Orissa High Court
J.M.F.C. (R) vs State Of Orissa on 4 January, 2021
HIGH COURT OF ORISSA: CUTTACK.
CRLA No.492 of 2005
From the judgment of conviction and order of sentence dated
09.09.2005 passed by Shri A.K. Behera, learned Adhoc Additional
Sessions Judge (F.T.C.-III), Cuttack in S.T. Case No.28 of 2000
(arising out of G.R. Case No.839 of 1998 of the court of the learned
J.M.F.C. (R), Cuttack, corresponding to Niali P.S. Case No.93 of
1998.
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Dhruba Charan Das ...... Appellant.
- Versus-
State of Orissa ...... Respondent.
For Appellant : Mr. M. Mohanty, S.C. Acharya,
C. Mohanty and S.P. Dash.
For Respondent : Mr. M.S. Sahoo,
Additional Government Advocate.
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PRESENT:
THE HONOURABLE SHRI JUSTICE S. K. MISHRA
AND
THE HONOURABLE MISS JUSTICE SAVITRI RATHO
__________________________________________________________________
Date of Hearing and Judgment- 04.01.2021
S. K. MISHRA, J. The sole convict/appellant- Dhruba Charan Das
assails his conviction under Sections 498A and 302 of the Indian
Penal Code, 1860 (hereinafter referred to as "the Penal Code" for
brevity) recorded by the learned Adhoc Additional Sessions
Judge (F.T.C.-III), Cuttack in S.T. Case No.28 of 2000 (arising
out of G.R. Case No.839 of 1998 of the court of the learned
J.M.F.C. (R), Cuttack, corresponding to Niali P.S. Case No.93 of
1998. He has been sentenced to undergo imprisonment for life
under Section 302 of the Penal Code. No separate sentence has
been passed under Section 498A of the Penal Code.
02. The prosecution case, bereft of unnecessary details,
may be enumerated as follows: -
The deceased- Kamini Das (hereinafter referred to as
"the deceased" for brevity) was given in marriage to the appellant
about 12 years prior to her death. However, their marriage was a
troubled one as it is alleged that the appellant was having
relationship with another woman. For that he was torturing the
deceased. Several settlements were made by the Bhadraloks. But,
thing did not improve. On 26.08.1998 the appellant assaulted the
deceased and tore her blouse and at about 2.00 P.M., P.W.4, the
informant ( Akshya Kumar Rout) got information from his father
that the deceased had died. So, he went to the house of the
accused and heard from the neighbors and his nephew P.W.1
(Ayasa Kanta Das) that the accused/appellant had assaulted
Kamini (deceased) by means of an iron rod and then hung her.
Suspecting foul play, he lodged the report.
On receipt of the written report, Sri Raghunath
Sahu, A.S.I. of Police, Niali Police Station (P.W.13) took up
investigation of the case, as the O.I.C., Niali Police Station was
absent. The said witness examined the witnesses; deputed a
Constable to guard the dead body at the spot; held inquest over the
dead body of the deceased on 27.08.1998 and sent the dead body
for Postmortem Examination to the Department of Forensic
Medicine and Toxicology, S.C.B. Medical College and Hospital,
Cuttack; and made seizures. He handed over the charge of the
investigation to P.W.14 (Jagatbandhu Rai), the S.I. of Police, Niali
Police Station who also conducted part of the investigation and
submitted charge-sheet against the appellant under Sections 498A
and 302 of the Penal Code.
03. In course of trial, the appellant took the plea of denial of
the allegations made against him. He further took the specific plea
that the deceased had committed suicide as his brother-in-law
(P.W.4) had taken a sum of Rs.50,000/- and did not return the
same and the appellant was defamed by his brother-in-law and
others of having affair with another lady, the deceased committed
suicide.
04. To substantiate its claim, the prosecution examined 14
witnesses; exhibited nine documents, but did not exhibit any
material object. The prosecution in the instant case relies on the
evidences of 5 witnesses examined by it. P.W.4- Akshya Kumar
Rout is the informant, he happens to be the brother of the
deceased; P.W.1-Ayaskanta Das is the son of the appellant and the
deceased and was aged 8 years at the time of occurrence; P.W.12-
Dr. Prasanna Kumar Mohanty has conducted post-mortem
examination on the dead body of the deceased; P.W.11-Dr.
Bhagirathi Barik had given opinion on the rope seized by the
investigating officer in this case and P.W.13-Raghunath Sahu is the
A.S.I. of Police, Niali Police Station who carried out the first part of
the investigation in this case. Rest of the witnesses are either
formal witnesses or the witnesses who proved the marriage between
the appellant and the deceased or witnesses to seizures.
The defence in this case examined one witness on its
behalf i.e. D.W.1-Shankar Dash to establish that there was good
relationship between the appellant and the deceased, and that the
informant-P.W.4 has taken a sum of Rs.50,000/- from the
appellant and did not pay the same.
05. Basing mainly on the evidence of these witnesses,
learned Adhoc Additional Sessions Judge, FTC-III, Cuttack arrived
at the conclusion that the prosecution has proved its case beyond
reasonable doubt. He, therefore, proceeded to convict the
appellant for the offences under Sections 302 and 498A of
the Penal Code and sentence him to undergo imprisonment for life.
06. In assailing the conviction of the appellant for the
aforesaid offences, Mr. C. Mohanty, learned counsel for the
appellant argues that in this case, the prosecution has not
established that the death of the deceased was homicidal in nature.
Referring to various contradictions in the evidence of P.W.1, he
further submits that the learned Adhoc Additional Sessions Judge,
FTC-III, Cuttack has committed error in relying upon the evidence
of P.W.1, a child witness, in view of glaring contradictions in his
evidence.
07. Mr. M.S. Sahoo, learned Additional Government
Advocate, on the other hand, supporting the findings recorded by
the learned Adhoc Additional Sessions Judge, FTC-III, Cuttack
urges the Court to uphold the conviction recorded by the learned
Adhoc Additional Sessions Judge, FTC-III, Cuttack.
08. In a criminal proceeding of murder, the primary duty of
the prosecution is to establish the homicidal nature of death of the
deceased. This principle may have certain exceptions but that is
not the question in this particular case. Since the dead body of the
deceased has been subjected to post-mortem examination, it was
the duty of the prosecution, especially in this case, to establish
that the deceased met a homicidal death. The defence did
not dispute the identity of dead body which was subjected to post-
mortem examination.
09. P.W.12-Dr. Prasanna Kumar Tripathy conducted
autopsy on the dead body of the deceased and found that there was
no external injury on the dead body of the deceased except a non-
continous ligature mark on the neck; the base of ligature mark was
parchmentized and margins were congested. However, on
dissection of the tissues underneath the ligature mark, he found
the deceased had contuse with extravasations of blood, Hyoid bone,
thyroid cartilage and other larngial catteleue along with tracey
reason were intact. Soft tissues of the neck were intact and
congested. He opined that the ligature mark was ante-mortem in
nature. He further opined that death was due to asphyxia resulting
from hanging. He has not given any opinion regarding homicidal
nature of death of the deceased. In such situation, it is the duty of
the trial judge to seek an opinion from the doctor who conducted
post-mortem examination regarding nature of death. In case the
doctor does not give a clear opinion then also the trial judge
should give a clear finding regarding the nature of death of the
deceased. Was it homicidal in nature or not? Such finding can be
given in the absence of clear opinion of the doctor from the
evidence available on record. In his cross-examination, the
doctor has further stated that death was due to hanging and
asphyxia. Learned Adhoc Additional Sessions Judge, FTC-III,
Cuttack at paragraph 11 of the impugned judgment has discussed
the evidence of the doctor-P.W.13 and further observed that the
deceased was found lying on a cot. The learned trial judge further
observed that P.W.1 has stated to have seen the accused pulling
the neck of the deceased by means of a rope. No evidence is
forthcoming to show that the deceased was found hanging from the
rope and thereafter she was removed to cot. Learned Adhoc
Additional Sessions Judge, FTC-III, Cuttack has discussed the
material available on record but has not given any clear finding
that death of the deceased was homicidal in nature which appears
to be an erroneous approach to this case.
10. In order to determine whether actually the deceased met
with a homicidal nature of death and the appellant was responsible
for causing her death, the evidence of P.W.1 is of utmost
importance. He was a child, aged about 12 years, at the time of
examination in Court. He was about 8 years when the occurrence
took place. He has stated in the court about the torture meted out
to his mother by the appellant and the appellant's extra-marital
relationship. Regarding the occurrence that took place on
25.08.1998 on the day when Ganesh Puja was being
performed, he stated before the Court that his mother washed the
utensils and cleaned the courtyard, thereafter, he and his mother
went to take their bath. After taking bath, they came back to home.
He saw that the blouses of his mother were tore by the accused. On
seeing the cloth, his mother cried and called Jaladhar. Jaladhar
came and on seeing the blouses to be tore, he gave Rs.2/- to his
mother and asked her to go and to stitch the blouse, but his
mother did not accept the money. At that time, the accused abused
her mother by saying "JALADHAR TO BOPA JE SABU KATHARE
DAKUCHU". Then, his mother gave this witness Chuda along with
Banana. He ate and went telling his mother to cook Arua rice.
When he returned after performing the Puja, he saw the accused by
putting a rope on the neck of his mother was pulling the same. He
also noticed bleeding from the ear of his mother and an iron like
Hema Dasta, stained with blood was lying on the cot. A blouse was
gagged in the mouth of his mother. When he caught hold of the leg
of the accused, the accused dealt a kick blow to his mouth and
went away. He also followed the accused and saw the accused
caught hold of the back side of the bus and by riding the ladder of
the bus went away. Then, he informed his Mausi (aunt) through a
school boy and on 26.08.1998 he narrated the matter to his
maternal uncle Akshya Kumar Rout (P.W.4). He denied the
defence suggestions in cross-examination that he had not stated
before the police that when he came, he saw the accused was
pulling the neck of his mother with a rope and blood was coming
from the ear; that he saw the blood stained Hema Dasta on the cot
and that blouse was gagged on the mouth of his mother. He has
also made some other contradictory statement with respect to his
statement before the police. Those can be seen as peripheral
probative shortfalls and not major contradictions. However, P.W.1
has admitted that the accused/ appellant was pulling the neck of
his mother with a rope and blood was coming out of her ear and
that blood stained Hema Dasta was on the cot; and that blouse was
gagged in the mouth of his mother.
11. These contradictory evidence juxtaposed with the
evidence of P.W.4 and the contents of the F.I.R., were examined by
us. P.W.4 has lodged the F.I.R. wherein in the later part of the
same he has narrated that the appellant has assaulted the
deceased by means of an iron rod and hung her by means of a
rope. In his statement before the court he has submitted that
P.W.1, the son of the deceased told him that his father assaulted
Kamini by means of an iron rod and by tying her neck in a rope
was pulling. In the cross-examination, however, he had denied
that he had not written in his F.I.R. that his nephew told him that
the accused by tying the neck with a rope hanged Kamini. It is well
established from the F.I.R. exhibited in this case as Ext.6 that in
fact he has mentioned in the F.I.R. that his nephew told him that
the appellant hung the deceased (TANGI DELA) by means of a rope.
12. Thus, on a conspectus of the entire material on record,
it is apparent that P.W.12 the doctor who conducted post-mortem
examination has not given definite opinion regarding homicidal
nature of death of the deceased. Secondly, the doctor has opined
that death of the deceased was caused due to asphyxia by hanging.
The prosecution has not proved that the deceased was hung by the
appellant. On recall, P.W.1 has stated in his cross-examination
that he was not present at the time of death of his mother in the
house. He stayed in the school and stayed for the whole day and
returned home at 4.00 P.M.
13. Coupled with the above, absence of clear finding of the
learned trial judge that the death of the deceased was homicidal in
nature, this Court is of the considered opinion that reasonable
doubt arises in this case regarding complicity of the appellant in
commission of the crime of murder. Since genuine and reasonable
doubt arises regarding complicity of the appellant in commission of
the crime of murder, the appellant should be extended the
benefit of doubt. So, this Court comes to the conclusion that the
prosecution has failed to prove, beyond all reasonable doubt, its
case of culpable homicide amounting to murder against the
appellant. But, this Court is of the opinion that the learned trial
judge did not commit any error in coming to the conclusion that
offence under Section 498A of the Penal Code is made out in this
case.
14. In the result, the appeal is allowed in part. The
conviction of the appellant under Section 302 of the Penal Code
and sentence to undergo imprisonment for life recorded vide
judgment and order dated 09.09.2005 by the learned Adhoc
Additional Sessions Judge (F.T.C.-III), Cuttack in S.T. Case No.28
of 2000 are hereby set aside. The appellant stands acquitted of the
charge under Section 302 of the Penal Code.
15. However, the conviction under Section 498A of the
Penal Code is upheld. Since the appellant has already undergone
imprisonment for a long period of 15 years, there is no need to pass
separate sentence for the offence under Section 498A of the Penal
Code.
Since the appellant-Dhruba Charan Das is in custody,
he be set at liberty forthwith, unless his detention is required in
any other case.
The L.C.R. be returned back forthwith.
As restrictions are continuing due to COVID-19
pandemic, learned counsel for the parties may utilize the soft copy
of this order available in the High Court's official website or print
out thereof at par with certified copies in the manner prescribed,
vide Court's Notice No.4587, dated 25.03.2020.
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S. K. Mishra, J.
Savitri Ratho, J. I agree.
............................
Savitri Ratho, J.
Orissa High Court, Cuttack,
Dated the 4th January, 2021/B. Jhankar
