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2009 DIGILAW 1 (ORI)

Parti Lakra v. State of Orissa

2009-01-05

P.K.TRIPATHY, SANJU PANDA

body2009
JUDGMENT P.K. TRIPATHY, J. — None appears for the appellant. The appellant is in jail. The counsel engaged by the State defence panel is not present. Since the jail criminal appeal is pending from the year 1999 and the appellant is detained inside the jail, on consent, Mr. Sanjay Kumar Das, learned Advocate of this Court is engaged to argue the jail criminal appeal on behalf of the accused-appellant. After going through the paper books supplied to him, he says that the case is simple and therefore, he is ready to argue. In view of that submission, we take up the jail criminal appeal for hearing. Heard the parties and the judgment is as follows : 2. Accused is the daughter-in-law and the deceased is the mother-in-law. Charge against the accused is under Section 302, IPC for committing the murder of her mother-in-law on 12.11.1996 and under Section 201 IPC for concealing the dead body in the bushy jungle to screen herself. With such charge, learned Ses¬sions Judge, Sundargarh took up Sessions Trial No.82 of 1997 arising out of G.R. Case No.304 of 1996 of the Court of S.D.J.M., Bonei. 3. Case of the prosecution is that P.W.6 Temba Lakra and P.W.2 Muna Lakra are two sons of deceased Budhuni Lakra. Accused is the wife of P.W.6. On 12.11.1996, P.Ws.2 and 6 had left their house in the evening to witness a Yatra in another village. In that night, the accused having a persisting ill-feeling with the deceased assaulted her by use of a Sila (Grinding stone) M.O.I. and thereafter dragged the dead body into the bushy jungle and concealed it there. On the following day, after they returned, each of P.Ws.2 and 6 found their mother missing, therefore, they wanted information regarding her whereabouts and accused gave false reply. Nonetheless, P.Ws.2 and 6 searched for the deceased in and around the village including the adjoining jungle and when they failed in that respect for continuous three days, on the fourth day the villagers came forward to assist them. When they were about to undertake the search, a cow-herd woman in¬formed them about a dead body lying under a tree inside the jungle. P.Ws.2 and 6 together with other villagers went and found that the dead body was that of their mother. When they were about to undertake the search, a cow-herd woman in¬formed them about a dead body lying under a tree inside the jungle. P.Ws.2 and 6 together with other villagers went and found that the dead body was that of their mother. Thereafter, the accused being asked, she confessed before P.Ws.2 and 6 and the co-villagers P.Ws.1 and 7 about the homicidal death caused by her. Accordingly, police was informed and law was set into mo¬tion. After a routine investigation, P.W.14 the O.I.C. submitted the charge sheet. 4. To substantiate the charge, prosecution relied on the evidence of 14 witnesses. Amongst them, P.W.11 is Dr. Bibhudutta Patra who conducted post-mortem examination and proved the post-mortem report Ext.7 and the opinion report Ext.8. Relying on that evidence, learned Sessions Judge held that the deceased suffered homicidal death due to fracture injuries on the frontal, temporal and parietal bones together with all other associated injuries both external and internal. In course of submission before us learned counsel for the appellant does not challenge the evidence of P.W.11 or the finding of the trial Court on the homicidal death of the deceased. 5. Amongst the rest of the witnesses, P.Ws.1, 2, 6 and 7 were examined to prove the extra judicial confession made by the accused. Learned Sessions Judge relying on such evidence and the defence plea of the accused that the deceased had also gone to witness the Yatra, found the defence plea to be not substantiated so also the plea of the accused that P.W.2 bore a grudge against her. Accordingly, learned Sessions Judge found the defence plea to be untrue and therefore the extra judicial confession proved by the above witnesses to be credible. In addition to that, learned Sessions Judge also found from all such evidence that the last seen theory was proved by P.Ws.2 and 6 inasmuch as when P.Ws.2 and 6 left the house, the accused and the deceased were in the house. 6. Learned counsel for the appellant referring to the evidence of the aforesaid four witnesses argues that P.W.1 stated that the accused made extra judicial confession before the vil¬lagers and then no village chowkidar was present. 6. Learned counsel for the appellant referring to the evidence of the aforesaid four witnesses argues that P.W.1 stated that the accused made extra judicial confession before the vil¬lagers and then no village chowkidar was present. On the other hand, P.W.2 stated in examination-in-chief that after discovery of the dead body accused made extra judicial confession but in the cross examination he admitted that such extra judicial con¬fession was made by the accused after arrival of the police in the occurrence village. Similar is the evidence of P.Ws.6 P.W.7, on the other hand, stated in examination-in-chief that “I sus¬pected that accused might have caused the death of Buduni Lakra. I asked the accused about this incident and she denied to have any knowledge about the death of her mother-in-law. Thereafter, we went to the P.S. and lodged F.I.R. with the police.” This evi¬dence of P.W.7 was not challenged by the prosecution either by leading question or confronting with the previous statement. It is thus clear from the aforesaid evidence that prosecution has signally failed to prove the factum of extra judicial confession made by the accused. 7. Learned Sessions Judge relied on the extra judicial confession on the ground that defence plea is not substantiated. Such finding is not acceptable being contrary to the requirement of law inasmuch as the burden of proof lies on the prosecution and in such a case that burden or the onus is not shifted until the burden is discharged by the prosecution. 8. The witnesses to the extra judicial confession so also the investigating officer stated that from the courtyard of the house of the accused upto the spot where the dead body was lying, the distance is about 114 feet. According to the prosecution witnesses, there was a trail of blood from the courtyard upto that spot. Such blood trail could be noticed only on the fourth day after the occurrence. No explanation has been offered by the prosecution witness or the I.O. as to why P.Ws.2 and 6 did not notice such trail of blood from their courtyard on 13.11.1996. Apart from that, when the distance is only 114 feet, the decom¬posed body would have produced foul smell and that could not have gone unnoticed by the villagers as well as P.Ws.2 and 6. Apart from that, when the distance is only 114 feet, the decom¬posed body would have produced foul smell and that could not have gone unnoticed by the villagers as well as P.Ws.2 and 6. Above all, it appears improbable when the dead body lying in the jungle for four days went untampered by the dogs and animal like jackal. All these facts and circumstances undoubtedly indicate that the occurrence took place in a different manner and that was not unearthed in course of the investigation. The plea of last seen theory advanced by the prosecution is of no importance because according to the doctor (P.W.11) on 16.11.1996 death of the deceased was more than five days and the stone (grinding stone) was containing no blood (See Ext.14). 9. For the reason indicated above, we agree with the argument of Mr. Das, learned counsel for the appellant and grant the benefit of doubt to the accused-appellant and acquit her from the charge under Sections 302/201 IPC. Accordingly, the order of conviction and sentence is set aside. The accused appellant-Patri Lakra be set at liberty forthwith, if her detention in jail custody is not required in any other criminal case. The Jail Criminal Appeal is allowed. JCA allowed.