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2008 DIGILAW 222 (ORI)

PRAKASH CHANDRA SATPATHY v. STATE

2008-03-14

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge (Fast Track Court), Chatrapur in Sessions Case No. 41 of 2002 (S.C. No. 363/ 2000-GDC) convicting the Appellant for commission of offence u/s 302/498-A of the Indian Penal Code. For conviction u/s 302 I.P.C. the Trial Court has imposed sentence of life imprisonment and has also directed to pay fine of Rs. 500/- and for conviction u/s 498-A I.P.C., the Trial Court has imposed sentence of imprisonment for a period of two years and directed to pay fine of Rs. 500/- . 2. Case of the prosecution is that the Appellant had married the deceased more than 10 years prior to the occurrence. At the time of marriage, dowry in shape of cash of Rs. 50,000/- gold ring, gold chain had been given to the Appellant and gold ornaments were also given to the deceased. After the marriage the Appellant and the deceased were living happily and they have been blessed with two daughters. Thereafter, the Appellant started demanding more dowry in the shape of cash on the ground that the deceased had given birth to two female children. During the life time of father of the deceased, he had given Rs. 30,000/- that did not satisfy the Appellant. It is alleged that the Appellant had tortured the deceased physically and mentally to bring more dowry. This fact was intimated by the deceased to her parents on several occasions. It is also case of the prosecution that on two occasions a sum of Rs. 5,000/- and Rs. 10,000/- had been given to the Appellant, but the Appellant was never satisfied with the amount paid and continued to demand dowry. The deceased having complained of illtreatment and assaults at the hands of the Appellant, village committee was approached where the Appellant admitted to have assaulted the deceased and also promised not to assault any further. On 6.11.1999 in the morning at about 9 A.M. it is alleged by the prosecution that the Appellant brutally assaulted the deceased by means of a Kati and also twisted her hands causing fracture and injury on the head. When the deceased asked for water, it is alleged that the Appellant gave poison. The Appellant then took her to hospital where she succumbed to the injuries on 7.11.1999. When the deceased asked for water, it is alleged that the Appellant gave poison. The Appellant then took her to hospital where she succumbed to the injuries on 7.11.1999. It is also alleged by the prosecution that on 7.11.1999 at about 6 A.M. the Appellant brought back the deceased to his house and made an extra judicial confession before the P.Ws. 9 and 10 and also requested to help in cremation of the dead body. In the meantime, P.W. 1 brother of the deceased, reached the house of the Appellant after getting information about the occurrence and presented a written report to the police which was treated as F.I.R. and a case was registered for commission of offence u/s 302/498-A/34 I.P.C. read with Section 4 of the Dowry Prohibition Act. Investigation was conducted and after completion of investigation, charge-sheet was filed for the aforesaid offences and the Appellant faced trial for commission of the said offences. 3. In order to prove the charges, the prosecution examined as many as 14 witnesses, but one witness was examined on behalf of the defence. From the statement of the Appellant recorded u/s 313 Code of Criminal Procedure, it appears that the deceased fell down from roof of his house and sustained injuries and succumbed to the injuries. 4. Out of 14 witnesses examined on behalf of the prosecution, P.W. 1 is the informant and brother of the deceased and P.W. 2 is the brother of the Appellant. P.W. 3 is the nephews the Appellant and P.Ws. 4, 7, 8, 9 and 10 are independent witnesses to the occurrence. P.W. 6 is the constable who had accompanied the dead body for post-mortem examination and P.W. 8 is the doctor who conducted post-mortem examination. P.W. 13 has the scribed the F.I.R. and P.W. 14 is the 1.0. and P.W. 12 is the daughter of the deceased and the Appellant who was examined as an eye-witnesses to the occurrence. In course of trial, P.W. 12 daughter of the deceased and the Appellant turned hostile. Relying on the extra-judicial confession made by the Appellant before P.Ws. 9 and 10, coupled with the past conduct in assaulting the deceased and report of the doctor (P.W. 5) who conducted post mortem examination, the Trial Court found the Appellant guilty of the charge u/s 302/498-A I.P.C. and convicted him there under. 5. Relying on the extra-judicial confession made by the Appellant before P.Ws. 9 and 10, coupled with the past conduct in assaulting the deceased and report of the doctor (P.W. 5) who conducted post mortem examination, the Trial Court found the Appellant guilty of the charge u/s 302/498-A I.P.C. and convicted him there under. 5. Shri. Katikia, Learned Counsel appearing for the Appellant assails the impugned judgment on the ground that P.W. 12 who was examined as an eyewitness to the occurrence turned hostile and did not support the case of the prosecution and further submitted that the defence plea defence plea that the deceased fell down from the roof of the house and sustained injuries and died appears to be more probable. It was also contended by the Learned Counsel for the Appellant that P.W. 1 who is I none other than brother of the deceased also supported he defence plea. Considering the evidence that the Appellant took the deceased 0 the hospital, the defence plea is more probable than that of the prosecution. It was also contended by the Learned Counsel that after the deceased was shifted to the hospital, she had been treated by a doctor who was withheld by the prosecution from being examined in Court. Had the said doctor been examined, the Court would have been in a position to know the injury sustained by the deceased after she fell down from the roof. The deceased having died a day after the occurrence, death possibly could not be due to injuries sustained by her. Learned Counsel for the State referring to the evidence of eye-witnesses including P.W. 1 and 10 submitted that there is clear evidence of assault at the hands of the Appellant prior to the incident and the matter had been settled by village committee. The Appellant also made extra-judicial confession before P.Ws. Learned Counsel for the State referring to the evidence of eye-witnesses including P.W. 1 and 10 submitted that there is clear evidence of assault at the hands of the Appellant prior to the incident and the matter had been settled by village committee. The Appellant also made extra-judicial confession before P.Ws. 9 and 10 admitting to have killed the deceased by means of a Kati which is corroborated by the evidence of P.W. S. in view of the above, the Trial Court was justified in convicting the Appellant for commission of offence u/s 302 of the I.P.C. So far as the offence u/s 498-A of the I.P.C. is concerned, it was contended by the Learned Counsel for the State that the witnesses are consistent to the effect that long after the marriage after birth of two daughters, the Appellant started demanding dowry and on three occasions the demand was met by his in-laws to some extent. 6. We have carefully examined the evidence adduced on behalf of the prosecution as well as the reference. Case of the prosecution is that though the Appellant had married the deceased for more than 10 years by the time the incident took place and after birth of two daughters the Appellant started demanding dowry and some demands had been fulfilled by his in-laws. The Appellant also assaulted the deceased on certain occasions threatening her to get dowry and on complaint of the deceased the matter was taken up by Village Committee where the Appellant promised not to assault the deceased any further. Sometime thereafter the incident took place wherein the deceased sustained injuries and was taken to hospital for treatment, where she succumbed to the injuries. Though it is the case of the prosecution that the Appellant assaulted the deceased on her head by means of Kati, plea of defence is that she fell down from the roof of their house and sustained injuries. P.W. 1 is none other than the brother of the deceased and informant in this case. He has stated in his deposition that at the time of marriage some gold and silver articles apart from cash had been given as dowry. However, he has stated that the deceased was being looked after well by the Appellant. At this stage, he was declared hostile by the prosecution. He has stated in his deposition that at the time of marriage some gold and silver articles apart from cash had been given as dowry. However, he has stated that the deceased was being looked after well by the Appellant. At this stage, he was declared hostile by the prosecution. From cross-examination of this witness, we do not find anything which can go in support of the case of the prosecution. Rather from the cross-examination by defence, it appears that this witness stated before Court that the deceased fail down on her owns due to high blood pressure and sustained injury on her head, face, waist, both legs and hands. P.W. 2 is the brother of the Appellant who was declared hostile by the prosecution. His evidence neither helps the prosecution nor the defence. P.W. 3 is the nephew of the Appellant who turned hostile. His evidence stands similar to that of P.W. 2, P.W. 4 was the barber who was present at the time of marriage and he was also declared hostile having not supported the case of the prosecution. P.W. 5 is the doctor who conducted post-mortem examination and found four abrasions Le: on right foot, knee, one bruise over left wrist, another bruise on the occipital partial bone of skull and fracture of occipito partial bone. P.W. 5 was of the opinion that all the external injuries are anti- mortem in nature and head injury could be possible by blunt side of Kati which was seized. So far as defence version that the deceased sustained injuries by falling from roof of the house is concerned, same had been completely ruled out by the doctor. It also appears from the opinion of doctor that he had noticed fracture of right Tradius and right ulna and fracture of left radius and left ulna. P.W. 6 is the police constable who had accompanied the dead body for post-mortem examination. P.W. 7 is an independent witness who has stated that there was a meeting in the village and the deceased complained of ill-treatment at the hands of the Appellant and she also complained that she had been assaulted on some occasions. The Appellant in the said meeting promised not to assault and torture the deceased any further. Similar is the evidence of P.W. 8 who was present in the same meeting. The Appellant in the said meeting promised not to assault and torture the deceased any further. Similar is the evidence of P.W. 8 who was present in the same meeting. P.W. 9 had attended the marriage of the Appellant and the deceased and he has stated that at the time of marriage a cash of Rs. 50,000/- gold ornaments and T.V. and other articles were given as dowry. He has further stated that the Appellant was demanding dowry and assaulting the deceased every now and then. He has also stated that on two occasions, brother of the deceased had given Rs. 5000/- and Rs. 10,000/- to the Appellant as dowry, but despite such payment the Appellant continued to assault the deceased. He has also stated about the village meeting where the deceased complained of assault at the hands of the Appellant. This witness has further stated that after hearing about death of the deceased, he went to the house of the Appellant and Appellant on being asked, confessed to have assaulted the deceased and she died. Nothing has been brought out in the cross-examination of this witness to disbelieve his testimony. P.W. 10 is another independent witness who has stated that the Appellant was demanding dowry from the in-laws and was assaulting the deceased. He has also stated that there was a meeting of Santi Committee where the deceased complained of assault at the hands of the Appellant and the Appellant promised not to assault any further. He has further stated that on 7.11.1999 in the morning the Appellant approached him and wanted to help him in cremating the dead body. The Appellant had also confessed to have assaulted the deceased by means of a Kati and taken to hospital where she died. This witness has stated that the Appellant in police custody gave recovery of a Kati by bringing it from under a box which was lying in the front room of his house and he signed the seizure list. However, in cross examination this witness has admitted that he had not entered into the room and stood outside when Appellant took the police inside the house and brought the Kati. P.W. 11 is the A.S.I. of Police who has seized some articles. P.W. 12 is the daughter of the Appellant and the deceased who was projected the eye-witness to the occurrence. P.W. 11 is the A.S.I. of Police who has seized some articles. P.W. 12 is the daughter of the Appellant and the deceased who was projected the eye-witness to the occurrence. However, she did not support the case of the prosecution was declared hostile. She has stated in her evidence that the deceased fell down from the roof and sustained injuries. P.W. 13 is the scribe of the F.I.R. and P.W. 14 is the I.O. On over all analysis of evidence of these witnesses, we do not find that the defence versions deposed to by P.W. 1 and 12 and the statement of the Appellant recorded u/s 313 Code of Criminal Procedure that the deceased fell down from the roof of the house and the deceased sustained injuries is acceptable considering the fact that it has been completely ruled out by P.W. 5 who conducted postmortem examination. Therefore the death of the deceased has to be treated as homicidal death. 7. Now coming to the question as to who caused the death of the deceased, prosecution relies on circumstantial evidence, P.W. 12 the sole eye-witness to the occurrence having turned hostile. We find from the evidence of the witnesses that some dowry articles had been given at the time of marriage and even after birth of two daughters the Appellant started making further demand in form of cash and on two occasions, brother of the deceased had paid cash of Rs. 5000/- and Rs. 10,000/- . It appears from the evidence of the witnesses that the Appellant was making further demand of dowry and was assaulting the deceased on several occasions. On complain of the deceased, village committee was called and the deceased specifically complained of assault at the hands of the Appellant in the said committee and the Appellant promised not to assault her any further. Sometime thereafter the incident took place, wherein the deceased sustained injuries and succumbed to the injuries. The Appellant made extra-judicial confession before P.Ws. 9 and 10 admitting to have assaulted the deceased by means of a Kati. On further analysis of the evidence, we find that though the prosecution tried to prove that there was demand of dowry through mouth of P.W. 9, said evidence was not supported by even brother of the deceased. The Appellant made extra-judicial confession before P.Ws. 9 and 10 admitting to have assaulted the deceased by means of a Kati. On further analysis of the evidence, we find that though the prosecution tried to prove that there was demand of dowry through mouth of P.W. 9, said evidence was not supported by even brother of the deceased. But the prosecution was able to prove that the Appellant was assaulting the deceased and there was a village meeting in relation to such complaint made by the deceased. Prosecution also proved that the Appellant made extra-judicial confessions before P.Ws. 9 and 10 admitting to have assaulted the deceased by means of Kati and the said evidence gets corroboration on the injuries found by P.W. 5 in course of postmortem examination. We are, therefore, of the view that the prosecution has been able to prove that on the date of occurrence the Appellant assaulted the deceased, as a result of which the deceased sustained injuries and ultimately succumbed to the said injuries. However, from the evidence, we find that the alleged incident took place on 6.11.1999 at about 9 A.M. and the deceased died on the next date. From the evidence of P.W. 5, we find that there is one bruise on the occipito partial bone of size 1/2"X1/2" which has resulted in a fracture. Rest of the injuries are not found on any vital part of the body which could cause death. From the external injuries also it is fund that the nature of blow was not so heavy otherwise it could not have caused a bruise. Apart from above, it appears that the Appellant took the deceased to hospital and stayed in hospital till her death. From the nature of external injuries sustained by the decreased and the evidence that the Appellant took the deceased to hospital immediately after the occurrence, we feel that the Appellant had no intention to cause death, but had knowledge that such injury might cause death. We are, therefore., of the view that the Appellant should have been convicted for commission of offence u/s 304, Part-II, of Indian Penal Code instead of Section 302 I.P.C. 8. We are, therefore., of the view that the Appellant should have been convicted for commission of offence u/s 304, Part-II, of Indian Penal Code instead of Section 302 I.P.C. 8. We, accordingly, set aside that part of the order of the trial convicting the Appellant u/s 302 I.P.C. and convict the Appellant for commission of offence u/s 304 Part-II of I.P.C. So far as conviction u/s 498-A of I.P.C. is concerned, we do not find any reason to interfere with the same. Having found the Appellant guilty of the offence u/s 304, Part-II I.P.C., we sentence him to imprisonment for a period of seven years. So far as the sentence imposed by the Trial Court for his conviction u/s 498-A I.P.C. is concerned, is confirmed. Both the sentences are to run concurrently. It is stated that the Appellant has served more than seven years in custody in the meantime. If that be so, he be set at liberty forthwith, unless his detention is required in any other case.