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2008 DIGILAW 872 (ORI)

Padma Biswal v. State of Orissa`

2008-09-24

N.PRUSTY, P.K.TRIPATHY

body2008
JUDGMENT Conviction under Section 302 I.P.C. (wrongly mentioned as 302/34, I.P.C.) and sentence of imprisonment for life imposed against the appellant is under challenge in this Criminal Appeal. 2. According to the case of the prosecution on 16.11.1999 morning deceased Rita was found dead in her matrimonial house. Accused appellant is her husband and the two acquitted accused persons viz. Nanka Biswal and Pari Biswal are her parents-in-law. Her marriage with appellant took place in the year 1998 and the death occurred within a period of seven years of her marriage with the appellant. Udayanath Nahak is father of the deceased. While he was in his agricultural field, he got information about the death of the deceased and after reaching the house of the accused persons he found his daughter lying dead in the third room of the house and there was ligature mark around the neck. Accordingly, he lodged the F.I.R., Ext.7/1. The Officer In-charge, Kodala P.S. received the F.I.R. and arrived at the spot for investigation. On his requisition, P.W.11, the then Tahasil¬dar-cum-Executive Magistrate, Kodala also arrived at the spot to be a witness to the inquest. In course of the spot visit, P.W.10 held inquest over the dead body of the deceased, seized the rope, M.O.I. from the Attu of that room, examined the witnesses and forwarded the dead body for postmortem examination. At the time of inquest not only P.W.10 but also the witnesses to the inquest doubted it to be a case of homicidal death. On 16.11.1999 itself, P.W. 10 arrested parents-in-law of the deceased and on 19.11.1999, he arrested the appellant. The Asst. Professor, F.M.T. Department of M.K.C.G. Medical College, P.W.1 conducted the postmortem examination. On completion of investigation, charge-sheet was filed against the appellant and his parents for various offences i.e. under Sections 498-A/304-B/302/406, (for misappropriation of ornaments of the deceased and for Dowry Acts)/34, I.P.C. besides for the offences under Section 4 of the Dowry Prohibition Act. Accused persons denied to the charge and claimed for trial as against the charge framed for the aforesaid offences by the trial Court. 4. To substantiate the charge, prosecution examined 11 witnesses and relied on documents marked Exts.1 to 12, besides a document marked for identification as ‘X’ and the negative and positive photographs of the deceased marked ‘Y’ for identifica¬tion. 4. To substantiate the charge, prosecution examined 11 witnesses and relied on documents marked Exts.1 to 12, besides a document marked for identification as ‘X’ and the negative and positive photographs of the deceased marked ‘Y’ for identifica¬tion. Prosecution tendered in evidence some material objects such as, the rope, M.O.I. and the wearing apparels of the deceased M.Os. II to V. Accused persons did not adduce any defence evi¬dence. 5. Amongst the witnesses examined by the prosecution, P.W.5 is father of the deceased and P.Ws. 6 and 7 are the wit¬nesses to ill-treatment, cruelty and demand of dowry and finding the body of the deceased in dead condition in the occurrence house. P.W.9 is the scribe of the F.I.R., Ext.7/1. P.W.11 is the Tahasildar-cum-Executive Magistrate, who participated in the inquest. P.W.2 is the Constable, who identified the dead body before the doctor, P.W.1, P.Ws.3 and 4 are two witnesses to the different seizure lists prepared in course of the investigation, P.W.8 is the Photographer and P.W. 10 is the Investigating Offi¬cer. Amongst the documents, Ext.9/3 is the inquest report and Ext.1 is the postmortem report, besides Ext.7/1 the F.I.R. The documents marked ‘X’ for identification was said to be the state¬ment of accused Nanka Biswal, stating therein about absence of himself and his wife in the house at the relevant time and presence of appellant with the deceased in the house. 6. Learned Addl. Sessions Judge found that except P.Ws.1, 2, and 8 to 11, rest of the witnesses turned hostile to the prosecution and that includes P.W. 5, father of the deceased. Under such circumstance, in the absence of any evidence, learned Addl. Sessions Judge recorded the finding that the prosecution failed to prove the charge under Sections 498-A, 304-B and 406 read with Section 34, I.P.C. and under Section 4 of Dowry Prohi¬bition Act against all the accused persons. With the same analo¬gy, he also recorded finding that there was no clinching evidence to sustain the charge under Section 302, I.P.C. against the parents-in-law of the deceased. Accordingly, he acquitted accused persons Nanka and Pari. With the same analo¬gy, he also recorded finding that there was no clinching evidence to sustain the charge under Section 302, I.P.C. against the parents-in-law of the deceased. Accordingly, he acquitted accused persons Nanka and Pari. However, taking into consideration the evidence of P.W.1 that it could not have been a case of suicidal hanging and about no possibility of hanging inside the third room, he found accused-appellant Padma guilty of murder in view of the endorsement in documents mark ‘X’ that by the times, accused Nanka and Pari left the house for agricultural field in the occurrence morning, the deceased was with the accused-appellant and that there had been a quarrel between them in the previous day night. 7. Mr. J. Katikia, learned counsel for the appellant forcefully argues that learned Addl. Sessions Judge has forgotten the cardinal principle of the criminal jurisprudence that a case is to be decided on the basis of evidence on record and not on the basis of surmises and conjectures. Developing the argument further, he submits that evidence of P.W.1 does not by itself indicate that the deceased suffered a homicidal death and above all there was no evidence on record to show or suggest that there was a quarrel or misunderstanding between the appellant and the deceased or that on the date of occurrence, accused was present in his house when admittedly he was said to be serving at Surat. He further argues that the documents marked ‘X’ is not a valid piece of evidence to be considered and therefore, learned Addl. Sessions Judge has gone wrong in recording the finding against the accused-appellant and convicting him for the offence of murder. Accordingly, he argues to set aside the impugned convic¬tion order and to acquit the accused. 8. Learned Standing Counsel, on the other hand, argues that evidence of P.W. 1 read with evidence of P.W. 11 is suffi¬cient to record the finding of homicidal death of the deceased, inasmuch as, the possibility of suicidal death by hanging is not made out from the evidence on record. He accordingly, argues that once the deceased was in custody of the husband and the parents-in-law, the principle of last seen theory is applicable and therefore conviction of the appellant cannot be found to be wrong. He accordingly, argues that once the deceased was in custody of the husband and the parents-in-law, the principle of last seen theory is applicable and therefore conviction of the appellant cannot be found to be wrong. Learned Standing Counsel however fairly admits to the position of law that the document marked ‘X’ cannot be accepted as a piece of evidence to be considered either in favour or against the accused persons. 9. On perusal of the evidence of P.W.1 and the postmortem report, we find that though P.W.1 has stated that in course of the postmortem examination, he found a ligature mark situated on the neck obliquely upward and from left to right without conti¬nuity on the right temporal lateral aspect of the neck, but the deceased died due to the asphyxia caused from such strangulation. He also noticed a small abrasion on the back of left elbow. On dissection of the dead body, P.W.1 found that the subcutaneous tissues beneath the ligature mark appeared pale and condensed with minute heamorrhagic abrasion along with the margin and that all the neck structures including the muscles, vessels, nerves and vertebrae were found in tact, the respiratory track appeared red and congested with congestion of both lungs, all other inter¬nal organs were found intact and congested to varying degree. The aforesaid condition of the dead body indeed suggests of no suici¬dal death due to hanging and such asphyxia could not have been as incursigrated one by the deceased. Therefore, the conclusion derived by the trial Court regarding the homicidal death of the deceased is correct to that extent. We do not find any merit in the argument of the appellant to the contrary. 10. To prove the charge of murder against the accused-appellant, prosecution has laid no evidence inasmuch as none of P.Ws. 5, 6 and 7 alleged anything against the appellant. Prosecu¬tion has laid no evidence to show or suggest that by the date and time of the occurrence appellant was present in the house. On the other hand, evidence of P.W. 10 indicates that on the date of occurrence i.e. 16.11.1999, he arrested the parents-in-law of the deceased but on 19.11.1999 he arrested the appellant. Learned Standing Counsel states that because the appellant was abscond¬ing, therefore, he was arrested on 19.11.1999 and to that effect, there is no evidence on record. On the other hand, evidence of P.W. 10 indicates that on the date of occurrence i.e. 16.11.1999, he arrested the parents-in-law of the deceased but on 19.11.1999 he arrested the appellant. Learned Standing Counsel states that because the appellant was abscond¬ing, therefore, he was arrested on 19.11.1999 and to that effect, there is no evidence on record. Under such circumstance, when there is no evidence on record to show or suggest that the appel¬lant was present in the house on the previous day and on the occurrence day morning, the last seen theory cannot be attracted against him. Apart from that, when P.W.5 the father of the de¬ceased specifically states that there was no demand of dowry and the spouses were leading happy conjugal life, the degree of suspicion minimizes. For the reasons stated above, we agree with the criticism of the appellant to the impugned judgment of con¬viction and accordingly, set aside the order of conviction and grant benefit of doubt to the appellant. Thus, the order of conviction under Section 302, I.P.C. and the sentence of impris¬onment for life imposed on the appellant in Sessions Case No.20 of 2000 of the Court of Second Addl. Sessions Judge, Berhampur is hereby set aside and he is acquitted. Since the appellant is said to be in jail custody, therefore, we direct that he be set at liberty forthwith if his detention in jail custody is not re¬quired in connection with any other criminal case. The Criminal Appeal is accordingly allowed. Appeal allowed.