Research › Search › Judgment

Orissa High Court · body

2000 DIGILAW 219 (ORI)

ARJUNA DAS v. STATE OF ORISSA

2000-04-21

P.K.PATRA

body2000
P. K. PATRA, J. ( 1 ) IN this appeal, the judgment dated 4-3-1997 passed by Shri N. P. Rout, First Additional Sessions Judge, Cuttack in Sessions Trial No. 501 of 1995 convicting the appellant under Ss. 498-A and 325, IPC and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000. 00, in default to undergo rigorous imprisonment for a further period of six months under the first count and to rigorous imprisonment for seven years and to pay a fine of Rs. 5,000. 00 in default to undergo rigorous imprisonment for a further period of one year under the second count has been challenged. The above sentences have been directed to run concurrently. The appellant has been acquitted of the charge under S. 302, IPC. ( 2 ) PROSECUTION case briefly stated is as follows :-In the year 1982 the appellant had married deceased Budhei alias Kalpana, younger sister of Narendra Mohapatra (P. W. 5) and daughter of Brundaban Mohapatra. They were co-villagers being residents of village Ragadi under Banki Police Station in the district of Cuttack. The appellant and the deceased led happy conjugal life for the first three years and were blessed with a son two years after their marriage but that son expired within two three days of his birth. Then they were blessed with a daughter who also expired a few months after her birth. It is alleged that the appellant was abusing and assaulting the deceased very often and demanding landed property from his father-in-law and the deceased was frequently going to her parents' house and was returning back to the house of the appellant at the intervention of the friends of the appellant. She had not gone from the house of the appellant to her parents' house since about a year prior to her death in the house of the appellant. It is alleged that the appellant and the deceased had a quarrel in the night of 19-4-95 and in the next morning her deadbody was lying on the verandah of the house of the appellant. Getting information about the death of the deceased, P. W. 5 went to the house of the appellant and found the deadbody of the deceased. It is alleged that the appellant and the deceased had a quarrel in the night of 19-4-95 and in the next morning her deadbody was lying on the verandah of the house of the appellant. Getting information about the death of the deceased, P. W. 5 went to the house of the appellant and found the deadbody of the deceased. He reported the occurrence to the Officer-in-charge of Banki P. S. (P. W. 8) at 8-30 a. m. of 20-4-20000 who registered U. D. Case No. 10 dated 20-4-95 and directed the A. S. I. of the Police Station (P. W. 6) to conduct enquiry. P. W. 6 examined the witnesses, held inquest over the deadbody of the deceased and sent the same for post-mortem examination. Since the post-mortem examination report revealed that the death of the deceased was due to shock and haemorrhage as a result of the injuries inflicted on her and that the injuries were ante-mortem in nature and death of the deceased was homicidal in nature, he submitted a written report (Ext. 3) on 24-3-1995 to P. W. 8, who treated the same as FIR and registered the case under Ss. 498-A/302, IPC against the appellant and took up investigation. During investigation P. W. 8 visited the spot, examined witnesses, arrested the appellant on 28-4-1995 and forwarded him to Court in custody and preserved the viscera for chemical examination to the R. S. F. L. , Bhubaneswar. On his transfer from the Banki Police Station, P. W. 8 handed over charge of investigation to the S. I. , Shri B. C. Sethy, on30-5-1995, who after completion of investigation submitted chargesheet against the appellant who stood his trial. The plea of the defence is one of denial and false implication due to dispute with the father of the deceased relating to land. ( 3 ) IN order to bring home the charge against the appellant, prosecution has examined eight witnesses in all out of whom P. W. 5 is the brother of the deceased, P. Ws. 1, 2, 3 and 4 are the neighbours of the appellant, P. W. 7 is the medical officer who conducted the post-mortem examination over the deadbody of the deceased and P. Ws. 6 and 8 are the investigating officers. ( 4 ) THE defence has examined one Krupasindhu Mohapatra, a co-villager, as D. W. 1 in support of its plea. 1, 2, 3 and 4 are the neighbours of the appellant, P. W. 7 is the medical officer who conducted the post-mortem examination over the deadbody of the deceased and P. Ws. 6 and 8 are the investigating officers. ( 4 ) THE defence has examined one Krupasindhu Mohapatra, a co-villager, as D. W. 1 in support of its plea. ( 5 ) PLACING reliance on the statement of P. W. 6, which was corroborated by the statements of P. Ws. 1, 2, 3 and 4 as also the medical evidence on record, the learned Addl. Sessions Judge has come to the conclusion that the appellant was torturing the deceased for non-fulfilment of dowry demand and that due to assault by the appellant on vital parts of the deceased, the deceased succumbed to the injuries. Accordingly he found the appellant guilty of the charge under S. 498-A, IPC and convicted him thereafter. He, however, found the appellant not guilty of the charge under S. 302, IPC but found him guilty under S. 325, IPC and convicted him thereunder. ( 6 ) MR. S. R. Mohapatra, learned counsel for the appellant contended that the learned Addl. Sessions Judge has failed to appreciate the evidence on record correctly and has erroneously come to the finding that the appellant was guilty of the charge under Ss. 498-A and 325, IPC which cannot be legally sustained and is liable to be set aside. The learned Addl. Govt. Advocate supported the impugned judgment contending that the learned Addl. Sessions Judge has come to the right conclusion. The rival contentions require careful consideration. ( 7 ) THERE is no dispute that the appellant had married the deceased in the year 1982 and that they were blessed with one son two years after their marriage who expired within 2/3 days of his birth. Then a daughter was born who also expired within a few months of her birth. According to the informant (P. W. 5), the appellant was abusing and assaulting the deceased for landed property and that deceased was frequently going to her parents' house situated in the same village, a few houses apart from the house of the appellant and was returning back to the house of the appellant after settlement of the dispute. According to the informant (P. W. 5), the appellant was abusing and assaulting the deceased for landed property and that deceased was frequently going to her parents' house situated in the same village, a few houses apart from the house of the appellant and was returning back to the house of the appellant after settlement of the dispute. P. W. 5 has further stated that the deceased had not gone to her parents' house for about a year prior to her death. The defence has suggested to P. W. 5 that his father had proposed to give two acres of land to the deceased and that to grab that land for himself, he (P. W. 5) falsely implicated the appellant in this case. In his statement under S. 313, Cr. P. C. the appellant has stated that due to land dispute this false case has been foisted against him. P. W. 1 whose house is situated at a distance of about 200 metres from the house of the appellant has stated that after their marriage the appellant and the deceased were quarrelling. He has stated to have heard hulla in the house of the appellant in the night of the occurrence while he was returning from Banki and in the morning he learnt about the death of the deceased. He resiled from his earlier statement made before the investigating officer that a light was burning in the house of the appellant and he could see the appellant overpowering the deceased and the mother and sister of the appellant also overpowering the deceased and the sister of the appellant administering some liquid in the mouth of the deceased. P. W. 2 has stated that at about 2 a. m. in the night of the occurrence he woke up for urination and heard hulla in the house of the appellant. He went there and found the appellant standing on the body of the deceased and that the door of the house was open and a light was burning in the house. The next morning he heard about the death of the deceased. P. W. 3 has stated to have slept in the house of D. W. 1 in the night of the occurrence and at about 1 a. m. to 2 a. m. he heard somebody crying in the house of the appellant. The next morning he heard about the death of the deceased. P. W. 3 has stated to have slept in the house of D. W. 1 in the night of the occurrence and at about 1 a. m. to 2 a. m. he heard somebody crying in the house of the appellant. He went there and found the mother and sister of the appellant abusing the deceased and the appellant dealing kick blows on the belly of the deceased. Next morning he heard about the death of the deceased. P. W. 4 is a front door neighbour of the appellant. He has stated to have heard hulla in the house of the appellant and found the front door of the house of the appellant open and a light burning inside the house. He heard the cries of the deceased and in the next morning he heard about the death ofthe deceased. He turned hostile and resiled from his earlier statement made before the investigating officer regarding assault by the appellant on the deceased. But he has admitted to have stated before the investigating officer about the sister of the appellant administering something in the mouth of the deceased. From the statements of P. Ws. 1, 2, 3 and 4 it is evident that in the dead of the night the front door of the house of the appellant was open and a light was burning inside the house and there was hulla in the house. According to P. Ws. 2 and 3, the appellant dealt kick blows on the belly of the deceased and according to P. Ws. 1, 2, 3 and 4 the deceased was found dead in the morning. The medical evidence on record reveals that the cause of death of the deceased was due to shock and haemorrhage due to injuries on abdomen and vital organ like liver and that the injuries found on the body of the deceased were ante-mortem in nature. The medical officer (P. W. 7) who conducted the post-mortem examination over the deadbody of the deceased on 20-4-1995 at 12-35 p. m. found no external injury on the deadbody of the deceased, but on dissection he found 250 ml. of dark liquid blood in the abdominal cavity, a haematoma of varying thickness from. 5 to 1 cm. extending over the left hypochondrium and lumber region involving the omentum and adjacent solf tissues. of dark liquid blood in the abdominal cavity, a haematoma of varying thickness from. 5 to 1 cm. extending over the left hypochondrium and lumber region involving the omentum and adjacent solf tissues. He also found another haematoma of the size 3" x 21/2" with varying thickness from. 5 cm. to 1 cm. on right hypochondrium. Further he has found that the liver posterior lateral surface of the posterior lobe looked slight dark in colour and a lacerated wound of the size 11/2" x 1/4" x 1/4" on the posterior lobe in the posterior lateral aspect. On dissection the liver was found pale, the kidney right side was intact and normal, the kidney left side looked redish in colour and on dissection both the kidneys were normal. The stomach was intact and contained about 30 ml. of mucoid material. It looked pale white in colour having no characteristic order. The stomach mucosa was normal. The intestine was normal and contained gas. The bladder was intact and empty, the uterus was empty and normal and the vagina was intact. On opening the thorax, both the lungs were found intact, left lung was normal, lower lobe of the right lung looked reddish and other lobes normal. On dissection both the lungs were found pale. Pericardium was intact. The heart was also intact. On dissection of the heart, both the chambers were found empty. The scalp was intact and on opening the cranial cavity, the membrances and brain substances were found intact and normal. Ext. 4 is the post-mortem report submitted by P. W. 7. Thus the medical evidence on record supports the prosecution case that the death of the deceased was due to the internal injuries on the belly and liver and there is no reason to disbelieve the statements of P. Ws. 2 and 3 that the appellant dealt kick blows on the belly and chest of the deceased. ( 8 ) A disquietening feature of this case is that though in the inquest report and the deadbody challan it is stated that death of the deceased might have been caused due to poisoning (sodium) and though the viscera of the deceased was preserved for chemical examination, the same was not sent for chemical examination. It is also there in the statements of P. Ws. It is also there in the statements of P. Ws. 2 and 3 that the sister of the appellant had administered some liquid in the mouth of the deceased, but the investigation was not directed against the sister and mother of the deceased. Had there been chemical examination of the viscera of the deceased, the same would have revealed whether the sister of the appellant had administered poison or water on the deceased after the assault. It is found from the post-mortem report (Ext. 4) that the viscera of the deceased had been preserved for chemical examination and was kept in the custody of the S. D. M. O. , Banki. The investigating officer (P. W. 8) has stated that on his transfer from the Banki Police Station he handed over charge to the S. I. Shri B. C. Sethy on 30-5-1995 who submitted chargesheet in this case without sending the viscera for chemical examination. This lapse on the part of the investigating officer may not be viewed seriously since the cause of death of the deceased as opined by the medical officer (P. W. 7) is shock and haemorrhage due to the injuries on the belly and liver of the deceased. The lapse on the part of the investigating officer in not sending the viscera for chemical examination will be of little consequence. ( 9 ) THERE is no cogent and convincing evidence on record that the deceased was tortured by the appellant for non-fulfilment of dowry demand. The informant (P. W. 5) has not specifically stated that the appellant was demanding two acres of land as dowrythough he has stated that the appellant was assaulting and abusing the deceased due to land dispute. Therefore, the conviction of the appellant under S. 498-A, IPC cannot be sustained and the same is liable to be set aside. ( 10 ) IN view of the cogent and convincing evidence of P. Ws. 2 and 3, corroborated by the medical evidence on record, the finding of the learned Additional Sessions Judge that the appellant was guilty cannot be interfered with. Instead of convicting the appellant either under S. 302 or under S. 304, Part II IPC, the learned Addl. ( 10 ) IN view of the cogent and convincing evidence of P. Ws. 2 and 3, corroborated by the medical evidence on record, the finding of the learned Additional Sessions Judge that the appellant was guilty cannot be interfered with. Instead of convicting the appellant either under S. 302 or under S. 304, Part II IPC, the learned Addl. Sessions Judge had convicted him under S. 325, IPC which cannot be interfered with since no appeal has been preferred by the State and no notice of enhancement of sentence has been issued to the appellant. Therefore, the conviction of the appellant under S. 325, IPC and the sentence passed thereunder are upheld. ( 11 ) IN the result, the appeal is allowed in part. The conviction of the appellant under S. 498-A, IPC and the sentence passed thereunder are set aside and he is acquitted of the said charge. The conviction of the appellant under S. 325, IPC and the sentence passed thereunder are confirmed. Appeal partly allowed.