Surendra Mallik vs State Of Orissa
2023 Latest Caselaw 11853 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 JCRLA No.66 of 2014

              In the matter of an Appeal under section 383 of the Code of
        Criminal Procedure and from the judgment of conviction and order of
        sentence dated 05.09.2014 passed by the learned Additional Sessions
        Judge, Jajpur in S.T. No.163 of 2013.


            Surendra Mallik                         ....         Appellant


                                        -versus-
            State of Orissa                         ....         Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

              For Appellant-            Mr. S.K. Samantaray
                                        Advocate

              For Respondent-           Mr. S. K. Nayak,
                                        Additional Government Advocate
                      CORAM:
                      MR. JUSTICE D. DASH
                      MR. JUSTICE A.C. BEHERA

             Date of Hearing :14.09.2023     :: Date of Judgment: 03.10.2023

    D.Dash, J.        The Appellant, by filing this Appeal from inside the Jail,

has challenged the judgment of conviction and order of sentence dated 05.09.2014, passed by the learned Additional Sessions Judge, Jajpur in S.T. No.163 of 2013, arising out of G.R Case No.1102 of 2012, corresponding to Dharmasala P.S. Case No.343 of 2012 of the Court of the learned Judicial Magistrate First Class (JMFC), Chandikhol.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860

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(in short, 'the IPC') and he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo Rigorous Imprisonment for 2 (two) years.

Prosecution case:-

2. On 20.11.2012, around 6 p.m., one Sanatana Mallik (P.W.1) lodged a written report (Ext.) with the Inspector-in-Charge (IIC) of Dharamsala Police Station (P.W.) stating therein that on that day, around 4.30 p.m. when having heard terrible sounds, he had been to the house of the accused, he saw several people of the locality to have gathered thereon. On enquiry, it was ascertained that the accused had killed his wife namely Minati Mallik. It was also stated in the FIR (Ext.1) that the accused then was standing there holding a blood stained axe and Katuri and Minati, the wife of the accused was lying dead near the door of the house.

The IIC (P.W.18), receiving the above written report, treated the same as FIR and registering the case, took up the investigation.

In course of investigation, he examined the Informant (P.W.1) and then went to the spot and examined other witnesses there. On the next morning, he held inquest over the dead body of the deceased and prepared the report (Ext.4) to that effect in presence of the witnesses. He also prepared the spot map (Ext.9). The dead body was then sent for post mortem examination and prior to that the I.O (P.W.18) seized incriminating articles such as the blood stained earth and sample earth etc. vide seizure list (Ext.5/2). He also seized the wearing apparels of the deceased on production by the police constable, who had been deputed to accompany the dead body for post mortem examination. On 26.11.2012, P.W.18, having received the post mortem examination

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report, handed over the charge of investigation to his successor in office (P.W.19). The subsequent I.O (P.W.19) then reexamined the witnesses and on his prayer, the seized incriminating articles were sent for chemical examination through Court.

On completion of investigation, the I.O (P.W.18) submitted the Final Form, placing the accused to face the Trial for commission of offence under section 302 of the IPC.

3. Learned JMFC, Chandikhol, having received the Final Form as above, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced against the accused by framing the charge for the said offence.

4. In the Trial, prosecution in total has examined nineteen (19) witnesses. As already stated, the informant who had lodged the FIR (Ext.1), scribed by P.W.16, is P.W.1. P.W.12 and P.W.17 are the son and brother of the deceased. The independent witnesses are P.W.2 to P.W.11. P.W.13 and P.W.14 are the witnesses to the seizure. The Doctor, who had conducted autopsy over the dead body of the deceased, is P.W.15 where as P.W.18 and P.W.19 are the two Investigating Officers.

5. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.12. Out of those, the important are the FIR (Ext.1), Inquest Report (Ext.4), Map (Ext.9), Post Mortem Report (Ext.7). The Chemical Examiner's Report has been admitted in evidence and marked as Ext.12.

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The Trial Court on going through the evidence of the prosecution witnesses and upon examination of the contemporaneous documents prepared in course of investigation has arrived at a conclusion that the accused is the person who is responsible for the homicidal death of this wife Minati.

6. The plea of the accused is that of complete denial and false implication. The accused, however, has not tendered any evidence in support of his defence.

7. Learned counsel for the Appellant (accused) without disputing the nature of death of the deceased (Minati) to be homicidal as stated by the Doctor (P.W.15) and his report (Ext.7) as also other witnesses including the I.O (P.W.18) submitted that the Trial Court in the absence of any evidence coming to surface during Trial in establishing the complicity of this accused either directly or proving the circumstances leading to a irresistible conclusion that it was the accused, who alone was responsible for the death of his wife Minati has erroneously recorded the conviction. He further submitted that when almost all the witnesses have not supported the prosecution case and it also does not emerge in the evidence that the accused and the deceased were seen together before the detection of the dead body or that they were together in the night in the house, there was no occasion for the Trial Court to hold the accused to be the perpetrator of the crime.

8. Learned counsel for the Respondent-State submitted that even though the prosecution witnesses have not gone to state anything in support of the charge against the accused yet it being there in the evidence that the accused and his deceased wife were then together in the house and the deceased when was found lying dead with injuries,

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there being no explanation from the side of the accused as to what happened to his wife and how she sustained all such injuries, the finding of guilt against the accused as has been returned by the Trial Court has to sustain.

9. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.19 and have perused the documents admitted in evidence and marked Ext.1 to Ext.12.

10. The informant (P.W.1) although in his FIR has stated to have ascertained from the people, who had gathered near the house of this accused that Minati had been killed by the accused and had also mentioned in the FIR (Ext.1) to have seen the accused then holding the weapons and standing there; in the Trial, he has flatly denied to have any knowledge about all those. He has even gone to say that he was not examined by the police. The prosecution being permitted to cross- examine the witness has remained satisfied by simply drawing the attention of this witness to his previous statement which has been proved that he has stated so before the I.O (P.W.18). In any case the evidence of P.W.1 is of absolutely no help to the prosecution. P.W.2 being the seizure witness, except proving his signature on the seizure list has feigned his ignorance. P.W.3 has also state to have known nothing about the case and not examined by the police. P.W.4, the inquest witness having proved his signature in the inquest report stated to have no knowledge about the occurrence. It has been stated by P.W.5 that when he was returning to his house, he found a large gathering and had seen Minati lying dead. The other inquest witness P.W.6 has followed the part of the first inquest witness P.W.4 and that has also been the

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evidence of the other inquest witnesses, who are P.W.7, P.W.8, P.W.9 and P.W.10. P.W.11 has not stated anything about the occurrence or any event either before the occurrence or thereafter. All of them have completely remained silent in all matter. P.W.12 is the son of the accused and the deceased. He had stated that hearing about the death of his mother when he returned home, he found his mother lying dead with cut injury on her neck. It has also been stated by him that his father (accused) was then absent and some people told him that his mother was killed by his father. It is also his evidence that his brother and sister were absent at home as they had been to attend the school. He is stating to have seen his father for the first time after the incident in Court. This son of the accused and the deceased having stated all those surrounding facts as regards on the complicity of the accused in his statement before the I.O (P.W.18); on being confronted by the prosecution with permission of the Court during cross-examination has flatly denied to have so stated earlier. P.W.12 is also not stating that in the previous night his father (accused) was there at home and he has flatly denied the presence of his father at home when he arrived and saw his mother lying dead with cut injury.

P.W.14 is the witness to the seizure of some incriminating articles whereas P.W.16 is the scribe of the FIR. Their evidence in no way point finger of accusation at the accused and they also do not state any such surrounding facts. P.W.17, the sister of the deceased has simply stated to have seen the deceased lying dead with cut injury on the neck when he had been to the house of the deceased being called by the police. She has also stated that at that time, accused was not present at that place.

With all these evidence coming from the lips of the prosecution witnesses, we even do not find that the foundational facts so as to attract

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the 106 of the Evidence Act have been proved. In such state of affair in the evidence, we are completely at a loss to understand that the Trial Court even having said that the burden of proof lying on the prosecution has not shifted to the accused requiring him to prove all those facts as to how his wife received those cut injuries, has gone to record the finding of guilt against the accused. We are therefore of the view that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.

11. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 05.09.2014, passed by the learned Additional Sessions Judge, Jajpur in S.T. No.163 of 2013 are hereby set aside.

The Appellant (accused), namely, Surendra Mallik, be set at liberty forthwith, if his detention is not warranted in connection with any other case.

(D. Dash), Judge.

A.C. Behera, J. I agree.

(A. C. Behera), Judge.

Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHCGitanjali Date: 06-Oct-2023 17:58:30