Orissa High Court
2004) vs State Of Orissa on 6 January, 2021
HIGH COURT OF ORISSA: CUTTACK.
JCRLA No.106 of 2006
From the judgment of conviction and order of sentence dated
15.09.2006 passed by the learned Addl. Sessions Judge, Malkangiri in
Criminal Trial No.51 of 2004 (arising out of G.R. Case No.209 of
2004).
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Barsu Khilla ...... Appellant.
-Versus-
State of Orissa ...... Respondent.
For Appellant : Miss. Pami Rath
(Amicus Curiae).
For Respondent : Mr. M.S. Sahoo,
Addl. Government Advocate.
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE S. K. MISHRA
AND
THE HONOURABLE MISS. JUSTICE SAVITRI RATHO
Date of Hearing and Judgment-06.01.2021.
S. K. MISHRA, J. In this appeal, the sole appellant-Barsu Khillar has
assailed his conviction under Section 302 of the Indian Penal Code,
1860 (hereinafter referred to as "Penal Code" for brevity).
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This is a case of alleged uxoricide. The appellant has been
convicted by the learned Addl. Sessions Judge, Malkangiri in
Criminal Trial No. 51 of 2004 under Section 302 of the Indian Penal
Code and sentenced to undergo imprisonment for life and to pay a
fine of Rs.5,000/- (Rupees Five Thousand Only), in default of
payment of fine, to undergo R.I. for a further period of six months.
2. The case of the prosecution is that on 05.06.2004 afternoon
at about 4 P.M., the accused-appellant, Barsu Khilla returned home
and asked his wife, Solai Khilla, the deceased to give him food (rice).
Since the accused-appellant found that the deceased has not cooked
rice, he assaulted the deceased on her chest and belly by the handle
of a tangia and then he gave a blow on the backside of deceased's
right leg. She sustained profuse bleeding injury and few minutes
thereafter, she died.
3. The appellant in this case did not admit the prosecution
case and at the time of charge, the appellant claimed for trial. Only
two questions were put to him, in his accused statement, regarding
the incident. In his statement under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "Code" for
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brevity), the learned Sessions Judge had asked the appellant and
stated that, it transpires from the evidence of P.W.4, Iswar
Golari that he confessed before him that while one goat was entering
inside the varendah, the appellant threw a tangia, but it hit the leg of
the appellants wife, hence she died. The learned Sessions Judge
recorded his answer as "A:-(Murmurs) something which is in
audible". Basing reliance upon this so called "indirect admission", a
term coined by the learned Addl. Sessions Judge in the impugned
judgment the conviction has been recorded.
4. Altogether six witnesses have been examined on behalf
the prosecution. The doctor who conducted the postmortem
examination has not been examined. The postmortem examination
report has not been exhibited. P.W.1 has stated that he has no direct
knowledge about the case. P.Ws. 2 and 3 have turned hostile to the
prosecution. P.W.4 has also denied the prosecution suggestion that
the accused confessed before him about the murder. P.W.5 has also
not supported the case of the prosecution. P.W.6 is the Investigating
Officer.
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Miss. Rath, learned Amicus Curiae submits that there is
absolutely no evidence on record against the appellant and the
conviction of the appellant is illegal and he should be set at liberty
forthwith.
Mr. M.S. Sahoo, learned Addl. Government Advocate
submits that there is no material on record to come to conclusion that
this is a case of murder.
5. Basing on the contents of the F.I.R and the evidence of the
Investigating Officer (P.W.6), conviction has been recorded. There is
no evidence regarding the extra judicial confession made by the
appellant. However, such component of evidence has been taken into
consideration.
6. So, in the result, we find absolutely no evidence on record
to show that the deceased died a homicidal death as the doctor who
conducted postmortem examination has not been examined.
Moreover, the postmortem report has not been exhibited. Only two
exhibits have been relied upon by the prosecution, i.e., the F.I.R.
(Ext.1) and the inquest report (Ext.2). No other document has been
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exhibited. So, there is absolutely no evidence in this case to convict
the appellant.
Hence, the appeal is allowed. The judgment of conviction
and order of sentence are hereby set aside. The appellant be set at
liberty forthwith, if his detention is not required in any other case.
The L.C.R. be sent back to the concerned court below
forthwith.
............................
S. K. Mishra, J.
Savitri Ratho, J. I agree.
...........................
Savitri Ratho, J.
Orissa High Court, Cuttack,
Dated the 06th day of January, 2021/Rohit
