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2010 DIGILAW 870 (ORI)

Premasila Kumbhar v. State of Orissa

2010-12-24

B.K.NAYAK, PRADIP MOHANTY

body2010
JUDGMENT PRADIP MOHANTY, J.— The appellant having been convicted under Section 302, IPC and sentenced to undergo imprisonment for life by the learned Additional Sessions Judge, Sonepur in Sessions Case No.45/11 of 1998-1999 has preferred this appeal from jail. 2.Appellant is the wife of Muturu Kumbhar, mother of the deceased Mita Kumbhar and daughter-in-law of the informant Teva Kumbhar. The case of the prosecution is that on 17.08.1998 Muturu Kumbhar (the husband of the appellant) and his eldest daughter were absent from house. In that night, the informant, her other two sons and her mother-in-law took their dinner but the appellant did not take her dinner. After dinner, while the informant, her sons Mana (P.W.2) and Sesa and her mother-in-law slept in the verandah of their house, the appellant with her daughter (deceased) slept in the dhaba house (ceiling room). In the next morning, the appellant got up from her bed and told the informant, her mother-in-law and her other family members that somebody had taken away the right hand of her daughter and she was lying motionless on the cot. The informant, her mother-in-law and sons rushed into the room. They saw the daughter of the appellant lying dead on the cot and her right hand below the elbow joint was detached and was missing. On 18.08.1998, informant Teva Kumbhar (P.W.1) along with her sons P.W.2 and Sesa went to Binka Police Station where she lodged an oral report which was reduced to writing by the O.I.C. (P.W.7). On the basis of the report, the I.O. went to the house of the appellant along with the witnesses and found there in the Dhaba house the dead body of Mita Kumbhar (deceased) lying on the cot with a number of injuries on her person. He held inquest over the dead body, sent the same to C.H.C., Binka for autopsy. He also recovered the severed hand of the deceased from the ‘Fuli’ (a hole in the wall of the house where articles are kept) at the instance of the appellant only after her arrest. On completion of investigation he submitted charge-sheet against the appellant. 3.The plea of the appellant was a complete denial of the prosecution case and her specific plea was that the severed hand was not recovered and seized by the police at her instance. On completion of investigation he submitted charge-sheet against the appellant. 3.The plea of the appellant was a complete denial of the prosecution case and her specific plea was that the severed hand was not recovered and seized by the police at her instance. 4.In order to prove its case, the prosecution examined as many as eight witnesses including the doctor and the I.O. and exhibited nineteen documents. The defence examined none. 5.Learned Addl. Sessions Judge, Sonepur, who tried the case, by his judgment dated 23.12.1999 convicted and sentenced the appellant as stated hereinbefore basing upon the circumstantial evidence. 6.Mr. Nayak, learned counsel appearing for the appellant assails the impugned judgment inter alia on the following grounds : (i)There is no direct evidence against the appellant to convict her under the aforesaid section; (ii)the leading to discovery has not been proved by the prosecution; (iii)motive or intention behind the crime has not been proved by the prosecution; and (iv)P.Ws.1 and 2, who are respectively mother-in-law and brother-in-law of the appellant, so also other family members although slept on the verandah closer to the Dhaba room where the appellant and her deceased daughter had slept, but none of them stated to have heard the crying of the deceased when her right hand was chopped off and subsequently she was killed by strangulation. 7.Mr. Mohanty, learned Additional Standing Counsel vehemently contended that both the deceased and the appellant were sleeping together on a cot and others were sleeping on the verandah. In the early morning, the appellant disclosed before P.W.1 and other family members that the right hand of her daughter (deceased) was missing from her elbow joint. She also further disclosed that her daughter was motionless. Then P.W.1 went inside the Dhaba house and saw the dead body. Thereafter, the appellant while in police custody confessed her guilt and also produced the severed hand of the deceased. All the M.Os. including the sickle were seized from the house of the appellant from where the dead body was recovered. The doctor (P.W.8), who conducted autopsy over the dead body of the deceased, specifically opined that the death of the deceased was due to asphyxia as a result of strangulation and injury to right upper limb that resulted in severe haemorrhage. The chain of circumstances has been completed by the prosecution. The doctor (P.W.8), who conducted autopsy over the dead body of the deceased, specifically opined that the death of the deceased was due to asphyxia as a result of strangulation and injury to right upper limb that resulted in severe haemorrhage. The chain of circumstances has been completed by the prosecution. Therefore, there is no illegality or infirmity committed by the trial Court in convicting the appellant under Section 302, IPC. 8.Perused the L.C.R. P.W.1 is the mother-in-law of the appellant. She deposed that on the occurrence night her second son and her mother-in-law after taking their usual dinner slept in their house. The deceased and the appellant slept inside the Dhaba house and all others slept near the door of the said house. In the next morning, the appellant told that the right hand of her daughter (deceased) was missing from her elbow joint and she was also motionless. Then, P.W.1 along with P.W.2 and others went inside the room and saw the deceased lying there on a cot and her right hand from elbow joint was missing. Thereafter, she searched the room and found that a sickle was lying on the cot along with one steel glass and a stick. While other inmates were crying, at that time the appellant went up to the Dhaba house and while she was making attempt to jump down to the ground in order to escape, the persons present there caught hold of her. Thereafter, she proceeded to Binka P.S. along with her son (P.W.2) and nephew Podha to lodge a report. She narrated the incident orally to the police which was reduced to writing. After recording, the contents of the report was read over and explained to her whereafter she put her thumb impression. In cross-examination, she admitted that she had not seen the appellant killing the deceased and also had not even heard the crying sound of the deceased. She further stated that the appellant was not interested to stay in her house and used to go to her father’s place. P.W.2, the brother-in-law (Diar) of the appellant, has corroborated the evidence of P.W.1 in material particular. He, however, admitted in cross-examination that he had not seen the appellant killing the deceased and also had not heard the crying of the deceased at the time when her right hand was chopped off. P.W.2, the brother-in-law (Diar) of the appellant, has corroborated the evidence of P.W.1 in material particular. He, however, admitted in cross-examination that he had not seen the appellant killing the deceased and also had not heard the crying of the deceased at the time when her right hand was chopped off. He was sleeping on the verandah of his house which would be about 2 to 3 cubits away from the room where the appellant and the deceased were sleeping. P.W.3 is a witness to the seizure of a ‘Pata’ of the cot, sickle, one steel glass, one bamboo stick and one blanket vide seizure lists Exts. 2 and 3. He has proved the said seizure lists and his signature thereon marked Ext.2/1 and Ext.3/1. P.W.4 is a co-villager of the appellant. He deposed that on being asked by police babu the appellant confessed to have killed the deceased by chopping off her right hand below the elbow with a sickle and the appellant also produced the chopped off hand of the deceased before the police which she had concealed in the ‘Fuli’ of the wall of the house wrapped with a piece of yellow cloth. The police seized the said severed hand of the deceased along with the piece of cloth and prepared the seizure list (Ext.4) in his presence. He is also a witness to the seizure of articles vide Exts.3 and 5. He proved Exts.3, 4 and 5 and his signatures appearing thereon marked Exts.3/2, 4/1 and 5/1. In cross-examination, he admitted that police babu recorded the confessional statement of the appellant in the manner she had confessed before him her guilt and that on the same day the appellant was arrested by the police. P.W.5 is another co-villager who corroborated the evidence of P.W.4. P.W.6 was the police constable at the relevant time attached to Binka Police Station. He is a witness to the inquest. P.W.7, the Investigating Officer, deposed that he reduced the oral report of P.W.1 to writing, registered the case, sent the dead body of the deceased for autopsy, arrested the accused, recorded her confessional statement (Ext.13) in presence of P.Ws.4 and 5, sent the seized articles for chemical examination and on completion of investigation submitted charge-sheet against the accused. In cross-examination, he admitted that the house of the accused consisted of three rooms which were not fitted with doors. In cross-examination, he admitted that the house of the accused consisted of three rooms which were not fitted with doors. Nila Kumbhar was sleeping on the night of occurrence covering verandah and a portion of the house where the accused was sleeping on a cot with the deceased. The distance in between Nila and the accused was five feet. P.W.8 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries : (i)there was absence of right fore-arm which was severed below the elbow 1 ½” from cubital line with lacerations of vessels and muscles exposing two bones of (ulna and radius) which were cut slightly obliquely with irregular margin. The skin margin of wound was irregular and tissues were deeply stained with presence of blood clots. The injury was ante mortem in nature; (ii)one bruise with abrasion of size 2" x 1" on right side of cheek; (iii)multiple small abrasion on right pinna; (iv)one linear crescentic abrasion on the right side of the thyroid cartilage of neck with presence of subcutaneous haemorrhage on dissection. (v)two linear abrasion 3" length present adjacent equally and obliquely on the nape of the neck; (vi)one bruise with abrasion of size ½” X ½ present on ½” lateral to lateral angle of the left eye; (vii)both the lips were swollen with presence of multiple bruises and abrasions; and (viii)small abrasion on the upper part left calf. The cut detached right fore-arm was placed in closed apposition and found the flexor and extension muscles of right fore-arm are identical. Cut end of ulnar and radial arteries were identical on both the sides. The cut ends of bones were identical on both the sides. The dimension and contour of palms, fingers, wrists of both limbs were identical. The detached right fore arm from above signs appeared to have belonged of the same of the right upper limb of the female aged two years. He opined that injury No.1 was grievous in nature and all other injuries were simple. The death of the deceased was due to asphyxia as a result of strangulation and injury to right upper limb was due to severe haemorrhage. On police requisition he examined the sickle (M.O.II) and one bamboo stick (M.O.III) and had opined that by M.O.II injury No.1 was possible. The death of the deceased was due to asphyxia as a result of strangulation and injury to right upper limb was due to severe haemorrhage. On police requisition he examined the sickle (M.O.II) and one bamboo stick (M.O.III) and had opined that by M.O.II injury No.1 was possible. He collected the nail clippings of the appellant and sent to O.I.C., Binka P.S. for their chemical examination. In cross-examination he specifically stated that the victim girl must have cried before her right hand was detached by means of the sickle (M.O.II). He further admitted that she might have cried loudly when her right hand was being cut by M.O.II. 9.On careful scanning of the evidence, it is found that the entire case is based upon circumstantial evidence. None had seen the occurrence or even heard the crying of the deceased, even though the informant and other family members were sleeping near the scene of occurrence. Ext.13 does not contain the signatures of the witnesses, i.e., P.Ws.4 and 5 in whose presence it was said to have been recorded by the I.O. The I.O. himself admitted in his cross-examination that he had not obtained the signatures of P.Ws.4 and 5 in Ext.13. The I.O. in his evidence has not stated a single word about the leading to discovery. A bare reading of the evidence of P.W.7, the I.O, and the evidence of P.Ws.4 and 5 would show that Ext.13 is a confessional statement, which is inadmissible. For the aforesaid infirmities, it cannot be accepted that the appellant led to discovery under Sections 27 of the Evidence Act. The Statement cannot be used as an incriminating material against the appellant. The only evidence available against the appellant is that she was sleeping in the ‘dhaba’ house with the deceased in the night of occurrence. But according to P.W.1 and P.W.7 (I.O.) all the three rooms of the house were not fitted with doors and Nila (mother-in-law of the informant P.W.1) was sleeping in the night of occurrence covering verandah and a portion of the house where the accused and the deceased were sleeping. The distance between Nila and the appellant was five feet. The other witnesses were sleeping at a distance of eight feet from the appellant. The distance between Nila and the appellant was five feet. The other witnesses were sleeping at a distance of eight feet from the appellant. But none of the witnesses heard the cry of the deceased, even though the doctor (P.W.8) in cross-examination deposed that the victim must have cried before her right hand was detached by means of M.O.II. In the face of the above evidence, it is not possible to arrive at a conclusion that the appellant is the author of the crime. It has been held by the Apex Court in Babu Singh, etc. v. State of Punjab, 1964 (1) Crl.L.J. 566 that in a criminal trial, the presumption of innocence is a principle of cardinal importance and so guilt of the accused must in every case be proved beyond a reasonable doubt. Probabilities, however strong, and suspicion however grave, can never take the place of proof. Therefore, this Court feels that benefit of doubt should be extended to the appellant. 10.In view of the above, the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No.45/11 of 1998-1999 is set aside. The appellant is acquitted of the charge. She be set at liberty forth with if her detention is not required in connection with any other case. B.K. NAYAK, J.I agree. Appeal allowed.