D.Dash, J
1. The Appellant, by filing this Appeal, has assailed the judgment of conviction and the order of sentence dated 26.09.2011 passed by the learned
Sessions Judge, Phulbani, in Sessions Trial No. 154 of 2010, arising out of G.R. Case No.122 of 2010, corresponding to Balliguda P.S. Case No.45 of
2010 of the Court of learned Sub-Divisional Judicial Magistrate (SDJM), Balliguda.
The Appellant (accused) has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘the IPC’).
Accordingly, she has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo Rigorous Imprisonment for
one year.
2. Prosecution Case:-
On 17.06.2010 around 6.30 p.m., the accused, who is the first wife of Gundana Mallik of village Muchudikia committed the murder of Namanti Mallik,
the second wife of said Gundana Mallik in their house and left the house. Binjuka Mallik (P.W.6), the brother of Namanti (deceased) was informed
about the incident by one Tingu Mallik (P.W.2). Binjuka (P.W.6) then rushed to the house of his sister Namanti and saw her lying dead in a pool of
blood with cut injury on her neck and an axe was also found to be lying nearby. Binjuka (P.W.6) then presented a written report with the Inspector-In-
Charge (I.I.C) of Balliguda Police Station. The same was treated as FIR and after registration of the case, took up the investigation.
3. In course of investigation, the I.O (P.W.14) examined the informant (P.W.6) and recorded his statement. He (P.W.14) examined the scribe of the
FIR and recorded his statement. He visited the spot and prepared the report to that effect vide Ext.9. He examined Gundana Mallik, the husband of
the deceased and other witnesses and recorded their statement. He then held inquest over the dead body of the deceased in presence of the witnesses
and prepared the report to that effect vide Ext.1. He seized blood stained tangia from the spot in presence of the witnesses under the seizure list
Ext.10. He seized the blood stained and sample earth in presence of the witnesses under the seizure list vide Ext.3. The dead body was sent to Sub-
Divisional Hospital, Balliguda for post mortem examination by issuing necessary requisition. The I.O (P.W.14) then examined the neighbours of the
deceased and the accused. He then arrested the accused, seized her yellow-red-green colour cotton sari stained with blood and a green colour
polyester blouse in presence of the witnesses under seizure list vide Ext.5/1. He seized the wearing apparels of the deceased vide Ext.7. The accused
was forwarded in custody to Court. The seized incriminating articles were sent for chemical examination to SFSL, Rasulgarh through Court.
On completion of investigation, the I.O (P.W.14), submitted the Final Form placing the accused to face the Trial for commission of the offence under
section 302 of the IPC.
4. Learned SDJM, Balliguda, receiving the Final Form as above, took cognizance of the offence and after observing the formalities committed the
case to the Court of Sessions. That is how the Trial commenced by framing charge against the accused for the said offence.
5. In the Trial, the prosecution in order to bring home the charge against the accused persons has in total examined 14 (fourteen) witnesses. P.W.6 is
the informant, who had lodged the written report which was treated as FIR vide Ext.4 and also the brother of the deceased. P.W.1 is the husband of
the deceased. P.W.2, P.W.3, P.W.4, P.W.9 and P.W.13 are the witnesses to the occurrence. P.W.5 is the scribe of the FIR. P.W.7 is a co-villager
of the informant (P.W.6). The Doctor, who had conducted post mortem examination over the dead body of deceased, has come to the witness box as
P.W.11 and the Investigating Officer has been examined as P.W.14.
6. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in
evidence and marked as Ext.1 to Ext.12/1. Out of those, the important are the FIR, Ext.4, Inquest Report, Ext.1, Seizure list, Ext.2, Spot Map, Ext.9
and Post Mortem Report, Ext.8.
7. The plea of the accused persons is that of complete denial and false implication.
8. Learned counsel for the Appellant (accused) submitted that the prosecution evidence is not so direct in implicating this accused as the author of the
fatal injury received by the deceased. He further submitted that the evidence let in by the prosecution is not acceptable that this accused was present
in the house with the deceased and on the relevant day, she had left the house without any information to anyone. He submitted that the evidence of
the P.W.1 is not on the score that when he arrived at home, he saw the accused either in the house or to have been going/running away from the
house. It was submitted that the evidence of P.W.2 that he saw the accused running away with her children is not at all believable when P.W.1, the
husband of the deceased has maintained complete silence. He, therefore submitted that when the prosecution has not proved beyond reasonable doubt
that on the relevant date, the accused was with the deceased in the house and left the house at certain point of time, whereafter, the dead body was
noticed; the finding of the Trial Court that this accused is the author of the fatal injury received by the deceased is wholly unsustainable. Thus
according to him, even though the prosecution has proved that Namanti has met a homicidal death, the evidence on record is not enough to form a
finding that it is this accused, who had caused such injuries.
9. Learned Counsel for the Respondent-State while supporting the finding of guilt against the accused as has been rendered by the Trial Court
submitted that the evidence of P.W.2 being read in entirety, would show that the accused was seen by him, leaving the house and shortly thereafter
when he went inside, he had seen Namanti lying dead. Such evidence according to him is enough to displace the burden of proof upon the shoulder of
the accused obligating him to provide explanation as to how it all happened to the deceased and since that is not forthcoming; the judgment of
conviction has to sustain.
10. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We have also gone through
the depositions of all the witnesses P.W.1 to P.W.14. We have also perused the documents which have been admitted in evidence and marked Ext.1
to Ext.12/1.
11. The prosecution has proved the nature of death of Namanti as homicidal by examining P.W.11, who was the Doctor, who had conducted the
autopsy over the dead body of the deceased. As per the evidence P.W.11, he had noticed five chopped wounds over the deceased and according to
him, the cause of death was due to profuse bleeding for the damage to the great vessel. His evidence is very specific that the death is homicidal in
nature. The evidence of the I.O (P.W.14) and other witnesses also provide support to the evidence of P.W.11. In fact, this aspect of the case was not
under the challenge before the Trial Court and that is also the situation before us. Therefore, we are left with no option but to affirm the finding of the
Trial Court that Namanti’s death was homicidal.
12. Now, coming to the question of complicity of the accused as has been found out by the Trial Court, in order to judge its sustainability, let us first
touch upon the evidence of P.W.1. This P.W.1 is none other than the husband of the accused and the deceased. It is stated by him that during
morning hour, on that day, when he went for ploughing the land, the accused and the deceased were together in the house. His evidence is that the
deceased was to follow her after finishing the household work and when she did not arrive, this P.W.1 came to see her and know the reason of such
delay. His evidence is that when he arrived at home, he saw Namanti lying dead with bleeding injury on her neck and accused was not there in the
house. He states that in the meantime, Tingu (P.W.2) came to his house and as asked by him, Tingu (P.W.2) went and sent his father Suta Mallik
(P.W.3). This witness with the permission of the Court has been cross-examined by the Prosecution, when he has denied to have stated to have seen
the accused assaulting at her neck and throat by a tangia. He has also denied to have stated during investigation that hearing the quarrel between his
two wives, he had returned home from the field where, he was ploughing and then had seen accused assaulting the deceased. Such statements being
made before the Investigating Officer (P.W.14) in course of investigation having been so stated by P.W.14, those, however, simply place the evidence
of P.W.1 as unreliable and his statement during investigation would not stand for consideration as the substantive evidence.
13. It is seen from the evidence of P.W.2 that he has stated that when the incident took place, he was in front of her house and saw accused going
away from his house maintaining speed by taking her children with her and when he went to the house of Gundana, he saw him crying and as per his
request, he sent information to the brother of the deceased (P.W.6) that the accused had killed Namanti. This witness when is stating about the
presence of P.W.1 when he arrived after seeing the accused going with speed with her children, P.W.1 is not stating that accused in her presence left
the house with her children. He does not also state that accused was present in the house when he came from the field where he was ploughing.
Thus, from the evidence of P.W.1 & P.W.2, we are not in a position to conclude that the prosecution has proved that this accused shortly before the
incident was present in the house and after the incident, left the house.
With the above evidence on record, it would not be permissible to say that the burden of proof had shifted upon the shoulder of the accused to explain
as to how it all happened to Namanti leading to her death.
14. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 26.09.2011 passed by the learned Sessions
Judge, Phulbani, in Sessions Trial No. 154 of 2010 are hereby set aside.
Since the Appellant namely, Kunti Mallik @ Rama is on bail, her bail bond shall stand discharged.
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