Niranjan Munda vs State Of Odisha

D.Dash, J

The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 24th July, 2017 passed by the learned Additional Sessions Judge-Cum-Special Judge, Sunderegarh in S.T. Case No.64/35 of 2015 arising out of G.R. Case No.140 of 2015 corresponding to Bhasma P.S. Case No.15 of 2015 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundergarh.

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 and pay fine of Rs.10,000/- (Ten Thousand) in default to undergo rigorous imprisonment for one (1) year.

Prosecution Case:-

On  07.02.2015  morning,  one  Malia  Munda  of  Village- Adakatha presented a written report being scribed by Sanjay Munda (P.W.2) with the Inspector-in-Charge (I.I.C.) of Bhasma Police Station informing therein that in the previous night, the accused, who happens to be his son-in-law, had assaulted his daughter, namely, Sapna Munda to death by causing injuries with the help of amari stick and an axe. Malia Munda, being informed by his grand daughter, namely, Salima Munda (P.W.12), had gone to their house and found the dead body of Sapna.

The I.I.C. (P.W.13), receiving the written report of the Informant, treated the said report as FIR (Ext.1) and upon registration of the criminal case, took up the investigation.

In course of investigation, the Investigating Officer (I.O.-P.W.13) examined the Informant and other witnesses and recorded their statements under section 161 of the Cr.P.C. The I.O. (P.W.13), having visited the spot, prepared the spot map (Ext.13). The I.O. (P.W.13) held the inquest over the dead body of the deceased and prepared the report to that effect (Ext.2/1) and sent the dead body for post mortem examination by issuing necessary requisition. He (P.W.13) made a requisition to the members of the District Forensic Science Laboratory (DFSL), Sundergarh for spot visit and collection of physical clues. That being done, some articles said to be incriminating, were seized by the I.O. (P.W.13) under seizure list (Ext.7). Thereafter, the I.O. (P.W.13) arrested the accused and it is stated that the accused, while in police custody, gave the statement to have concealed the weapon and stated that if he would be taken to the place, he would give recovery of the same. Pursuant to the statement (Ext.10), the accused is said to have led the I.O. (P.W.13) and other witnesses in giving recovery of the weapon, i.e., axe, which was seized under seizure list (Ext.4/1). The wearing apparels of the accused were seized under seizure list (Ext.6/3). The seized incriminating articles were then sent for chemical examination through Court. On completion of the investigation, Final Form was submitted placing the accused to face the Trial for commission of the offence under section 302 of the IPC.

Learned S.D.J.M., Sundergarh, on receipt of the Final Form, took cognizance of said offence 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 aforesaid offence against this accused.

The prosecution, in support of its case, has examined in total fifteen (15) witnesses during Trial. It is pertinent to state here that since the father of the deceased, who is the informant in the case expired, he has not been examined. P.W.2 is the scribe of the F.I.R (Ext.1). P.W.1 is the sister-in-law of the deceased. P.Ws.3, 4, 5 & 6 are the independent seizure witnesses. P.Ws.9 & 10 are the official witnesses whereas P.Ws.1 & 11 are the witnesses to the leading to discovery of the weapon. The Doctor, who had conducted the autopsy over the dead body of the deceased, is P.W.8. P.W.14 is the Scientific Officer and the I.O. of the case has come to the witness box as P.W.13.

Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 14. Out of those; important are the FIR (Ext.1); the spot map (Ext.14); the inquest report (Ext.2/1); post mortem examination report (Ext.11); and the statement of the accused (Ext.10).

The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence in support of such plea.

Mr. S. Sourav, learned counsel for the Appellant (accused) submitted that the prosecution when has projected P.W.12, the daughter of the accused and the deceased as the sole eye witness to the occurrence, she has remained silent during trial and in that situation, the Trial Court, having relied upon the evidence of P.W.1, who is a family relation of the accused as sister-in-law that P.W.12 had informed her about the happenings in the incidents and the role played by the accused in assaulting the deceased to death, has held the prosecution case to have been proved beyond reasonable doubt. He further submitted that there being absolutely no proof as regards the foundational facts for drawal of the presumption as available under section 106 of the Evidence Act, the Trial Court, finding the absence of any explanation from the side of the accused, has fallen in grave error in holding the accused to be guilty of the offence. He submitted that the prosecution has not proved the confession of the accused said to have been made before P.Ws.4, 7 & 11 since they have not supported the prosecution case during the trial. He submitted the recovery of the weapon at the instance of the accused since has not been proved as the witnesses to such recovery (P.Ws.7 & 11) have not gone to state like that the conviction of the accused for commission of the offence under section 302 of the IPC and the order sentence, which are impugned in this Appeal, cannot be sustained.

Mr.G.N. Rout, learned Additional Standing Counsel for the Respondent-State has supported the finding of guilt against the accused, as has been returned by the Trial Court. He, while not disputing the position that P.W.12 , has not supported the prosecution case, further submitted that since the accused and the deceased were living together in the house as husband and wife and the dead body of the deceased was recovered from the house in the morning, the accused, having not stated to be not there in the house in the previous night and when he also is not giving any explanation as to how it all happened to his wife (deceased), the judgment of conviction recorded by the Trial Court by drawing the presumption available under section 106 of the Evidence Act is unassailable.

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.15) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.14.

It reveals from the evidence of the Doctor (P.W.8), who had conducted the post mortem examination over the dead body of Sapna that he found rigormortis present on lower limbs and the decomposition started and that he too had noticed several abrasions over the dead body of the deceased. On dissection of the thorax, he found the heart intact and left side of chamber filled with blood, lungs intact, abdominal cavity filled with blood and fracture of right lobe of liver with fracture of ribs. According to his evidence, all such injuries are ante mortem and the death of Sapna was on account of shock and haemorrhage resulting from rupture of liver. He has also said that the seized Katuri (M.O.I), which had been sent to her for examination, can cause such injuries. When such is the evidence of P.W.8, which has gone unchallenged, we too find the evidence of the I.O. (P.W.13), who held the inquest over the dead body of the deceased and noted all such injuries in report (Ext.2/1). With all these evidence on record, we concur with the finding of the Trial Court that Sapna met a homicidal death.

P.W.2 is the daughter of the accused and the deceased. During trial, she has remained silent. The Court has noted that the witness was completely incapable to tender evidence for being recorded.

Malia Munda, who is the father of the deceased and father-in-law of the accused and before whom P.W.12 is stated to have narrated the incident in the morning, has not come to the witness box in view of his death.

P.W.1 is one of family relation of the accused and deceased. The house of P.W.1 is at a distance of 70 meters from the house of the accused. She has stated that in the morning, P.W.12 had gone to her house and told that her mother (deceased) was not waking up from the sleep and for that, she wanted her presence at home to ascertain as to what happened to her mother (deceased). It is the further evidence of P.W.1 that when she went to the house of the accused, she saw the deceased lying dead on the verandah of the house with injuries over her body. She further states that P.W.12 then told her that her father (accused) has assaulted her mother (deceased) in the previous night by amari stick and axe. Although P.W.1 has stated that the happenings in the incident and the part played by the accused therein had been stated to her by P.W.12, we find P.W.12 too have remained silent and the Trial court has found her wholly incompetent to depose. Thus, in the absence of any evidence falling from the lips of P.W.12, the evidence of P.W.1 is of no value in the eye of law and thus cannot take the place of substantive evidence for being accepted as to the role played by the accused as she has stated.

Admittedly, the deceased is the wife of the accused and it is stated by P.W.1 that they were together residing in the house as husband and wife with their children. But we find absolutely no evidence to be there on record that when in the morning, the dead body was found in the house of the accused, that accused was present in the house in the previous night. No evidence is also forthcoming to show that the accused in the morning was found leaving the house, more-so when P.W.1 is also not saying to have seen the accused in the house when she arrived there. As regards the presence of the accused in the house in the morning, we find the evidence of the witnesses to be wholly contradictory to one another. The prosecution has not been proved the so-called confession of the accused as the witness before whom it was said that the accused had confessed, have not stated anything about that in the trial and so also the evidence as to the recovery of weapon of at the instance of the accused is found to have not been proved through the independent witnesses whose evidence rather belie the evidence of the I.O. (P.W.13).

On consideration of the evidence on record, we find the prosecution to have not established the foundational facts for drawal of the presumption under section 106 of the Evidence Act so as to shift the burden upon the accused to explain as to how all those happened to the deceased in holding that those were within his special knowledge.

On a careful conspectus of the evidence on record together with discussions made hereinabove, this Court is unable to hold that the prosecution has proved the circumstances firmly to give rise to an inference unerringly pointing towards the guilt of the accused-appellant and, therefore, he is acquitted of the charge.

In the result, the Appeal is allowed. The judgment of conviction and the order of sentence dated 24th July, 2017 passed by the learned Additional Sessions Judge-Cum-Special Judge, Sunderegarh in S.T. Case No.64/35 of 2015, are hereby set aside.

Since the Appellant, namely, Niranjan Munda is in custody, he be set at liberty forthwith, if his detention is not wanted in connection with any other case.

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