Dibyajyoti Mallik vs State Of Orissa

D.Dash, J

The Appellant, by filing this Appeal, from inside the jail, has challenged the judgment of conviction and order of sentence dated 20th February, 2014 passed by the learned Sessions Judge, Balasore in Sessions Trial Case No.60 of 2012 arising out of Criminal Trial No.2242 of 2011, corresponding to Singla P.S. Case No.171 of 2011 of the Court of the learned Sub Divisional Judicial Magistrate (SDJM), Balasore.

The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- in default to undergo rigorous imprisonment for a period of three (3) months.

On 01.12.2011, one Adikanda Mallik (P.W.6) lodged a written report (Ext.3) before the Officer-in-charge (OIC) of Singla Police Station, informing that the accused, who happens to be his son, had assaulted his wife, namely, Sunimani Mallik by means of a wooden bat causing her death. It was also indicated therein that the accused was then mentally not sound. The said report found mention of the fact that that two persons namely Indumati (P.W.4) and Swapna (P.W.11) had seen the actual incident. The OIC, receiving the said written report, treated the same as FIR (Ext.1) and registering the case, directed one Sub-Inspector (SI) of Police (P.W.12) to proceed with the investigation.

The Investigating Officer (I.O-P.W.12) in course of investigation, examined the informant (P.W.6) and other witnesses including P.W.4 and P.W.11. He visited the spot and prepared the spot map (Ext.8). He also held inquest over the dead body of the deceased in presence of the witnesses and prepared the inquest report (Ext.1). The dead body was then sent for post mortem examination by issuing necessary requisition. This I.O (P.W.12) in course of further investigation, seized certain incriminating articles. He then having arrested the accused, it is stated that pursuant to his statement while in police custody, the accused having led the I.O (P.W.12) and others to the place had given recovery of that wooden bat that had been seized under seizure list and the statement preceeding thereto had been recorded, which has been admitted in evidence and marked as Ext.4/2.

On completion of investigation, Final Form was submitted placing the accused to face the Trial for commission of offence under section 302 of the IPC.

Learned SDJM, Balasore on receipt of the Final Form, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused.

In the Trial, the prosecution in total has examined twelve (12) witnesses. As already stated, P.W.6 is the husband of the deceased and the father of the accused who is the informant and had lodged the FIR (Ext.3). The other two important witnesses are P.W.4 and P.W.5 as according to the FIR version, they had seen the incident which had taken place before them. The other witnesses are the witnesses to the seizure and inquest. Finally the I.O has come to the witness box at the end as P.W.12.

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. Out of those, the important are the FIR, Ext.3, inquest report, Ext.1, Post Mortem Report, Ext.12. The so called statement of the accused leading P.W.12 and others in giving recovery of the wooden bat from the place where he had kept the same, has been admitted in evidence and marked Ext.4/2 and the answer of the Doctor, who had held post mortem examination over the dead body of the deceased to a query made by the I.O (P.W.12) as to the possibility of the user of the seized wooden bat in causing the injury upon the deceased is Ext.10.

The accused in support of his plea of denial and false implication has not tendered any evidence either documentary or oral.

Learned Counsel for the Appellant (accused) at the beginning without disputing the nature of death of the deceased as homicidal submitted that the Trial Court has completely failed to appreciate the evidence of eye witnesses P.W.4 and P.W.5 in a just and proper manner as per the standard as required in a criminal trial. He submitted that the Trial Court by going through these two witnesses has drawn certain inferences therefrom in ultimately holding that it is the accused, who is the author of the head injury, noticed by the Doctor which resulted the death of the deceased which is not legally tenable. Inviting our attention to the evidence of P.W.4 and P.W.5, he placed as to how faulty the appreciation of their evidence has been. He further submitted that even accepting the version of P.W.4 and P.W.5, here it cannot be said that the prosecution has discharged the initial burden of proving all those facts for which the burden of proof of facts within the special knowledge of the accused could be placed upon his shoulder to show as to how the incident had taken place by providing some sort of reasonable explanation so as to exonerate himself.

Learned Counsel for the Respondent-State submitted all in favour of the finding of guilt as has been returned by the Trial Court. He submitted that the evidence of P.W.4 and P.W.5 would lead to show that it is none other than the accused who is responsible for the injury on the head of the deceased and when the accused does not provide any explanation so as to avoid his presence, the Trial Court, according to him has rightly convicted him for committing the murder of his mother.

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.12) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.12.

The informant in this case is P.W.6, who is none other than the father of the accused and the deceased is his wife, who is the mother of the accused. He was never informed about the death of his wife. He does not say as to on his arrival at home after getting the said news who told him as to the happenings, it is his evidence that during cross-examination that the family members informed him that when his wife was coming out of the house, she came in contact with a fixed wooden pole and sustained injuries on her head. He has further stated that the force behind the hit was such that the wooden pole had broken. He has also stated that two years prior to the incident, the accused had suffered from mental illness. When this P.W.6 has given a good bye to his version in the FIR in naming P.W.4 and P.W.5 as the witnesses to the occurrence that is also not stated by P.w.2 who had no come to place after hearing from P.W.4, who happens to be his sister. This P.W.2 has stated that P.W.4 shouted in saying “DHAIN ASA DIBYAJYOTI TAA MAAKU MARIDELA.” She also stated that the assault by the accused was with a stick. This witness is stating that on his arrival, the accused fled away. P.W.4 however, does not say to have seen the accused assaulting the deceased nor that seeing her, accused fled away. Her simple evidence is that hearing the sound when she came out, she found deceased lying in a pool of blood and accused was standing nearby and therefore, she shouted ‘MARI PAKEILA DOUDI ASA”. She is also not stating that accused was then standing holding any wooden bat or stick. Similarly, P.W.5 has stated that when she came out hearing the shout, he found deceased lying dead and accused was standing nearby. She also does not state that the accused was holding any weapon bat or stick. None of these witnesses are even stating regarding the mood of the accused at that time or that they asked anything to the accused seeing the deceased lying in a pool of blood. When it is the evidence of P.W.1 (father of the accused) that the accused had suffered from mental illness for her simple and silent presence near the mother, as has been stated by P.W.4 and P.W.5, when the evidence of P.W.2 cannot be believed that there was any cry by the side of P.W.4 and P.W.5, indicating the complicity of the accused and when P.W.4 and P.W.5 are also not stating that except the accused who was standing near the deceased lying on the ground none else were present within a certain radius, we are of the considered view that the Trial Court has committed grave error in accepting the version of P.W.4 and P.W.5 coupled with the evidence of P.W.1 and P.W.2 as sufficient in attributing the authorship of the head injury upon the deceased to the accused. With such evidence on record, even accepting for a moment that there was recovery of the wooden bat at the instance of the accused while in police custody; that without further clinching evidence in that direction alone, cannot establish the charge against the accused beyond reasonable doubt. We are, therefore, of the considered view that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.

In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 20th February, 2014 passed by the learned Sessions Judge, Balasore in Sessions Trial Case No.60 of 2012 are hereby set aside.

The Appellant (Dibyajyoti Mallik) being on bail, his bail bonds shall stand discharged.

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