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2008 DIGILAW 40 (ORI)

SUKURIA NAIK v. STATE OF ORISSA

2008-01-15

B.P.RAY, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Berhampur in Sessions Case No. 6 of 1996 (S.C. No. 423/95-GDC) convicting the appellant for commission of offence u/s 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and further convicting him for commission of offence u/s 201 of the IPC. However, no separate sentence has been imposed for commission of offence u/s 201 of the IPC. 2. Case of the prosecution is that the appellant is the husband of the deceased Asanti. The deceased was aged about 18 years and one Dinabandhu Naik, a co-accused, is the father of the appellant. After marriage the deceased came to the house of father of the appellant and stayed there. Sometime before the occurrence the deceased had gone to her father's house, but the appellant is alleged to have taken back her forcibly. On another occasion the appellant had gone with the deceased to the house of the informant Udayanath Naik and had assaulted the deceased. On 28.07.1995 the informant Udayanath Naik came to know about death of the deceased which is alleged to have taken pace in the night on 26/27.07.1995 from Gramarakhi and accordingly FIR was lodged by the father of the deceased. The police had earlier registered an U.D. case being informed by the Gramarakhi about the death of the deceased and the U.D. case was converted to a regular police case and investigation was taken up. After completion of investigation, charge-sheet was filed against the appellant and his father Dinabandhu Naik for commission of offences under Sections 498A/304B/201/34 of the IPC read with Section 4 of the Dowry Prohibition Act and the appellant and his father faced trial for commission of the aforesaid offences. 3. In order to bring home the charges, the prosecution examined 8 witnesses, but none was examined on behalf of the defence. Plea of the defence is completely denial of the prosecution case. The Trial Court on the basis of the testimonies of the so-called eyewitness PW3 and the extra-judicial confession made before PW2 found the appellant guilty of commission of the offences under Sections 302/201 of the IPC and convicted him thereunder. Plea of the defence is completely denial of the prosecution case. The Trial Court on the basis of the testimonies of the so-called eyewitness PW3 and the extra-judicial confession made before PW2 found the appellant guilty of commission of the offences under Sections 302/201 of the IPC and convicted him thereunder. So far as father of the appellant Dinabandhu Naik is concerned, learned Additional Sessions Judge did not find any evidence against him and acquitted him of the charges. 4. Mr. Pani, Learned Counsel appearing for the appellant assails the legality of the impugned judgment on the ground that PW3 in cross-examination has admitted that he had not seen the occurrence and the extra-judicial confession before PW2 was made in presence of the Police Officer and therefore such evidence could not have been relied upon by the learned Additional Sessions Judge to convict the appellant. Learned Counsel for the State submits that though PW3 has admitted that he had not seen the occurrence, the evidence of PW2 and the extra-judicial confession is corroborated by other evidence on record specifically the conduct of the appellant prior to the incident and therefore the Trial Court was justified in convicting the appellant. 5. As it appears from the discussions made by the learned Additional Sessions Judge, much reliance was placed by him on the evidence of PWs.2 and 3 to find the appellant guilty of the charges. PW3 is alleged to be an eyewitness, who in examination-in-chief stated that he had seen the appellant killing the deceased by pressing neck of the deceased. In cross-examination, this witness has specifically admitted that he had not seen when the appellant killed his wife and hanged her dead body in night. He came to know about the death of the deceased for the first time at 8.00 A.M. He has further admitted that he had no knowledge about the killing of the deceased by the appellant, but he had seen her dead body. He has further admitted in cross-examination that he had . not stated before the 10 to have seen the appellant killing the deceased or hanging her dead body. In view of the above admission on the part of PW3, no reliance could be placed by the learned Additional Sessions Judge to find the appellant guilty of the charges. He has further admitted in cross-examination that he had . not stated before the 10 to have seen the appellant killing the deceased or hanging her dead body. In view of the above admission on the part of PW3, no reliance could be placed by the learned Additional Sessions Judge to find the appellant guilty of the charges. The only other evidence available on record is the evidence of PW2 before whom extra-judicial confession is supposed to have been made. PW2 in his deposition has stated that he was called to the police station by the police where the appellant confessed his guilt stating that he had killed his wife. The police thereafter seized pieces of bones and ashes in his presence. This witness has specifically stated that there was no demand of dowry to his knowledge and the appellant had killed his wife having not been able to fulfill his sexual desire. In cross-examination, this witness has admitted that neither of the accused persons had stated anything to him in the field and he was told about the incident at about 8.00 A.M. in the morning by the father of the deceased who has been acquitted. In view of such nature of evidence, it is clear that the so-called extrajudicial confession was made in presence of the police in the police station and therefore the Court cannot act upon such extra-judicial confession. Once the evidence of these witnesses is discarded, there is nothing else to find the appellant guilt of the charges, except that earlier to the date of occurrence on one occasion the appellant had brought back the deceased from her father's house forcibly and on another occasion he had assaulted the deceased in the house of his brother-in-law. We are, therefore, of the view that the prosecution has miserably failed to prove the charges against the appellant. 6. In view of the discussions made above, the judgment and the order of conviction and sentence passed by the Trial Court is liable to set aside. We, accordingly, allow the appeal and set aside the impugned judgment. Final Result : Allowed