Sesadev Kudei vs State Of Odisha

D.Dash, J

The Appellant, by filing this Appeal has challenged the judgment of conviction and order of sentence dated 11.01.2023 passed by the learned Additional Sessions judge, Athamallik in C.T.(S) Case No.11 of 2020 arising out of G.R. Case No.413 of 2019 of the Court of learned Sub-Divisional Judicial Magistrate, (S.D.J.M.), Athamallik.

By the same, the Appellant (accused) has been convicted for commission of offence under section-302 of the Indian Penal Code (for short called as ‘the IPC’) and has been sentenced to undergo imprisonment for life and pay fine of Rs.50,000/- with the default stipulation to undergo rigorous imprisonment for two years.

The prosecution case is that on 19.08.2019 in the forenoon, one Anek Bagha, who is the sister’s son of Pitambar Bhoi came and informed Pitambar that Pitambar’s sister (Raswswari) has been murdered by her husband namely, Sesadev Kudei (accused). Pitambar getting this information from Anek, came to the house of his sister and saw his sister lying dead on a cot with severe cut injuries on her head. The villagers present there on being asked told that the accused had murdered his wife namely, Raseswari by means of spade. On that day around 12.30 pm, Pitambar (Informant-P.W.1) lodged a written report with the Inspector-In-Charge (IIC), Athamallik Police Station. Receiving the said report, the IIC, treated the same as F.I.R.(Ext.6) and upon registration of the case took up investigation.

The Investigating Officer (I.O.-P.W.18), then examined the Informant and proceeded to the spot. He held inquest over the dead body of the deceased and prepared the report to that effect (Ext.1). He then issued requisition for postmortem examination of the dead body. He also seized some incriminating materials at the spot in presence of witnesses and examined other witnesses. The incriminating articles were sent for chemical examination through Court. On completion of investigation, Final Form was submitted, placing the accused to face the Trial for commission of offence under section-302/498-A/494 of the IPC.

The learned SDJM, having received, Final Form as above took cognizance of said offences 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 offences against the accused.

In the Trial, the prosecution in total has examined nineteen (19) witnesses. Out of them, P.W.1 is the Informant, who happens to be the brother of the deceased and P.W.13 is the nephew of P.W.1, who had first informed P.W.1 about the incident. The person who have scribed the F.I.R.(Ext.6) has been examined as P.W.12; whereas P.Ws. 2 and 11 are the witnesses to the inquest. P.Ws. 8 and 9 are the witnesses to the seizure said to have been made at the instance of the accused pursuant to his statement while in police custody in leading them to the place of keeping of those articles. The first wife of the accused has been examined as P.W.11. The Doctor who had conducted postmortem examination over the dead body of the deceased has come to the witness box as P.W.16 whereas the I.O. has examined himself as P.W.18.

The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 19. The details of the same being given at the foot of the judgment of the Trial Court, this judgment is not burdened by noting those again since those will be referred to as per the numbering as and when would be so required in course of our discussion to follow.

The defence plea is that of complete denial. The accused has however not led any evidence despite being provided with the opportunity.

The Trial Court upon examination of the evidence and their evaluation at its level has held that the prosecution has been able to establish the charge under section-302 of the IPC as against the accused beyond reasonable doubt by leading clear, cogent and acceptable evidence. Accordingly, the accused has been convicted for the said offence and sentenced as aforestated.

Learned Counsel for the Appellant submitted that the conviction recorded by the Trial Court the outcome of wholly erroneous appreciation of evidence on record. According to him, without any substantive evidence as regards complicity of the accused, the finding of guilt against this accused has been returned. He further submitted that there is absolutely no evidence either direct or circumstantial to attribute the authorship of the injuries received by the deceased which had led to her death upon the accused. He submitted that the Trial Court has erred in holding the accused guilty for the murder of the sister of the Informant. He further submitted that the Trial Court has committed grave error in law by accepting the statement of the witnesses of P.W.11 recorded under section-164 of the Cr.P.C. as the substantive evidence, when that P.W.11 has stated nothing in support of what have been reflected in her said statement. He, therefore, contended that the judgment of conviction and order of sentence are being vulnerable are liable to be set aside.

Learned Counsel for the State-Respondent refuting the submission as above supported the finding rendered by the Trial Court holding the accused guilty for commission of offence under section-302 of the IPC in intentionally causing death of the deceased.

Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.19 and have perused the documents which have been marked as Exts.1 to 19.

The nature of death of the deceased that it is homicidal is not under challenge from the side of the accused. The deceased is found to have received two cut injuries; one on the forehead and the other one over the occipital region of the scalp. There was fracture underline occipital bone with profuse bleeding. The Doctor who had conducted postmortem examination i.e. P.W.16 has stated all these. According to him, all these injuries are antemortem in nature and might have been caused by sharp cutting weapon. According to the evidence of P.W.16, the cause of death is due to heamorrhage and shock flowing from the injuries on the body. Thus we find that the prosecution has well proved the fact that Raseswari met homicidal death.

Having said so, we are now called upon to judge the sustainability of the finding of the Trial Court that the prosecution has established the charge under section-302 of the IPC as against the accused beyond reasonable doubt by leading clear, cogent and acceptable evidence.

P.W.1 is the brother of the deceased and he himself is the Informant. He has stated that getting news about the death of his sister (deceased), he had gone to village Gadadharpur with one Lalita Bhoi, P.W.1 and Prasanta Bhoi, P.W.3. He has stated that arriving at the village; he found the dead body of the deceased lying near the banana tree in the backyard of the accused. It has been stated by him that the accused had his first wife who has been examined as P.W.11 and as no child was born through her, the accused had married the deceased. But this witness is not stating as to whether the deceased was staying in the very house where the first wife of the accused (P.W.11) was staying or that they were staying in separate houses.

P.W.2, Lalita Bhoi who had accompanied P.W.1 has reiterated the version of P.W.1. That is also the version of P.W.3, who had gone with P.Ws.1 and 2. P.W.4, having stated that the informant is her cousin, has simply stated that having gone to the place, had seen the deceased lying dead near the banana tree in the backyard of the accused. The witness although had spoken about the ill-treatment upon the deceased by the accused in her previous statement in course of investigation, she has not stated so in the Trial. The prosecution has simply remained satisfied to her drawing attention of this witness to her previous statement before the police which too she has denied.

P.W.5 is another witness, who happens to be the relation of P.W.1. He has also stated what those P.Ws.1, 2 and 3 had said. Other witness P.Ws. 7, 8, 9, 10 and 12 have not supported the prosecution case.

The first wife of the accused has come to the witness box as P.W.11 and has tendered her evidence. She has stated that her husband had married the deceased for the second time. She has simply stated to have found the deceased lying dead in the backyard of their house and then she was having bleeding injuries on her head. In course of investigation, the I.O. had got the statement of this witness recorded under section-164 of the Cr.P.C. This witness has not stated in Court as to what she had stated in her 164 statement. She has simply stated to have deposed before the learned Magistrate on earlier occasions. Interestingly, since the statement when has been shown to this witness during her examination in the Trial, she has admitted to have appeared before the learned Magistrate in giving her statement, that statement has been admitted in evidence marked as Ext.5. However, the prosecution having been permitted to cross-examine this witness, it would be seen that except inviting the attention of this P.W.11 to what she had stated in her previous statement under section-164 of the Cr.P.C. nothing more has been elicited. Thus even though for a moment we say that this P.W.11 is stating falsehood, yet it is not permissible to take the statement recorded under section-164 of the Cr.P.C. as substantive evidence.

The position of law is too well settled that the statement recorded under section-164 of the Cr.P.C. is not substantive evidence and it can be used to corroborate the statement of a witness as also to contradict. The Trial Court having taken the statement of the witness (P.W.11) that as she has deposed during the Trial that her statement had been recorded by the Magistrate on the earlier occasion and has proved that document containing the recorded statement as Ext.5 that become the substantive evidence of P.W.11, has then gone to narrate as to what has been recorded in that Ext.5 as if that is the version of P.W.11 during Trial. Such course adopted by the Trial Court is having no legal sanction. By going through the paragraph-9 of the judgment of the Trial Court, we find all the force in the submission of the learned Counsel for the Appellant (accused).

Having said as above, we find that no other circumstance/s have been proved by the prosecution by leading reliable evidence in support of the charge. The finding of the Trial Court holding the accused guilty for commission of offence under section-302 of the IPC thus cannot be sustained. Therefore, we are 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 11.01.2023 passed by the learned Additional Sessions Judge, Athamallik in C.T.(S) Case No.11 of 2020 are hereby set aside.

Since, accused- Sesadev Kudei is in custody, he be set at liberty forthwith, if his detention is not required in any other case.

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