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2009 DIGILAW 798 (ORI)

LAKHINATH KHILLA v. STATE OF ORISSA

2009-10-15

A.S.NAIDU, L.K.MISHRA

body2009
JUDGMENT : A.S. Naidu, J. - The judgment passed by learned Addl. Sessions Judge, Malkangiri in Sessions Case No. 11/2001/S.C. No. 3/2001 convicting the Appellant u/s 302 IPC and sentencing him to under go imprisonment for life is assailed in this appeal. 2. The prosecution was set to motion on the basis of an F.I.R. filed by P.W.1 alleging that on 25th October, 1998 Chandrama Khilla, who happens to be the sister of P.W.1 complained that her husband had assaulted her brutally, consequently she was suffering pain all over her body. After hearing the said fact the informant along with Ors. took Chandrama to Khairput Hospital where she was given an injection. Unfortunately after some time she expired. 3. On the basis of the F.I.R. Mundiguda P.S. Case No. 37/ 1998 was registered and investigation was carried by the Police. In course of investigation the I.O. visited the spot, examined witnesses, seized the wearing apparels and other material objects, conducted inquest over the dead body, sent the same for post mortem and after arresting the accused persons and completing investigation submitted charge sheet in the Court of learned S.D.J.M., Malkangiri in G.R. Case No. 412/1998. Learned S.D.J.M. after verifying the police records and on being satisfied that a prima facie case is made out, took cognizance of the offence and committed the case for trial. 4. The plea of the accused was of complete denial. In order to substantiate their case the prosecution got examined eleven witnesses and exhibited several documents. The weapon of offence was marked as M.O.I. On behalf of the defence, no witness was examined. P.W.1 was the informant and the sister of the deceased, P.Ws.2 and 3 are co-villagers, who happen to be eye witnesses to the occurrence, P. Ws.4 and 5 are also co-villagers before whom the deceased stated the fact that her husband had assaulted her, P.W.6 was the scribe of the F.I.R. (Ext.1), P.W.7 was the Constable who was engaged in investigation, P.Ws.8 and 9 were the villagers, but then they did not support the prosecution, P.W.10 was the I.O. and P.W.11 was the Medical Officer, who conducted autopsy. 5. Learned Addl. 5. Learned Addl. Sessions Judge after discussing the evidence, both oral and documentary, in extenso arrived at a conclusion that the prosecution was successful in establishing the fact that the accused had assaulted the wife and thereby committed an offence punishable u/s 302 IPC, consequently he was found guilty and was convicted. The said judgment is assailed by the Appellant, who is in custody, mainly on the ground that learned Addl. Sessions Judge has not properly appreciated the evidence and the reasonings are based on mere surmises and conjectures. It is further submitted that there is no direct evidence to connect the accused with the alleged offence and it is a fit case where the order of conviction should be set aside. 6. The aforesaid submissions are strongly repudiated by learned Counsel for the State. Learned Addl. Government Advocate relying upon the evidence of P.Ws.3 and 4, the eye witnesses, and other witnesses, who have corroborated the statements coupled with the medical evidence, submitted that enough materials are available on record to reveal that the death was caused due to the assault given by the husband and as such the Addl. Sessions Judge has rightly convicted the accused. 7. Heard learned Counsel for the parties at length and perused the evidence meticulously. It is admitted that the deceased was the wife of the accused and on the given date due to certain family quarrel the deceased accused-husband picked up a wooden stick and gave a push to the abdomen of his wife. This aspect of the case is well established from the evidence of P.Ws.3 and 4, who claim to be eye witnesses. Prosecution had not produced any other evidence to reveal that except the aforesaid single push given by the accused on the abdomen of his wife any other injury was caused by him. 8. The medical evidence also reveals that the cause of death was due to shock and internal haemorrhage which corresponds to rupture of the liver. The Post Mortem report reveals some simple injuries on the head and on the face, but then the said injuries cannot be attributed to the accused in the absence of any evidence. 9. After going through the entire evidence and the reasonings given by learned Addl. The Post Mortem report reveals some simple injuries on the head and on the face, but then the said injuries cannot be attributed to the accused in the absence of any evidence. 9. After going through the entire evidence and the reasonings given by learned Addl. Sessions Judge, we are satisfied that due to the push given by the accused on the abdomen of his wife the later suffered from pain and succumbed to the said injuries which caused rupture of the liver. In view of the aforesaid analysis, we do not find any infirmity in the conclusions arrived at by the learned Addl. Sessions Judge, but then fact remains that the relationship between the accused and the deceased was that of husband and wife, who are tribals and posses volatile sentiments. It appears that in course of household quarrel, the husband in a heat of passion picked up a stick and gave one push on the abdomen of his wife. Unfortunately the same proved to be fatal. From the aforesaid fact it can be safely presumed that the accused had no intention to murder his wife, on the other hand, without any premeditation he had given a push by a piece of wood which was available at the spot, on the abdomen of his wife. The incident in question took place in the year 1994. It is submitted that the accused is in custody for about seven years. 10. Considering all these facts, we feel that ends of justice and equity will be better served if the conviction u/s 302 IPC is set aside and instead the accused is convicted u/s 304 Part-ll IPC and we direct accordingly. Further we sentenced the Appellant to the period of imprisonment already undergone by him. The accused-Appellant be set at liberty forthwith if his detention is not required in any other case. With the aforesaid modification, the JCRL is disposed of. L.K. Mishra, J. 11. I agree.