D.Dash, J
1.  The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 28th October, 2011 passed
by the learned Sessions Judge, Balesore in Sessions Trial No.43 of 2011 arising out of C.T. No.1496 of 2010 Judicial Magistrate First Class
(J.M.F.C.), Basta.
The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short,
‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life.
2. PROSECUTION CASE:-
On 09.09.2010 during mid-day, one Babuli Ram (Informant-P.W.1) was working in his paddy field. He got an information that this accused, who
happens to be his younger brother, had killed his wife, namely, Lulu Ram by means of a Kata (locally known as ‘Dauli’). Having received such
information, Babuli (Informant-P.W.1) immediately rushed to the spot and saw this accused sitting on the Verandah holding the Dauli in his hand when
his wife was found lying dead in a pool of blood. Babuli (Informant-P.W.1) then ascertained from his wife that around 12.30 p.m., the accused
inflicted Dauli blows on his wife. Babuli (Informant-P.W.1) immediately lodged the written report with the Inspector-in-Charge of Basta P.S., he
treated the same as F.I.R. (Ext.1/1) and upon registration of the case, took up the investigation.
3. The Investigating Officer (I.O.-P.W.4), in course of the investigation, examined the informant (P.W.1) and other  inquest over the dead body in
presence of the witnesses and prepared the report (Ext.3). He sent the dead body of Padma for  post mortem examination by issuing necessary
requisition. The I.O. (P.W.4) seized the weapon of offence, i.e., Dauli (M.O.I). under seizure list (Ext.2/1). The sample earth, blood stained earth
 and wearing apparels of the deceased were seized under seizure  list (Ext.5). The seized incriminating articles were sent for
 chemical examination through Court. On completion of  investigation, the Final Form was submitted placing this accused  to face
the Trial for commission of the offence under section  302/201 of the IPC.
 4. Learned J.M.F.C., Basta, on receipt of the Final Form, took  cognizance of the said offence and after observing the formalities committed the
case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against the accused.
 5. The prosecution, in support of its case, has examined in total five (5) witnesses during Trial. Out of them, the informant, who happens to be the
elder brother of the accuses, is P.W.1. P.Ws.2 & 3 are the hostile witnesses. P.W.4 is the I.O. of the case. The Doctor, who had conducted the post
mortem examination over the dead body of the deceased is P.W.5.witnesses the prosecution has also proved several documents which have been
admitted in evidence and marked Exts.1 to 8. Out of those, the important are, the FIR (Ext.1/1), the inquest report (Ext.3), the post mortem report
(Ext.7) and the chemical examiner’s report had been admitted in evidence and marked Ext.6.
7. The accused has taken the plea of complete denial and false implication. He, however, has stated during his examination under section 313 Cr.P.C.
that he has no idea as to how his wife died as he was not present at home at the relevant time and had a good term with his wife.
8. Mr. S.K. Mishra, learned Senior Advocate for the Appellant (accused) submitted that there being absolutely no evidence to establish that the
accused had inflicted the kata blows on the deceased, which had led to her death, the Trial Court has completely erred in holding the accused to be the
author of said injuries causing the death of his wife. He submitted that even if it is accepted for a moment that the accused was found sitting by the
side of the dead body, which was then lying on the Verandah of the house holding a kata; that itself is not enough to conclude that it was the accused,
who, had done the deceased to death by inflicting injuries on her by that kata when the accused, in his stated to be not present at the relevant time of
the incident wherein his wife received those injuries. He, therefore, submitted  that the judgment of conviction and order of sentence impugned in
this Appeal are liable to be set aside.
 9. Mrs.S.Patnaik, learned Additional Government Advocate, while supporting the finding of guilt against the accused as has been returned by the
Trial court, submitted that the evidence on record, being very clear that the accused was sitting close to the deceased, who was lying dead with
injuries on her neck possibly by that kata, which was held by the accused, as there comes no such explanation from the side of the accused as to how
his wife received such injuries, the Trial Court has rightly convicted the accused for commission of the offence under section 302 of the IPC.
10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through
the depositions of the witnesses (P.W.1 to P.W.5) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.8.
11. It is there in the FIR lodged by the Informant (P.W.1) that having come home, he had seen the accused sitting on the verandah of the house
holding kata, his wife was lying dead in a this particular fact as to have seen the accused sitting on the Verandah holding the kata by the side of the
dead body of his wife. Thus, the FIR (Ext.1/1) version cannot be taken to be the substantive evidence.
P.Ws.2 & 3 have not supported the prosecution case in any manner and nothing has surfaced in their evidence in support of prosecution version.
The prosecution has, however, proved the fact that the wife of the accused has met a homicidal death through the evidence of the Doctor (P.W.5),
who had conducted the autopsy over the dead body of the deceased. He has stated to have noted two lacerated cut injuries present over the right side
of the neck and posterior aspect of the head. His evidence is to the effect that such injuries have led to the death of the deceased and the cause of
death was on account of severe haemorrhage and shock arising due to the injuries to vital organ like brain and great vessel.
Thus, the question arises that when the wife of the accused has met a homicidal death on account of the injuries received by her, we do not find the
evidence on record even to accept for a moment that at the relevant point of time, the accused was present at all there by the side of the body of the
deceased.
It is stated by P.W.1 that the dead body of the deceased was lying on the verandah of the house, which is not a closed one.
The I.O. (P.W.4) has arrived at the place around 2.30 p.m and he says that at that time, the accused was found sitting near the dead body, which is
itself is not but natural. His evidence is that he seized one Dauli (kata), which was held by the accused. Even if it is said that the deceased was
assaulted by that kata, the accused, being the husband when arrived there and holding that kata used for causing injury is not such a clinching
circumstance standing against him that from the same, an absolute conclusion would stand drawn that it was the accused, who had assaulted the
deceased by means of that kata in causing her death.
On a conspectus of analysis of the evidence hereinabove, we find that the prosecution has not proved the charge against the accused beyond
reasonable doubt.
12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 28th October, 2011 passed by the learned Sessions
Judge, Balasore in Sessions Trial No.43 of 2011, are hereby set aside.
Since the accused, namely, Sukuru Ram is on bail, his bail bonds shall stand discharged.
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