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2009 DIGILAW 872 (ORI)

MANUA GOUDA v. STATE OF ORISSA

2009-11-10

B.P.RAY, L.MOHAPATRA

body2009
JUDGMENT : L. Mohapatra, 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 learned Addl. Sessions Judge, Bhanjanagar, Aska, Bhanjanagar in Sessions Case No. 23 of 1999/(10/99 ADJ-I), has preferred this appeal against the order of conviction and sentence. 2. The deceased is wife of the Appellant. P.W.3, Santosh Kumar Gouda, lodged the F.I.R. before the Officer-in-Charge of Buguda Police Station on 7.5.1998 alleging therein that his sister, Sajani Gouda (deceased) wife of the Appellant died about 1.00 A.M. in the night of 6.5.1998 in her husband's house. He was informed about such death by the Appellant and when he saw the dead body, entertained a doubt and, accordingly, lodged the F.I.R.. Initially an U.D. Case was registered and inquiry was undertaken. In course of inquiry, it was found that the deceased died a homicidal death and, accordingly, investigation was taken up and charge-sheet was filed for commission of offence u/s 302 of the Indian Penal Code. 3. The prosecution in order to prove the charge, examined thirteen witnesses whereas one witness was examined on behalf of the Appellant. The Appellant took a plea that in the night of occurrence, he along with P.W.10 had gone to attend a feast and on his return found the dead body of the deceased. Out of thirteen witnesses examined by the prosecution, P.W.1 is the informant and brother of the deceased. P.W.9 is another brother of the deceased. P.W.2 is stepmother of the Appellant and P.W.4 is mother of the deceased. P. Ws.5 and 7 are two sisters of the deceased and P. Ws.6 and 8 are the paternal uncles of the deceased. P.W.1 is a witness to the inquest and P.W.10 speaks about the death of the deceased having heard from others. P.W.11 is the doctor, who conducted postmortem examination and P. Ws.12 and 13 are the Police Officers involved in the inquiry and investigation of the case. 4. Admittedly, there is no eye witness to the occurrence and the case is based on circumstantial evidence. The trial court on analysis of the evidence found that the Appellant along with his deceased wife was living separately without having any connection with the parents before death of the deceased and that he has failed to prove the plea of alibi taken as defence. The trial court on analysis of the evidence found that the Appellant along with his deceased wife was living separately without having any connection with the parents before death of the deceased and that he has failed to prove the plea of alibi taken as defence. The trial court also found the information given by the Appellant to the relatives of the deceased regarding the reasons for death was found to be false and he being the only person present in the house in the night of occurrence, the burden of proof was on him to explain the circumstances under which the deceased died. On these findings, the Appellant was found guilty of the charge and was convicted thereunder. 5. Shri Sarangi, learned Counsel appearing for the Appellant assailed the impugned judgment on the ground that even accepting the postmortem report and the opinion of the doctor, P.W.11 that the deceased died a homicidal death, there being no eyewitness to the occurrence, it was the duty of the prosecution to prove the chain of circumstances to establish that it is the, Appellant and Appellant alone, who could have committed the alleged offence. According to the learned Counsel, the only material placed by the prosecution before the trial court is that the Appellant informed the relatives of the deceased that the deceased was suffering from loose motion and vomiting whereas the death of the deceased was found to be homicidal by strangulation. There being no other evidence to connect the Appellant with the commission of alleged offence, it was contended on behalf of the Appellant that there is no evidence available against him and, accordingly, he should have been acquitted of the charge. Learned Counsel for the State submitted that evidence on record clearly establish that the Appellant and the deceased were staying together in a separate house and there was none else in the said house when the dead body of the deceased was found. Therefore, it was for the Appellant to explain the circumstances under which the deceased met a homicidal death. According to the learned Counsel for the State, the Appellant having not discharged his onus, the order of conviction is justified. 5. We have carefully perused the F.I.R. and the evidence of witnesses examined in course of trial. Admittedly, there is no eyewitness to the occurrence. P.W.1 is a witness to the inquest and turned hostile. According to the learned Counsel for the State, the Appellant having not discharged his onus, the order of conviction is justified. 5. We have carefully perused the F.I.R. and the evidence of witnesses examined in course of trial. Admittedly, there is no eyewitness to the occurrence. P.W.1 is a witness to the inquest and turned hostile. P.W.2 is step-mother of the Appellant and she has stated in her deposition that four to five days before the date of occurrence, all of them had gone to Puri to perform the Sradha ceremony of the natural mother of the Appellant and in the morning of the night of occurrence, she was told about the death of the deceased. She has further stated that they had no connection with the Appellant or deceased after their marriage. P.W.3 is sister of the deceased and she in her deposition has stated that the Appellant and the deceased had no child and for not being able to beget a child, the deceased was being tortured by the Appellant and the Appellant one day came to their house and informed about the illness of the deceased. When her family members went to the house of the Appellant, they found the deceased lying on the floor of a room with ligature mark on the neck. Suspecting foul play and on failure of the Appellant to explain as to how ligature mark was there on the neck of the deceased, the matter was informed to the police. Similar is the evidence of P.W.4, who is the father of the deceased. The other sister of the deceased, P.W.5 has supported the evidence of P. Ws.3 and 4. P.W.6 is the Uncle of the deceased, who has stated that in the morning they were informed about the death of the deceased and he had been to the house of the Appellant to see the deceased. P.W.7 is another sister of the deceased, who has corroborated the evidence of P. Ws.3 and 4. Similarly, P.W.8, another uncle of the deceased has corroborated the evidence of P.W.6. P.W.9, another sister of the deceased has corroborated the evidence of P. Ws.3 and 4. P.W.10 was declared hostile and P.W.11 is the doctor, who conducted postmortem examination. He was of the opinion that the cause of death was due to asphyxia by strangulation and it was homicidal in nature. P.W.9, another sister of the deceased has corroborated the evidence of P. Ws.3 and 4. P.W.10 was declared hostile and P.W.11 is the doctor, who conducted postmortem examination. He was of the opinion that the cause of death was due to asphyxia by strangulation and it was homicidal in nature. P. Ws.12 and 13 are the Police Officers involved in the inquiry and investigation of the case. 6. On analysis of the entire evidence, it is established that the Appellant and the deceased were staying separately from their parents. In the morning of night of occurrence, the Appellant went to the house of father of the deceased and informed regarding illness of the deceased. He stated before them that the deceased was suffering from loose motion and vomiting. After getting this information from the Appellant, sisters, two uncles and father of the deceased came to the house of the Appellant and found the deceased lying dead with ligature mark on her neck. Suspecting foul play, they informed the police. In course of postmortem examination, the doctor, P.W.11, who conducted postmortem examination, was of the opinion that the death of the deceased was homicidal due to strangulation. Even accepting the evidence of P.W.11 that the deceased died a homicidal death, the only circumstance available against the Appellant is that he had given wrong information to the family members of the deceased by stating that the deceased was suffering from loose motion and vomiting. There is no material whatsoever on record to show that in the night of occurrence the Appellant and the deceased were together in the house of the Appellant. In absence of any material to the above effect, we are of the view that the trial court was not justified In coming to a finding that u/s 106 of the Evidence Act, the burden was on the Appellant to explain the circumstances under which the deceased died. In this connection, reference may be made to a decision of the Apex Court in the case of Subramaniam v. State of Tamil Nadu and Anr. reported in (2009) 43 OCR 591. The Apex Court in the said case observed that when the husband and wife remained within the four walls of a house and death by homicidal takes place, it will be for the husband to explain the circumstances in which she might have died. reported in (2009) 43 OCR 591. The Apex Court in the said case observed that when the husband and wife remained within the four walls of a house and death by homicidal takes place, it will be for the husband to explain the circumstances in which she might have died. The Court further held although the same may be considered to be a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive. Under such circumstances, it may be difficult to arrive at a conclusion that the husband and the husband alone was responsible for the offence. So far as present case is concerned, as stated, there is no iota of evidence to establish that in the night of occurrence both the Appellant was present in the house. Therefore, even accepting that the deceased died a homicidal death, the possibility of somebody else being responsible can not be ruled out. 7. For the reasons stated above, we are of the view that the prosecution has not been able to establish the charge against the Appellant. Accordingly, we allow the appeal and set aside the impugned judgment. Final Result : Allowed