Orissa High Court
Kunti Mallik @ Rama vs State Of Odisha on 8 January, 2024
Bench: D.Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.276 of 2012
In the matter of an Appeal under section 374 (2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 26.09.2011 passed by the learned
Sessions Judge, Phulbani in Sessions Trial No. 154 of 2010.
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Kunti Mallik @ Rama .... Appellant
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- Mr.S. P. Das,
Advocate
For Respondent- Mr. S. N. Das,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing :05.01.2024 :: Date of Judgment:08.01.2024
D.Dash,J. The Appellant, by filing this Appeal, has assailed the
judgment of conviction and the order of sentence dated 26.09.2011
passed by the learned Sessions Judge, Phulbani, in Sessions Trial
No. 154 of 2010, arising out of G.R. Case No.122 of 2010,
corresponding to Balliguda P.S. Case No.45 of 2010 of the Court of
learned Sub-Divisional Judicial Magistrate (SDJM), Balliguda.
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The Appellant (accused) has been convicted for commission
of offence under section 302 of the Indian Penal Code, 1860 (in
short, 'the IPC'). Accordingly, she has been sentenced to undergo
imprisonment for life and pay fine of Rs.10,000/- in default to
undergo Rigorous Imprisonment for one year.
2. Prosecution Case:-
On 17.06.2010 around 6.30 p.m., the accused, who is the first
wife of Gundana Mallik of village Muchudikia committed the
murder of Namanti Mallik, the second wife of said Gundana Mallik
in their house and left the house. Binjuka Mallik (P.W.6), the brother
of Namanti (deceased) was informed about the incident by one
Tingu Mallik (P.W.2). Binjuka (P.W.6) then rushed to the house of
his sister Namanti and saw her lying dead in a pool of blood with cut
injury on her neck and an axe was also found to be lying nearby.
Binjuka (P.W.6) then presented a written report with the Inspector-
In-Charge (I.I.C) of Balliguda Police Station. The same was treated
as FIR and after registration of the case, took up the investigation.
3. In course of investigation, the I.O (P.W.14) examined the
informant (P.W.6) and recorded his statement. He (P.W.14)
examined the scribe of the FIR and recorded his statement. He
visited the spot and prepared the report to that effect vide Ext.9. He
examined Gundana Mallik, the husband of the deceased and other
witnesses and recorded their statement. He then held inquest over the
dead body of the deceased in presence of the witnesses and prepared
the report to that effect vide Ext.1. He seized blood stained tangia
from the spot in presence of the witnesses under the seizure list
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Ext.10. He seized the blood stained and sample earth in presence of
the witnesses under the seizure list vide Ext.3. The dead body was
sent to Sub-Divisional Hospital, Balliguda for post mortem
examination by issuing necessary requisition. The I.O (P.W.14) then
examined the neighbours of the deceased and the accused. He then
arrested the accused, seized her yellow-red-green colour cotton sari
stained with blood and a green colour polyester blouse in presence of
the witnesses under seizure list vide Ext.5/1. He seized the wearing
apparels of the deceased vide Ext.7. The accused was forwarded in
custody to Court. The seized incriminating articles were sent for
chemical examination to SFSL, Rasulgarh through Court.
On completion of investigation, the I.O (P.W.14), submitted
the Final Form placing the accused to face the Trial for commission
of the offence under section 302 of the IPC.
4. Learned SDJM, Balliguda, receiving the Final Form as above,
took cognizance of the offence and after observing the formalities
committed the case to the Court of Sessions. That is how the Trial
commenced by framing charge against the accused for the said
offence.
5. In the Trial, the prosecution in order to bring home the charge
against the accused persons has in total examined 14 (fourteen)
witnesses. P.W.6 is the informant, who had lodged the written report
which was treated as FIR vide Ext.4 and also the brother of the
deceased. P.W.1 is the husband of the deceased. P.W.2, P.W.3,
P.W.4, P.W.9 and P.W.13 are the witnesses to the occurrence. P.W.5
is the scribe of the FIR. P.W.7 is a co-villager of the informant
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(P.W.6). The Doctor, who had conducted post mortem examination
over the dead body of deceased, has come to the witness box as
P.W.11 and the Investigating Officer has been examined as P.W.14.
6. Besides leading the evidence by examining above the
witnesses, the prosecution has also proved several documents which
have been admitted in evidence and marked as Ext.1 to Ext.12/1. Out
of those, the important are the FIR, Ext.4, Inquest Report, Ext.1,
Seizure list, Ext.2, Spot Map, Ext.9 and Post Mortem Report, Ext.8.
7. The plea of the accused persons is that of complete denial and
false implication.
8. Learned counsel for the Appellant (accused) submitted that the
prosecution evidence is not so direct in implicating this accused as
the author of the fatal injury received by the deceased. He further
submitted that the evidence let in by the prosecution is not
acceptable that this accused was present in the house with the
deceased and on the relevant day, she had left the house without any
information to anyone. He submitted that the evidence of the P.W.1
is not on the score that when he arrived at home, he saw the accused
either in the house or to have been going/running away from the
house. It was submitted that the evidence of P.W.2 that he saw the
accused running away with her children is not at all believable when
P.W.1, the husband of the deceased has maintained complete silence.
He, therefore submitted that when the prosecution has not proved
beyond reasonable doubt that on the relevant date, the accused was
with the deceased in the house and left the house at certain point of
time, whereafter, the dead body was noticed; the finding of the Trial
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Court that this accused is the author of the fatal injury received by
the deceased is wholly unsustainable. Thus according to him, even
though the prosecution has proved that Namanti has met a homicidal
death, the evidence on record is not enough to form a finding that it
is this accused, who had caused such injuries.
9. Learned Counsel for the Respondent-State while supporting
the finding of guilt against the accused as has been rendered by the
Trial Court submitted that the evidence of P.W.2 being read in
entirety, would show that the accused was seen by him, leaving the
house and shortly thereafter when he went inside, he had seen
Namanti lying dead. Such evidence according to him is enough to
displace the burden of proof upon the shoulder of the accused
obligating him to provide explanation as to how it all happened to
the deceased and since that is not forthcoming; the judgment of
conviction has to sustain.
10. Keeping in view the submissions made, we have carefully
read the judgment of conviction impugned in this Appeal. We have
also gone through the depositions of all the witnesses P.W.1 to
P.W.14. We have also perused the documents which have been
admitted in evidence and marked Ext.1 to Ext.12/1.
11. The prosecution has proved the nature of death of Namanti as
homicidal by examining P.W.11, who was the Doctor, who had
conducted the autopsy over the dead body of the deceased. As per
the evidence P.W.11, he had noticed five chopped wounds over the
deceased and according to him, the cause of death was due to
profuse bleeding for the damage to the great vessel. His evidence is
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very specific that the death is homicidal in nature. The evidence of
the I.O (P.W.14) and other witnesses also provide support to the
evidence of P.W.11. In fact, this aspect of the case was not under the
challenge before the Trial Court and that is also the situation before
us. Therefore, we are left with no option but to affirm the finding of
the Trial Court that Namanti's death was homicidal.
12. Now, coming to the question of complicity of the
accused as has been found out by the Trial Court, in order to judge
its sustainability, let us first touch upon the evidence of P.W.1. This
P.W.1 is none other than the husband of the accused and the
deceased. It is stated by him that during morning hour, on that day,
when he went for ploughing the land, the accused and the deceased
were together in the house. His evidence is that the deceased was to
follow her after finishing the household work and when she did not
arrive, this P.W.1 came to see her and know the reason of such
delay. His evidence is that when he arrived at home, he saw Namanti
lying dead with bleeding injury on her neck and accused was not
there in the house. He states that in the meantime, Tingu (P.W.2)
came to his house and as asked by him, Tingu (P.W.2) went and sent
his father Suta Mallik (P.W.3). This witness with the permission of
the Court has been cross-examined by the Prosecution, when he has
denied to have stated to have seen the accused assaulting at her neck
and throat by a tangia. He has also denied to have stated during
investigation that hearing the quarrel between his two wives, he had
returned home from the field where, he was ploughing and then had
seen accused assaulting the deceased. Such statements being made
before the Investigating Officer (P.W.14) in course of investigation
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having been so stated by P.W.14, those, however, simply place the
evidence of P.W.1 as unreliable and his statement during
investigation would not stand for consideration as the substantive
evidence.
13. It is seen from the evidence of P.W.2 that he has stated
that when the incident took place, he was in front of her house and
saw accused going away from his house maintaining speed by taking
her children with her and when he went to the house of Gundana, he
saw him crying and as per his request, he sent information to the
brother of the deceased (P.W.6) that the accused had killed Namanti.
This witness when is stating about the presence of P.W.1 when he
arrived after seeing the accused going with speed with her children,
P.W.1 is not stating that accused in her presence left the house with
her children. He does not also state that accused was present in the
house when he came from the field where he was ploughing. Thus,
from the evidence of P.W.1 & P.W.2, we are not in a position to
conclude that the prosecution has proved that this accused shortly
before the incident was present in the house and after the incident,
left the house.
With the above evidence on record, it would not be
permissible to say that the burden of proof had shifted upon the
shoulder of the accused to explain as to how it all happened to
Namanti leading to her death.
14. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 26.09.2011 passed by the
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learned Sessions Judge, Phulbani, in Sessions Trial No. 154 of 2010
are hereby set aside.
Since the Appellant namely, Kunti Mallik @ Rama is on bail,
her bail bond shall stand discharged.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G. Satapathy),
Judge.
Gitanjali
Designation: Junior Stenographer
