D.G.R.PATNAIK, J. - (1.) THE appellant Nandu Routh was charged with and tried for the offence under sections 302, 201 and 34 of the Indian Penal Code alongwith three others and he was convicted and sentenced to undergo imprisonment tor life for the offence under section 302/34 of the Indian Penal Code, while other remaining three accused persons were acquitted from the charges.
(2.) BRIEFLY stated, facts of the case, on the basis of which the instant case was registered, is that Ayna Routh, who was the wife of the appellant Nandu Routh, has suffered unnatural death while she was living at her matrimonial house alongwith her husband and in -laws. The deceased was strangulated to death in the afternoon on 22.6/1999. On receiving the information about the murder of his daughter from a street hawker at Jamtara market, her father (PW 6) who is the informant of this case, alongwith some members of his family and other acquaintances, went to the village of the appellant where he was informed that the husband and in -laws had proceeded to cremate the dead body of this daughter, but were intercepted by the village choukidar and others who brought the dead body to the police station where the father of the deceased saw the dead body and he observed marks of injury on the neck and left ear of the deceased. His statements were recorded by the police officer as his fardbeyan, on the basis of which, the case was registered for the aforementioned offences against the husband (appellant), father -in -law and brothers -in -law of the deceased. It has been claimed that though the deceased was married to the appellant six years ago, but she was constantly tortured and ill -treated by her husband and the deceased, during her lifetime, used to complain about her ill -treatment to her father. 2. After preparing inquest in respect of the dead body, the investigating officer (PW 10) had forwarded the dead body of the deceased for post mortem examination. Dr. Sambhu Nath Singh (PW 9) had conducted the post mortem examination on the dead body of the deceased on 23.6.1999 at about 11.00 A.M. and had recorded his observations in the post mortem report. He had found tongue brushed, bitten by teeth and protruded. He had found injury on his face and chest caused due to hard and blunt substance and face and eyes bear multiple petechial Haemorrhages. There was abrasion on right side of lower part of cheek. The neck was swollen. There were bruises and eechymosis on the front and sides of neck. In addition to the bruises, crescentic abrasion caused by finger nail was seen on the neck. On exposing neck, he found subcutaneous tissues of the neck shows exprarasation of blood beneath the injured area. He also found projection of the laryngeal cartilage and ends of hyoid bones were fractured at the region of great cernuae. There was bruises (Haemorrhage) found at the place of tongue. In the opinion of the doctor, the death was due to asphyxia on account of throttling. The time of death, in his opinion, was within 24 to 30 hours prior to the post mortem examination. The trial court while placing reliance upon the testimony of the informant (PW 6) and that of the doctor (PW 9) who had conducted autopsy on the dead body and also on the evidence of the investigating officer (PW 10), had recorded its finding of guilt for the offences under sections 302 and 34 of the Indian Penal Code against the present appellant only.
(3.) THE appellant has assailed the impugned judgment of his conviction and sentence primarily on the ground that since the other co -accused persons were acquitted from the charges for the offence under sections 302 and 34 of the Indian Penal Code, no conviction could have been sustained for the same offence against the present appellant. Referring to the judgment of the Supreme Court AIR 1996 SC 2727, learned counsel for the appellant submits that apparently, the trial court did not find any direct evidence against the appellant and, therefore, the appellant was charged with and convicted for the offence under sections 302 and 34 of the Indian Penal Code and in absence of any specific evidence of overt act against the appellant and the case resting entirely on circumstantial evidence, conviction of the appellant for the offence under section 302 with the aid of Section 34 of the Indian Penal Code, is totally misconceived and is not sustainable. Learned counsel argues further that out of ten witnesses who were examined, PW 1, PW 2, PW 3, PW 7 and PW 8 were declared hostile, since they did not offer any support to the prosecution 'scase. PW 4 is a formal witness who had signed as a witness on the inquest report. PW 5 who is the cousin of the informant and PW 6, who is informant himself, are hearsay witnesses. While remaining are the doctor (PW 9) and the investigating officer (PW 10). Learned counsel argues that there is no eye witness account relating to the murder of the deceased and neither has the place of occurrence been specifically proved, since the dead body was found by the informant (PW 6) at the police station. No evidence has been led by the prosecution to infer as to how the dead body had reached at the police station. Learned counsel adds further that though, the prosecution has tried to project circumstantial evidence against the appellant, but the evidences do not form a complete chain, nor do the evidences lead to a conclusive inference of guilt of the appellant.;