Orissa High Court
Sankar Bag & Another vs State Of Odisha on 20 August, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.133 of 2003
In the matter of an Appeal under section 374(2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 8th April, 2003 passed by the learned Additional
Sessions Judge, Nuapada in Sessions Case No.72/24 of 2001
Sankar Bag & Another .... Appellants
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr.D.K. Mishra,
Advocate.
For Respondent - Mr. S.K. Nayak
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. V. NARASINGH
Date of Hearing : 15.07.2024 :: Date of Judgment:20.08.2024 D.Dash, J. The Appellants, by filing this Appeal, have assailed the judgment of conviction and order of sentence dated 8th April, 2003 passed by the learned Additional Sessions Judge, Nuapada in Sessions Case No.72/24 of 2001, corresponding to Khariar P.S. Case No.32 of 2001 corresponding to G.R. Case No.80 of 2001 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Khariar.
The Appellants (accused persons) thereunder have been convicted for commission of offence under section 302/34 of the Indian Penal Page 1 of 7 CRLA No.133 of 2003 Code, 1860 (in short, 'IPC') and sentenced to undergo imprisonment for life.
2. Prosecution case is that the daughter of the Informant (P.W.1) had married accused Sankar in the year 1999. They were blessed with a son. After birth of their son, it is stated that the daughter of the Informant (P.W.1) was subjected to cruelty and harassment. The allegation stands that on 08.03.2001, around 8 p.m., these accused persons assaulted the daughter of the Informant (P.W.1) and thereafter admitted her in the Misson Hospital, Khariar.
An F.I.R. (Ext.1) being lodged with Officer-In-Charge, Khariar Police Station, case being registered under section 498-A of the IPC, investigation was taken up. In course of investigation, the I.O. (P.W.13) examined the Informant (P.W.1). He visited the Hospital and examined the witnesses including the daughter of the Informant who was then alive and undergoing treatment. Her statement was recorded under section 161 of the Cr.P.C. In course of treatment, the daughter of the Informant, i.e., the wife of the accused-Sankar when died, the case turned to one under section 302/34 of the IPC. The dead body was sent for Post Mortem Examination by issuing necessary requisition. Incriminating articles, including the Bed-Head Ticket showing the treatment of the deceased for a long period in the Hospital were seized. On completion of investigation, the I.O (P.W.13) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302/34 of the IPC.
3. Learned J.M.F.C., Khariar on receipt of the Final Form, took cognizance of the offence under section 302/34 of the IPC and after observing the formalities, committed the case to the Court of Sessions.
Page 2 of 7 CRLA No.133 of 2003That is how the Trial commenced by framing the charge for the said offence against the accused.
4. In the Trial, the prosecution in total has examined thirteen (13) witnesses, who are P.W.1 to P.W.13. Out of whom, as already stated, the father of the deceased who happens to be the Informant and lodged the F.I.R. (Ext.1) is P.W.1. P.W.7 and P.W.8 are the two Doctors, who had treated the deceased and held Post Mortem Examination over the dead body of the deceased respectively. The independent witness to the occurrence has been examined as P.W.12. The Investigating Officer has come to the witness box as P.W.13.
5. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.10. Out of those, the important are the FIR (Ext.1), Inquest Report (Ext.2), Post Mortem Examination Report (Ext.5), the statement of the deceased recorded in course of investigation (Ext.7) etc.
6. The defence plea is that of complete denial in further stating that the deceased had sustained the injuries by receiving a fall. In support of the said plea one witness has been examined from the side of the defence as D.W.1.
7. The Trial Court, upon examination of the evidence, both oral and documentary, available on record and having undertaken the exercise of their evaluation has held the prosecution to have established the charge against the accused persons beyond reasonable doubt. Accordingly, for the role played by the accused persons as proved through the evidence, Page 3 of 7 CRLA No.133 of 2003 they have been held guilty for committing the offence under section 302 of the IPC and sentenced as afore-stated.
8. Mr. D.K. Mishra, learned Counsel for the Appellants (accused persons) from the beginning without questioning the finding of the Trial Court as regards the role played by the accused persons in the said incident as emanate from the evidence of the eye witness (P.W.12) submitted that the surrounding circumstances being taken into account in their proper prospective and judicial notice of the fact being taken that the parties hail from rural background where usually their temper run high when they also behave in a totally unexpected manner for very silly reason, the Trial Court ought not to have convicted the accused persons for commission of offence under section 302/34 of the IPC and instead the accused persons ought to have been held guilty for commission of offence under section 304-II/34 of the IPC. He thus submitted that the conviction of the accused persons needs appropriate altercation and so also they be visited with the sentence as deemed just and proper.
9. Learned Counsel for the Respondent-State while supporting the finding of guilt against the accused persons as has been returned by the Trial Court submitted that both having injured the helpless victim who is none other than the wife of the accused-Sankar by giving kicks, in consequence whereof, the death has occurred, the Trial Court is right in convicting them for committing the offence under section 302/34 of the IPC.
10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.13) and Page 4 of 7 CRLA No.133 of 2003 have perused the documents admitted in evidence and marked as Ext.1 to Ext.11.
11. Admitted position stands that the deceased having been admitted in the Hospital on 21.03.2001 after the incident took place on 08.03.2001 after having remained at home during the period has met her death on 05.04.2001, while undergoing treatment. The evidence of P.W.7, the Doctor who had admitted the deceased in the Hospital is that at the time of admission, her abdomen was tensed and it was board like rigidity with generalized tenderness. The deceased had been taken to the Hospital and admitted therein by the accused persons as has been stated by the P.W.1, the Informant. The F.I.R. (Ext.1) has come to be lodged on 28.03.2001 when the deceased was undergoing treatment at the Hospital. From 21.03.2001 the deceased remained in the Hospital and underwent treatment till her death on 05.04.2001. P.W.8, the Doctor who had held Post Mortem Examination over the dead body of the deceased has stated that the complications arising from the abdominal injuries have resulted the death and such injuries were possible by kicks.
At this stage, giving a look at the evidence of P.W.12, we find him to have stated that when he went hearing halla to the house of the accused-Sankar, he saw the accused persons dealing kicks upon the deceased who was lying on the floor. He states that after seeing the incident, he went to the house and it was only thereafter he reported the matter to P.W.1, the father of the deceased. The deceased is the wife of the accused-Sankar and the other accused Giridhari was then with accused Sankar. He does not state as to for how much length of time, the accused persons went on kicking. P.W.1, the father of the deceased and other witnesses have not stated that the relationship between this Page 5 of 7 CRLA No.133 of 2003 accused-Sankar and his wife at any prior point of time was bitter or that torture was being meted out at this deceased by these accused persons before the incident. No evidence is forthcoming from the side of the prosecution as to how and for what reason the incident began. The deceased was there at home for about three days after the incident and thereafter remained in the Hospital for fifteen days and died on 05.04.2001 while undergoing treatment. It appears from the evidence of P.W.12 that the incident was not taken so seriously, which would reveal from the fact that he then did not inform P.W.1 immediately or even on the next day but one day thereafter. The parties hail from the rural background and judicial notice of the fact can be taken that for silly reason, many a times they behave unexpectedly and their tampers usually run high. The reason of death is because of hypovolemic and septiceaemic shock leading to syncope causing cardio respiratory arrest. It has also been stated by P.W.7, the Doctor who had conducted autopsy over the dead body of the deceased that the cause of death has developed after the surgical intervention and according to him, such injuries were also possible by fall.
12. Taking a cumulative view of all these above circumstances, this Court is of the view that the principal offence could be properly categorized as one punishable under section 304 Part-II of the IPC. We are thus of the considered opinion that for the role played and act done by the accused persons, they would be liable for conviction under section 304 Part-II/34 of the IPC.
13. In that view of the matter, the conviction of the accused is altered to one under section 304 Part-II/34 of the IPC. Since the accused persons are found to have remained in custody for about five years and Page 6 of 7 CRLA No.133 of 2003 ten months, at this distance of time and keeping in view all other relevant factors including the fact that no report as to any adverse conduct of the accused persons has come to be received; in the interest of justice, for the offence committed by the accused persons as held, we are of the considered view that the sentenced of imprisonment for the period already undergone would serve and meet the ends of justice.
14. In the result the Appeal is allowed in part with the above alteration of conviction and modification of sentence to the extent as indicated.
(D. Dash), Judge.
V. Narasingh, J. I agree.
(V. Narasingh), Judge.
Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 22-Aug-2024 18:15:11 Page 7 of 7 CRLA No.133 of 2003