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2009 DIGILAW 173 (ORI)

Madhi Nanda v. State of Orissa

2009-03-03

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT PRADIP MOHANTY, J. — This jail criminal appeal is di¬rected against the judgment and order dated 6.3.1999 passed by the Sessions Judge, Koraput in S.C. No.277 of 1997 convicting the appellant under Section 302 IPC and sentencing him to imprison¬ment for life. 2. The case of the prosecution is that on 22.6.1997, P.W.3 and others were standing on the village road. At that time, ac¬cused came out of her house dancing, holding a husk pound (M.O.-I) and confessed before them that she had killed her husband. All the persons present along with P.W.3 entered into the house and saw the deceased lying dead and there was profuse bleeding from his head. Therefore, they convened a Panchayat. The appellant also attended the said Panchayat and confessed to have killed her husband. F.I.R. (Ext.1) was lodged by P.W.3 and the OIC, P.W.8 investigated into the matter. Ultimately charge-sheet was filed against the appellant for commission of offence under Section 302 I.P.C. In order to prove its case, prosecution examined as many as nine witnesses and exhibited sixteen documents. Defence examined none. The learned Sessions Judge, Koraput, Jeypore on examination of the evidence on record convicted the appellant under Section 302 IPC with a finding that the appellant had caused injuries on vital parts of the body of the deceased resulting in his death. Mr. Patnaik, learned counsel appearing the appellant submits that there is no eye-witness to the occurrence. There is no corroborative evidence with regard to the so-called extra judi¬cial confession made by the appellant before the Panchayat. There was no blood-stain on the Katari (M.O.-II) and the absence of blood-stain on the weapon is of great significance in the peculiar facts and circumstances of the case. According to him, the prose¬cution has not been able to bring home the charge to the appel¬lant, but the trial Court has erroneously passed an order of conviction, which is liable to be set aside. Mr. Mohapatra, learned counsel appearing for the State vehemently contends that the evidence of P.Ws.3, 4 and 5 is very clear and cogent. All of them have stated about the extra judi¬cial confession made by the accused. Such confession was made immediately after the occurrence before P.W.3 and P.W.4 and thereafter before the Panchayat. M.O.II was seized from the spot and it was stained with blood. All of them have stated about the extra judi¬cial confession made by the accused. Such confession was made immediately after the occurrence before P.W.3 and P.W.4 and thereafter before the Panchayat. M.O.II was seized from the spot and it was stained with blood. The case is based upon circumstan¬tial evidence and the chain of circumstances is complete to point at the guilt of the appellant. Therefore, there is no illegality and infirmity in the impugned judgment of the trial Court con¬victing the appellant under Section 302 IPC. Perused the LCR, P.W.1 is the scribe of the FIR and he proved the same as Ext.1. P.W.2 is the doctor who conducted autopsy on the dead body of the deceased. According to him, all the injuries were ante mortem in nature and external injury No.1 with the internal injuries is sufficient to cause death in ordi¬nary course of nature. He also opined that M.O.I. can cause the external injury No.1. P.W.3 is the brother of the deceased. He stated that the appellant came out of house and disclosed that she had killed her husband. At that time she was in a joyous mood. Nothing has been elicited from him during cross-examination by the defence. In cross-examination, he stated that a Panchayat meeting was held and ten persons attended the meeting. The ac¬cused-appellant confessed before the Panchayat to have killed her husband. P.W.4 is a co-villager. He corroborated the statement of P.W.3 with regard to holding of a Panchayat and the extra judicial confession made by the appellant before the said Pan¬chayat. P.W.5 is also another co-villager who corroborated the statement of P.Ws.3 and 4. He is also a witness to the seizure of M.Os. I and II. P.W.6 is the police constable who escorted the dead-body. P.W.7 is one of the I.O. who examined the witnesses and sent the dead body to the PHC for autopsy. P.W.8 is the I.O. who filed the final form. He had seized the M.O.I. and II and had also sent the wearing apparels of the accused and the deceased and sample earth to the chemical examiner for chemical examination. But in cross-examination, he admitted that the accused had sustained superficial injuries on her left hand and left leg which he had detected at the time of arrest. He had seized the M.O.I. and II and had also sent the wearing apparels of the accused and the deceased and sample earth to the chemical examiner for chemical examination. But in cross-examination, he admitted that the accused had sustained superficial injuries on her left hand and left leg which he had detected at the time of arrest. He further stated that the accused had reported that had been assaulted by the deceased and sustained the aforesaid injuries. P.W.9 is another Police Officer who proved the station diary entry. The F.I.R. (Ext.1) was lodged on the same day by Sukanta Madhi (P.W.3). In the FIR, he stated that the accused confessed that there was a quarrel between the husband and wife. Therefore, she assaulted the deceased by M.O.I. But P.W.3 in his deposition has not stated about the above fact. But the I.O., P.W.8 in his cross-examination admitted that there was a quarrel between the husband and wife and accused assaulted the deceased. He also admitted about the superficial injuries on her left hand and left leg which he detected at the time of her arrest. P.W.8 also stated in his evidence that the accused-appellant reported that she was assaulted by the deceased and sustained injuries. By taking into consideration the FIR and the evidence of the IO, this Court comes to the finding that there was a tussle between the appellant and the deceased and the appellant sus¬tained some superficial injuries. Both of them were in drunken state. Therefore, the appellant cannot be held liable for commis¬sion of offence under Section 302 IPC as she had no intention to kill the deceased. Medical evidence also reveals that injury No.1 was the cause of death. Taking the totality of the circum¬stances into consideration, this Court come to a finding that this is a case under Section 304 Part-II IPC. In view of the above, this Court set aside the order of conviction of the appellant under Section 302 IPC convict her under Section 304 Part-II IPC and sentence her to undergo RI for ten years. The Criminal Appeal is allowed to the above extent. Appeal allowed to the extent indicated.