Bhagaban Badanaik vs State Of Orissa
2021 Latest Caselaw 13023 Ori

        THE HIGH COURT OF ORISSA AT CUTTACK

                          CRA No.133 of 1998

(Arising out of the judgment & order of conviction dated 18th June, 1998 passed
 by the learned Sessions Judge, Koraput at Jeypore in Sessions Case No.283 of
                             1996, u/s.302, I.P.C.)


 Bhagaban Badanaik                            ......                    Appellant

                                   -versus-
 State of Orissa                              ......                 Respondent



 Appearing in the case :-
          For the Appellant       : Mr. Manoj Mishra &
                                    Mr. Tanmaya Mishra, Advocates.
          For the Respondent : Mr. J. Katikia, Addl.Govt.Advocate

          CORAM:
          THE CHIEF JUSTICE
          JUSTICE A. K. MOHAPATRA

                          JUDGMENT

rd 23 December, 2021

Dr. S.Muralidhar, CJ.

1. This appeal is directed against the judgment and order dated 18th June, 1998 passed by the learned Sessions Judge, Koraput at Jeypore in Sessions Case No.283 of 1996, convicting the Appellant for the offence under Section 302 IPC and sentencing him to undergo imprisonment for life.

2. On 28th October, 2005 this Court had enlarged the Appellant on bail after noting that he had been in custody for more than eight years.

3. This Court has heard the submissions of Mr. Tanmaya Mishra, learned counsel for the Appellant and Mr. J. Katikia, learned Additional Government Advocate for the State.

4. The case of the prosecution is that, the deceased Maina was married to the Appellant (accused). On 10th June, 1996 at about 12.30 pm the father of the deceased, who is the informant in this case, came to the Koraput Town Police Station (PS) and reported that when he returned from the fields in the morning, he found his wife crying near the deceased Maina. On enquiry, his wife told him that their son-in-law (the Appellant) had assaulted the deceased by giving fist blows and kicks to her belly and chest, under the influence of liquor. His wife was informed about the incident by his daughter Laxmi Jena and when she went to the house of the deceased, she found her crying. She came to know from the deceased that she was assaulted by her husband (the Appellant). The informant, his wife and daughter immediately brought the deceased to their house. Then the informant went to the hospital, arranged an Ambulance and brought the deceased to the hospital. According to the informant, while going to the hospital in the Ambulance, the deceased told the informant, her mother and her sister that the Appellant had assaulted her. While undergoing treatment in the hospital, the deceased passed away on 11th June, 1996.

5. A case under Section 302, IPC was registered and investigation was taken up by the Officer-in-Charge of the Koraput Town P.S. (P.W.7), who was the Investigating Officer (IO). On 11th June, 1996 he arrested the Appellant. Earlier he visited the village Manohar and took into possession the broken bangles of the deceased, seized her apparels and Bed-head Ticket.

6. When the charge was framed against the Appellant, he pleaded not guilty and claimed trial.

7. Seven witnesses were examined on behalf of the prosecution. The father, sister and mother respectively of the deceased were examined as PWs 1, 2 and 3. PW 4, who accompanied the deceased to the hospital, deposed that while going to the hospital, the deceased was saying that the Appellant had assaulted her.

8. PW 5 is the doctor who conducted the post-mortem examination. He opined that the death was homicidal. He noticed the following injuries on the person of the deceased:

(1) Abrasion ½" x ½" over the centre of chin with clots on its surface.

(2) Abrasion ¼" x ¼" over the right nostril with few blood-

clots.

(3) Fracture of 9th and 10th ribs of left side in the mid-axillary line.

(4) Fracture of 8th rib of right side in the mid-axillary line.

On dissection, he found:

(1) Lacerated wound of the size of 1" x ½" on the liver on its dome corresponding to injury No.4.

(2) Size of the spleen was larger than normal (6" x 4" x 4"). It had been ruptured into three pieces (with avulsion of one piece of size 2" x 1" x 1").

(3) Haemo-peritoneum with about 3 litres of blood inside the peritoneal cavity.

9. PW 5 opined that the injuries were ante-mortem in nature and the death of the deceased was due to hypo-volumic shock due to the rupture; avulsion of spleen and lacerated injury of the liver. He further opined that all the injuries are possible by blunt impact like fist blows and kick blows. The facture of the ribs (external injury Nos.3 and 4) and the rupture of the spleen (internal injury No.2) were sufficient in ordinary course of nature to cause death. He further opined that the fist blows and kick blows can cause internal injuries without causing external injuries, and that can cause death.

10. PW 5 was subjected to cross-examination. The only statement of some significance in his cross-examination is that "spleen was enlarged due to some reason". This isolated statement does not yield much for the simple reason that in the chief examination, which was not contradicted, PW 5 explained in detail how the death had occurred on account of fist and kick blows.

11. PW 6 was the Lady Assistant Surgeon in the District Headquarters Hospital, Koraput at the relevant time. She deposed that the deceased was brought to the hospital at 10.50 am on 10th June, 1996 in an injured condition. The deceased had sustained multiple injuries on her face and blunt injuries on the whole body. The injured was conscious and coherent at the time of admission in the hospital. Dr. Kasinath Naik, the Ward Doctor declared about the death of the deceased at 11.40 am. She died before a Surgery Specialist could attend her. The suggestion made to this doctor (PW 6) by the defence that the deceased died due to medical negligence was denied by her.

12. The evidence of the informant, i.e. father of the deceased and her mother and sister again have largely gone uncontradicted. Particularly the part where the deceased disclosed about having been beaten up by the Appellant. As far as the sister is concerned, the only statement in her cross-examination is "I have not told anybody in my village that the accused beat up the deceased" This nowhere contradicts her statement that while being carried to the hospital, the deceased disclosed that the Appellant had assaulted her.

13. Even the mother's evidence in this regard has gone unchallenged except the negative suggestions given to her. The Court is of the view that even though PWs 1, 2 and 3 could be viewed as interested witnesses, their statements lend assurance as to their truthfulness that the deceased did disclose to them that the Appellant assaulted her.

14. Mr. Tanmaya Mishra, learned counsel for the Appellant sought to argue that since the deceased was still coherent when she was brought into the hospital, her dying declaration ought to have been recorded. The fact of the matter is that there is evidence of the father, mother and sister of the deceased, who have spoken clearly and consistently regarding the statement made to them by the deceased as regards the identity of the Appellant.

15. It was then submitted that no motive has been able to be attributed for the crime. It is submitted that the prosecution failed to prove that the Appellant harboured an intention to kill his wife. This is contradicted by the learned AGA submitting that the occurrence took place as a result of quarrel between the Appellant and the deceased. The nature and the number of injuries belie the contention that the attack by the Appellant on the deceased was all of a sudden. The fact remains that the deceased was unarmed. The Appellant was far more powerful and strong and he did take undue advantage of the vulnerable position of the deceased. The number of injuries clearly show that the Appellant had attacked her in a cruel and unusual manner. Consequently the Court is not able to agree with Mr. Mishra that Exception 4 to Section 300 IPC would apply in the present case.

16. Mr. Mishra placed reliance on the decision in Surinder Kumar v. Union Territory, Chandigarh (1989) 2 SCC 217 and of this Court in Krushna Singh v. The State 37 (1971) CLT 321. On examining

the said decisions, this Court finds that both are distinguishable on facts and do not help the case of the Appellant.

17. In the considered view of the Court, the prosecution has fully proved the guilt of the present Appellant beyond all reasonable doubt. This Court concurs with the view of the Trial Court and finds no error has been committed by the learned Sessions Judge in convicting the Appellant and sentencing him in the manner indicated.

18. The appeal is accordingly dismissed. The Bail Bonds furnished by the Appellant are hereby cancelled and the Appellant is directed to surrender immediately before the trial court in order to serve the remainder of his sentence. If the Appellant does not surrender within two weeks from today, the IO will take necessary immediate steps to produce the Appellant before the trial court to serve out the sentence forthwith.

(Dr. S. Muralidhar) Chief Justice

(A. K. Mohapatra) Judge

S.K. Parida