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2009 DIGILAW 792 (ORI)

Niranjan Mekap v. State of Orissa

2009-10-15

A.S.NAIDU, L.K.MISHRA

body2009
JUDGMENT A.S. NAIDU, J. — The appellant along with four others faced trial for commission of offences under Sections 302/304-B 498-A I.P.C. read with Section 4 of D.P. Act in the Court of learned Addl.Sessions Judge, Bhubaneswar in S.T. No.16/130 of 2003. By judgment dated 12.3.2004 learned Addl.Sessions Judge while acquitting four accused persons out of five, convicted the appellant alone under Section 302 I.P.C. and sentenced him to undergo R.I. for life. Being aggrieved the appellant has filed this appeal assailing the aforesaid judgment and order of convic¬tion. 2. The prosecution case was set to motion on the basis of an F.I.R. lodged by Laxmidhar Mohapatra-P.W.3 at Balakati Out Post on 25.5.2002. In the said F.I.R. it was averred that the daughter of the informant, Chitrarekha Mohapatra out of love married the appellant and got the same registered on 01.7.2000. Initially they led a blissful married life but then few months thereafter accused Satyabhama, Bhagirathi, Chitaranjan and Mano¬ranjan who happen to be mother-in-law, father-in-law and brother-in-laws respectively along with the appellant pressurized Chitra¬rekha to bring dowry from her father. The said fact was com¬plained by Chitrarekha before her parents about eight months after the marriage. According to the informant he had given some articles to his daughter but then not being satisfied with the same his daughter was tortured both mentally and physically by her in-laws i.e. the accused persons. On 21.5.2002 Chitrarekha came to the house of the informant and requested him to give one gold ring, bell-metal utensils and one Luna moped so that she can go to her in-laws house after witnessing the ‘jatra’ in the village. On 24.5.2002 at about midnight appellant-Niranjan came and took Chitrarekha with him. On 25.5.2002 early in the morning Chitrarekha was found hanging in the thatch of the cow-shed of one Sukumari Mohapatra and there was mark of injury on the lower part of her head near the ear. It was alleged that the accused persons had assaulted and murdered Chitrarekha. 3. On 25.5.2002 early in the morning Chitrarekha was found hanging in the thatch of the cow-shed of one Sukumari Mohapatra and there was mark of injury on the lower part of her head near the ear. It was alleged that the accused persons had assaulted and murdered Chitrarekha. 3. On the basis of the aforesaid F.I.R. the Investigating Officer took up investigation of the case, went to the spot, held inquest over the dead body, sent the same for postmortem examination, seized the wearing apparels and other materials, examined different persons under Section 161 Cr.P.C., arrested the accused persons and after completion of the investi¬gation submitted charge sheet in the Court of the learned S.D.J.M., Bhubaneswar in G.R. Case No.1533 of 2002. Learned S.D.J.M. after going through the records and on being satisfied that a prima facie case was made out, took cognizance of the offences and committed the case to the Court of Sessions for trial. 4. The plea of the appellant-Niranjan was that Chitrarekha had gone to her parent’s house and he is not aware with regard to the cause of death. The plea of other accused persons was of complete denial. 5. In order to substantiate its case, prosecution got thirteen witnesses examined. Out of whom P.W.3 was the father of the deceased and the informant, P.W.1 was the mother, P.W.2 was the brother and P.W.4 was the wife of the brother of the de¬ceased-Chitrarekha, P.W.6 was the witness to the inquest, P.Ws.7, 10, 11 had seen the dead body of Chitrarekha hanging in the cow-shed, P.Ws.8 and 9 were seizure witnesses. P.W.5 did not support the prosecution case. P.W.12 was the doctor who conducted the postmortem examination. P.W.13 was the Investigating Officer. 6. Learned Addl. Sessions Judge discussed the evidence both oral and documentary in extenso. P.W.5 did not support the prosecution case. P.W.12 was the doctor who conducted the postmortem examination. P.W.13 was the Investigating Officer. 6. Learned Addl. Sessions Judge discussed the evidence both oral and documentary in extenso. He did not believe the evidence of the doctor and arrived at a conclusion that as Chi¬trarekha and appellant-Niranjan were seen last together prior to death of Chitrarekha and Niranjan failed to explain as to how the body of Chitrarekha was found in the cow-shed, and as such it should be held that Niranjan had committed the murder, and con¬victed him under Section 302 I.P.C. It is pertinent to mention here that learned Addl.Sessions Judge on scrutiny of the evidence has arrived at a conclusion that the prosecution had totally failed to establish the allegation that any of the accused per¬sons had demanded any dowry and/or Chitrarekha was subjected to cruelty or harassment soon before her death in connection with any demand of dowry, and acquitted all the accused persons of the charges under Section 304-B/498-A of I.P.C. read with Section 4 of D.P. Act. The said judgment as stated earlier is assailed in this appeal. 7. Mr. Sarangi, learned counsel for appellant strenuously took this Court through the evidence and submitted that learned Addl. Sessions Judge, Bhubaneswar in the absence of any reliable evidence to reveal that the appellant had any role to play and/or involved in the offence, merely on the basis of surmises and conjectures found him guilty and the order of conviction cannot be sustained. It is further submitted that suspicion, however strong it may be, cannot substitute legal proof and on the basis of suspicion alone an accused should not be convicted. Further, according to Mr. Sarangi the evidence of the doctor who conducted the postmortem being very clear and unambiguous, learned Addl.Sessions Judge acted illegally and with material irregulari¬ty in taking a different view that too on the basis of mere sur¬mises and conjecturers and it is a fit case where the order of conviction needs to be interfered with. 8. Mr. Mishra, learned Addl. Government Advocate on the other hand submitted that learned Addl. Sessions Judge has vivid¬ly discussed the evidence and the conclusions arrived at being just and proper, the same shouldn’t be interfered with. 9. In order to appreciate the submissions, this Court meticulously perused the evidence and also considered the conten¬tions raised. 8. Mr. Mishra, learned Addl. Government Advocate on the other hand submitted that learned Addl. Sessions Judge has vivid¬ly discussed the evidence and the conclusions arrived at being just and proper, the same shouldn’t be interfered with. 9. In order to appreciate the submissions, this Court meticulously perused the evidence and also considered the conten¬tions raised. Fact remains, five persons faced trial on the allegation that they had committed offences under Sections 302/304-B/498-A of I.P.C. read with Section 4 of D.P. Act. Learned Addl.Sessions Judge, Bhubaneswar after analyzing the evidence, found that the prosecution had totally failed to estab¬lish the charges under Section 304-B/498-A I.P.C. and Section 4 of D.P. Act and acquitted all the accused persons including the appellant from the said charges. The said order of acquittal having not been assailed either by the State or by the informant has attained finality. However, the appellant has been convicted for commission of offence under Section 302 of I.P.C. The only point which needs to be determined in this appeal is as to wheth¬er the prosecution was successful in establishing the charge under Section 302 of I.P.C. so far as the appellant is concerned. 10. In order to substantiate a conviction under Section 302 of I.P.C. The prosecution has to establish beyond all reasonable doubt that the death of Chitrarekha was homicidal one. To determine the said issue it would be prudent to go through the evidence of P.W.12 - the doctor who conducted the postmortem. He was a specialist in F.M.T. at Capital Hospital, Bhubaneswar and is an expert. On examining the dead body he found only one injury being a ligature mark above the level thyroid. According to the doctor on the right side of front of the neck the ligature mark was directed upward and ended just above and medial to right angle of mandible. On the left side, the ligature mark was hori¬zontally backwards up to plane of left mastoid at middle of the neck. He has opined that the cause of death to be due to hanging. To a specific question put by the Court the Doctor stated that death of Chitrarekha might be suicidal or might be homicidal in nature. Nothing much could be elicited from P.W.12 in cross-examination. He has opined that the cause of death to be due to hanging. To a specific question put by the Court the Doctor stated that death of Chitrarekha might be suicidal or might be homicidal in nature. Nothing much could be elicited from P.W.12 in cross-examination. A cumulative reading of the entire evidence thus leads to an irresistible conclusion that the doctor has not opined that the death was homicidal in nature. The evidence of the doctor was not accepted by learned Addl. Sessions Judge. It was observed that as the medical evidence does not rule out the cause of death to be homicidal and as the ligature mark was made by the saree, it raises an unimpeachable inference that heavy external force was used by means of a hard substance on the left side neck of Chitrarekha and the same is ante mortem in nature and was the cause of death. 11. The aforesaid conclusion arrived by learned Addl. Sessions Judge is beyond the evidence. None of the witnesses have come forward and deposed in Court with regard to any assault, that to by the appellant. Learned Addl.Sessions Judge has further relied upon the inquest report. In the inquest report, it is stated that the neck of the deceased was tied by saree and the skin had been peeled to certain extent. No specific question was put to the doctor with regard to the said fact. Even otherwise, if a rope or saree is tied on the neck and a person commits sui¬cide by hanging by friction some of the skin would be peeled. In absence of any evidence to the extent that the appellant had caused any injury, learned Addl. Sessions Judge should not have presumed and passed an order of conviction on the basis of such presumption. 12. According to Modi’s Medical Jurisprudence and Toxicolo¬gy, hanging is a form of death produced by suspending the body with a ligature round the neck, the constructing force being the weight of the body. As would be evident from the evidence of the doctor-P.W.12 who had the occasion to examine the corpse meticu¬lously, we did not find any mark of violence, ante mortem in nature. After dissection also he had not noticed any unusual aspect leading to commission of homicidal death. As would be evident from the evidence of the doctor-P.W.12 who had the occasion to examine the corpse meticu¬lously, we did not find any mark of violence, ante mortem in nature. After dissection also he had not noticed any unusual aspect leading to commission of homicidal death. Entire reading of the evidence of P.W.12 coupled with postmortem report gives an impression that the death was suicidal in nature. Even otherwise, law is well settled that if two views are possible in respect of a evidence that too evidence of a doctor the view favouring the accused should be accepted. 13. After going through the entire evidence this Court is satisfied that the prosecution has totally failed to prove that the death was homicidal in nature. It has also failed to estab¬lish that the appellant was in any way connected with the said death. Admittedly the deceased-Chitrarekha was the wife of the appellant. The dead body was found in the early morning hanging from the cowshed of neighbour. On overall scrutiny of the entire evidence, this Court finds that learned Addl. Sessions Judge acted illegally and with material irregularity in not believing the evidence of the doctor who conducted the postmortem examina¬tion. That apart the conclusions arrived at are based on surmises and conjectures which are not born out of the records. Conse¬quently this Court has no hesitation to set aside the order of conviction and acquit the appellant under Section 235 of the Cr.P.C. of the charges under Section 302 of I.P.C. and directs accordingly. The appellant be set at liberty, if his detention is not required in respect of any other case. The Criminal Appeal is accordingly disposed of. L.K. MISHRA, J. I agree. Appeal disposed of.