Madan Mahunta vs State Of Odisha
2023 Latest Caselaw 1412 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                     JCRLA No.71 of 2014

     (From the judgment of conviction and order of sentence dated
     26.09.2014 passed by the Learned Additional Sessions Judge,
     Chatrapur (Ganjam) in Sessions Trial Case No.211 of 2013)


     Madan Mahunta                           ....          Appellant

                                -versus-

     State of Odisha                         ....        Respondent


     Advocates appeared in the case:
     For Appellant             :       Mr. Bhabani Sankar Das, Adv.
                                -versus-

     For Respondent             :              Mr. S.K Nayak, AGA


                CORAM:
                MR. JUSTICE D. DASH
                DR. JUSTICE S.K. PANIGRAHI

                  DATE OF HEARING:-04.01.2023
                 DATE OF JUDGMENT:-10.02.2023

       Dr. S.K. Panigrahi, J.

1. The Appellant has preferred this criminal appeal challenging

the judgment of conviction and order of sentence dated

26.09.2014 passed by the Learned Additional Sessions Judge,

Chatrapur (Ganjam) in S.T Case No.211 of 2013, arising out of

G.R Case No.226 of 2009 corresponding to P.S. Case No.107 of

pg. 1 2009; wherein the Learned Sessions Judge, Chatrapur

(Ganjam) has convicted the Appellant for commission of

offence punishable under section 498A & 302 of the I.P.C and

accordingly, sentenced to undergo imprisonment for life and

to pay a fine of Rs.5000/-, and in default to undergo further R.I

for a period of six months for the offence under section 302.

The Appellant was also sentenced to undergo rigorous

imprisonment for two years and pay a fine of Rs. 2000/- and

in default to undergo further rigorous imprisonment for three

months for the offence under section 498A of the IPC.

I. CASE OF THE PROSECUTION

2. The case of the prosecution in brief is that Appellant was an

alcoholic and used to quarrel with the deceased for money to

consume alcohol. On 29th July 2009 at about 11 pm, the

Appellant returned home in an inebriated state and the

deceased served him dinner but the Appellant did not eat. On

the contrary, he quarreled with the deceased and assaulted

her by means of a "BERUAN PATI" and the same was

witnessed by their daughter (P.W.13) and son (P.W.14).

3. When the deceased fell down and did not respond, P.W.13

and P.W.14 rushed to the house of a village health worker

(P.W.6) and insisted him to check the condition of the

deceased. P.W.6 conducted a pathological check and found

pg. 2 her dead. On the next day, an FIR was lodged by the mother

of the deceased (P.W.1) at Kabisurya Nagar Police Station and

the same was registered as Kabisurya Nagar P.S Case No. 107

of 2009 and the Appellant was charge-sheeted under section

498A & 302 of the IPC.

4. On analysis of evidence on record and taking into

consideration the documents exhibited in the aforesaid case,

the learned Additional Sessions Judge, Chatrapur (Ganjam)

vide judgment dated 26.09.2014 held the Appellant as guilty

of the offence under Section 302 and 498-A of I.P.C. and

sentenced him to undergo imprisonment for life and to pay a

fine of Rs.5000/- and in default, to undergo further R.I for a

period of six months for the offence under section 302. The

Appellant was also sentenced to undergo rigorous

imprisonment for two years and pay a fine of Rs.2000/- and in

default to undergo further rigorous imprisonment for three

months for the offence under section 498-A of the IPC.

II. SUBMISSIONS ON BEHALF OF THE APPELLANT

5. It is submitted by Learned Counsel for the Appellant that in

absence of production of material objects like weapons of

offence, the prosecution fails to prove that the death of the

deceased was caused by a particular mode or means actuated

by the Appellant. Since, the case of prosecution is based on

pg. 3 circumstances, the weapon of offence is a vital link to complete

the chain. Moreover, the prosecution has also failed to

establish motive of crime.

6. Moreover, the learned trial court affirmed that the Appellant

was beating the deceased regularly in an intoxicated state by

relying upon evidence of PW.1 (informant/mother of the

deceased), PW.4 (scribe of the FIR) and PW.5. However, the

same is faltered with material irregularities as the evidence

relating to "regular assault by appellant to deceased", is

uncontroverted, particularly when the defence in cross

examination has brought out from the mouth of PW.I that she

had never lodged FIR to police nor did she complain about the

incidents before the present FIR (Ext.2). Similarly, PW.4 and 5

deposed that they had not stated to the I.O. the fact that the

son and daughter had stated to them that the Appellant had

assaulted the deceased.

7. It is further contended by Learned Counsel for the Appellant

thatapart from the above these evidences, the evidence

rendered by PWs.1,4and 5 pertaining to assault on the

deceased by the Appellant, are hearsay evidence as these

witnesses have categorically stated that they heard the same

from PW.13 and 15. Hence, it is not reliable and admissible.

pg. 4 III. SUBMISSIONS ON BEHALF OF THE RESPONDENT

8. Per Contra, it is contended by Learned Counsel for the

Respondent that as per the evidence of P.W.10 (the doctor), the

death of the deceased was not under normal circumstances.

Rather, it was opined by P.W.10 that the death of the deceased

was homicidal in nature. Moreover, the Appellant has also

presented a false statement that the deceased was suffering

from acute asthma.

9. It is further submitted by Learned Counsel for the Respondent

that from the evidence of P.W.1, it can be reasonably

ascertained that the Appellant was subjecting the deceased to

cruelty on a regular basis and from the conduct and

antecedents of the Appellant as deposed by P.W.1, an adverse

inference can be drawn against the Appellant with respect to

allegations under section 498A of the IPC.

IV. COURT'S ANALYSIS AND REASONS

10.During the course of trial, the prosecution examined as many

as 16 witnesses, while in defence, the Appellant examined

himself as D.W.1.P.W.1 is the mother of the deceased who

lodged FIR and deposed about the incident as post occurrence

witness. P.W.2 & 3 are the uncle and sister of the deceased

respectively. P.W.4 is the scribe of the FIR. P.Ws.5 & 6 are the

co-villagers who deposed about the incident that occurred in

pg. 5 the house of the Appellant. P.W-7 is a barber who served in

the marriage of the Appellant and deceased.P.W.8 is the

inquest witness and P.W.9 is the police constable who escorted

the dead body to the mortuary for autopsy.P.W-10 is the

doctor who conducted the autopsy of the cadaver of the

deceased.P.W.12 is the I.O.P.Ws 13 & 14 are the daughters of

the deceased and Appellant. P.W-15 is the son of the deceased

and Appellant. P.W. 16 is the sister-in-law of the deceased - a

post occurrence witness.

11.In a case involving murder, the primary point that arises for

consideration is whether the death of the deceased was

homicidal in nature. According to the deposition of P.W.10, all

the injuries found on the body of the deceased were ante-

mortem in nature and the cause of death was due to cardio

respiratory failure(death by Asphyxia). The time since death

was within 18 to 24 hours from the time of post mortem

examination. However, P.W.10 also opined that there was no

injury to brain or cranial bones and there was no ligature mark

on the neck of the deceased. Further, in the cross-examination,

P.W.10 opined that in case of strangulation, fracture of thyroid

bone is a common feature and the mark left on the throat due

to strangulation are dark brown in colour and generally

corresponds to the shape of fingers. The mark of thumb and

fingers are always found on the neck and sometimes, the mark

pg. 6 of violence is visible on dissection. Moreover, protrusion of the

tongue out of the mouth is another common feature in cases of

throttling, hanging and strangulation.

12.From a bare perusal of the postmortem examination report, it

is clear that there were no ligatory marks on the neck of the

deceased and P.W.10 had also not noticed the protrusion of

tongue out of the mouth. Therefore, on the basis of materials

on record, a prima facie case of death due to strangulation is

not established. However, P.W.10 in his cross-examination

categorically remarked that the death in the instant case could

have been due to mechanical pressure over mouth, face and

nose which may be by hands or by any foreign material.

Merely because there is no material available on record to

show that the deceased was strangulated with the use of

physical force, it cannot be concluded mechanically that the

death of the deceased was not homicidal in nature. As opined

by P.W.10, death by Asphyxia can also be effected through

mechanical pressure over mouth, face and nose and there is an

extreme possibility that the aforementioned medium was used

in the instant case. According to the deposition of P.W.10, the

time of death of the deceased was within 18-24 hours from the

time of the postmortem examination. It is clear from the

deposition of P.W.5 & P.W.6 that the son and daughter of the

deceased approached them at about 3 A.M, seeking help for pg. 7 their mother who was unconscious due to the Appellant's

assault. P.W.5 has categorically deposed that he went near the

Appellant's house after being approached the Appellant's

children and found the dead body of the deceased. On the

other hand, P.W.4 who was also approached by the son and

daughter of the Appellant has stated that he saw the dead

body of the deceased during the early morning hours of

30.07.2009. As per the deposition of P.W.15 who is also the

only eyewitness to the entire occurrence, the incident took

place at about 10 P.M on 29.07.2009. Further, it is pertinent to

mention that the post mortem examination was conducted on

30.07.2009 at about 4 P.M. From a bare perusal of medical

opinion of P.W.10 as to the time since death of the deceased

i.e., within 18-24 hours from post-mortem examination and the

deposition of P.Ws 4, 5, 6 &15 as to the time of occurrence of

the alleged incident, it can be ascertained that the time

intervals in both the situations correspond to each other.

13.Further, as per the deposition of P.W.10 there was presence of

cyanosis on the face of the deceased and brain and lungs were

swollen and congested. The symptoms found on the body of

the deceased are typically found in cases of suffocation due to

mechanical pressure over nose and mouth. The post mortem

examination report neither reveals any abnormality in stomach

nor there is any material available on record to show that the

pg. 8 death of the deceased was due to Asthma. On the contrary, the

Appellant while deposing as D.W.1 has categorically stated

that the death of the deceased was due to Asthma which was

later disproved through medical evidence. Moreover, the

presence of multiple injuries on face, nose and neck of the

deceased also provides a strong inference that the deceased

was assaulted and then subjected to mechanical pressure over

nose and mouth following which she died. The chain of

events leading to the incident is compelling enough to

establish the death of the deceased was homicidal in nature

and neither there is any iota of doubt nor has any material

been produced by the Appellant to dispute the same.

Therefore, it can be well inferred that the death of the deceased

was homicidal in nature.

14.The next issue that arises for consideration is whether on

29.07.2009 at about 10 P.M, the Appellant committed the

murder of the deceased by intentionally causing her death.

According to the deposition of P.W.15, the Appellant was

addicted to liquor and had no source of income. He would

take away the money earned by the deceased and consume

liquor. For the aforesaid reason, there was a constant friction

between the Appellant and the deceased. P.W.15 further stated

that on the night of occurrence i.e., on 29.07.2009, at about 10

P.M, the Appellant returned home in an intoxicated state and pg. 9 the deceased served him food but, he did not eat. Rather, the

Appellant quarreled with the deceased and abused her in the

name of her father. Thereafter, the Appellant assaulted the

deceased all over her body by means of "BERUAN PATI"

following which the deceased fell on the ground. P.W.15 stated

that he witnessed the assault and then rushed to the house of

one of the pharmacist of the village in order to seek help. The

deposition of P.W.15 insofar as the weapon of offence is

concerned, is duly corroborated by the deposition of P.W.12

who has also stated that on 30.07.2009, one "BERUAN PATI"

was seized from the house of the Appellant or the spot of

occurrence. The post mortem report also confirms that the

deceased had sustained multiple injuries all over body,

particularly on the face and neck.

15.As per the deposition of P.W.6, on 30.07.2009 at about 3 A.M,

the son and daughter of the Appellant approached him

seeking for help. They informed him that the Appellant

assaulted the deceased in state of intoxication and due to the

said assault, the deceased became unconscious and did not

respond to their call. After getting the said information, P.W.6,

being a village health worker, went to the house of the

Appellant and saw that the deceased was lying on the floor

and froth was coming out from the mouth and nose of the

deceased. P.W.6 has also deposed that he had administered a

pg. 10 Decadron injection to the deceased and advised for quick

treatment at the hospital. However, in the cross-examination,

P.W.6 stated that the Appellant was only in a state of

intoxication and did not mention anything about the

Appellant's alleged assault on the deceased. The discrepancy

in P.W.6's statements cannot be interpreted as material

irregularity, rather it is a mere inconsistency and P.W.6's

statement cannot be disregarded as untrue solely on this basis.

The evidence rendered by P.W.6, so long as it is consistent in

both the versions narrated to the police and to the court, is

admissible as evidence and the same can be taken into

consideration for deciding the case on merits. Therefore, the

statements of P.W.6 that the children of the Appellant

approached him at about 3 A.M citing concern for the

deceased and the fact that the Appellant was intoxicated as

informed by the children to P.W.6 and as deposed by P.W.6 to

the police during investigation and to the court during cross-

examination are relevant fact.

16.The evidence rendered by P.W.6 is duly corroborated by the

evidence of P.W.5 who had also deposed that the children of

the Appellant approached him at about 3 AM and told him

that the Appellant had assaulted the deceased. Even though

P.W.5 had informed about the same to the I.O, he has

maintained his stand during the cross-examination and pg. 11 nothing could be elicited from him to cast a doubt upon the

case of the prosecution. However, it is pertinent to mention

that P.W.5, neither in his statement before the police, nor in his

statement before the court, has deposed the Appellant was in

an intoxicated state. But, P.W.5 has maintained his stance

insofar as the assault on the deceased by the Appellant is

concerned. Similarly, as per the deposition of P.W.4, the

children of the Appellant approached him during early

morning hours of 30.07.2009 and informed him that the

Appellant had assaulted the deceased as a result of which the

deceased had become unconscious. Even though P.W.4 has not

deposed before the police or during cross-examination that he

was informed by the Appellant's children regarding the

incident and that the Appellant had assaulted in an intoxicated

state, it has been categorically mentioned by P.W.4 that the

Appellant had prior history of subjecting the deceased to

physical torture and cruelty under the influence of alcohol.

P.W.4 further stated in his cross-examination that FIR was not

lodged over prior instances of torture and cruelty against the

deceased by the Appellant as there village meeting had not

been held over the concerned issue. From a bare perusal of

evidence rendered by P.Ws 4, 5 & 6, it can be ascertained that

on 30.07.2009, during the early morning(mid-night) hours, the

Appellant's children sought for help for their unconscious

pg. 12 mother from P.Ws 4, 5 & 6. P.W.6 had undergone training as

village health worker and therefore, rushed to the spot of

occurrence; and P.W.4 & 5 proceeded to the spot after being

approached by the children. All the three post-occurrence

witnesses who were approached by Appellant's children have

deposed that the children informed them about the

Appellant's assault on the deceased. The depositions of P.W.4

& P.W.5 that the Appellant assaulted the deceased and they

were informed about the same from Appellant's children are

consistent throughout the trial. Both P.W.4 & P.W.5 have not

deposed anything in particular regarding the Appellant's

intoxicated during the assault; while, P.W.6 has only deposed

consistently about the Appellant's intoxicated state and has

not supported his statement given before the police that the

Appellant had assaulted the deceased in an intoxicated state.

However, a common element that emanates from the account

of all three witnesses is that all of them found the deceased

dead by the time they reached the spot.

17.The offshoot of above discussion is that the fact about the

Appellant's children approaching P.Ws.4, 5 & 6 after

witnessing the assault, the subsequent discovery by P.Ws. 4 &5

that the deceased was already dead by the time they reached

the Appellant's house, is no more in dispute. Since the

admitted fact is no more in dispute, it would be reasonable to pg. 13 construe that the deceased was last seen by P.W.15 with the

Appellant. P.W.15 witnessed the assault on the deceased and

fled from the spot with one of his sisters and approached

P.Ws.4, 5 &6 for help. When P.Ws.4, 5 & 6 reached the spot of

occurrence, the deceased had already died. The last seen

theory comes into play where the time gap between the point

of time when the accused and deceased were seen last alive

and when the deceased is found dead is so small that

possibility of any person other than the accused being the

author of crime becomes impossible. It would be difficult in

some cases to positively establish that the deceased was last

seen with the accused when there is a long gap and possibility

of other persons coming in between exists. In the absence of

any other positive evidence to conclude that accused and

deceased were last seen together, it would be hazardous to

come to a conclusion of guilt in those cases. However, in the

present case, there is positive evidence that the deceased was

last seen with the Appellant and the same can be confirmed

through the deposition of P.W.15 who witnessed the assault.

18.The theory of last seen derives its relevance from Section 7 of

the Indian Evidence Act which is called the "Doctrine of

Inductive Logic" in which it is stated that if any fact related to

the occasion, cause, or effect lead to the circumstance in which

that thing occurred or it provided an opportunity for the

pg. 14 occurrence of that thing then those facts will be relevant. And

in the last seen theory also, the person who was the last

present with the victim would have a reasonable opportunity

to commit the crime. This presumption of fact is taken under

Section 114 of the Indian Evidence Act under which the court

can presume that certain facts exist if some other facts are

proved to be existing in the cases of natural events, human

conduct, and public and private business. In the instant case,

P.W.15 has deposed that incident occurred at about 10-11 PM

at night and according to P.W.5 & P.W.6, the Appellant's

children approached them at about 3 A.M. Since both these

events as deposed by P.W.15 and P.Ws.4, 5 &6, happened in a

relatively shorter time interval, there is a high degree of

probability that the deceased was murdered by the Appellant

as he was last present with the deceased. Further, the conjoint

interpretation of the last seen theory and the ocular evidence

rendered by P.W.15 that the Appellant assaulted the deceased

with a BERUAN PATI and the subsequent discovery and

seizure of the said BERUAN PATI from the spot of occurrence

shifts the burden of proof from the prosecution to the

Appellant. Moreover, the Appellant has also failed to provide

a probable and satisfaction explanation that he was not present

at the spot of occurrence at the relevant time. Instead, he has

furnished an explanation that the deceased was suffering from

pg. 15 chronic Asthma and died due to it. The explanation provided

by the Appellant has been negatived by the PM examination

report which further allows this Court to take an adverse

inference against the Appellant.

19.Further, this Court also affirms the finding of the Trial Court

that the Appellant has not produced on record any cogent

explanation regarding his wife's injuries and under what

circumstances she died. Where an offence like murder is

committed in secrecy inside a house, the initial burden to

establish the case would undoubtedly be upon the

prosecution, but the nature and amount of evidence to be led

by it to establish the charge cannot be of the same degree as is

required in other cases of circumstantial evidence. The burden

would be of comparatively lighter character. In view of Section

106 of the Evidence Act, there will be a corresponding burden

on the inmates of the house to give a cogent explanation as to

how the crime was committed. The inmates of the house

cannot get away by simply keeping quiet and offering no

explanation on the supposed premise that the burden to

establish its case lies entirely upon the prosecution and there is

no duty at all on an accused to offer any explanation.

pg. 16

20.In the case of State of Rajasthan vs. Kashi Ram1, the Supreme

Court observed:

"The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain."

21.In the case of State of Tamil Nadu v. Rajendran2 , the Supreme

Court observed:

(2006) 12 SCC 254

AIR 1999 SC 3535

pg. 17 "In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."

22.In case of circumstantial evidence, court has to examine the

entire evidence in its entirety and ensure that the only

inference that can be drawn from the evidence is the guilt of

the accused. In the case at hand, the "BERUAN PATI" seized

at the spot of occurrence by P.W.12 was used by the Appellant

to assault the deceased and this has been categorically deposed

by P.W.15 who witnessed the entire incident. Moreover, on the

basis of last seen theory and medical evidence, it can be

affirmed that deceased was first assaulted by the Appellant by

"BERUAN PATI" and was then suffocated to death through

mechanical pressure over mouth and nose. For establishing the

guilt on the basis of the circumstantial evidence, the

circumstances must be firmly established and the chain of

circumstances must be completed from the facts. In this case,

the requisite chain has been established by the prosecution. It

is because the time interval between P.W.15 and one of his

sisters fleeing from the spot of occurrence to seek help and the

subsequent discovery of dead body of the deceased by P.Ws 4,

pg. 18 5 & 6 is very short and it is almost impossible that a third-

party or some stranger intervened in between during this

particular interval. The discovery of "BERUAN PATI" at the

spot of occurrence, the false statement of the Appellant that

the deceased died due to chronic Asthma and the ocular

evidence of P.W.15 that the Appellant assaulted the deceased

by "BERUAN PATI" yields a vital link in the chain of

circumstances that point towards the guilt of the accused.

Moreover, the accused appellant has not provided any

explanation and the failure to do so yields an additional link in

the chain of circumstances to make it complete.

23.Learned Counsel for the Appellant has contended that the

there is an extreme possibility of P.W.15 being tutored by the

deceased's relatives to depose against the Appellant. In this

respect, we are of the opinion that there is no justification as to

why P.W.15 would depose falsely against his father. The

deposition and testimony of P.W.15 does not suffer from any

infirmities as there is no inconsistency in the material

particulars of the evidence. Close relationship of witnesses

with the deceased or victim is no ground to reject their

evidence. On the contrary, close relative of the deceased would

normally be most reluctant to spare the real culprit and falsely

implicate an innocent one. The statements made by P.W.15

have been duly corroborated by the statements of other post-

pg. 19 occurrence witnesses and we find no reason to discredit the

account of the eyewitness as untrue. Moreover, this is no

inconsistency between the ocular evidence and medical

evidence as it has been categorically deposed by P.W.10 that

the deceased had multiple injuries all over the body. The

deposition made by P.W.12, in particular, is of greater

relevance as he seized the weapon of offence i.e., "BERUAN

PATI" from the spot of occurrence and admittedly, this

weapon was used by the Appellant for assaulting the deceased

as per the deposition of P.W.15. The description of injuries in

the PM Examination report further corroborates the evidence

of P.W.15 who had stated that the deceased was assaulted

with a "BERUAN PATI" and had swelling on her face, neck

and other parts of the body.

24.Hence, it can be ascertained that there is no inconsistency

between the medical evidence and the ocular evidence to

discard the depositions and testimonies as untrue. Even as a

young child, P.W.15 has emerged from a long and protracted

cross-examination as truthful witness and nothing of any

significance could be elicited from him which would in any

way detract the massive weight of testimony. Moreover, in our

opinion, it was not "unnatural" on the part of P.W.15 to not

raise an outcry regarding the incident as P.W.15 has stated in

his cross-examination that he tried to alert the neighbors but,

pg. 20 was not successful in doing so. Also, P.W.15 was witnessing

these incidents of violence towards the deceased on a regular

basis and on the relevant day, he could not have thought by

any stretch of imagination that his father (the appellant) would

murder the deceased. It cannot be expected of P.W.15 to

predict the consequences or the conduct of his own father as

he is a small child and, therefore, it would be mechanical to

assume that P.W.15 could have raised an outcry regarding the

incident.

25.The next issue that arises for consideration is whether the

Appellant was subjecting his wife to torture and cruelty under

section 498-A of the IPC. According to the deposition of P.W.1,

the Appellant used to consume liquor and assault her

daughter. During cross-examination, she categorically stated

that the Appellant would assault the deceased and subject her

to cruelty. She also mentioned that the deceased was unhappy

as the Appellant was addicted to liquor and ganja. She was

informed about the same by P.W.15. P.W.15 has also deposed

that the Appellant was addicted to liquor and would often

return home in an intoxicated state and takeaway the hard-

earned money of the deceased and subject her to physical

torture and cruelty. P.W.4 who is an independent witness has

also stated that the Appellant and the deceased had a strained

relationship and there were prior instances of cruelty against pg. 21 the deceased by the Appellant. However, according to P.W.4,

those instances were not reported via FIR as no village

meeting was held on the concerned matter. Thus, from the

evidence of P.W.1, P.W.15, P.W.4, it can be ascertained that the

deceased and the Appellant had strained relationship and the

Appellant habitually subjected the deceased to torture and

cruelty in an intoxicated state. Therefore, this Court is of the

view that the charges under section 498A stands proved.

26.The final issue that arises for consideration is whether the act

of the accused in committing the homicidal death of the

deceased amounts to murder as defined under section 300 of

the IPC. Since the post mortem examination report does not

indicate that the deceased was strangulated by use of physical

force, apart from possibility of death through mechanical

pressure over mouth and nose, it might be possible that the

deceased died within a short period after sustaining multiple

injuries. Therefore, the primary point that arises for

consideration is whether the injuries sustained by the deceased

were sufficient in the ordinary course of nature to cause death.

The medical opinion of P.W.10 as to this question was not

obtained. P.W.10 deposed and the post mortem report reveals

that the cause of death was Asphyxia which is a condition

arising when the body is deprived of oxygen, causing

unconsciousness or death; suffocation. Moreover, in absence of

pg. 22 evidence that the deceased was strangulated or suffocated by

use of physical force, we cannot proceed on the assumption

that the death of deceased was caused due to mechanical

pressure over nose and mouth. There is a need of conclusive

evidence for the same. On the other hand, the deceased

suffered multiple injuries all over her body and her brain and

lungs were swollen and congested. Purely on this standpoint,

it cannot also be concluded mechanically that the nature of

injuries was not sufficient in the ordinary course of nature to

cause death. However, it is a settled position in law that in

cases where cloud is cast on the exact nature of injuries on

account of absence of clear or satisfactory evidence in that

behalf, the benefit of doubt must be given to the accused. In

the instant case, the intention of the Appellant need not be

proved as there is sufficient evidence which establishes the

intent behind commission of the offence. Therefore, it is not in

dispute that the Appellant and the deceased used to have

quarreled almost on an everyday basis. The Appellant was

subjecting the deceased to physical cruelty and torture on a

regular basis and this is clear from the depositions of P.W.1,

P.W.4 & P.W.15 and other post-occurrence witnesses who

were the relatives of the deceased. P.W.4, an independent

witness has also affirmed the same. Since, the deceased on that

day raised objections to such behavior, the Appellant assaulted

pg. 23 the deceased as a result of which she died. That be the case,

Section 304 (I) and not Section 302 is the proper provision

under which the accused could be convicted.

27.In conspectus of facts and precedents cited hereinabove, we

hereby hold that the Appellant guilty for commission of

offence under Sections 498-A and 304 Part-I of the I.P.C. In so

far as the sentence, we notice that the Appellant has already

undergone more than years of sentence and as such we hold

that for the above conviction recorded the period undergone

will be sufficient punishment. The Appeal is, thus, allowed in

part and to the extent as to modification of conviction and

sentence thereunder. We direct that the Appellant (Madan

Mahunta) be set at liberty in the aforesaid case, if his detention

is not required in any other case.

( Dr. S.K. Panigrahi ) Judge

D. Dash, J. I agree.

( D. Dash ) Judge Orissa High Court, Cuttack, Dated the 10th February, 2023/B. Jhankar

pg. 24