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2009 DIGILAW 97 (ORI)

SHYAMADEV MANGARAJ v. STATE OF ORISSA

2009-02-03

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT : L. Mohapatra, J. - The Appellant having been convicted for commission of offence u/s 302 of the Indian Penal Code (in short 'IPC') and sentenced to undergo imprisonment for life by the learned Additional Sessions Judge, Khurda in S.T. Case No. 49/512 of 1996, has preferred this appeal. 2. The case of the prosecution as revealed from the F.I.R. is that the deceased was the daughter of one Trilochan Das and the said Trilochan Das had three daughters and one son. The deceased being the eldest one, her marriage was fixed with Kamadeb Mangaraj, who is brother of the Appellant in the year 1992. The marriage was fixed to 5th May 1992. On 4th May 1992, when the family members of the deceased arrived in the house of the said Kamadeb Mangaraj, he escaped from the house and refused to marry the deceased on the ground that he was in love with the sister-in-law of his sister. However, the matter was taken up at the level of the senior members of both the families and it was decided that the deceased would be given marriage with the present Appellant, who was the younger brother of Kamadeb Mangaraj. In pursuance of such decision, the marriage took place and both the Appellant and deceased lived happily for a period of two to three years. It is alleged in the F.I.R. that in the year 1995, Kamadeb Mangaraj got married to Mamata with whom he had affair. Kamadeb was working in Angul and the Appellant was also staying in Angul. Both of them used to go to the village on certain occasions. It is alleged in the F.I.R. that the Appellant developed illicit relationship with Mamata, the wife of his elder brother Kamadeb Mangaraj, for which there was a dissension between the Appellant and his wife. The Appellant had come to village to appear in the H.S.C. Examination as an ex-regular student four days prior to the incident. On 23.4.1995, informant-P.W.7 and others were informed by P.W.2 that the deceased was serious. Thereafter, they immediately proceeded to the house of the Appellant where the deceased lying dead on the verandah. Suspecting foul play, F.I.R. was lodged. On the basis of the allegation made in the F.I.R., case was registered, investigation was undertaken and on completion of investigation, chargesheet was submitted for commission of offence u/s 302 IPC only against the Appellant. Thereafter, they immediately proceeded to the house of the Appellant where the deceased lying dead on the verandah. Suspecting foul play, F.I.R. was lodged. On the basis of the allegation made in the F.I.R., case was registered, investigation was undertaken and on completion of investigation, chargesheet was submitted for commission of offence u/s 302 IPC only against the Appellant. 3. The prosecution in order to prove the charge, examined as many as ten witnesses but none was examined on behalf of the Appellant. The plea of Appellant was complete denial of the prosecution case and he pleaded innocence. Out of ten witnesses examined on behalf of prosecution, P.W.7 is the informant and is related to the deceased as brother. P.W.9 is the I.O. and P.W.3 is the doctor, who conducted postmortem examination. P.W.1 is the Executive Magistrate in whose presence inquest was conducted and P.W.2 is Barber, who participated in the marriage between the deceased and Appellant. P.W.4 is a witness to seizure of some papers from the house of the father of the deceased. P.W.5 is a staff nurse of Khurda Hospital and is a witness to inquest report. P.Ws.6, 7 and 8 are the relatives of the deceased. P.W.10 is the younger sister of the deceased, who handed over the letters written by the deceased to the police for seizure. The trial Court on analysis of the evidence adduced before it, found the Appellant guilty of the charge and convicted him thereunder. 4. The learned Counsel for the Appellant referring to the evidence adduced before the trial Court, assails the impugned judgment on the ground that there being no eyewitness to the occurrence, the prosecution relies only on circumstantial evidence. According to the learned Counsel for the Appellant, the relatives of the deceased admit that there was good relationship between the deceased and Appellant and they were pulling on well for about three years from the date of their marriage. The marriage having taken place in the year 1992 and the death having occurred in the year 1995, it can be safely presumed that both the Appellant and deceased were pulling on well till death of the deceased and, therefore, in absence of any other circumstance pointing at the guilty of the Appellant, the order of conviction is unsustainable. The marriage having taken place in the year 1992 and the death having occurred in the year 1995, it can be safely presumed that both the Appellant and deceased were pulling on well till death of the deceased and, therefore, in absence of any other circumstance pointing at the guilty of the Appellant, the order of conviction is unsustainable. Learned Counsel for the State submitted that the evidence of the relations of the deceased clearly show that the deceased was tortured and was killed in the matrimonial house. There is also evidence to show that the Appellant was present in the village on the date of occurrence and the medical report supports the case of the prosecution that the deceased was subjected to physical torture and thereafter she was killed by pressing her neck. In view of such circumstantial evidence available on record, according to the learned Counsel for the State, this Court may not interfere with the impugned judgment. 5. On analysis of the evidence adduced before the trial Court, we find it is an admitted fact that there was marriage between the deceased and Appellant in the year 1992. P.W.2, Barbar has supported this part of story of the prosecution. There is also no dispute that the deceased died in her matrimonial house. P.W.3 is the doctor, who conducted postmortem examination and found some abrasions and three linear bruises on the body of the deceased and was of the opinion that the cause of death is asphyxia. Therefore, accepting the evidence of P.W.3, we hold that the death of the deceased is homicidal one. The question that comes up for consideration is as to whether the circumstances proved by the prosecution are enough to hold that it is the Appellant and Appellant alone who could have killed the deceased. In this connection, evidence of relatives of the deceased will be material. P.W.6 is uncle of the deceased. He, in his deposition, has stated that there was some demand of dowry at the time of marriage and at a later stage also there was a demand of cash of Rs. 4000/- and he has stated in his evidence that the deceased once told him that she had been tortured by the Appellant for balance dowry amount. Similar is the evidence of P.W.7, who is the informant and had been adopted by father of the deceased. 4000/- and he has stated in his evidence that the deceased once told him that she had been tortured by the Appellant for balance dowry amount. Similar is the evidence of P.W.7, who is the informant and had been adopted by father of the deceased. P.W.8 is the father of the deceased, who was also stated about such demand and torture. P.W.10 is the younger sister of the deceased, who handed over the letters written by the deceased to the police for seizure. In the F.I.R. it is stated that after marriage, the deceased and Appellant were pulling on well. Though P.Ws.6, 7 and 8 speaks about demand of dowry and torture, neither charge-sheet has been submitted for those offences nor any charge was framed by the trial Court. The only charge being u/s 302 IPC, the Court is called upon to see what are the circumstances which implicate the Appellant as the author of the crime. On analysis of the evidence of these witnesses, we find that the prosecution has been able to prove the following the circumstances: (i) It was suspected that the Appellant had developed the illicit relationship with the wife of the elder brother. (ii) The Appellant was available in the village on the date of occurrence. (iii) The deceased died in her matrimonial house. These three circumstances even accepted, do not point at the guilty of the Appellant considering the fact that the other relatives of the Appellant were also staying in the house and, therefore, it cannot be said that it is the Appellant and Appellant alone, who could have committed this crime. 6. From the letters exhibited in course of trial, we find that in Ext.13 the deceased has informed her mother that she was well in her matrimonial house. Even in the F.I.R it is stated that both of them were pulling on well after three years of marriage. We are, therefore of the view that the prosecution has failed to establish the complete chain of circumstances pointing at the guilty of the Appellant and, accordingly the trial Court committed an error by convicting the Appellant for commission of offence u/s 302 IPC. We, accordingly allow the appeal and set aside the impugned judgment. Pradip Mohanty, J. 7. I agree. Final Result : Allowed