BHIMA PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant having been convicted for commission of offence under Section 302 of the Penal Code and sentenced to imprisonment for life by the learned Sessions Judge, Puri has preferred this appeal.

(2.) CASE of the prosecution is that the deceased is the wife of the appellant. Marriage took place in the month of Baisakh, 1990. One and half months thereafter, the deceased went to her fathers house at Berhampur and about a week before the date of occurrence she returned to the house of the appellant. In the night of 17.11.1990 the appellant and the deceased went to sleep and on the following day early morning the deceased was found in an unconscious condition and she was shifted to Sakhigopal hospital by her father -in -law (P.W.6). The doctor incharge of the hospital declared her dead at about 4.20 A.M. and also sent a written intimation to the O.I.C., Sakhigopal Police Station. On receipt of the intimation the O.I.C. (P.W.11) registered U.D. Case and investigation was taken up. After receipt of the post -mortem report an F.I.R. was drawn up by the A.S.I., Satyabadi Police Station. The case was registered for commission of offence under Section 302 of the Penal Code and after investigation charge -sheet was submitted for commission of offence under the said provision.

(3.) FROM the discussions made in the judgment of the trial Court it appears that the case is entirely based on circumstantial evidence. P.W.6 is the father of the appellant. In his deposition before the Court this witness has stated that the appellant married the deceased two years prior to his deposition in Court. He has also stated that two days prior to the date of the occurrence the appellant had gone to village Tentulia to help his eldest brother -in -law in harvesting paddy. This witness has also stated that the appellant was absent from the house in the night of occurrence. He has further stated that in the night of occurrence after dinner the deceased went to sleep in her bed -room and in the following morning at 6 A.M. when the called her she did not come out from the room. Door was bolted from inside and she did not respond the call. This witness along with his wife broke open the door and found the deceased lying on a mat struggling for life. Thereafter they shifted her to the hospital and by the time she reached hospital she was declared dead by the doctor. This witness having not supported the prosecution case and turned hostile was cross -examined by the public prosecutor. On careful scrutiny of deposition of this witness we do not find anything which would help the prosecution in any way. All other witnesses examined on behalf of the prosecution except doctors and the police officers turned hostile and did not support the prosecution case. So far as evidence laid by the prosecution is concerned, there is no iota of evidence to show that the appellant was present in his house in the night of occurrence. On the other hand, one witness has been examined on behalf of the defence who is brother -in -law of the appellant. This defence witness has stated in his deposition that the appellant was in his house and had come to help him in harvesting. One day after the date of occurrence when they were returning after harvesting, younger brother of the appellant came and informed about death of the deceased. This witness has specifically stated that the appellant was with him in the night of the occurrence and they were witnessing yatra in the village. In absence of any evidence from the side of the prosecution to show that the appellant was present in his house on the night of occurrence, we have no other option excepting accepting the defence version that the appellant was in the village Tentulia which is one mile away from his own village and was staying with his brother -in -law (D.W.1). Evidence of P.Ws. 1 and 2 who conducted post mortem examination clearly indicate a case of homicide, but in absence of any evidence from the side of the prosecution that the appellant was present in his house in the night of occurrence, we accept the defence version and there being no other evidence on record implicating the appellant in the commission of offence, we are constrained to allow the appeal.