MUKHTAR HUSSAIN Vs. STATE OF ODISHA

JUDGEMENT

(1.) This appeal has been filed assailing the judgment of conviction and sentence dated 30.06.1999 passed by learned Additional Sessions Judge, Jharusuguda in S.T. Case No. 25/51 of 1999 convicting the appellant for committing offence under Sections 302 and 201 IPC and sentencing him to undergo imprisonment for life for commission of offence under Section 302 IPC and RI for five years for commission of offence under Section 201 IPC. The substantive sentences were directed to run concurrently.

(2.) The appellant was working as a 'Mouzam' in Khoja Sahi Insari Jamat of Jharsuguda (herein after referred to 'Mosque') and was staying in the Mosque premises with his daughter, namely, Kanirra Zainam (the deceased). On 05.07.1998, when the informant, namely, Naiyyar Reza (PW-6), who happened to be the President of the Mosque Committee was at the house of Janab Gulam Hussain to observe 40th day of death of the wife of Janab Gulam Hussain, the appellant arrived there and in presence of the informant and other committee members disclosed that his daughter (the deceased), while cooking food accidentally burnt to death on 04.07.1998. The appellant had burried the dead body of the deceased within the Mosque premises under a Neem tree. The informant suspected some foul play as instead of burying the dead body at Kabarsthan, the appellant had buried it in the Mosque premises. Accordingly, the committee members informed the matter at Jharsuguda Police Station. Upon receipt of the report (Ext.11), OIC, Jharsuguda P.S. registered U.D. Case No.26 of 1998 on 05.07.1998 at about 9.00 P.M. and took up the investigation. On 06.07.1998, on the instruction of the appellant, Police in presence of witnesses and Executive Magistrate, Jharsuguda, namely, Sri J.K. Behera, Additional Tahasildar, Jharsuguda (PW-5) disinterred the dead body of the deceased buried under the Neem tree within the Mosque campus. The appellant, who was present at the spot identified the dead body to be of his daughter. On being disinterred, it was found that the left leg of the dead body below the knee joint was missing. Accordingly, inquest report (Ext.1) was prepared and the dead body was sent for postmortem examination. On the basis of the opinion in the postmortem report to the effect that the death might have been caused due to burn and amputation of the left leg causing shock and hemorrhage, the OIC, Jharsuguda PS (PW-7) drew up formal FIR (Ext.14) and registered Jharsuguda P.S. Case No.132 dated 08.07.1998 under Sections 302 and 201 IPC suspecting the appellant to have committed the crime.

(3.) In order to prove their case, the prosecution examined as many as seven witnesses. PW-6 is the informant. PW-5 is the Executive Magistrate in whose presence the dead body of the deceased was disinterred. PW-3 is the Doctor, who conducted postmortem of the cadaver. PW-4 was the Lecturer of FMT, attached to VSS, Medical College & Hospital, Burla, who examined the burnt pieces of the bones. PWs-1 and 2 are independent witnesses before whom the appellant alleged to have made the confession. They are also witnesses to recovery of the dead body. PW-7 is the I.O. The prosecution also relied upon Ext.1, the inquest report; Ext.2, the statement of the appellant recorded by the Executive Magistrate (PW-5); Exts.4 and 6 are seizure lists; Ext.7 is the postmortem report; Ext.8, the report of FMT; Ext.9, the Scientific examination report; Ext.11, the FIR (in UD Case No. 26 of 1998); Ext.13, dead body challan; Ext.14, the formal FIR; Ext.16, the chemical examination report of MO-I by DFSL, Sambalpur. The axe, MO-I is the weapon of offence; MO-II, the sealed packet.