JUDGMENT By the Bench. - Challenge in this Appeal has been made by the sole appellant Radhika Muduli to the impugned judgment and order dated 13.04.2006 recorded by Additional Sessions Judjge, Malkangiri, in Criminal Trial No.19 of 2003,State of Orissa Versus Radhika Muduli, arising out of C.T. No.219 of 2002 vide G.R. Case No.228 of 2002 of the S.D.J.M., Malkangiri. Learned Trial Judge found the Appellant guilty of offence under Section 302 IPC and consequently has convicted and sentenced her to imprisonment for life. 2.In short, from the material on record and the FIR, it transpires that the appellant has been charged with offence of 302 IPC for committing matricide by murdering her husband Mulia Muduli, the deceased. 3.Prosecution during the trial, examined in all 11 witnesses. P.W. 1 Ghenu Khilla knew both the appellant as well as her husband, deceased-Mulia Muduli. However, he is only a witness of inquest proceedings which was conducted on the cadaver of the deceased and had signed the inquest report, which is Ext.1. 4.P.W. 2, Nanda Dalapati also knew the accused and the deceased as they were spouses. According to him, the incident occurred on a Wednesday day at 2 P.M. The ill-fated day, 17 July, 2002 was a shandy day of the village. P.W. 2 had only seen the dead body of the deceased lying inside the market and the accused standing beside it holding a Tangia in her hand. He does not have any further knowledge about the incidence. This witness was declared hostile by the prosecution and was cross-examined. His statement under Section 161 Cr.P.C. recorded before the Police was confronted, but nothing material came out. During his cross-examination by the witness had deposed that he had arrived at the place of the incident after arrival of the Police and he had seen the appellant holding a Tangia only. At that time, 100-150 people were already gathered at the spot. 5.Coming to the evidence of Pandu Sirgam P.W. 3, he also saw only the dead body of the deceased lying on the ground and the appellant standing nearby. He denied being a witness of the seizure and had deposed that he has signed on a blank paper., During cross-examination, he denied to have been interrogated by the Police during investigation. 5.Coming to the evidence of Pandu Sirgam P.W. 3, he also saw only the dead body of the deceased lying on the ground and the appellant standing nearby. He denied being a witness of the seizure and had deposed that he has signed on a blank paper., During cross-examination, he denied to have been interrogated by the Police during investigation. He further deposed that the Police had arrived at the incident spot in the evening and had asked him to sign on papers, which he had signed. He further deposed that tribal people used to carry Tangia with them while going to shandies (village market). This witness has further evidenced that the accused was crying at the spot and that prior to his (P.W.3) arrival at the spot, he had not seen the accused. 6.Chitrasena Bhumia P.W. 4 is the informant of the incident. Both the deceased and the present appellant are known to him. According to his testimony, he was a Ward Member and the villagers have informed him that the accused had killed her husband, the deceased. As a Ward Member, he had gone to the Police Station and had orally lodged a report, which was taken down by the Police and thereafter he had put his signature. He has proved the said report as Ext.2, which is the F.I.R. of the incident. This witness flatly denied to have seen the incident personally. During cross-examination, the informant had further said that, on reaching at the spot, he had found the appellant crying near the dead body. P.W. 2 and P.W. 3 had arrived after him at the scene of the incident. Rama Chandra Dalapati P,.W,.5 had turned hostile and had deposed only this much that he had seen the dead body of the deceased and the accused was crying near the dead body. He had not seen any weapon of offence with the appellant. Prosecution after declaring this witness hostile has cross-examined him, but nothing material could be elicited from his testimony. During cross-examination by the prosecution, this witness has completely denied 161 Cr.P.C. statement, which he has given to the Police. 7.Biswanath Dora P.W. 6 has found the dead body of the deceased lying on the way and the accused was found standing holding a Tangia. He does not have any further knowledge about the incident. During cross-examination by the prosecution, this witness has completely denied 161 Cr.P.C. statement, which he has given to the Police. 7.Biswanath Dora P.W. 6 has found the dead body of the deceased lying on the way and the accused was found standing holding a Tangia. He does not have any further knowledge about the incident. He confirmed that, to the Police, he had not stated that he had found the accused standing near the dead body of her husband holding a Tangia, although he knew the accused prior to the incident. By the time, P.W. 6 had arrived at the spot, the accused was detained by the two Gramarakhies near the dead body. There was a big gathering of hundred people near the spot. The accused had not divulged anything before this witness. 8.Dr. Sashi Bhusan Mohapatra, P.W. 7 had conducted autopsy on the cadaver of the deceased on 18.07.2002 and had noted following injuries:- “One incised wound over right side neck just below right ear 2” away from mandible and upwads 3 ½” x ¼”x 1 c.m. caused by sharp cutting weapon and grievous in nature. A sternocleido mastoid muscle is cut subsequently carotaid artery and carotaid vein. The injury was ante mortem in nature and sufficient to cause death in ordinary course of nature. Cause of death was hemorrhagic shock. The time since death was within 48 hours. Ext. 3 lis my report with Ext.3/1 my signature therein.” Doctor has further evidenced that sternocleido mastoid muscle was cut subsequently to carotaid artery and carotaid vein. The injury was ante mortem in nature and sufficient in ordinary course of nature to cause death, which had occurred due to hemorrhagic shock. Forty-eight hours had lapsed since the deceased had demised. Autopsy report of the deceased is Ext.3. 9.Debasaran Gand P.W. 8 had denied acquaintance with the accused as well as knowledge about the incident. He only stated that on being asked by the Police, he had signed on a paper,. Prosecution has not declared him to be hostile and therefore, so far as this witness is concerned, his evidence is of no value in judging the guilt of the accused. So is the case with another witness, Joseph Bagh, who is P.W. 9. He also denied acquaintance with the accused as well as any fact concerning the incident. Not being declared hostile, his evidence is also valueless. So is the case with another witness, Joseph Bagh, who is P.W. 9. He also denied acquaintance with the accused as well as any fact concerning the incident. Not being declared hostile, his evidence is also valueless. 10.Debendra Narayan Dash P.W. 10 was the O.I.C. Orkel P.S. on 18.07.2002. On that day, he took the charge of the investigation of the case from A.S.I. Sri Amrendra Mishra P.W. 11. He examined some witnesses, seized wearing apparels of the deceased, received post mortem examination report, made query from the doctor regarding weapon of assault, recovered axe to be weapon of assault, and thereafter, he has handed over the investigation to Y. J. Rao, C.I. of Police, Orkel on 18.08.2002.Ext. 4 is the seizure list prepared by this witness concerning the apparels of the deceased. 11.Amarendra Mishra P.W. 11 is the last prosecution witness. According to his deposition, on 17.07.2002, he was attached to Orkel P.S. as A.S.I. At 5 PM on the said date, Chitrasena Bhumia P.W. 4, a resident of village Maheswarpur, PS Orkel had orally reported the incident to him which he had reduced in writing vide Ext.2 and this was treated to be an FIR. He had got the signature of the informant on the FIR. He being the first I.O., has further testified that during course of investigation, he has examined the informant and the witnesses, who had informed them that on 17.07.2002, a Wednesday, near village Hat, at about 1.30 PM, this accused had given a Tangia blow to her husband, the deceased and, after giving Tangia blow, with blood stained Tangia in her hand, she was going away through Guma road and that the informant had seen the deceased lying in a pool of blood on the ground in a very critical condition. The deceased was alive by that time and the lady was standing with blood stains all over her body. When enquired from the appellant, according to the informant, that the appellant divulged her name as Radhika Muduli and the name of her husband, and also informant that both of them were residents of village Karakaguda. The deceased was alive by that time and the lady was standing with blood stains all over her body. When enquired from the appellant, according to the informant, that the appellant divulged her name as Radhika Muduli and the name of her husband, and also informant that both of them were residents of village Karakaguda. P.W. 4, the informant, had further informed P.W. 11, the first I.O., that the appellant had stated before P.W. 4 that they had come from village about 8 AM and after performing witchcraft at village Padaraguda, both of them had consumed Pendom (an intoxication offered as Prasad) and then they had gone for sharpening the Tangia which the appellant had brought and thereafter the deceased demanded Rs.20/- to consume liquor which initially was denied by the appellant, but the deceased forcibly snatched away Rs.20/- from her and thereafter he consumed the intoxication and returned back to the incident place. Appellant then demanded money from him, but there was a scuffle between the appellant and the deceased. Appellant further confessed before the informant that the deceased caught hold of her tuff and started beating her. At this point of time, the appellant snatched away the Tangia from his shoulder and gave a Tangia blow, which resulted in profuse bleeding, as the same had caused injury on the neck of the deceased and thereafter, the injured tramped to some distance, but subsequently fell down on the road. The appellant was sitting by the side of the dead body of the deceased, while P.W. 4 was making enquiries from her. The deceased lost the battle of his life and expired. Tangia, the alleged weapon of assault was seized, which is MO-I and the seizure list in that respect of Ext. 5. Constable No.219 TG.D. Kirsani and Gramarakshies P.Ghadei and Sonu Khila were commanded by the I.O. to guard the dead body. After visiting the spot, the I.O. issued command certificate Ext.6 and prepared spot map Ext.7; blood stained earth and sample earth were seized vide seizure memo Ext.8.The accused was also examined and her wearing apparels were seized following day of the incident through lady constable. The accused was dispatched for collection of her nail clipping and blood samples to Medical Officer, Balimela. Seizure memo of wearing apparels of the accused is Ext. 9 and apparels are MO-II having blood stains. The accused was dispatched for collection of her nail clipping and blood samples to Medical Officer, Balimela. Seizure memo of wearing apparels of the accused is Ext. 9 and apparels are MO-II having blood stains. Deceased’s wearing apparels were seized vide Ext.4 and the material exhibit of the said clothes is MO-III. MO-IV is the blood stained blouse worn by the accused. Inquest on the cadaver of the deceased was conducted and an inquest Memo Ext. 1 was slated down. At 10 AM on 18.07.2002, the dead body was dispatched for post-mortem examination through Challan Ext. 10. After arresting the accused, he was forwarded to the magistrate on the said date, i.e. 18.07l.2002. At 2 PM on the same day, this witness had passed on the investigation to the second I.O. During cross-examination, the 1st I.O./P.W.11 has confirmed that it was mentioned in the FIR that the deceased was catching hold of the neck of the accused and had given her two slaps. Rest of the cross-examination is not material for our purposes, and therefore, for the sake of convenience, we eschew in recording it as it will only burgeon the judgment without any further importance. However, we may note that the I.O. has said that he has not seized the weapon of offence from Radhika Muduli, the present appellant. 12.Learned trial Judge found the prosecution version established against the appellant and therefore has convicted and sentenced her as has already been recorded in the opening paragraph of this judgment and therefore we desist from repeating the same. 13.In view of the facts as slated above, that we have heard Mrs. P. Mohanty, the learned counsel for the appellant and Sri L. Samantaray, learned Standing counsel for the State. It is submitted by the Counsel for the appellant that the entire evidence of all the witnesses taken together, there is no eyewitness account about the incident. The entire case rests upon circumstantial evidence and the circumstances of being present at the spot holding a blood stained Tangia does not establish the crime, as the appellant being a wife, if had found her husband to be murdered by some body, it was but natural for her to pick up the Tangia so that she can soothe her husband. There can be many hypotheses in the facts given by the prosecution witnesses and therefore the prosecution has miserably failed to bring home the charge. 14.Learned Standing Counsel argues to the contrary. 15.Our examination of the record and a critical scrutiny into the merits of the matter leads us to conclude that, in fact, there is no evidence against the appellant to connect her with the crime. The entire prosecution version, as has been recorded by the learned trial Judge, hinges upon the statement of the first I.O. P.W. 11. To say the least, P.W. 11 has narrated nothing than what was stated to him by the informant, who had received information from the appellant. In such a view, whatever the informant PW-4 had told to the I.O. was hearsay of the worst kind totally inadmissible. The trial Judge could not have looked into that evidence at all. Informant-PW-4 has no personal knowledge about the incident. Taking what has been told to the informant by the appellant, which in turn, was told to the I.O., could not have been a basis for convicting the appellant, inasmuch as in the course of the trial the appellant had completely denied having given such a statement to the informant. At least two of the witnesses have deposed before the Court that they had found the appellant weeping at the spot. This is the circumstance favourable to the appellant, inasmuch as being a wife, her conduct seems to be very natural. Nobody has seen the assault on the deceased. Otherwise also, we find that the statement of the appellant, if treated to be a confession made to the informant, is taken into consideration, the fact is that it does not disclose an offence of murder. In an inebriated condition, the deceased had fought with the appellant and had caught hold off her by neck. In that, the appellant had given a Tangia blow after snatching Tangia from the shoulder of her deceased husband. The crime, therefore, by no stretch of prudent examination, will travel the periphery of Section 304 Part-II and nothing more than that. The appellant has remained in Jail for more than 14 years, as she is said to be in incarceration since 17.07.2002. That in our view is good enough. The crime, therefore, by no stretch of prudent examination, will travel the periphery of Section 304 Part-II and nothing more than that. The appellant has remained in Jail for more than 14 years, as she is said to be in incarceration since 17.07.2002. That in our view is good enough. 16.Our analysis therefore leads us to conclude that the impugned judgment convicting the appellant for the charge of murder cannot be sustained at all. Treating the statement by the appellant to be a confession made to the informant PW-4, we hereby alter the conviction of the appellant from 302 IPC to 304 Part-II IPC and since she has already undergone 14 years of imprisonment, in our opinion, the imprisonment already undergone by her, will meet the ends of justice. 17.Concluding our analysis and wrapping of this judgment, we allow the appeal in part, set aside appellant’s conviction under 302 IPC with sentence of life imprisonment and instead, convict her under Section 304 Part-II and sentence her to the period of imprisonment already undergone by her. 18.Appellant is confined in Jail. She is directed to be set at liberty forthwith unless her incarceration in Jail is desired in connection with any other crime. Let a copy of the judgment be intimated to the learned trial Judge as well as the learned Jail Superintendent concerned. Appeal allowed in part.