HOSEN KHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The judgment of conviction and order of sentence passed by the learned Adhoc Addl. Sessions Judge, F.T.C., Khurda in S.T. Case No. 61/126 of 2007, convicting the appellants under Sections 302/34 of the Indian Penal Code hereinafter referred to as "the I.P.C.") for murder of one Rakina Biwi (hereinafter referred to as "the deceased") and sentencing each of them to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000.00 and, in default, to undergo rigorous imprisonment for five months each on that count, are under challenge in this CRLA.

(2.) The prosecution case before the Trial Court was that the deceased was given in marriage to one widower, namely, Rossan Khan (P.W.9), a resident of village Bhimpada, Tangi Sahi under Bolgarh P.S. in the district of Khurda. The first wife of Rossan Khan (P.W.9) was the sister of appellant No. 3. Rossan Khan (P.W.9), however, settled in an interior village under Dasapalla P.S. in the district of Nayagarh, as a village quack to eke out his living, leaving his wife in his native village in the house constructed by him, wherein his elder brother appellant No. 1, his wife appellant No. 3 and their daughter appellant No. 2, also reside. It is the case of the prosecution that taking the long absence of P.W. 9 from the home, the appellants had meted the deceased with cruelty to make her living impossible in the said house, so that they can enjoy and grab the house property. For that purpose, the appellants also, made an attempt to kill her by immolating her. But, when the people gathered there, the appellant No. 1 gave out that the deceased accidentally caught fire and took her to District Headquarters Hospital, Nayagarh for treatment. On the next day, when some of her co-villagers i.e. P.Ws. 1,2,4,5 and 13 visited the hospital to see her condition, the deceased disclosed before them that she was immolated by the appellants. Thereafter, one of them i.e. P.W. 2 reported the matter to the police at Bolgarh P.S. in writing vide Ext. 1 and a case was registered under Sec. 307/34 of the I.P.C. But in the meanwhile the deceased had succumbed to the injuries in the hospital. Basing on such report, investigation was carried on and on conclusion of the investigation, the Police found substance in the F.I.R. allegation and placed charge-sheet against the appellants under Sections 498A/302/34 of the I.P.C. The case of the appellants was committed to the Court of Sessions by the learned S.D.J.M., Khurda, after taking cognizance of the aforesaid offences.

(3.) As it appears, the case being placed before the Court of the learned Adhoc Addl. Sessions Judge (F.T.C.). Khurda for trial, charge was framed against the appellants for the said offences. The appellants having pleaded not guilty to the charge, prosecution examined as many as 16 witnesses and exhibited 14 documents, so also 4 material objects. The appellants having taken the plea of denial and false implication, examined a doctor of District Headquarters Hospital, Nayagarh who had treated the deceased, as D.W. 1 to dispel the prosecution evidence of oral dying declaration said to have been made by the deceased before the witnesses that the appellants immolated her, to be worthy of credence. On conclusion of the trial, as it appears, the death of the deceased sustaining burn injury, having not been disputed and also there being ample evidence in this regard, the trial Court returned the impugned judgment of conviction and order of sentence against the appellants basically placing reliance on the oral dying declaration made before the co-villagers such as P.Ws. 1, 2, 4, 5 and 13, while acquitting them of the charge under Sections 498A/34 of the I.P.C.