S.C. Parija, J.
1. This appeal by the accused-appellant is directed against the judgment dated 11-5-2005 passed by the Addl. Sessions Judge, Rourkela, in Sessions Trial No. 120/14./2004, holding the accused guilty of offence under Section 302 IPC and convicting him thereunder.
2. The case of prosecution, in brief, is that the accused, who is a married person had fallen in love with his neighbour Rengi (P. W. 2) a 16 year old girl, who actually loved one Bijaya Prasad (P. W. 10), which was resented by the accused. In the night of 24/ 25-12-2003, the mother of Rengi had gone to her native place leaving behind her daughter and two younger children. In that night, Rengi (P. W. 2) was talking with her boy friend Bijaya Prasad (P. W. 10) upto 10 p.m. and seeing this the accused Geja Sabar abused Bijaya Prasad (P. W. 10) as to why he was talking with Rengi (P. W. 2) upto such late hour in the night and cautioned him. The accused then came to Rengi and also charged her why she was talking with boys in the late hour of the night. Rengi (P. W. 2) ignored such comment of the accused and replied that it was none of his business. The accused felt hurt and went away. On that night, Susama, the daughter of informant had come to the house of Rengi (P. W. 2) for sleeping, as the mother of Rengi had gone away. At about 10.30 p.m. deceased Susama, Rengi (P. W.2), her brother Sanjay, sister Raimani and neighbour Usha Induar (P. W.6) slept in the room. In the late hour of the night, the accused entered inside the house of Rengi (P. W. 2) after pushing open the backside tin door and throttled Susama, who was sleeping near the entrance, on the impression that she was Rengi and in the process killed Susama. At that point of time, electricity which had gone off, suddenly came and the room was illuminated and Rengi who had woken up on hearing abnormal sound caused by the accused, saw him bending over Susama. Rengi (P. W. 2) challenged the accused as to what he was doing there near Susama at that late hour of the night. Accused realized then that he had wrongly throttled Susama thinking her to be Rengi and on seeing that Rengi is alive, caught hold of her neck in order to kill her. Rengi (P. W.2) pushed the accused and could manage to escape through the front door, shouting loudly for help. Being unnerved, the accused fled away from the house through the backside tin door.
3. On hearing the shout of Rengi (P. W. 2) other occupants of that room had woke up except Susama, the daughter of the informant, as she had died. On hearing commotion, others gathered at the house of Rengi and so also the informant and on coming to know that Susama has been throttled and killed by the accused, FIR was lodged by the father of the deceased Susama which was registered as Rourkela Plant Site P. S. Case No. 428/169 of 2003. Police arrived at the spot, conducted the inquest over the dead body of Susama and despatched it for post mortem examination. Subsequently, the accused was arrested and his wearing apparels were seized and after completion of investigation, charge sheet was filed against the accused for committing the murder of Susama.
4. The plea of the defence was of complete denial. It was further pleaded by the defence that the allegations have been falsely made against the accused though others had entered the house of Rengi (P: W. 2) on the night of occurrence, causing the murder of Susama.
5. The prosecution in order to substantiate its case, examined 11 witnesses. Defence did not examine any witness.
6. P. W. 1 is the informant, who is the father of the deceased Susama. P. W. 2 is Rengi Sahu, who was present in the room when the accused throttled Susama. P. W. 6 is Usha Induar, who was sleeping in that room along with the P. W. 2 on the night of the occurrence. P. Ws. 3, 4, 7 and 11 are inhabitants of the locality who gathered at the spot hearing the hulla of Rerigi (P. W. 2) and are post witnesses occurrence. P. W. 7, who is a neighbour, saw the accused coming out of the house of P. W. 2 at about 3 a.m. and at that time he heard the hulla of P. W. 2. P. W. 10 Bijaya Prasad is the boy friend of Rengi (P. W. 2) and is another neighbour. P. W. 5 is the doctor, who conducted the post mortem examination over the dead body of Susama. P. W. 9 is another doctor who had examined Rengi (P. W. 2) and P. W. 8 is the I. O.
7. The evidence of the informant (P. W. 1), Rengi (P. W. 2), Usha Induar (P. W. 6) and the inhabitants of the locality is to the effect that in the night of 24/25-12-2003 Susama, who was sleeping in the house of Rengi had expired. The I. O. (P. W. 8) visited the spot in the morning of 25-12-2003 and found the dead body of Susama in the house and conducted inquest over the same. The doctor (P. W. 5) who conducted the post mortem examination over the dead body of Susama on 25-12-2003 found ligature mark of 4' x 1' width on the front of her neck below the thyroid cartilage, P. W. 5 found nail marks on the side of neck and on dissection of ligature mark underlying parchment like tissue, surrounded by haemorragic adjoining tissue only noticed. P. W. 5 opined that the injury was ante mortem in nature and death was caused by asphyxia due to strangulation within 6 to 18 hours prior to the post mortem examination the doctor (P. W. 5) further opined that death was homicidal in nature. Accordingly there was no dispute that the death of Susama was homicidal in nature.
8. The evidence of P. Ws. 2 and 6 revealed that on the night of occurrence at about 3 a. m., the electricity supply had gone off and on hearing abnormal sound inside the room they woke up and at that time electricity came which illuminated the room and in the light they found accused Geja Sabar bending over the head of Susama. P. W. 2 immediately challenged him as to what he was doing in their room and then accused Geja Sabar pushed Susama and caught P. W. 2 by her neck and tried to throttle her but she sereemed and pushed him away and ran away out of the house through the front door shouting for help. At that time, accused Geja fled away through the backside door. Hearing hulla other persons of the locality gathered and P. W. 2 informed them that accused Geja had entered inside the house at the late hour of the night and tried to throttle P. W. 2. P. Ws. 3 and 4 corroborated the statement of Rengi (P. W. 2) and that she complained before them that the accused had entered inside her house. P. W. 7 who is another neighbour, has stated in his evidence that he woke up after hearing of hulla of P. W. 2 in the night and found the accused Geja Sabar coming out from the house of Rengi through the back door. The evidence of P. Ws. 2 and 6 revealed that hearing the hulla of Rengi (P. W. 2) all the occupants of room woke up except Susama, as she had died.
9. The accused Geja Sabar in his statement recorded under Section 313 Cr. P.C. claimed that Rengi (P. W. 2) has falsely implicated him and that on the night of occurrence, hearing the shout of Rengi (P. W. 2) he came towards her house and found 4 to 5 persons had entered inside and Rengi (P. W. 2) had challenged him (accused) as to why he had entered inside her house in that odd hour and that the cousin of Rengi had assaulted him. The defence had suggested to the P. W. 2 in cross examination that the accused Geja was never seen by her in that room nor he tried to throttle her and that it was Bijaya Prasad (P. W. 10) who was sleeping in that room with Rengi (P. W. 2) in the night of occurrence and as Susama saw them in that state, she screamed and therefore Bijaya Prasad (P. W. 10) closed her mouth by one hand and pressed her throat by the other hand as a result of which Susama died, which was denied by P. W. 2.
10. Both P. Ws. 2 and 6, who are sleeping in that room, have seen in clear light that the accused Geja was bending over Susama and being challenged by P. W. 2 he pushed Susama and tried to throttle P. W. 2, who could managed to rescue herself and scream for help, while coming out of the house through the front door. On hearing her shout, the people of the locality gathered. Moreover the statement of P. W. 7, who is another neighbour, also revealed that he woke up hearing the scream of Rengi (P. W. 2) and found accused Geja coming out of the house of Rengi at about 3 a.m. in the night, through the back door. Going to the house of Rengi, P. W. 7 found that Susama had died.
11. Coming to the motive of the accused to commit the offence of murder, the prosecution explained that the accused Geja was in love with Rengi (P. W.2) and she in turn had another boy friend namely Bijaya Prasad (P. W. 10) and in the night of 24/25-12-2003, the mother of P. W. 2 had gone to her native place and P. W. 2 spent the evening talking to P. W. 10 upto 10 p. m. in the night. P. W. 10 corroborated the said fact and further stated that the accused Geja abused him as to why he was talking with Rengi (P. W. 2) and out of fear of assault, P. W. 10 left the place. P. W. 2 has also stated in her evidence that the accused came to her and challenged her as to why she was talking with boys till the late hours of the night but she ignored such comment and replied that he had no business to interfere in her personal life. The accused was annoyed and left the place. P. W. 7 in his statement has also stated that on the evening of 24-12-2003 at about 10 p.m., he saw the accused Geja peeping into the house of Rengi (P. W.2) and at about 3 a.m. in the night, hearing the hulla, he woke up and found accused Geja coming out of the house of Rengi (P. W. 2), through the back door. As the house of P. W. 7 is situated on the back side of house of Rengi (P. W. 2), he could see the accused coming out of the house of P. W. through the back door.
12. On analysis of the evidence of the witnesses, learned Addl. Sessions Judge, found that the accused who was a married person was in love with Rengi (P. W. 2) and could not tolerate when P. W. 2 was friendly with Bijaya Prasad (P. W. 10) for which, he quarrelled with P. W. 10 on the night of occurrence and also tried to admonish Rengi (P. W. 2), in order to prevent her from being friendly with P. W. 10. His subsequent entrance in the house of Rengi (P. W. 2) at about 3 a.m. in the night, is the natural consequence of he not being able to tolerate the comments of Rengi (P. W. 2), regarding her being very friendly with P. W. 10 and wanted to teach her a lesson. Unfortunately in the darkness, accused Geja thinking Susama to be Rengi who was sleeping near the entrance, killed her and when Rengi (P. W. 2) woke up and challenged him he rushed to her and attempted to throttle her. Accordingly, learned Addl. Sessions Judge came to the conclusion that due to love triangle, accused had intended to kill Rengi (P. W. 2) and had gone to her house with that intention.
13. On the basis of such evidence on record, learned Sessions Judge found the accused Geja Sabar guilty for committing the murder of Susama by throttling under the impression that she was Rengi (P. W. 2). Accordingly accused Geja was found guilty under Section 302 IPC and convicted thereunder.
14. On and re-analysis of the evidence of P. Ws. 2,6 and 7 and the FIR lodged by P. W. 1, it is clear that on the night of occurrence, the accused Geja Sabar had entered the house of Rengi (P. W. 2) and due to non-availability of electricity and in the darkness, thinking Susama to be Rengi, the accused killed her. The fact that the accused was the author of the offence stands established by the evidence of witnesses and there is no material contradictions in such evidences. Further, the fact remains that as per the prosecution, the accused Geja had entered the house of Rengi (PW. 2) for killing her and in the darkness and under wrong impression had killed Susama, who was sleeping in the room on that night. Hence, it cannot be said that the accused had any intention to kill Susama. Moreover there was no pre-meditation on the part of the accused to commit such crime and the death of Susama can be said to be accidental due to mistaken identity rather than any intentional act of the accused. We are informed that the accused appellant is in custody for about 6 years.
15. In view of such fact, we feel, the interest of justice would be best served if the order of conviction of the accused appellant under Section 302 IPC is modified to one under Section 304 Part II IPC. The accused appellant is accordingly convicted under Section 304 Part II IPC and is sentenced to the period of imprisonment already undergone by him. The accused appellant shall be set at liberty forthwith, if his detention is not required in any other case.
The JCRLA is accordingly allowed to the extent indicated above.
A.S. Naidu, J.
16. I agree.