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2017 DIGILAW 963 (ORI)

Podu Sisa v. State of Orissa

2017-08-31

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. The appellant Podu Sisa faced trial in the Court of learned Sessions Judge, Koraput at Jeypore in Criminal Trial No.13 of 2008 for commission of offence punishable under section 302 of the Indian Penal Code on the accusation of committing murder of his wife Phulamati Sisa (hereafter ‘the deceased’) on 15.09.2007 in between 9 p.m. to 10 p.m. at village Charapi. The learned Trial Court vide impugned judgment and order dated 13.05.2009 found the appellant not guilty under section 302 of the Indian Penal Code but found him guilty under section 304 Part-I of the Indian Penal Code and sentenced him to undergo R.I. for a period of seven years. 3. The prosecution case, as per the first information report submitted by P.W.1 Balaram Bhoi is that the deceased married to the appellant about fifteen years prior to the date of occurrence and on 15.09.2007 the father-in-law of the deceased had come to the village of the informant after collecting his old age pension and sometimes thereafter he went to his own village. It is further stated that during the night on that day in between 9.00 p.m. to 10.00 p.m., there was quarrel between the appellant and the deceased for which the appellant assaulted the deceased by means of slaps, kicks and fist blows and also pressed the neck of the deceased as a result of which she died. It is further mentioned in the F.I.R. that there were injury marks on the left side neck of the deceased so also on the left side elbow and all the incident details were stated to the informant by P.W.4 Subasini Sisa. 3. On the basis the first information report lodged by P.W.1 before Inspector in charge of Nandapur Police Station, Nandapur P.S. Case No.79 of 2007 was registered under section 302 of the Indian Penal Code on 16.09.2007. P.W.6 Suleman Ekka, Inspector in charge of Nandapur Police Station took up investigation of the case. He examined the informant and proceeded to the spot and held inquest over the dead body vide inquest report (Ext.2), sent the dead body for post mortem examination, arrested the appellant and sent him to the doctor for collecting his nail clippings. P.W.6 Suleman Ekka, Inspector in charge of Nandapur Police Station took up investigation of the case. He examined the informant and proceeded to the spot and held inquest over the dead body vide inquest report (Ext.2), sent the dead body for post mortem examination, arrested the appellant and sent him to the doctor for collecting his nail clippings. He also seized the saree, saya, blouse, lenguti, a pair of ear rings, nose rings, necklace and bangles of the deceased and prepared a seizure list (Ext.3) and the wearing apparels of the appellant were seized under seizure list (Ext.6). He prepared the spot map and sent the exhibits to the R.F.S.L., Berhampur for chemical analysis and after completion of investigation, on 16.11.2007 he submitted charge sheet under section 302 of the Indian Penal Code against the appellant. 4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 302 of the Indian Penal Code on 01.10.2008 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 5. The defence plea of the appellant is one of denial. 6. During course of trial, the prosecution examined six witnesses. P.W.1 Balaram Bhoi is the younger brother of the deceased and he is the informant in the case. He stated to have heard from P.W.4 about the quarrel between the appellant and the deceased during the night of occurrence and also the deceased lying dead on the next day morning. P.W.1 further stated to have noticed marks of the injuries on the left side neck and left side arm of the deceased. He is witness to the inquest and also took the belongings of the deceased in zima as per zimanama Ext.3. P.W.2 Hadibandhu Khora is the co-villager of the informant and he told about the disclosure made by P.W.4 regarding murder of the deceased by the appellant and he accompanied P.W.1 to the house of the appellant and found the deceased lying dead with injuries on the left arm, left neck and left side waist. P.W.2 Hadibandhu Khora is the co-villager of the informant and he told about the disclosure made by P.W.4 regarding murder of the deceased by the appellant and he accompanied P.W.1 to the house of the appellant and found the deceased lying dead with injuries on the left arm, left neck and left side waist. P.W.3 Smt. Chandrama Hantal stated that she came to the house of the appellant hearing cries and found the dead body lying in the house and the appellant was sitting by the side of the dead body. She was declared hostile by the prosecution. P.W.4 Subasini Sisa did not support the prosecution case for which she was declared hostile. P.W.5 Dr. Chhayakanta Gouda is the Medical Officer, C.H.C., Nandapur who conducted post mortem examination over the dead body and he opined that the cause of death was on account of throttling. P.W.6 Suleman Ekka was the I.I.C. of Nandapur Police Station who is the Investigating Officer in the case. The prosecution exhibited nine documents. Ext.1 is the written report, Ext.2 is the inquest report, Ext.3 is the Zimanama, Ext.4 is the post mortem examination report, Exts.5 and 6 are the seizure lists, Ext.7 is the spot map, Ext.8 is the forwarding letter of the material objects and Ext.9 is the chemical examination report. The prosecution proved eight material objects. M.O.I is the saree, M.O.II is the blouse, M.O.III is the saya, M.O.IV is lenguti of the deceased respectively and M.O.V is the lungi, M.O.VI is the banian, M.O.VII is the sweater and M.O.VIII is the towel of the accused respectively. 7. The learned Trial Court on analysis of the evidence came to hold that the spot being the residential house and the appellant being the only adult member living in that house, the fingers must be pointed towards him and the conduct shown by the appellant is only compatible with a guilty conduct. It was further held that there was no previous strained relationship between the appellant and the deceased and they lived for thirteen years having children and the motive behind commission of the crime is absent. It was further held that there was no previous strained relationship between the appellant and the deceased and they lived for thirteen years having children and the motive behind commission of the crime is absent. It is further held that the intention to commit the crime oscillated between two extreme points of having intention to cause death in view of fracture of hyoid bone or not having intention to cause death but used force to stifle her voice and in view the gaps between the two and bridgeable, no material for commission of offence under section 302 of the Indian Penal Code was found against the appellant, however, he was found guilty under section 304 Part-I of the Indian Penal Code. 8. Mr. Anupam Das, learned counsel appearing for the appellant contended that there are no eye witnesses to the occurrence and the circumstantial evidence appearing on record are also not clinching and since the material witness P.W.4 has turned hostile and there are materials available on record that apart from the appellant, the deceased and their children, the father of the appellant was also living in the said house at the time of occurrence and further material available on record to show that prior to the occurrence, the family was living peacefully, therefore, it cannot be said that the appellant has committed the murder of the deceased. It is further contended that the F.I.R. version is contradicted by the post mortem report findings and as such benefit of doubt should be extended in favour of the appellant. 9. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel on the other hand supported the impugned judgment and submitted that the deceased was in the company of the appellant when the occurrence in question took place and there was quarrel between the two on the previous night and when on the day following, the deceased was found dead and it was a case of throttling, the appellant was bound to explain under what circumstances, the deceased died in view of the provision under section 106 of the Evidence Act and he has failed to discharge his burden and therefore, the learned Trial Court has rightly convicted the appellant under section 304 Part-I of the Indian Penal Code. 10. There are no eye witnesses to the occurrence. 10. There are no eye witnesses to the occurrence. The star witness on behalf of the prosecution was P.W.4 Subasini Sisa but she has not supported the prosecution case. Though P.W.1 and P.W.2 stated that P.W.4 disclosed before them that the appellant killed the deceased but since P.W.4 has stated that she had not seen the dead body and she has not stated to have disclosed anything about the occurrence before P.W.1 or P.W.2, the evidence of P.W.1 and P.W. 2 who had no personal knowledge about the occurrence in that respect is hearsay and will not be admissible being hit under section 60 of the Evidence Act. The evidence of P.W.1 and P.W.2 indicates that when they visited the house of the appellant, they found the dead body of the deceased and they noticed injuries on the left side neck, left arm and they found the neck was twisted. The doctor who has conducted post mortem examination though opined that it is a case of throttling but simultaneously he has stated that there was no nail mark or finger mark found on the neck of the deceased. P.W.1 has stated that the father of the appellant was living in the same house along with the appellant and his family. P.W.2 has also stated that the appellant, deceased, their family and the father of the appellant were living in the same occurrence house and he has further stated that prior to the occurrence the family was living peacefully. P.W.3 has stated that the father of the appellant was also living in the same house but sleeping in the varandah. Therefore, the materials available on record indicate that apart from the appellant, the deceased and their children, the father of the appellant was also residing in the same house. Therefore, it is not a case where the appellant and the deceased were together in the house in question in the night of occurrence and no other person was present there and on the next day, the dead body of the deceased was found and it was a case of throttling rather the material available on records indicates that the father of the appellant was also residing in the same house. Thus the finding of the learned Trial Court that the appellant was the only adult member living in the house is not correct. 11. Thus the finding of the learned Trial Court that the appellant was the only adult member living in the house is not correct. 11. The principle relating to the appreciation of the circumstantial evidence is well settled. Unless the circumstances are fully and cogently established and are of unimpeachable character and all the facts so established are consistent only with the hypothesis of the guilt of the accused and it excludes every other possible hypothesis and the circumstances taken together form an unbroken chain unerringly pointing towards the guilt of the accused, no conviction can be based on such circumstantial evidence. The presence of the appellant at the spot without making any attempt to escape and absence of any motive creates doubt regarding his participation in the crime. Even if it is accepted for the sake of arguments that circumstances whatsoever appearing against the appellant have not been explained by the appellant but mere non-explanation cannot lead to the proof of guilt against the appellant. Suspicion, howsoever, strong cannot take the place of proof and is not enough to justify conviction of the appellant for murder. The learned Trial Court has failed in its duty to properly assess the evidence keeping in view the settled principles of appreciation of a case based on circumstantial evidence. It has proceeded pedantically without making an in-depth analysis of facts and circumstances and the evidence led in the trial and the impugned verdict is a sheer moral conviction. Therefore, the appellant is entitled to benefit of doubt. In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence of the appellant for the offence under section 304 Part I of the Indian Penal Code as assailed in this appeal is hereby set aside. It appears that the appellant was forwarded to the Court after being arrested in connection with this case on 18.09.2007 and since then he was neither released on bail during investigation or trial or pendency of this appeal. Since the sentence imposed is rigorous imprisonment for seven years, it is expected that the appellant must have been released from the custody in the meantime after serving the sentence imposed by the learned Trial Court. However, if he has not been released from custody, he shall be released forthwith if his detention is not otherwise required in any other case.