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2018 Supreme(Ori) 765
IN THE HIGH COURT OF ORISSA
S.K.MISHRA AND Dr. A.K. MISHRA, JJ.
Criminal Appeal No.36 of 2004
An application under Section 374 of the Code of Criminal Procedure.
Decided on 14th December, 2018.
P. Duryodhan Patra ... Appellant
Versus
State of Odisha ... Respondent
.
Headnote:1. INDIAN PENAL CODE, 1973 - Sec.302 - Conviction under - Appeal - Appreciation of evidence - There is no sufficient evidence to establish beyond reasonable doubt that there was motive on the part of present appellant to commit murder of the deceased so that he could grab the landed property of the deceased - It is not the case of prosecution that the deceased was done to death by means of lathi and badi - She was throttled as per prosecution case and there was no external injury on the part of her body - P.W. 4 fails to establish that the appellant had any intention to murder the deceased when he asked for a ‘BADI’ - Held, absence of explanation by the accused will not lead to any inference that the accused has committed the crime - Prosecution has failed to establish its case beyond reasonable doubt by proving incriminating circumstances which form a complete chain unerringly pointing towards the guilt of the accused - Accused-appellant is not liable to be convicted u/s. 302, IPC - Conviction set aside.
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 161 - When a witness states certain aspect of the case in the Court which he has not stated before the Investigating Officer at the time of recording his statement u/s. 161 of the Cr.P.C. then such statement shall be taken as contradiction and if it has a great bearing on the case, then it should be treated as a major contradiction. (Para -13)
3 . CRIMINAL TRIAL - Absconding is a weak link in the chain of circumstances - It can only be pressed into service when other clinching materials are available on record - Only absconding from the spot of occurrence will not make anybody guilty of any offence. (Para - 14)
4. EVIDENCE - Failure to establish a plea of alibi can only be pressed into service as an additional link but not an incriminating link - If other links/circumstances are there, then failure to establish alibi would take the case of the prosecution further and supply the missing link and lend credence to the evidence adduced on behalf of the prosecution. (Para - 16)
JUDGMENT
S. K. MISHRA, J. - The sole appellant in this case assails his conviction U/s. 302 of the Indian Penal Code by the Additional Sessions Judge (Fast Track Court), Chatrapur in Sessions Case No.7 of 2003 (S.C. No.342/2002 (GDC) as per the judgment dtd. 12.01.2004 wherein he has been sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to further undergo imprisonment for six months.
2. The case of the prosecution in brief is as follows :
The marriage between the accused P. Durjyadhan Patra and the deceased Amoyee @ Laxmi Patra was performed about 15 years prior to the lodging of the FIR. Initially both the wife and husband lived peacefully. In order to extract more dowry from the parents of Amoyee, accused Durjyadhan along with his mother accused Motiyalu started to torture Amoyee. To keep peace, the father of Amoyee had given her two varans of land. That did not satisfy the lust of the accused persons. The torture continued forcing the deceased Amoyee to desert her marital home. Claiming maintenance, she had filed a case for maintenance against the accused Durjyadhan. The order for payment of maintenance to her was passed. The accused Durjyadhan did not comply with the order as a result of which the deceased had filed the execution proceeding for realization of the same. At this juncture, the accused Durjyadhan had entered into a compromise with the deceased and brought her to his house. Some time thereafter the accused Durjya had married the accused Jamalu Patra and took her as his second wife after giving a portion of his house and 2 varans of land to the deceased Amoyee as per the decision of the village Bhadraloks. The deceased Amoyee lived separately in the room given to her and the three accused persons lived together in separate part of the house of the accused Durjyadhan. Despite such separate staying, the accused Durjyadhan continued to torture the deceased. On 17.3.2001 the dead body of the deceased with ligature mark injury on her neck was found from inside her room. The case was registered on the basis of the report of the brother of the deceased. The investigation revealed that the accused persons with a view to take away the properties of the deceased had killed her by throttling in the previous night. i.e. the night intervening 16.3.2001 and 17.3.2001. During investigation the I.O. had made inquest of the dead body of Amoyee and had sent the dead body for post-mortem. The accused Durjyadhan was arrested by the police from near by railway station while he was attempting to flee away. After completion of investigation the I.O. had submitted charge sheet against the accused persons where upon the accused persons were committed to the Court of Sessions.
3. The plea of defence is that of denial and false implication. Defence has further pleaded that the deceased committed suicide by hanging. The appellant took a specific plea of alibi stating that he was not present in the house in the night of occurrence and he was at Keshapur when he came to know about death of his wife, being intimated by police.
4. Prosecution has examined as many as 9 witnesses. P.W.7-K Lakhana Patra is the informant of the case. He happens to be the brother of deceased. P.W. 4-Narayan Patra, P.W.5- K. Gobinda Patra, P.W. 3-K. Sima Patra and P.W.2-M.Chennaya Patra are co-villagers of the convict and independent witnesses. P.W. 8 is Dr. Sachidananda Mohanty, Asst. Professor, Department of F.M.T., M.K.C.G. Medical College and Hospital, Berhampur who has conducted post mortem examination. P.W.1-Kamaraja Behera is the police constable who accompanied the dead body of the deceased Amoyee for post-mortem and identified the dead body of the deceased to the doctor who conducted post-mortem. P.W.9-Ashok Kumar Bisoi happens to be the Officer-in-charge of Khallikote Police Station and the investigating officer of this case who submitted charge-sheet against the present appellant and his mother and second wife.
One D.W. h
