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2009 DIGILAW 142 (ORI)

ANADI MAHANANDA v. STATE OF ORISSA

2009-02-17

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT : L. Mohpatra, J. - The Appellant having been convicted for commission of offence u/s 302 of the Indian Penal Code and sentenced to imprisonment for life by the Addl. Sessions Judge, Titilagarh in Sessions Case No. 28(B)/14 of 1998 has preferred this appeal. 2. The case of the prosecution is that in the night of 13.11.1997 at about 2.30 A.M. P.W.3, who is the father of the Appellant, heard some noise from one of the rooms where the Appellant and the deceased were sleeping. The deceased was shouting that she was being assaulted by the Appellant and was crying for help. P.W.3 immediately rushed to the said room but found the same chained from inside. When he called the Appellant, he was informed by the latter that the deceased had died. The Appellant also did not open the room for which P.W.3 called the villagers. Even after the villagers assembled, the Appellant did not open the room and the matter was reported to the police. The room was also locked from outside. After the police arrived at the place, the Appellant opened the room under threat and was apprehended. The two children of the Appellant came out of the room and the deceased was found lying dead inside the room. On these allegations, FIR having been lodged, investigation was taken up and charge-sheet was filed for commission of offence u/s 302, IPC. 3. The plea of the Appellant is denial of the prosecution case. 4. The prosecution in order to bring home the charge examined six witnesses but none was examined on behalf of the defence. Learned Addl. Sessions Judge, relying on the evidence of P.W.3, father of the Appellant (father-in-law of the deceased), as well as the evidence of P.W.1, who conducted post-mortem examination, and the evidence of other villagers, who supported P.W.3, found the Appellant guilty of the charge and convicted him thereunder. 5. Mr. P.K. Khuntia and Mrs. Chandana Panda appearing for the Appellant assail the impugned judgment on the ground that there is no eye witness to the occurrence and the case of the prosecution is built on circumstantial evidence. According to the learned Counsel for the Appellant, the circumstances proved by the prosecution do not complete a chain so as to point at the guilt of the Appellant and, therefore, the order of conviction is liable to be set aside. According to the learned Counsel for the Appellant, the circumstances proved by the prosecution do not complete a chain so as to point at the guilt of the Appellant and, therefore, the order of conviction is liable to be set aside. As an alternate argument, it was contended by the learned Counsel for the Appellant that the Appellant was insane at the time of occurrence and, therefore, he should have been given the benefit thereof. 6. Learned Counsel for the State, relying on the evidence of P.W.3, submitted that he being the father of the Appellant there is no reason as to why he should make false allegations against his own son. It was also contended that on the date of occurrence the Appellant, the deceased and their two children were in the room and in absence of any material to show that any other person had entered into the room the presumption is that it is the Appellant who killed his wife. 7. Having heard learned Counsel for both the parties at length and on scrutiny of the evidence adduced before the trial court, we find that there is no eye witness to the occurrence but the prosecution case is built upon circumstantial evidence. P.W.3 is the father of the Appellant. He has stated in court that on the day previous to Kartika Purnima of the year 1997 at about 2.00 O'clock in the night while he was sleeping in his room he heard the voice of the deceased asking for help by saying that she was being assaulted by the Appellant. This witness immediately rushed to the room of the Appellant but found the same chained from inside. The Appellant did not open the door and informed this witness that the deceased had died. When the Appellant did not open the room, this witness called the villagers and only when the police arrived, the Appellant opened the room under threat. The Appellant was apprehended from the room and the two children of the Appellant came out of the room. The deceased was found lying dead inside the room. The evidence of this witness with regard to presence of the villagers and arrest of the Appellant from inside the room is corroborated by other independent witnesses such as P.W.4 and P.W.5. The Appellant was apprehended from the room and the two children of the Appellant came out of the room. The deceased was found lying dead inside the room. The evidence of this witness with regard to presence of the villagers and arrest of the Appellant from inside the room is corroborated by other independent witnesses such as P.W.4 and P.W.5. P.W.1 who conducted the post-mortem examination found four injuries on the body of the deceased and was of the opinion that the injuries were ante-mortem in nature and cause of death was due to asphyxia. 8. On analysis of the evidence, as stated above, it is found that on the date of occurrence it is the Appellant who was occupying the room along with the deceased and their two children. There is no evidence to show that any other person was present in the said room. The room was also chained from inside. Evidence of P.W.3 also shows that at about 2.00 O'clock in the night he heard the voice of the deceased seeking for help by saying that she was being assaulted by the Appellant, and when he rushed to the room, he found the same being chained from inside. In spite of his request, the Appellant did not open the room and on the other hand intimated that the deceased had died. It also appears from the evidence of P. Ws.3, 4 and 5 that the room was chained from inside and only after the police arrived the Appellant opened the room under threat. While the villagers and the police entered into the room, they only found the Appellant, the deceased and their two children and none else. Under these circumstances, the only conclusion that can be arrived at is that it is the Appellant who assaulted the deceased causing her death and such conclusion is also supported by the evidence of P.W.3 to the extent that the deceased was seeking for help and when P.W.3 requested the Appellant to open the door, the Appellant told him that the deceased had died. 9. 9. Though an alternative argument was advanced by the learned Counsel appearing for the Appellant with regard to insanity, we find that neither any plea has been taken by the Appellant in his statement recorded u/s 313, Code of Criminal Procedure nor has any document been produced to show that the Appellant was being treated for insanity at any point of time. No doctor has also been examined on behalf of the Appellant to prove such a plea. Merely because two of the witnesses make a stray statement that at one time the Appellant was insane, such a plea cannot be advanced without any further proof. The father of the Appellant, who is the informant in this case, has also not stated about the insanity of the Appellant in the FIR. We, therefore, reject the plea of insanity taken by the Appellant. 10. Having found that it is the Appellant who committed the murder of his wife, we find no justification to interfere with the impugned judgment. The Jail Criminal Appeal being devoid of merit is dismissed. Final Result : Dismissed