Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 832 (ORI)

Hari Tiriya v. State of Orissa

2010-12-06

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT This appeal is directed against the judgment and order dated 22.8.2005 passed by the learned Additional Sessions Judge, Talcher in S.T. Case No.8 of 2004 convicting the appellant for commission of offence under Section 302 of the Indian INDIAN PENAL CODE (in short ‘I.P.C.’) and sentencing him to imprisonment for life. 2.The case of the prosecution as revealed from the F.I.R. and the evidence produced before the trial Court is that on 22.9.2003, P.W.1 the informant, who is the Grama Rakhi of the village submitted a written report before P.W.11 alleging therein that at about 10 A.M. he was informed that the appellant has killed his wife and has concealed the dead body in his house. He along with the sister and brother-in-law of the appellant went to the spot and came to know that on the previous day at about 4 P.M. the appellant and the deceased had together gone to the house of the sister of the appellant to bring their daughter Sumitra and in relation to that issue, there was a quarrel between the appellant and deceased and they came back home. At about 8 P.M., the appellant went to his sister’s house and informed that the deceased is lying on the road. Thereafter the dead body of the deceased was brought to the house of the sister of the appellant in the early morning and again it was brought to the house of the appellant. It is further alleged that in view of the quarrel between the appellant and deceased on the previous day, the appellant had killed his wife by means of a Tangia which he was holding. On the basis of such allegations, the F.I.R. having been registered for commission of offence under Section 302 of the I.P.C., investigation was taken up and charge-sheet was filled for commission of the said offence. The plea of the appellant is complete denial of the entire prosecution case and false implication. The further plea of the appellant was that in the night previous to the date of occurrence he and the deceased were returning from Rohila in a drunken state and the deceased fell in a ditch inside Majhi jungle and became senseless. He called his sister from the village and brought the deceased back to his house but the deceased had sustained swelling injuries on her left face near left ear. He called his sister from the village and brought the deceased back to his house but the deceased had sustained swelling injuries on her left face near left ear. 3.The prosecution in order to prove the charge, examined 11 witnesses. P.W.1 is the informant and P.W.8 is the sister of the appellant. Though P.W.8 had been examined to prove extra judicial confession made before her, she turned hostile. Similarly, P.W.2 was also examined to prove extra judicial confession made by the appellant, but he also turned hostile. P.W.3 is a witness to the seizure of nail clippings of the appellant and the wearing apparels of the deceased and P.W.4 has scribed the F.I.R. P.W.5 is a witness to the inquest but he turned hostile. Like P.W.3, P.W.6 is also a witness to the seizure. P.W.9 is the Doctor, who conducted the postmortem examination and P.Ws.10 and 11 are the police officers, who had undertaken the investigation. The trial Court on the basis of the evidence of P.W.9 found the death of the deceased homicidal and considering the circumstances in which death of the deceased occurred, found the appellant guilty of the charge and convicted him thereunder. 4.Challenging the impugned judgment, it was contended by the learned counsel appearing for the appellant that there is no legal evidence available on record to sustain the order of conviction. The material witnesses having turned hostile, there is no circumstance for convicting the appellant. The learned counsel for the State relied on certain circumstances to support the findings of the learned trial Court. 5.We have carefully examined the evidence of all the witnesses examined in course of trial. P.W.1 is a Grama Rakhi and he is also the informant in this case. In his deposition he has stated that on the date of occurrence while coming to Khamar P.S. in connection with another case, he heard cries in the house of the appellant. When he enquired about the same, the sister of the appellant informed that the wife of the appellant had died. He found the dead body of the deceased lying in the house of the appellant. He thereafter asked the nephew of the appellant as to why the dead body has not been disposed of and the nephew of the appellant expressed that he did not know as to whether the deceased died in a natural death or she was killed. He found the dead body of the deceased lying in the house of the appellant. He thereafter asked the nephew of the appellant as to why the dead body has not been disposed of and the nephew of the appellant expressed that he did not know as to whether the deceased died in a natural death or she was killed. At about 5 P.M., the O.I.C. Khamara P.S. came to the house of the appellant and he submitted the written report before the Police Station. There is nothing more in the evidence of P.W.1. P.W.2 is the nephew of the appellant and the deceased. Though this witness turned hostile in examination-in-chief, he stated that the appellant had confessed to have killed his wife. However, this statement on which much reliance is placed by the learned counsel for the State is not admissible considering the fact that the said statement had been made in presence of police. The evidence of P.W.2 clearly shows that he had been to the house of the appellant when police arrived and thereafter the appellant confessed to have killed his wife. Such confession having been made in presence of police is not admissible in evidence. Similar is the evidence of P.W.8, who was examined to prove the extra judicial confession. She happens to be the sister of the appellant. She turned hostile and did not support the case of the prosecution. P.Ws.3, 5, 6 and 7 are the seizure witnesses and P.W.5 turned hostile in course of trial. P.W.4 had scribed the F.I.R. as per the instruction of P.W.1. P.W.9 is the doctor, who conducted the postmortem examination and found three abrasions and three incised wounds on the body of the deceased. The cause of death according to P.W.9 was due to hypovolemic shock because of severe bleeding. He was also of the opinion that all the injuries were ante mortem in nature and are sufficient to cause death in ordinary course. P.Ws.10 and 11 are the investigating officers. P.W.11 had seized the nail clippings of the appellant and the wearing apparels of the deceased. He has also stated that the appellant while in custody gave recovery of the weapon of offence. But the above statement of the I.O. is not supported by any of the witnesses. P.Ws.10 and 11 are the investigating officers. P.W.11 had seized the nail clippings of the appellant and the wearing apparels of the deceased. He has also stated that the appellant while in custody gave recovery of the weapon of offence. But the above statement of the I.O. is not supported by any of the witnesses. On Examination of the entire evidence, we find that though the prosecution relied on the evidence of P.Ws.2 and 8 to prove the extra judicial confession, both the witnesses turned hostile and did not support the case of the prosecution. There is no other evidence on record to connect the appellant with the alleged occurrence. Even if the evidence of the I.O. in relation to seizure of the weapon of offence at the instance of the appellant is accepted, on the basis of one circumstance, the order of conviction cannot be sustained. There being no evidence against the appellant, the impugned judgment is liable to be set aside. 6.We accordingly allow the appeal and set aside the impugned judgment passed by the learned Additional Sessions Judge, Talcher in S.T. Case No.8 of 2004 convicting the appellant under Section 302 of the Indian INDIAN PENAL CODE. Since the appellant-Hari Tiriya is in custody, he be set at liberty forthwith unless his detention is required in any other case. Appeal allowed.