AKSHYA KUMAR MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Jail Criminal Appeal is against the judgment dated 31.05.2004 passed by the learned Additional Sessions Judge, Bhanjanagar in S.C. No. 30 of 2002/S.C. 184 of 2002 -GDC arising out of G.R. Case No. 263 of 2001 in the court of S.D.J.M., Bhanjanagar convicting the appellant under Section 302 of the I.P.C. and sentencing him to suffer life imprisonment and to pay fine of Rs. 500/ -, in default, R.I. for three months with a direction to set off the pre -conviction detention period.

(2.) ON 19.06.2001 at about 9.30 P.M., the S.I. of Police, Jagannath Prasad Outpost received F.I.R. at the spot in village -Budurungu from Chakradhar Pradhan, who is the father of the deceased Jamuna. The informant on getting information that his daughter died in her in -laws house, rushed to village -Budurungu, the deceased's in -laws' village. On his arrival he found that none was there in the house of her deceased daughter's in -laws. At about 9.30 P.M. he got the opportunity to see the dead body of his daughter lying on a cot inside the house with injuries. It appears, the S.I. of Police, Jagannath Prasad Outpost was present at the spot to whom the informant handed over a written report.

(3.) ACHUTA (P.W. 2), who was supposed to adduce evidence on the attending circumstances, has turned hostile. Though he was examined under Section 154 of Evidence Act, nothing could be elicited from him. But P.W. 7, the deceased's husband has deposed in the court stating that P.W. 2 told him that he along with Amulya (the co -accused, who has been acquitted) had slept in the middle room while the deceased slept in the front room and the appellant slept in the third room of the house and that after committing the murder, the appellant had left the house. Achuta has not stated about all these facts while deposing in the court. Evidence of P.W. 7 in this regard is undoubtedly hearsay in nature. Similarly, P.W. 4 has stated that on being asked P.W. 2 disclosed that his brother Akshya and Amulya after killing Jamuna went away taking her cash. But P.W. 2 in his deposition has not stated anything about all these facts. Therefore, this part of the evidence of P.W. 4 is also hearsay in nature. However, learned Sessions court appears to have relied on this evidence of P.Ws. 4 and 7 and recorded the order of conviction. The only piece of direct evidence in the evidence of P.W. 7 which goes against the appellant is that five days prior to the occurrence the appellant brought fish to their house and asked the deceased to cook and serve the same to which the deceased complied but there was some delay for which the appellant got annoyed and since then he was not taking meal in the house till the night of occurrence. Save and except this piece of evidence, which at best would be the motive, there is no other legal evidence appearing against the appellant. Had Achuta deposed in the court that in the occurrence night the appellant was sleeping in the same house, though in a different room, and that in the morning he was found missing, there would have been some strong incriminating circumstances against the appellant. In that situation, the evidence of P.Ws. 4 and 7 would have been used as corroborative evidence to support the evidence of P.W. 2