scribed the manner in which the deceased was assaulted by the appellant but surprisingly she had not stated anything before the I.O. in course of investigation under Section 161 Cr.P.C. and therefore, her evidence in Court is only a development made by her which she had not stated during investigation. On examination of evidence of P.Ws. 1, 2 and 3, we find that on the date of occurrence there was a quarrel between the deceased and the appellant, but according to P.W.3 after the quarrel the deceased had left the house of the accused persons. P.W.2 has specifically stated that in the next day morning at about 8 A.M. he found the deceased lying under the mohua tree and requested the appellant to administer water. He has also specifically stated that by that time the deceased was moving his leg and to his knowledge the deceased was alive. The only circumstance which appears to have been proved against the appellant is that she had a quarrel with the deceased on the date of occurrence. Even recovery of the weapon of offence as claimed by the I.O. at the instance of the appellant is not supported by the independent witnesses examined for the purpose. We are, therefore, of the view that having found that the evidence of P.W.10 is not reliable, the prosecution having not been able to prove any other circumstance except that the appellant had a quarrel with the deceased in the evening, the impugned judgment and order of conviction passed against the appellant for commission of offence under Section 302 I.P.C. cannot be sustained. We have, therefore, no hesitation in allow¬ing the appeal and setting aside the impugned judgment. 9. We, accordingly, allow the appeal and set aside the impugned judgment and order dated 19.4.2002 passed by the learned Addl. Sessions Judge, Deogarh in S.T. Case No.18/8 of 2002 con¬victing the appellant Jasoda Patra for commission of offence under Section 302 I.P.C. and sentencing her to undergo rigorous imprisonment for life. It is stated that the appellant is still in custody. If that be so, the appellant, Jasoda Patra be set at liberty forthwith, unless her detention is required in any other case. B. K. PATEL, J. I agree. Appeal allowed.