ANGADA KARKARIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant having been convicted by the learned Addl. Sessions Judge, Rayagada in Sessions Case No. 19 of 1999 for commission of offence under Section 302 of the Indian Penal Code (in short 'I.P.C') and sentenced to undergo imprisonment for life has preferred this appeal.

(2.) THE deceased Kasturi Hial and the Appellant are residents of village Kurli under Bissamcuttack Police Station. The acquitted accused persons also are residents of the same village. The deceased is the wife of P.W.4, who was working as postal employee. It is alleged that the Appellant had a desire to have physical relationship with the deceased and 4 to 5 days prior to the occurrence on 5.6.1997 the Appellant had attempted to commit rape on the deceased. He having failed in his attempt due to intervention of some of the villagers, came across another opportunity on 5.6.97 when the deceased had gone to "Kadali Dangar" of one Katu Wadaka and was standing near the mango tree locally known as "Kauchandi Mango tree" to collect mango lying on the ground. Finding her alone it is alleged that the Appellant followed her and attempted to commit rape and when the deceased struggled, both of them fell down on the field. However, when he faced tough resistance from the side of the deceased and it was not possible on the part of the Appellant to commit rape, he brutally struck her with an axe (M.O.V) on the head, neck and shoulder causing instantaneous death of the deceased at the spot. Thereafter, the Appellant left the place concealing the axe inside a nearby bush. At about 10.30 A.M. when P.W.4 returned to his house, he heard that a woman had been killed nearby the mango tree. Finding his wife absent in the house, he along with the villagers rushed to the spot and found the deceased lying dead near the mango tree in a pool of blood. At that time he learnt from P. Ws.2 and 3 that the Appellant had assaulted the deceased. Thereafter, P.W.4 and the villagers came to the house of the Appellant and being asked the Appellant confessed to have killed the deceased. The O.I.C. of Bissamcuttack Police Station, P.W.12 having received information about death of a woman in the village, came to the village and after his arrival, P.W.4 lodged an oral F.I.R. whereafter investigation was taken up and charge -sheet was filed against the Appellant alone for commission of offence under Section 302 I.P.C. The informant, P.W.4 not being satisfied with the manner of investigation filed a complaint petition before the J.M.F.C., Bissamcuttack relating to the self -same incident alleging commission of offence by eleven persons including the Appellant. The said complaint petition was registered as 1.C.C. No. 3 of 1997 and cognizance was taken. Thereafter, the G.R. case in which the Appellant had been charge -sheeted and the complaint case were tagged together and were committed to the court of session for trial. All the accused persons were charged under Section 148 of I.P.C. whereas the Appellant was separately charged under Section 302 IPC. Rest of the accused persons were charged under Section 302/149 IPC.

(3.) ASSAILING the impugned judgment, the learned Counsel for the Appellant drew attention of the Court to the evidence of P. Ws.2 and 3 vis -a -vis P.W.12, the I.O. According to the learned Counsel for the Appellant, the two eyewitnesses to the occurrence had developed the story in course of trial and having never stated before the police during investigation to have seen the Appellant assaulting the deceased on her neck and back, these two eyewitnesses should not have been relied upon by the trial court. It was also contended by the learned Counsel that the evidence of P. W.5, the doctor, who conducted postmortem examination rules out any possibility of assault on the deceased considering the fact that four incised wounds found on the body of the deceased could be possible due to struggle on attempt to commit rape. Apart from the above, it was also contended by the learned Counsel for the Appellant that Ext.7 clearly indicates several injuries sustained by the Appellant which have not been explained by the prosecution at all.