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2012 DIGILAW 30 (ORI)

Rabi Majhi v. State of Orissa

2012-01-17

B.K.PATEL, L.MOHAPATRA

body2012
JUDGMENT L. MOHAPATRA, J 1. The appellant has been convicted for commission of offence under Section 302 of the Indian Penal Code (in short 'IPC') for committing murder of his wife-Bilanga Majhi and has been sentenced to imprisonment for life by the learned Sessions Judge, Sundargarh in S.T. No.238 of 1997. 2. Case of the prosecution is that prior to the occurrence, the appellant was picking up quarrel with the deceased and was assaulting her On 17.7.1937 morning, P.W.6 was going to bring water from a tube-well and heard some unusual sound coming from the house of the appellant. She informed about the same to Khedu Majhi, P.W.12, who is father of the deceased. The daughter of the appellant and the deceased namely, Sanjita Majhi P.W.5, had stayed in the house of her uncle in the previous night and had gone to the house of appellant in the morning. She found the door closed and peeped through the window. She saw her mother lying dead. Accordingly, she also informed P.W.12 about the said fact. Thereafter, P W.12, the informant, along with others went to the house of the appellant and found the deceased lying dead with cut injuries on her neck and head. They also found the appellant lying in an unconscious state with an aluminium wire around his neck. Thereafter, P.W.2, who is brother of the deceased, lodged the FIR. On the basis of the FIR, investigation was taken up and ultimately charge sheet was submitted against the appellant for commission of offence under Section 302 of IPC. 3. The prosecution in order to bring home the charge examined twelve witnesses, out of whom, P.Ws. 3, 4, 6, 7, 8 and 9 turned hostile. P.W. is one of the brothers of the deceased and is a witness to the inquest. P.W.2 is a post occurrence witness and had lodged the FIR. P.W.5 is the daughter of the appellant and deceased and she is also a post occurrence witness. P.W.12 is father of the deceased and is also a post occurrence witness. P.W 10 is the doctor who examined the appellant on police requisition and P.W.11 is another doctor, who conducted the post mortem examination. P.W.13 is the I.O. The plea of defence was complete denial of the prosecution allegation and the further plea taken by the appellant in his statement under Section 313 Cr. P.W 10 is the doctor who examined the appellant on police requisition and P.W.11 is another doctor, who conducted the post mortem examination. P.W.13 is the I.O. The plea of defence was complete denial of the prosecution allegation and the further plea taken by the appellant in his statement under Section 313 Cr. P.C. is that in the night of occurrence, when he and the deceased were sleeping, two unknown persons entered into the house, killed the deceased by means of a Paniki and also tried to kill him by means of an aluminum wire and he became senseless. In order to prove the above plea one witness was examined by defence. The trial Court in absence of any direct evidence found the appellant guilty of the charge on circumstantial evidence such as:- (1) The appellant was always quarrelling with the deceased prior to the incident. (2) The appellant was found inside the room where the deceased lying dead. 4. Learned counsel appearing for the appellant assailed the impugned judgment on the ground that door of the house in which both of the appellant and deceased were sleeping was open and had not been closed from inside. There was nobody else in the house exc8f.H the appellant and deceased. By the time the witnesses got information about death of the deceased and went to the house of the appellant it not only the deceased was found lying dead but also the appellant ill a unconscious state with an aluminium wire around his neck. It was therefore contended by the learned counsel for the appellant that the plea of defence that two unknown persons entered into the house in the night, committed the murder of the deceased and also attempted to commit murder of the appellant cannot be ruled out. Learned counsel for the appellant also contended that the circumstances proved by the prosecution as held by the Trial Court do not conclusively point at the guilty of the appellant and when a different view can be taken, the benefit of doubt must be extended to the appellant. Learned counsel for the State relied on the evidence of post occurrence witnesses and the medical evidence to support the findings arrived at by the Trial Court. 5. Undisputedly, out of thirteen witnesses examined on behalf of prosecution, six turned hostile and did not support the case of the prosecution. Learned counsel for the State relied on the evidence of post occurrence witnesses and the medical evidence to support the findings arrived at by the Trial Court. 5. Undisputedly, out of thirteen witnesses examined on behalf of prosecution, six turned hostile and did not support the case of the prosecution. The only other witnesses on which Trial Court relied upon are P.Ws. 1, 2, 5 and 12 apart from the official witnesses P W.1 is the brother of the deceased and he came to the house of the appellant in the morning after receiving information that the deceased had load. He found the dead body lying in the house of the appellant and he is a witness to the inquest. P.W.2 is another brother of the deceased, who lodged the FIR orally when the police visited the place of occurrence He is also a post occurrence witness. He has stated that the appellant being drunk used to assault the deceased. On the date of occurrence, early in the morning, daughter of the deceased had come to his house and informed that that appellant has killed the deceased. Receiving this information, the along with his father P.W.12 went to the house of the appellant. He further stated that in the previous evening the appellant had created trouble with the deceased for which their daughter had taken shelter in his house. He also stated that when they reached the house of the appellant, they not only found the deceased lying dead but also found the appellant lying in an unconscious state with an aluminium wire around his neck. One knife and a paniki stained with blood were also lying on the ground. Though this witness had orally informed about the incident to the police, his evidence in cross-examination in this regard is worth consideration. He stated in his cross-examination that before going to the police station, they telephoned first and thereafter went to the Police Station. In the mean time the police reached the village. After returning from the police station, he orally reported to the police but the contents of the FIR were not read over and explained to him. He also signed on the FIR two days after. In the mean time the police reached the village. After returning from the police station, he orally reported to the police but the contents of the FIR were not read over and explained to him. He also signed on the FIR two days after. He has stated that though he first went to the police station, he did not lodge the FIR and after returning to the village, he orally reported about the incident to the police. P.W.5 is the daughter of the appellant and deceased. She has stated that in the previous evening she was assaulted by the appellant for which she fled away from the house of P.W.2. On the next day morning at about 7 A.M. when he reached her house, she found the door closed and, accordingly, peeped through the window. She noticed her mother lying dead in the room with bleeding over her neck and also found the appellant inside the house. Thereafter, she came to her uncle's house and informed about the incident. In cross-examination, she has also stated that she had also noticed an aluminium wire around on the neck of the appellant. The other witness on whom reliance is placed by the prosecution is P.W.12, who is father of the deceased. He is also a post occurrence witness and has corroborated the evidence of P.Ws. 2 and 5 to the extent that when they visited the house of the appellant in the morning, they found the deceased lying dead inside the room. He has stated that he saw the appellant sitting nearby wire an aluminum wire around his neck. 6. On analysis of the evidence of P.Ws. 1, 2, 5 and 12, it appears that when these witnesses visited the house of the appellant they found the deceased lying dead in a pool of blood with injuries on her neck. They also found the appellant inside the house and according to P.Ws.2 and 5 they found the appellant in an unconscious state with aluminium wire around his neck. P.W.2 also stated that a knife and Paniki stained with blood were lying there. Therefore, from the evidence of these witnesses, the prosecution has been able to prove that the appellant was in the house when the occurrence took place. 7. P.W.10 is the doctor, who examined the appellant on police requisition. P.W.2 also stated that a knife and Paniki stained with blood were lying there. Therefore, from the evidence of these witnesses, the prosecution has been able to prove that the appellant was in the house when the occurrence took place. 7. P.W.10 is the doctor, who examined the appellant on police requisition. He found one well defined double narrow ligature mark present around the neck at the level of thyroid cartilage and one ligature mark completely encircling the neck. He also found a superficial lacerated wound present on the throat of the appellant. P.W.10 nowhere stated that the injuries found on the neck of the appellant could be self inflicted. From the evidence of P.W.13, the I.O., it appears that the appellant was treated as an indoor patient in Sundargarh Hospital from 17.7.1997 to 22.7.1997. The injury found on the neck of the appellant has not been explained by the prosecution at all. Attempt was made by the prosecution to prove that after killing the deceased the appellant tried to commit , suicide but the witnesses turned hostile and did not support the case of the prosecution in that regard. From the evidence of P.W.11, it is clear that the deceased died a homicidal death and from the evidence of P.Ws. 2, 5 and 12 it also appears that the appellant was with the deceased in the previous night in the house. From the evidence of P.W.12, It appears that by the time they visited the house of the appellant, the door was open and the appellant was also found inside the house in an unconscious state with an aluminium wire around his neck. 8. Considering the fact that the door was open in the night and there is no evidence to Show that the injuries sustained by the appellant could be self inflicted, possibility of somebody else entering into the room and committing crime as stated by the appellant in his statement under Section 313 Cr. P.C. cannot be ruled out. 9. On consideration of such evidence, a doubt arises in the mind as to whether the appellant committed the murder of the deceased or some body else entered in the room in the fateful night and committed murder of the deceased and at the same time attempted to commit murder of the appellant. P.C. cannot be ruled out. 9. On consideration of such evidence, a doubt arises in the mind as to whether the appellant committed the murder of the deceased or some body else entered in the room in the fateful night and committed murder of the deceased and at the same time attempted to commit murder of the appellant. We are therefore of the view that benefit of doubt must be extended to the appellant. 10. We accordingly allow the appeal and set aside the impugned judgment and order dated 8.9.2000 passed by the learned Sessions Judge, Sundargarh in S.T. No.238 of 1997 convicting/the appellant-Rabi Majhi for commission of offence under Section 302 IPC. The appellant is acquitted of the said charge. It is stated at the bar that the appellant is in custody. If that be so, the appellant be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed.