Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 337 (ORI)

RAJANALA DILLESWAR RAO v. STATE OF ORISSA

2008-04-17

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT : 1. The appellant having been convicted for commission of offence u/s 302 of the Indian Penal Code (in short 'I.P.C.') and sentenced to undergo R.I. for life, has preferred this appeal against the judgment and order of conviction and sentence passed by the learned 1st Addl. Sessions Judge, Berhampur in S.C. No.20 of 1999/S.C. No. 92 of 1999 G.D.C. 2. As it appears from the record, P.W.13, the S.I. of Berhampur Town Police Station while investigating into Berhampur Town Police Station U.D. Case No.7 dated 4.10.1998 ascertained during his enquiry that Rajanala Mani, daughter of P.W.7 had married appellant about four years prior to the occurrence. There used to be quarrel between both the husband and wife and the deceased had conceived by the time of occurrence. On 3.10.1998, the appellant and the deceased boarded in Sriram Bhawan Lodge at Berhampur. At about 2 A.M. the appellant informed P.W.5 regarding the health condition of the deceased and requested for shifting the deceased to the hospital and after the deceased was shifted to the hospital she was given some treatment but she expired in the hospital. On getting information from the hospital the aforesaid U.D. case was registered and in course of enquiry it was further found that the deceased was being tortured at the hands of the appellant and the deceased also died a homicidal death. On the basis of plain paper F.I.R. was drawn up by P.W. 13 and on completion of investigation charge-sheet was submitted for commission of offences under Sections 498-A, 304-B and 302 I.P.C. read with Section 4 of the Dowry Prohibition Act. 3. Prosecution in order to establish the charges, examined sixteen witnesses out of whom P.W.7 is the father of the deceased and P.W.5 is the Manager of Sriram Bhawan Lodge where occurrence took place. P.Ws. 1 and 2 are two constables who guarded the dead body of the deceased till post-mortem examination and P.Ws 4 and 6 are the two workers of the lodge who were called after the information with regard to ill health was disclosed. P.W.8 had come to Berhampur to see the deceased along with P.W.7 and P.W.9 is the driver of Kali Mata bus who had given information about the incident to the father of the deceased P.W.7. P.W.8 had come to Berhampur to see the deceased along with P.W.7 and P.W.9 is the driver of Kali Mata bus who had given information about the incident to the father of the deceased P.W.7. P.W. 12 is the doctor, who received the deceased for treatment and informed the Police Station about the death of the deceased. P.W.11 is the Executive Magistrate, who had attended the inquest conducted by P.W.16. P.W. 10 is Anr. doctor, who conducted post-mortem examination and P.W. 14 is a witness to the seizure of dowry articles. P.W.15 is one of those persons, at whose instance, marital life of the deceased was restored and P.W.13 is the Investigating Officer. 4. The plea of the appellant is complete denial of the prosecution case. According to him, in the night of occurrence the deceased was suddenly attacked with diarrhea and vomiting for which she had to be taken to the hospital where she died. The trial Court on the basis of circumstantial evidence available on record specifically relying on the evidence of P.Ws 5, 7 and 10 found the appellant guilty for commission of offence u/s 302 I.P.C. and convicted him thereunder. But the appellant was acquitted of rest of the charges. 5. Shri Mohapatra, learned counsel appearing for the appellant assails the impugned judgment and order on the ground that in absence of any eye-witness, prosecution relied on the circumstantial evidence and therefore, In absence of any evidence completing a chain of circumstances the appellant could not have been convicted for commission of offence u/s 302 I.P.C. According to the learned counsel for the appellant no one had seen what happened between the appellant and the deceased inside the room in the fateful night and only when the deceased started vomiting, the hotel manager P.W.5 was informed and the deceased was taken to the hospital where after some treatment was given to her, but she expired. According to learned counsel even if the evidence of P.W. 10, the doctor, who conducted post mortem examination is accepted and it is held .that the deceased had died a homicidal death, the trial court could not have convicted the appellant for commission of offence u/s 302 I.P.C. considering the fact that it is the appellant who with the help of P.W.5 took the deceased to the hospital and stayed by the side of the deceased till she died. If the appellant had any intention to kill the deceased, he could have done so when both of them were there in the room. Learned counsel for the appellant submits that considering the conduct of the appellant as stated above, he could have been convicted for commission of offence u/s 304 Part-ll I.P.C. 6. Learned counsel for the State referring the evidence of P.W. 10 submits that the deceased died a homic'dal death and cause of death is asphyxia with corresponding injuries which were found on the neck of the deceased. Since there was no one in the room except the appellant with the deceased, it is the appellant who must have caused injuries on the neck of the deceased. According to learned counsel for the State the appellant has been rightly convicted for commission of offence u/s 302 I.P.C. 7. It is not disputed that the appellant and the deceased are husband and wife and by the time the occurrence took place the deceased had conceived. It also appears from the evidence of P.W.5 that on 4.10.1998 the appellant and the deceased were staying in the lodge where he was working as a manager. Both of them were allotted Room No.116. P.W. 5 stated that at about 2 A.M. in the night of 4.10.1998 the appellant came to him and informed for removal of the deceased to the hospital disclosing her seriousness. He thereafter intimated over phone about the health condition of the deceased to one Dr. B.R. Mishra who advised to take the deceased to the hospital. Thereafter, he called a rickshaw in which, the appellant and the deceased were taken to the hospital. The man in charge of the hospital in that night did not attend the patient, but referred to the M.K.C.G. Medical College Hospital, Berhampur. Thereafter, the deceased was shifted to M.K.C.G. Medical College Hospital, Berhampur. The doctor in charge of the hospital first wrote a prescription and he brought the medicine from the medical campus. Half an hour thereafter, the doctor wrote the second prescription and he went to bring the medicine from the medical campus. When on the second occasion he came with the medicine the doctor advised him to return the medicine since the deceased had died. Half an hour thereafter, the doctor wrote the second prescription and he went to bring the medicine from the medical campus. When on the second occasion he came with the medicine the doctor advised him to return the medicine since the deceased had died. This witness has further stated that he went to the Room No.116 and found that the deceased was vomiting mixed with blood and there was bleeding from her mouth. P.W. 4 was working as a room boy in the said lodge who is the witness to the seizure under Ext.5. P.W.6 also was working in the said lodge. In cross-examination this witness has stated that at about 2 A.M. in the night of 3.10.1998 he was called to Room No.116 by P.W.5 and saw a lady in an unconscious condition lying in the bed and he also marked blood coming from her mouth. Thereafter, a rickshaw was called in which the deceased and the appellant went to the hospital. From the evidence of P.Ws 5 and 6 it appears that in the night of 3.10.1998 at about 11.55 A.M. the appellant and the deceased occupied Room No.116 in Sriram Bhawan Lodge and at about 2 A.M. the appellant informed P.W.5 to help him in shifting the deceased to the hospital. P.W. 7 is the father of the deceased who has stated about the marriage, demand for dowry made by the appellant and condition in which the deceased was staying with the appellant. P.W.10 is the doctor, who conducted post-mortem examination and found thirteen injuries most of which are abrasions and scratches. He was of the opinion that all the injuries were ante-mortem in nature and could have been caused by compression of the neck by hard and blunt force impact. He was also of the opinion that cause of death was asphyxia as a result of combined effect of compression of neck and choking of air way by food particles. He also found the deceased to be carrying at the time of post-mortem examination. In view of the medical evidence there cannot be any doubt that the deceased died a homicidal death and her neck had been pressed prior to death. He also found the deceased to be carrying at the time of post-mortem examination. In view of the medical evidence there cannot be any doubt that the deceased died a homicidal death and her neck had been pressed prior to death. Since the Appellant and the deceased were only two persons staying in Room No.116 of the said lodge, it is the appellant who could have inflicted such injuries on the neck of the deceased and none else. We, therefore, agree with the learned counsel for the State that it is the appellant who could have committed such act and none else. However, it appears from the evidence of P.Ws 5 and 6 that the appellant called P.W.5 at about 2 A.M. and sought for help to shift the deceased to the hospital. The evidence of P.W.6 also supports the evidence of P.W.5. It also appears from the evidence of P.W.5 that the appellant accompanied the deceased in shifting to the hospital and stayed with her till her death. The injuries found by P.W. 10 are not very serious being abrasions and scratches. If the appellant had any intention to kill the deceased he could have done so in the room itself. We, therefore, find considerable force in the contention of the learned counsel for the appellant that the appellant had no intention to kill the deceased. 8. We are, therefore, of the view that the appellant should have been convicted for commission of offence u/s 304, Part-I of the I.P.C. In view of the discussion made above, we allow the appeal-in part, set aside the impugned judgment and order dated 8.3.2000 passed by the learned 1st Addl. Sessions Judge, Berhampur in S.C. No.20 of 1999/S.C. No.92 of 1999 G.D.C. convicting the appellant for commission of offence u/s 302 I.P.C and convict him for commission of offence u/s 304, Part-II I.P.C. and sentence him to undergo imprisonment for a period of six years. It appears from the record that the appellant has already served sentence for nine years in the mean time. If that be so, the appellant Rajanala Dilleswar Rao be set at liberty forthwith, unless his detention is required in any other case. B.K. Patel, J. 9. I agree.