JUDGMENT
B. Panigrahi, J.
1. In this Government Appeal, the State has challenged the legality, validity and propriety of the order of the learned Sessions Judge, Keonjhar, Camp at Champua in Sessions Trial Case No. 43 of 1984 whereby the respondent was acquitted of the charge under Section 302 of the Indian Penal Code for committing murder of his wife Menja Dei in the night of 5/6 May, 1984.
2. The prosecution case as unravelled in course of trial is as follows :
The deceased was undisputedly the wife of the respondent. In the night of occurrence, the respondent demanded food from his wife, but when Menja Dei expressed her reluctance in serving food and, rather, proceeded towards a bamboo clump situated in front of the house of P.W. 2, the respondent went near that place and assaulted her with an axe resulting in her instantaneous death. In the same night, the respondent was said to have proceeded to Champua Police Station with an axe and narrated the incident of having killed his wife with the axe. The said information was diarised vide Station Diary Entry No. 113 dtd. 5.5.1984 which has been proved as Ext. 4. The axe (M.O.I.) and the under-wear belonging to the respondent had been seized by the police. According to the prosecution, these two material objects contained human blood. P.W. 6, the Investigating Officer in order to verify the truth or otherwise of the statement of the respondent, immediately rushed to the spot and saw the deceased Menja Dei lying in a pool of blood. Therefore, he drew up the F.I.R. which has been marked as Ext. 5 and took up investigation. He held inquest over the dead-body
and arranged to send it for post-mortem examination to Champua Sub-Divisional Hospital. P.W. 7, the Doctor, who conducted the post-mortem examination, submitted his report. In course of investigation, blood stained foot prints alleged to be belonging to the respondent was collected from the spot. Foot prints of the respondent was also collected from the jail while he was in custody. The Investigating Officer placed charge-sheet after completion of investigation.
3. Undisputedly the case depends upon the circumstantial evidence. It is to be borne in mind that all links in the chain of events must be firmly established and there should be no missing link, so as to raise a doubt regarding the complicity of the accused.
4. The learned Sessions Judge on an elaborate discussion of the evidence had, however, recorded an order of acquittal of the respondent. In order to challenge the said finding, the learned Addl. Government Advocate first placed reliance on the evidence of P.W. 2. P.W. 2 had no doubt claimed to have seen the respondent with a Bala in his hand in the night of occurrence, but he has unequivocally admitted to have bitter feelings with the accused inasmuch as there was a land dispute between them. In cross examination it has been brought out that P.W. 2 has stated to have seen the respondent going away at a distance of 3 or 4 cubits from him. It is curious to note that even though the P.W. 2 had seen the respondent yet he did not ask him anything with regard to the incident. It is also against the normal human conduct that a person after having seen such a ghastly murder in the night of incident, had not discussed the same with his wife, let alone the other villagers. From the evidence of P.W. 6 it has been emboided that he did not take any steps to call the other villagers in the night. After seeing the incident he calmly went inside his house and slept. So the conduct of the P.W. 2 appears to be very suspicious, and therefore, the learned Sessions Judge felt unsafe to rely on the testimony of P.W. 2.
5. The second circumstance allegedly appearing against the respondent is that his blood stained foot prints were collected from the spot, but no photographer has been examined, nor any foot print has been proved in this case. The foot prints of the respondent was also collected while he was in jail custody. No prayer was made before the S.D.J.M., for collecting such foot prints. In absence of any permission by the S.D.J.M., the learned Sessions Judge, had felt unsafe to accept the said foot prints as an incriminating circumstance against the respondent.
6. The prosecution then placed utmost reliance on the seizure of Bala from the possession of the appellant being produced by
him at the Police Station. In this regard, we find, there is no clinching evidence to establish that the said Bala contained human blood, although it was sent to the serologist for opinion. Since the learned Sessions Judge has considered this aspect of the case and held that even if seizure of the Bala was made at the instance of the respondent, but it cannot be accepted as a fact of leading to discovery, since he was not then arrested. No other witness supported the prosecution case except the P.W. 2, the Investigating Officer and the Doctor. The learned trial Judge has totally disbelieved the occular statement of P.W. 2 and held it to be incredible.
7. In an appeal against an order of acquittal, it has to be borne in mind that even if two alternative views are available, but the view taken by the trial Judge should not lightly be brushed aside unless there is a serious miscarriage of justice. On a combined reading of the evidence of the prosecution witnesses and on careful cogitation of the prosecution case, we however, find there is no merit in this appeal. Accordingly the Government Appeal is dismissed and the order of acquittal passed by the learned Sessions Judge is hereby affirmed.
P.K. Misra, J.
8. I agree.