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2009 DIGILAW 216 (ORI)

Budhuram Gagrai v. State of Orissa

2009-03-17

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT PRADIP MOHANTY, J. — The appellant having been convicted for commission of offence under Section 302 I.P.C. and sentenced to imprisonment for life by the learned Sessions Judge, Mayurb¬hanj, Baripada in S.T. Case No.169/2000, has preferred this appeal from jail. 2. The case of the prosecution is that on 04.03.2000, the O.I.C. Mahuldiha P.S. while enquiring into a U.D. Case of that Police station came to know that one Mukta Khuntia had certain illicit relationship with the accused Budhuram Gagrai. This accused and the victim girl Mukta were reading in the Agragami Night School opened at the village. Both being the students of that school began to love each other and Mukta became pregnant out of the sexual relationship between them. The father of the girl approached the parents of the accused who confessed his relationship with the girl. A meeting was called in the village, where the parents of the accused agreed to accept Mukta as their daughter-in-law. On 24.02.2000, the accused and his younger brother came to the house of Mukta. The accused told the father of the girl to take her to his own house in order to keep her as his wife. So, Siddu Khuntia, the father of the girl left Mukta in custody of the accused and his younger brother. When all these three persons were going to their own house situated at a dis¬tance of 1 ½ K.Ms from the house of Mukta, they decided to take rest in an abandoned house. By that time Mukta was already preg¬nant. The accused gave certain poison to the girl and advised her to sleep in the forest for the night. In the early morning Mukta felt uneasy and her head started reeling. Then the accused took her to the nearby forest and administered her another dose of poison by giving an impression that she would get relief. The accused and his brother left Mukta alone inside the forest and went away to their house. On 25.02.2000, the father of the victim got information that his daughter Mukta had not reached the house of the accused. So, he started to search for the girl and after 6 to 7 days found the dead body of Mukta inside the forest in a decomposed state. The matter was reported to the Police and a case was registered. After completion of investigation, charge-sheet was filed against the accused. 3. So, he started to search for the girl and after 6 to 7 days found the dead body of Mukta inside the forest in a decomposed state. The matter was reported to the Police and a case was registered. After completion of investigation, charge-sheet was filed against the accused. 3. The plea of the appellant was denial of the prosecution case. 4. In order to prove its case, prosecution examined nine witnesses including the doctor and exhibited eleven documents, whereas none was examined on behalf of the appellant. 5. Learned Sessions Judge, Mayurbhanj, Baripada who tried the case by his judgment dated 21.12.2002 convicted the appellant under Section 302 I.P.C. and sentenced him to imprisonment for life basing upon the statement under Section 164 Cr.P.C. of P.W.3, who is the younger brother of the accused. 5. Mr. Swain, learned counsel for the appellant assails the impugned judgment on the ground that there was no material against the appellant to convict him under Section 302 I.P.C. Moreover, Ext.1 the 164 Cr.P.C. statement of P.W.3 is not admis¬sible since it has not been proved. He further submitted that the evidence of prosecution witnesses is very clear to the effect that the accused, his brother and deceased were together on 24.02.2000. But the dead body of the deceased was found 8 days after the occurrence. There is no material on record to show that immediately before the death, both the deceased and the accused were together. 6. Mr. Mohapatra, learned counsel for the State vehemently contends that there are ample materials regarding two relation¬ship between the deceased and the appellant. The statement of P.W.3 under Section 164 Cr.P.C. and the evidence of P.W. 9 is very clear and cogent to the effect that the accused administered poison to the deceased. The chemical examination report shows that Phosphamitol in insecticidal poison was detected on the viscera of the deceased. Therefore, there is no illegality or infirmity committed by the trial Court convicting the appellant under Section 302 I.P.C. 7. Perused the L.C.R. P.W.1 is the father of the deceased. He stated that there was some relationship between the appellant and the deceased when they were reading in the school. His daugh¬ter was conceived due to such relationship. He brought this matter to the knowledge of the villagers as well as the family members of the appellant. Perused the L.C.R. P.W.1 is the father of the deceased. He stated that there was some relationship between the appellant and the deceased when they were reading in the school. His daugh¬ter was conceived due to such relationship. He brought this matter to the knowledge of the villagers as well as the family members of the appellant. A meeting was called and the father of the accused appeared in that meeting. Nothing could be decided in that meeting. On the very date of the meeting which was a Thursday, the appellant and his brother called the deceased. The appellant admitted his guilt, and wanted to take the deceased to his house to keep her as wife. The appellant, his brother and the deceased went to their house together. But next morning his sister Jema informed him that the appellant and his brother had already reached their house, but the deceased had not. Thereaf¬ter, he asked the appellant and searched for the deceased. After 7 to 8 days, he found the dead body of the deceased inside the forest. Thereafter, the F.I.R. was lodged. P.W.2, the mother of the deceased also corroborated the above statement. Nothing has been elicited from their cross-examination by the defence. P.W.3 is the younger brother of the appellant who turned hostile to the prosecution. In the cross-examination by the prosecution, he specifically denied to have made any statement under Section 164 Cr.P.C. which has been marked as Ext. 1. P.Ws. 4, 5 are hostile witnesses. P.W.6 is the Postmaster of the Village. He stated about the meeting held by the villagers. He further stated that the father of the accused agreed to take the deceased to his house and also to arrange a feast. Another date was fixed to leave the girl at the house of the appellant. On the fixed date of meeting, P.W.1 (father of the deceased) came and stated before the Punch that he had allowed the deceased to go with the appel¬lant. Thereafter, P.W.1 gave Handia and liquor. P.W.6 also stated that he scribed the F.I.R. as instructed by P.W.1. P.W.1 carried the F.I.R. to the Police Station. He was also a witness to the inquest. P.W.7 is a villager before whom P.W.1 stated about the relationship between the deceased and the appellant. There was a meeting for it. Thereafter, P.W.1 gave Handia and liquor. P.W.6 also stated that he scribed the F.I.R. as instructed by P.W.1. P.W.1 carried the F.I.R. to the Police Station. He was also a witness to the inquest. P.W.7 is a villager before whom P.W.1 stated about the relationship between the deceased and the appellant. There was a meeting for it. Meeting could not be held on the first date and was adjourned to another date. The father of the deceased came on the scheduled date of meeting and stated that the appellant had already taken away the deceased in the last night. Afterwards, P.W.1 informed him that the deceased did not reach the house of the appellant. The father and brother of the deceased searched for her and found her dead body lying inside the forest 10 days after of the occurrence. P.W.8 is the I.O. who stated that on 04.03.2000, he registered a U.D. Case on the report of P.W.1. Ultimately, the case was converted to a Police case and after investigation, Final form was submitted against the appellant under Section 302 I.P.C. P.W.9 is the doctor who examined the dead body which was decomposed. Basing upon the chemical examina¬tion, he opined that the death was due to poisoning. 8. In the instant case, F.I.R. has not been proved by the informant P.W.1. The evidence of P.W.1 is very clear and cogent to the effect that the appellant and the deceased were together on 24.02.2000 and he found the dead body on 05.03.2000, which was sent for post mortem. In fact, there is no direct material against the appellant that it was he who administered poison to the deceased. The dead body was recovered 8 days after the occur¬rence. Therefore, it can not be said that the appellant and the deceased were together just before the death. The evidence of P.Ws.1 and 2 is only to the effect that they were together 8 days before the occurrence. From this, it cannot be presumed that they were together just before her death and the theory of last seen together cannot be made applicable to this case. 9. Except the circumstance that the deceased was in custo¬dy of the appellant before eight days of recovery of the dead body, nothing is there to implicate the appellant in the crime. From this, it cannot be presumed that they were together just before her death and the theory of last seen together cannot be made applicable to this case. 9. Except the circumstance that the deceased was in custo¬dy of the appellant before eight days of recovery of the dead body, nothing is there to implicate the appellant in the crime. Therefore, the prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubt, the benefit of which must go to the appellant. 10. In view of the discussions made above, the judgment and order of conviction of the appellant is set aside and he is acquitted of the charge. The appellant be set at liberty forth¬with. L. MOHAPATRA, J. I agree. Appeal allowed.