JAGA MADKAMI Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this case of alleged uxoricide, the appellant assails his conviction under Section 304 Part -I of the Indian Penal Code, 1860, hereinafter referred as the 'I.P.C. for brevity and sentence of imprisonment for life.

(2.) THE case of the prosecution is that, on 8.10.2001, at about 4 P.M., while the appellant and his wife (deceased) were returning from the weekly hat near the village of the informant (P.W.6), both the deceased and the accused picked up quarrel. Both of them were drunk. At that time, the accused allegedly gave slap blows to the deceased, for which she fell down losing consciousness. She was taken to the nearby house and was given 'Pejapani, but she could not drink and subsequently died. Thereafter a punch was covened by the villagers where the accused allegedly admitted his guilt. The matter was reported to police. After investigation, charge -sheet was laid against the accused under Section 302 of the IPC. In order to prove its case, the prosecution examined nine witnesses and the defence examined none. Taking into consideration the evidence led, the learned Addl.Sessions Judge has come to the conclusion that the prosecution has proved its case but held it to be a case of culpable homicide not amounting to murder and hence, he proceeded to convict the accused under Section 304 Part -I of the IPC and sentenced him to undergo imprisonment for life. Such judgment is assailed in this appeal.

(3.) IN case of murder or culpable homicide not amounting to murder, the foremost duty of the prosecution is to prove the homicide nature of the death of the deceased and then it should be prove complicity of the accused in commission of the crime. In order to prove the homicide nature of the death of the deceased, generally the prosecution examines the doctor, who conducted the post -mortem examination, unless the defence admits the document like post -mortem examination report under Sub -section (3) of Section 294 of the Code of Criminal Procedure, 1973, hereinafter referred to as the 'Code for brevity. In this case, the defence has not admitted the document under Section 294 of the Code. The doctor, who conducted post -mortem examination, has not been tendered as a witness in course of trial. Strangely, the post -mortem report has been proved and marked as Ext.7 by the Investigating Officer, which is improper. However, for the sake of the consideration, if the post -mortem examination is looked into, it is seen that the doctor, who conducted post -mortem examination has not given a clear -cut finding that the death of the deceased was homicidal in nature. In Ext.7, the doctor opined that upon post -mortem examination he opened the skull and found that there was a tear of meaninges on the frontal with a clot of subdural type, one external injury on cervical area of size 1"x1"x 1/2" and one swelling of 3" x 1" x 1" on fore -head hairline.