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2012 DIGILAW 9 (ORI)

Sonia Muduli v. State of Orissa

2012-01-04

B.K.PATEL, L.MOHAPATRA

body2012
JUDGMENT L. MOHAPAT.RA, J. – This appeal is directed against the judgment and order dated 10.3.2003 passed by the learned Ad hoc Additional Sessions Judge, Jeypore in Criminal Trial No.50 of 2002/S.C. 67/01 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (for short 'the 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 of the witnesses examined during trial is that the deceased is the wife of the appellant. On 7.5.2000 the daughter of the appellant namely, Jamuna (P.W.4) came to the house of her uncle Basu (P.W.3) and reported that her mother, the deceased is lying dead in the house. P.W.3 along with others, immediately came to the house of the appellant and found the deceased lying dead inside the room with bleeding injury on her neck. On their enquiry, the appellant disclosed before them that the deceased used to quarrel and go frequently to her parents house and on that night also she quarrelled with the appellant and was proceeding to her parent's house. The appellant therefore got annoyed and killed her. Thereafter, P.W.3 along with his brother went to the police Station where the oral report was reduced into writing and the case was registered. After completion of investigation, charge sheet was filed against the appellant for commission of offence under Section 302 of the I.P.C. 3. The prosecution in order to prove the charge examined twelve witnesses. Out of the twelve witnesses examined on behalf of the prosecution, P.W.1 was the Ward Member at the time of occurrence and he is a post occurrence witness. P.W.2 is also a post occurrence witness and both P.Ws.1 and 2 have stated about the extra judicial confession made by the appellant. P.W.3 is the informant and the brother of the appellant. He is also a post occurrence witness. P.W.4 is the daughter of the appellant and the deceased and she informed about the death of her mother to P.W.3. P.W.5 is a witness to seizure. P.Ws.6 and 7 are witnesses to recovery of weapon of offence. P.W.7 being the brother of the deceased also came to the house of tile deceased after the occurrence took place. P.W.8 is the constable who accompanied the dead body for post mortem examination. P.W.5 is a witness to seizure. P.Ws.6 and 7 are witnesses to recovery of weapon of offence. P.W.7 being the brother of the deceased also came to the house of tile deceased after the occurrence took place. P.W.8 is the constable who accompanied the dead body for post mortem examination. P.W.9 is the doctor who examined the appellant on police requisition. P.W.10 is a witness to seizure under Ext. 7. P.W.11 is another doctor who conducted post mortem examination over the dead body of the deceased and P.W.12 is the investigating officer. The plea of defence is denial of the prosecution case. It also appears that the appellant took the plea of insanity during the period of occurrence. The trial Court in absence of any direct evidence found the appellant guilty of the charge basing upon the circumstantial evidence. 4. Learned counsel for the appellant assails the impugned judgment on the ground that the so-called extra judicial confession made by the appellant in presence of the police cannot be accepted under law. It is contended by the learned counsel for the appellant that the evidence of the prosecution witnesses clearly established that the appellant was insane prior to the incident and on the date of the occurrence also he was behaving like an insane person. It is also evident from the evidence that the appellant was being treated for his insanity and accordingly, he should have been given the benefit of Section 84 of the I.P.C. The learned counsel for the State, on the other hand, relies on certain circumstances to support the findings of the trial Court. 5. Undisputedly, twelve witnesses have been examined on behalf of the prosecution to prove the charge. P.W.1 at the relevant time was the Ward Member of the village. He came to the house of the appellant having been informed about the incident by P.W.3 and found the deceased lying inside the house. A dibiri lamp was burning nearby and the appellant was sitting near the head of the deceased. On his enquiry, the appellant disclosed to have killed his wife. Similarly, P.W.2 also having been informed by P.W.3 came to the house of the appellant, saw the deceased lying dead and has also stated that on his enquiry, the appellant disclosed before him to have killed his wife. P.W.3 is the informant and the brother of the appellant. On his enquiry, the appellant disclosed to have killed his wife. Similarly, P.W.2 also having been informed by P.W.3 came to the house of the appellant, saw the deceased lying dead and has also stated that on his enquiry, the appellant disclosed before him to have killed his wife. P.W.3 is the informant and the brother of the appellant. He has stated that the deceased used to quarrel with her husband-appellant and was frequently going away to her parents house. On the night of occurrence P.W.4, the daughter of the appellant and the deceased, informed him at about 11 P.M. about the incident whereafter he went to the appellant's house and found the deceased lying dead and the appellant was sitting there. Thereafter, he called P.W.1 and other villagers. He went to the police station along with his brother Rathi and orally reported about the incident in the police station which was reduced into writing. P.W.4 is the daughter of the appellant and the deceased. She deposed that in the night of occurrence she got up and found that her mother lying dead with bleeding injury. She also saw her father, the appellant, sitting nearby the dead body of the deceased. Thereafter, she informed about the incident to her uncle P.W.3. P.W.6 is a co-villager who came to the house of the appellant and found presence of the police. In presence of the police, the appellant gave recovery of a tangia from the inner room of his house in his presence. P.W.7 is the brother of the deceased in whose presence the tangia was recovered. P.W.11 is the doctor who conducted post mortem examination and found three incised wounds and one abrasion on the lateral side of left side over superior orbital margin on the forehead of the deceased. Out of the three incised wounds, one was on the right scapula, another was on the base of the brain and the other was on left side little below the shoulder on the left side of back. He was of the opinion that the cause of death of the deceased was due to injury to the vital organ, spinal cord below the occiput cutting into two halves. He was also opinion that all the injuries were ante mortem in nature and the death was homicidal. On enquiry, he also opined that the injuries could be possible by tangia. He was also opinion that all the injuries were ante mortem in nature and the death was homicidal. On enquiry, he also opined that the injuries could be possible by tangia. The evidence of all these witnesses establish the following circumstances: (i) The appellant was found sitting near the deceased when P.W.4 got up. She was also found near the deceased when P.W.3 and others came to the house of the appellant after receiving information about the incident; and (ii) The appellant while in police custody gave recovery of the tangia. The chemical examination report shows that wearing apparels were stained with human blood of 'B' group which matches to the blood group of the deceased. As against such circumstantial evidence available against the appellant, the plea of insanity taken by the appellant has to be also taken into consideration. P.W.1 in course of his cross-examination has stated that the appellant was behaving like insane person on two to three occasions. He had been taken to a Disari (village priest) for treatment of his insanity. The insanity was continuing for one to two days. At that time, the appellant used to go away to the forest and pelt stones if any body goes near him. At times during insanity he was becoming naked. P.W.2 has also stated in cross-examination that the appellant was once behaving like an insane person. P.W.3 has also stated in cross-examination that the appellant was insane on three occasions, At times, he became naked during insanity and went to the forest. He had taken the appellant to the Disari and Gunia for treatment of insanity. P.W.7, who is the brother of the deceased has also stated in his cross-examination that the appellant was behaving like insane person on two occasions. He has also stated that when he went to the house of the appellant after the occurrence, he found the appellant tied in a rope and he was not telling anything. On the suggestion of the defence counsel, he admitted that the appellant was answering like an insane person. The evidence of these witnesses clearly establish that the appellant was behaving like an insane person earlier and from the evidence P.W.7, it also appears that on the date of occurrence the appellant was behaving like insane person. On the suggestion of the defence counsel, he admitted that the appellant was answering like an insane person. The evidence of these witnesses clearly establish that the appellant was behaving like an insane person earlier and from the evidence P.W.7, it also appears that on the date of occurrence the appellant was behaving like insane person. From the evidence of above witnesses, the following facts are also established: (i) The appellant did not run away from the house after incident and was found sitting near the head of the deceased; and (ii) He had not opened his mouth till the police came to his house. He only made a statement after arrival of the police. 7. In this connection, reference be made to the decisions of this Court in the case of Ajaya Mahakud v. State reported in 1993 CRI.L.J. 1201. On consideration of the facts of the case at hand, the Court was of the view that the appellant did not show consciousness of his guilt by acts like running away from the scene, or trying to avoid detection. He did not offer any false excuse or make any false statements, when arrested. Therefore, the Court granted protection to the said appellant under Section 84 of the I.P.C. In the case of Raghu Pradhan v. State of Orissa reported in 1993 CRI. L.J. 1159, protection under Section 84 of the I.P.C. was also granted, considering absence of motive, deliberation and preparation, desire for concealment, conduct after commission of the crime showing consciousness of guilt and effort to avoid detection, offer of excuse of making statements which are false and conduct before, at the time and after the commission of offence. 8. In the present case, as stated earlier, the appellant was behaving like insane person on certain occasions and was being treated for such insanity. As per the statement of P.W.7, the brother of the deceased, on the date of occurrence the appellant was behaving like an insane person. He did not run away from the spot after the incident and did not make any false excuse. There was no motive or deliberation and preparation for commission of the alleged offence. Considering all the facts, we are satisfied that the protection under Section 84 of the I.P.C. is to be extended to the appellant. 9. He did not run away from the spot after the incident and did not make any false excuse. There was no motive or deliberation and preparation for commission of the alleged offence. Considering all the facts, we are satisfied that the protection under Section 84 of the I.P.C. is to be extended to the appellant. 9. For the reasons stated above, we allow the appeal, set aside the judgment and order dated 10.3.2003 passed by the learned Ad hoc Addl. Sessions Judge, Jeypore in Criminal Trial No.50 of 2002/S.C. 67/01 of Addl. S.J./S.C. 237 of 2000 of Sessions Judge convicting the appellant for commission of offence under Section 302 of the I.P.C. and sentencing him to undergo imprisonment for life. 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, Sonia Muduli, be set at liberty forthwith, unless his detention is required in connection with any other case. B.K. PATEL, J. I agree. Appeal allowed.