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2010 DIGILAW 550 (ORI)

LENDU PARAJA v. STATE OF ORISSA

2010-08-04

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT : 1. The Appellant faced trial for commission of offence u/s 302 of Indian Penal Code for causing death of his wife Sanai in the night of 25.11.1997 at village Fukaguda. The trial court found him guilty of the offence and sentenced him for imprisonment for life. Hence this appeal. 2. The case of the prosecution is that in the night of 25/26.11.1997 hearing hullah of the deceased P. Ws. 1, 2 and 3 went to the house of the Appellant and saw the Appellant assaulting the deceased by giving fist and kick blows. When the said witnesses intervened, they were threatened and out of fear they left the place. On the next day morning the Appellant left his house and did not return to the village. A village panch was convened on 26.11.1997 which was attended by some of the witnesses namely P. Ws. 1, 2 and 5, but the Appellant did not attend. The deceased who was present in the village panch disclosed that she was having pain in her stomach and chest because of the assault received by her at the instance of the Appellant in the previous night. Later on the deceased died on 03.12.1997. P.W.2 went to the Police Station along with P.W.1 and lodged the F.I.R., on the basis of which investigation was taken up. Charge sheet was filed for commission of offence u/s 302 I.P.C. against the Appellant and he faced trial for commission of the said offence. Relying on the evidence of P. Ws.1, 2 and 3 as well as the disclosure made by the deceased in the village panch, the trial court found the accused guilty of the charge and convicted him thereunder. 3. The prosecution in order to prove the charge examined nine witnesses, out of whom P. Ws. 1, 2 and 3 claimed to have seen the Appellant assaulting the deceased by kick and fist blows in the night of occurrence. P.W.4 is the daughter of the deceased, who came to the house of the deceased after the incident. She was informed by the deceased that the Appellant had assaulted the deceased on her belly severely for which she was suffering pain. P.W.5 is a witness who was present in the village panch when a disclosure was made by the deceased to the effect that she was assaulted on her belly by the Appellant. She was informed by the deceased that the Appellant had assaulted the deceased on her belly severely for which she was suffering pain. P.W.5 is a witness who was present in the village panch when a disclosure was made by the deceased to the effect that she was assaulted on her belly by the Appellant. P.W.6 is a witness to the seizure and P.W.7 is the doctor, who conducted the Post-Mortem examination, P.W.8 is a constable who accompanied the dead body for Post-Mortem examination and P.W.9 is the I.O. The Appellant denied the prosecution case and complained of false implication. 4. The trial court relying on the evidence of P. Ws. 1, 2, 3, 4, 5 and the medical evidence of the doctor (P.W.7) arrived at a finding that the assault by the Appellant on the deceased was seen by these three witnesses namely, P. Ws. 1, 2 and 3 and their evidence with regard to assault by means of kick and fist blows gets corroboration from the evidence of the doctor, who conducted post-mortem examination. The trial court also relied upon the disclosure made by the deceased in the village panch and on consideration of the evidence, convicted the Appellant for commission of offence u/s 302 I.P.C. 5. Mrs. Padhi, learned Counsel appearing for the Appellant, assails the impugned judgment solely on the ground that even if the entire prosecution case is accepted to the extent that the deceased was assaulted by the Appellant by means of fist and kick blows, the deceased having been died seven days after the occurrence, the Appellant could not have been convicted u/s 302 I.P.C. There being no intention to cause death in the worst case the Appellant could have been convicted for commission of offence u/s 304 Part-II I.P.C. Learned Counsel for the State placed reliance on the evidence of P. Ws.1 to 5 and 7 to support the impugned judgment. 6. Undisputedly, P. Ws.1, 2 and 3 claimed to have seen the Appellant assaulting the deceased by means of fist and kick blows in the night of occurrence. Though P.W.1 stated that he saw the Appellant assaulting the deceased by means of kick and fist blows, P.W.2 stated to have seen the assault through the gap of the door. P.W.3 also similarly claimed to have seen the incident through the gap of the door. Though P.W.1 stated that he saw the Appellant assaulting the deceased by means of kick and fist blows, P.W.2 stated to have seen the assault through the gap of the door. P.W.3 also similarly claimed to have seen the incident through the gap of the door. P.W.9, the I.O. in cross-examination has stated that P.W.2 did not state before him that he had seen the entire incident through the gap of the door of the house of the deceased. Similarly, P.W.3 has also not stated before him that the deceased was lying on the floor at the time of incident and the Appellant was threatening to kill her. If the evidence of P.W.9 in this regard is taken into consideration, the claim of P.W.2 to have seen the assault through the gap of the door appears to be an after thought. But however, evidence of P. Ws. 1 and 3 in this regard cannot be disbelieved. The next piece of evidence available against the Appellant is the disclosure of the deceased in the village panch.P. Ws. 1, 2 and 5 have stated that in the village panch the deceased complained that she had been assaulted by the Appellant. The evidence in this regard so far as P.W.5 is concerned, appears to be doubtful. P.W.9, the I.O. has stated in cross-examination that P.W.5 never stated before him that the deceased declared before the panchayat that she was assaulted on her belly, but she had stated that the deceased declared that the accused jumped twice on her belly. This part of the evidence of P.W.5 is not corroborated by P. Ws. 1 and 2. They stated that the deceased made a disclosure before the panchayat that she had been assaulted by the deceased. The evidence of P. Ws.1 and 2, therefore, clearly establishes that in the night of occurrence the deceased was assaulted by the Appellant and on the next day the deceased made a disclosure before the panchayat that she had been assaulted by her husband. The evidence with regard to the disclosure before the panch also gets support from the evidence of P.W.4 who is the daughter of the deceased. P.W.4 had come to the house of the deceased after the incident and the deceased disclosed before her that she had been severely assaulted by the Appellant and that she was suffering a lot of pain in the belly. P.W.4 had come to the house of the deceased after the incident and the deceased disclosed before her that she had been severely assaulted by the Appellant and that she was suffering a lot of pain in the belly. Such evidence of the witness also gets corroboration from the evidence of P.W.7, the doctor, who conducted the post-mortem examination. Out of the two external injuries one was multiple bruises over lower part of chest wall and abdomen wall. After dissection it was found that the abdomen cavity contained about two litres of ultered blood present with clotted blood in greater omentum and mesentery of small intestine with tear of mesentery and perforation of intestine. P.W.7 also opined that the internal injuries found in the chest and abdomen cavity could also be caused by forceful kick with heel of the foot. The injuries were also anti-mortem in nature and the internal injuries are sufficient to cause the death. Though the doctor opined that the internal injuries are sufficient to cause death, in cross-examination he has admitted that had the deceased been given proper treatment at the earliest possible time, her life might have been saved. 7. On analysis of the entire evidence we find that the prosecution is able to prove that in the night of occurrence the deceased was assaulted by the Appellant by means of fist and kick blows and that the deceased died after seven days of the incident. Considering the evidence of P.W.7 to the effect that had treatment been given to the deceased at the proper time, her life could have been saved, as well as the evidence of P.W.1 that the Appellant had an axe in his hands but non user of the same for assaulting the deceased though he had the opportunity to use the same, we are of the view that the Appellant had no intention for causing death of the deceased, though he had knowledge that such assault may cause death. Accordingly, the Appellant is liable for conviction for commission of offence u/s 304 part- II I.P.C. 8. Accordingly, we set aside the judgment and order of the learned Addl. Accordingly, the Appellant is liable for conviction for commission of offence u/s 304 part- II I.P.C. 8. Accordingly, we set aside the judgment and order of the learned Addl. Sessions Judge, Jeypore in S.C. No. 61 of 1998 convicting the Appellant for commission of offence u/s 302 I.P.C. and convict the Appellant for commission of offence punishable u/s 304 Part- II I.P.C. and sentence him for imprisonment for a period of seven years. It is stated at the Bar that the Appellant is in custody for more than ten years by now. In view of the above, it is further directed that the Appellant be released forthwith, unless his detention is required in any other case.