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Orissa High Court · body

2010 DIGILAW 579 (ORI)

Bholanath Naik v. State of Orissa

2010-08-18

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT This appeal is directed against the judgment and order of the learned Second Addl.Sessions Judge, Puri in S.T. Case No.7/26 of 1998 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (in short ‘IPC’) and sen¬tencing him to imprisonment for life. The appellant stood charged for commission of offence under Sections 302 and 498(A) of IPC on the allegation that he commit¬ted murder of his wife, Suma Naik and also subjected her to cruelty and harassment till her death in connection with demand of dowry. 2. Case of the prosecution is that marriage between the appellant and deceased was performed according to Hindu rites and custom ten years prior to the date of occurrence. At the time of marriage, dowry had been given by the parents of the deceased and after the marriage, when the couple did not have any child, it is alleged that the appellant started ill-treating the deceased. The prosecution also alleged that at times the deceased used to send information to her parents and on getting information, the in¬formant, P.W.8 or his father accompanied by some gentlemen used to visit the house of the appellant to settle the matter. On 17.4.1997 at about 5 P.M., P.W.8 came to know from his co-villages that a dead body is floating in river Prachi. He along with some villagers went to river Prachi and found a dead body floating. The dead body was identified to be that of the de¬ceased. Thereafter, P.W.8 lodged the F.I.R. before P.W.10, on the basis of which, investigation was taken up and charge sheet was filed for commission of offence under Sections 302 and 498(A) of IPC. 3. The prosecution examined eleven witnesses, out of whom, P.Ws.1, 2, 5 and 6 are related to the deceased. P.Ws.7 and 8 are the mother and brother of the deceased respectively. P.Ws.3 and 4 are the co-villagers and P.Ws.9 and 10 are the Investigating Officers. P.W.11 is the Medical Officer, who conducted the post¬mortem examination. The defence plea was complete denial of the prosecution case. 4. The appellant denied the dead body found floating in river Prachi to be that of the deceased. There being no direct evidence with regard to death of the deceased, the prosecution relied upon circumstantial evidence. P.W.11 is the Medical Officer, who conducted the post¬mortem examination. The defence plea was complete denial of the prosecution case. 4. The appellant denied the dead body found floating in river Prachi to be that of the deceased. There being no direct evidence with regard to death of the deceased, the prosecution relied upon circumstantial evidence. The trial Court found that the deceased had been subjected to cruelty prior to her death and that the dead body, which was found floating in the river Prachi, was that of the deceased. The extra judicial confession made by the appellant before P.W.2 was taken to be another circumstance against the appellant. The Court also accepted the evidence of P.W.5 to the extent that the appellant had requested this witness to help for a compromise in the matter of death of his wife as a circumstance against the appellant. Basing on these circumstan¬tial evidence, the trial Court found the appellant guilty of offence under Section 320 of IPC and convicted him thereunder. So far as offence under Section 498(A) is concerned, the appellant was acquitted of the charge. 5. Shri Pani, learned counsel appearing for the appellant drew attention of the Court to the evidence of P.W.2 and submitted that though this witness alleges that the appellant made an extra judicial confession before him, the evidence of this witness is not corroborated by other witnesses. Relying on the evidence of P.W.6, learned counsel for the appellant also submitted that the deceased was missing from 14th onwards and only on 17th of April, the dead body of the deceased was found. Since the deceased was missing from 14th from the house of the appellant and three days after, the dead body was found, in absence of any other material to connect the appellant with commission of the alleged offence, the trial Court could not have convicted the appellant for commission of offence under Section 302 of IPC. Learned counsel for the State placed much reliance on the evidence of P.Ws.2 and 5 to support the finding of the trial Court that in view of the extra judicial confession made by the appellant as well as the request made to P.W.5 that the said witness should help the appellant for compromise clearly indicate involvement of the appellant in commission of offence. 6. Admittedly, there is no eyewitness to the occurrence. 6. Admittedly, there is no eyewitness to the occurrence. P.W.8 is the brother of the deceased and is also the informant. He is a post occurrence witness and has no knowledge how the deceased died. The prosecution relied on evidence of P.W.2 before whom, it is alleged that the appellant made an extra judicial confession. This witness, in his deposition, has stated that after getting information from the villagers that the deceased had been assaulted by the appellant and her dead body was found from the river, he went to the house of the appellant and on being questioned, the appellant stated that while assaulting, the deceased died. Though this witness has further stated that P.Ws. 4, 5 and 9 had accompanied him to the house of the appellant, surprisingly all the aforesaid three witnesses are completely silent about any such extra judicial confession. Under these circumstances, it is difficult to accept the evidence of P.W.2 that the appellant had made an extra judicial confession before him. The statement of other witness on which reliance is placed by the prosecution is P.W.5. This witness has stated that after getting information about death of the deceased, on the next date of occurrence when he had gone to attend to call of nature, the appellant told him to compromise the case with regard to death of his wife. This witness is a cousin brother of the deceased but he did not disclose this fact to any one and for the first time, he disclosed the same during his examination by the police. Therefore, much reliance cannot be placed on such statement. On the other hand, the evidence of P.W.6 shows that on 14.4.1997, P.W.8 met him and said that the deceased was not available in her house. He advised him to search for the deceased in her rela¬tion’s house. On 17.4.1997, P.W.8 informed him that the dead body of the deceased was floating in river Prachi. From the evidence of this witness, it is clear that from 14th till 17th the de¬ceased was not in the house of the appellant and was missing. Therefore, the “last seen theory” as applied by the trial Court is of no avail to the prosecution. From the evidence of this witness, it is clear that from 14th till 17th the de¬ceased was not in the house of the appellant and was missing. Therefore, the “last seen theory” as applied by the trial Court is of no avail to the prosecution. On overall analysis of the evidence adduced by the prosecution, we find that the only piece of evidence available against the appellant is the evidence of P.W.5 who stated that while attending call of nature, the appel¬lant had requested him for a compromise. 7. Law is well settled that when the prosecution relies on circumstantial evidence it must prove the chain of circumstances pointing at the guilt of the accused and the Court must be satis¬fied that the circumstances proved by the prosecution as such, leaves no room to entertain a doubt about involvement of the accused in commission of offence. This is a case where the prose¬cution has utterly failed to establish the circumstance in order to point at the guilt of the appellant. 8. We, accordingly allow the appeal and set aside the judgment and order of the trial Court convicting the appellant for commission of offence under Section 302 of IPC. The appellant, who is stated to be on bail, be discharged of the bail bond in the present case. Appeal allowed.