JUDGMENT
B. Panigrahi, J.
1. This appeal is against the order of conviction and sentence passed by the learned Sessions Judge, Sundargarh in S.T. No. 95 of 1989 under Section 302, IPC directing the appellant to undergo rigorous imprisonment for life.
2. The prosecution case as unfolded during trial, is as follows :
P.W. 1, the son of the deceased lodged an information at the Sundargarh Sadar Police Station by stating that on 8.2.1989 in the evening at about 7.00 P.M. the informant (P.W. 1) and his younger brother (P.W.3) had set out for village Chengbernapara to attend a marriage function of one of their relations. At the time when they went out from the house, they had noticed the appellant in the company of their mother, the deceased. In the night they did not return. On the following morning when both the brothers returned they found that their front door had been locked and the keys had been placed on the wall. P.W. 1 opened the lock, entered inside the house and noticed that the door of the inside room was locked outside with a rope being tied. The informant untied the rope entered inside the room and saw his mother, lying in a pool of blood in their kitchen close to the fire place and she was dead. The informant raised an outcry, as a result of which P.W.3 went inside. P.W. 1 asked his brother to watch the dead body and went out to call the other persons of the village. P.Ws. 1 and 3 also found a hammer lying inside the bari stained with blood. The lungi, napkin and other clothes used by the appellant were also stained with blood, but the appellant had changed those blood stained clothes, kept them inside, and left the house. It is further stated in the FIR that by the time P.Ws. 1 and 3 reached their house, they found the appellant absent. The appellant was quite often consuming liquor and not contributing any financial help to the family. On the basis of the report, a case under Section 302, IPC was registered against the appellant and the O.I.C., Sadar Police Station, immediately took up investigation, in course of which he proceeded to the spot, held inquest over the dead body of the deceased, arranged to send the dead body for post mortem examination, seized the weapon of offence, the hammer (M.O.I) and the clothes of the deceased as well as the appellant and on completion of investigation, submitted charge-sheet against the appellant.
3. The defence plea in the trial Court was that on 8.9.1989 the appellant was not in the village and on 1.2.1989 he had visited his sister’s house coming to know that she was unwell and had stayed there for 7-8 days. As he was working in the O.S.R.T.C. garage, Sundargarh he had handed over the application for leave to one of his friends.
4. The trial Court on evaluation of the ocular as well as medical evidence, held the appellant guilty of commission of the offence of murder of his wife and therefore, he was sentenced to undergo imprisonment for life. It is found from the judgment that the learned Trial Judge has relied on the following circumstances:
(i) By the time P.Ws. 1 and 3 went to the village Chengernapara they found the appellant in the company of the deceased. On the following morning, when they returned to their house they found that their mother was dead and the appellant was absent from the house.
(ii) Though the appellant was working in the OSRTC garage, but without availing any leave, he unauthorisedly remained absent from 1st February, 1989 till the date of arrest.
(iii) The weapon of offence was seized from inside the backyard of the house.
5. There is no eye-witness to the occurrence and the entire prosecution case rests on circumstantial evidence.
6. While considering the case depending upon circumstantial evidence, it should be borne in mind that (1) the circumstances concerned ‘must’ or ‘should’ and not ‘may’ be established: (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved: and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
7. Keeping the aforesaid principle in mind, let us now advert to the evidence of P.W.1, the maker of the FIR. From the evidence of P.W.1 embodied in the judgment, it has appeared that on the date of occurrence, he along with P.W.3 went to attend a marriage near their village. By the time they left the house, they found the appellant and the deceased present in the house. On the following morning when they came back, P.W. 1 noticed the appellant assaulting his mother with the hammer on her head. While considering the evidence in Court, the statement made in the FIR is to be borne in mind. In the FIR, it has been stated that after P.Ws. 1 and 3 returned from attending the marriage feast on the following morning, they found the appellant absent from the house and their mother was lying dead in a pool of blood- But in the evidence given in Court P.W. 1 had claimed to have seen his father assaulting the deceased. Therefore, it is difficult to ascertain which part of the statement is true. The FIR can only be used for the purpose of corroboration and confrontation. In this case since there has been material contradiction between the FIR story and the evidence in Court, we feel, it would risky to place implicit reliance on the evidence of P.W. 1. True it is that he is the son of the deceased, but when he claimed to have remained absent in the night of occurrence and arrived subsequently in the morning, it is unlikely that he could have seen the incident which had taken place in the previous night.
8. Now, turning to the evidence of P.W.2, it is found that the appellant had gone to the extent of sexually misbehaving with her. For such reason, there was a panchayati in the village where the appellant was fined. Therefore, on a combined study of the evidence of P.Ws. 1 and 2, it is emerged that there was no love lust between the appellant and P.Ws. 1 and 2.
9. P.W.3, the other son of the deceased, also claimed to have learnt from P.W, 1 that the appellant was present in the house assaulting their mother. Therefore, the statement of P.Ws. 1 and 3 is in conflict with the FIR story to the effect that the appellant was not present in the house after commission of the offence. P.W.3 had stated before the police, during investigation that when he reached the house he saw his mother lying dead, but had not claimed to have seen his father. This contradiction between the statement during investigation and the testimony in Court appears to be suspicious and so, the evidence of P.W.3 is not reliable and trust inspiring. P.W.4 does not speak anything with regard to the incident. P.W.5 was the Medical Officer attached to the District Headquarters Hospital, Sundargarh. On 9.2.1989 he examined the deceased and found four external injuries corresponding to three internal injuries. The cause of death was due to shock and haemorrhage, as a result of injuries to vital organs of the body like brain. On perusal of the medical evidence, it has appeared that the deceased met a homicidal death.
10. P.W.6 was a co-employee of the appellant. From his evidence, it has transpired that the appellant had last attended his work at Sundargarh on 1.2.1989. Thereafter, he did not come to the office. This statement too does not help the prosecution inasmuch as the death has taken place on 8.2.1989 night. Before such incident, the appellant was also found absent. The appellant, on the contrary, has taken a stand that because his sister was ailing, he left the leave application on the table of the Foreman. The investigation was not directed to find out if any other leave application had been submitted by the appellant. Therefore, the statement of P.W.6 is in no way helpful to the prosecution.
11. From the testimony of P. W. 1 it appears that after assaulting the deceased on her head by a hammer, his lungi and napkin had been extensively stained with blood. Therefore, he had changed his dresses and left the house. Although P.W.8 is a witness to the seizure of lungi and napkin, but the prosecution had not taken any step to prove that those garments belonged to the appellant. Those clothes nonetheless were sent to the Chemical Analyst, but on examination, no incriminating material was noticed on those wearing apparels. From the evidence of P.W. 11 it is found that he collected the materials on 9.2.1989. The appellant had gone to village Gudihadihi (his sister’s village), but he did not examine any witness of the said village including the sister of the appellant to ascertain the truth or otherwise of his statement.
12. On analysis of the above materials, we found that the learned trial Judge did not consider the prosecution case in proper perspective and hastily jumped to the conclusion that the appellant had committed the murder of his wife. There has been no conclusive proof that the appellant was alone found in the company of the deceased in the night of the incident nor is there any material to show that there was no inmates other than the appellant present at the time of commission of the offence.
13. Accordingly, the appeal is allowed. The order of conviction and sentence passed against the appellant is hereby set aside. The bail bond furnished by the appellant is hereby discharged.
P.K. Misra, J.
14. I agree.
