Orissa High Court
Kuntala Misra vs State Of Orissa on 1 October, 1986
Equivalent citations: 1986CRILJ1917
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT L. Rath, J.
1. The appellant having been convicted under Section 302, Penal Code and sentenced to life imprisonment on the charge of having committed murder of her daughter-in-law, Gitanjali on 11-1-1983 at about 2-30 p.m. has preferred this appeal.
2. The prosecution case, briefly sketched, is that the deceased Gitanjali was married to Subash, the son of the appellant on 24-5-1981. There was demand of dowry to which the father and brother of Gitanjali did not agree at the first instance, but subsequently it was settled at Rs. 8,000/- to be paid after the marriage. The dowry was however demanded on the date of marriage which demand could not be complied with. Due to such reason there was strained feelings between the two families for which the appellant and her son were torturing Gitanjali and were not allowing her to come to her parent' place at Banpur from Sambalpur where the appellant was working as a Dai in the maternity Hospital and had a quarter inside the Hospital premises where all of them were living together. The father of the deceased (P.W. 9) borrowed a sum of Rs. 6,000/- from P.W. 10 and paid the same to the appellant eight months prior to the date of occurrence but the balance of Rs. 2,000/- was outstanding.
3. On 11-1-1983, when the husband of the deceased was not at home, the appellant took the deceased to the hospital where she underwent a D and C operation which is a minor operation. Before the operation the deceased had been administered phenargan injenction. After the operation the appellant brought the deceased home at about 11.30 A.M. and committed the murder of the deceased in the quarters by strangulation by means of a saya lace (M.O.I.) while the deceased was under the effect of sedation. The appellant thereafter informed P.Ws. 7 and 6, the Doctors of the Hospital who had conducted the D & C operation that Gita had done something. The Doctors came and found the deceased to be dead. They were informed by the appellant that the deceased had committed suicide and as such asked the appellant to lodge information with the police. The appellant at 3.30 P.M. reported at the Police Station that Gitanjali had committed suicide. On such report an U.O. Case was registered but later on since on enquiry a case of homicide was detected, an F.I.R. was drawn up by the Circle Inspector on 22-1-1983 on the basis of his investigation revealing a case under Section 302, Penal Code. The investigation was continued after which the charge-sheet as above was submitted against the appellant.
4. The defence of the appellant is denial.
5. The post-mortem examination of the deceased was conducted by P.W. 11, a Demonstrator in Forensic Medicine and Toxicology in the Medical College, Burla. On external appearance he found three ligature marks on the neck. Besides two vertically situated abrasions 0.75 inch apart and 0.5' - 0.25" in size starting from the middle part of the third ligature mark on the right side of the neck and directed upwards. He also found diffused contusions of the size of 2" X 1" present on the left side of the face. The first ligature mark was over the lower part of the thyroid cartilege in front aspect of the neck; 9.75 inches in length, 0.75" wide at the middle and 0.25" wide at the two ends. There was gap of 2.25 inches at the back of the neck in between the two ends of the ligature mark. The second ligature mark was present below the thyroid cartilege 0.75 inches below injury No. 1. The breadth of the ligature mark at the middle was 0.5 inches, and at the ends of 0.25". This mark joined the first ligature mark on either side at the level of ears. The third ligature mark was 2" in length and 0.25'' in breadth on the right side of the neck starting two inches below the angle of the mandible on the right side. There was also a faint line of ligature mark thereafter extending up to the first and second ligature marks at the level of the left ear. On dissection of the neck P.W. 11 found the skin below the ligatures to be contused. The lungs were found to be congested, there was engorgement of superficial blood vessals of the cerebrum on the either side. Opening the abdomen he found the liver, spleen and kidney congested. It was the opinion of P.W. 11 that the injuries were ante mortem in nature and the ligature marks were possible by M.O.I, by encircling the neck by means of it and pulling the ends.
The abrasions and contusions on the face were possible by finger nails and by fist blows. He also categorically opined that one cannot commit suicide by strangulation by using M.O.I, on one's neck.
6. It has been strenuously urged by Mr. Patra, the learned Counsel appearing for the appellant that the evidence of the Doctor is not acceptable so far as his opinion of the impossibility of suicide is concerned. It is no doubt correct that P.W. 11 has contradicted himself by once saying that it is not possible for one to commit suicide by self strangulation by a ligature and that he does not agree with Modi that there might be some cases of self strangulation and again stating that if there would be a case of self strangulation, then there would be signs of violence. Later on the witness again stated that in very rare cases there could be self strangulation by ligature but however he stated that he does not agree with Modi that in such cases injuries to the deep structures of the neck and marks of violence on other parts of the body are, as a rule, absent. The evidence of P.W. 11 being thus confused on the point would not be of much help to determine the question whether it was a case of self strangulation or suicide. But however by reference to the established medical authorities it can be well said from the injuries on the person of the deceased that it could not be a case of self strangulation. According to Modi (12th edition page 154), suicidal strangulation is not very common and that in such cases some contrivance is always used to keep the ligature tight after insensibility supervenes. This is usually done by twisting a cord several times round the neck and then tying a knot, which is usually single and in front or at the side or back of the neck, or by twisting a cord tightly by means of a stick, stone or some other solid material, or by tightening the ends of a cord by tying them to the hands or feet or to a peg in a well or to the leg of bed. In such cases injuries to the deep structures of the neck and marks of violence on other parts of the body are, as a rule, absent. Tayler in his Principles and Practice of Medical Jurisprudence, 13th Edition, observes at page; 309 as follows :-
Self-strangulation involving a ligature may occur in four ways:
(1) When the neck is constricted by multiple turns which are sufficient to maintain constriction without a knot or fewer turns secured either by a half or double knot at a point accessible to the person's own hands.
(2) More frequently a rod of some sort is either inserted under a knot or included in it, the neck being compressed by twisting in the fashion of a tourniquet. This, in our experience is the commonest method used.
(3) A running noose with a weight attached to the free end.
(4) A running noose with the free end attached to the hand, the weight of the hand and forearm affecting compression.
In this case P.W. 11 stated that he did not find the larynx and trachea affected as well any injury to the neck muscles. He also did not find any rupture of the carotid arteries and also did not find any hyoid bone fractured. But however he found congestion in the deep structure of the throat. Another circumstance which has also bearing on the question whether the death was suicidal or not is the condition of the deceased. Admittedly she had been administered phenargan injection of about 8 to 8.30 A.M. as stated to by P. Ws. 4 and 7. According to P.W, 6, the Doctor who conducted D & C operation, the effect of phenargan injection remains for 3 to 4 hours whereas P.W. 11 stated that the effect of 50 ML. of phenargan would be maximum after 3 hours and would completely vanish after six hours and that the patient would remain drowsy for 4 to 6 hours. It also appears from the evidence of P.W. 11 that about 24 hours had expired since the death by the time of post-mortem examination which was conducted at 1.35 P.M. on 12-1-1983 and hence the approximate time of death was about 1.30 or 2 P.M. on 11-1-1983. Taking into consideration the fact that the deceased would have been drowsy by the time of death and there was no mark corresponding to any knot and absence of any stick or any other material which would have been necessary to twist the cord tightly so as to cause death by asphyxia, the presence of abrasions and contusions which were possible by fingernails and fist blows, it seems reasonably certain that the death of the deceased was not suicidal strangulation but was homicidal. It has of course been submitted by Mr. Patra that the presence of the abrasion and contusion was not marked in the inquest report and were later introduction, but it was possible that such marks were not noticed at the time of the inquest but were marked by P.W. 1 while conducting the post-mortem examination.
7. In the absence of any eye witnesses, the case against the appellant is entirely based on circumstantial evidence. The circumstances relied upon by the prosecution are:
(1) There was demand of dowry of Rs. 8000/- by the appellant of which Rs. 6000/-had been paid eight months before the occurrence and Rs. 2000/- had remained unpaid:
(2) For non-payment of dowry the deceased was being toriured and was not allowed to come to her parent's place.
(3) At the time of death the appellant and the deceased were the lone occupants of the quarter of the appellant:
(4) After the death of the deceased the appellant rushed to the hospital to inform the doctors who found her to be restless:
(5) When the doctors came to the house of the appellant the deceased was found to be covered with a Chadar; and (6) The appellant reported at the Police Station that the deceased had committed suicide even though it was not a case of suicide.
8. So far as the first and second of these are concerned, the demand and non-payment of dowry could have been a motive for committing the murder but by themselves are not proximate links in the chain of circumstances immediately prior to the death. The motive of the appellant is sought to be proved by the evidence of P.Ws. 8, 9, 10 and the letters in Ext. 17 series which had been written by the deceased to her parents, brothers and other relations. P.W. 8 the brother of the deceased of course stated that the appellant flatly refused to send Gitanjali to her parent's house unless the sum promised was paid and that the deceased told him that since the amount had not been paid, both her mother-in-law and husband were abusing and assaulting her. The statement of this witness however has to be taken with a grain of salt since he never stated before the police that the appellant and others did not leave his sister or that she told him that since the dowry amount had not been paid she was not being allowed to go. Similarly the statement of P.W. 9, the father of the deceased that Gitanjali had written to him that for nonpayment of money she was being tortured by the appellant and her husband and the appellant having also flatly refused him to allow Gita to accompany him since the amount had not been paid, and that she would rather prefer to kill the deceased than send her to his house, are not believable since he never told before the police that the appellant had stated that she would prefer to kill the deceased than send her to his house and in view of the contents of the letters in Ext. 17 series. We have been extensively taken through these letters but however they do not reveal either any torture or assault on the deceased at any time. These letters certainly show of Gita remaining unhappy over the fact that whatever amount had been committed had not been paid, but however there is nothing in the letters to show that there was any extraordinary ill-feeling between her and her mother-in-law. In some letters it appears that the appellant was trying to construct a house for Gita and her husband but was unable to proceed having spent eight to ten thousand rupees in the marriage for which there was shortage of money and she hoped to complete the house by getting the amount promised. Gita had also written a letter on 26-12-1982 (Ext. 17/6), that is a few days before her death, that she and her husband would have gone to the village in the holidays but however could not go due to some difficulties and were planning to visit in the first week of the New Year. On 15-10-1982 she had written a letter to her mother (Ext. 17/10) in which she had stated that if her father comes she would definitely accompany him to the village and nobody can obstruct her and that this was what her husband had also said. In the letters she had made a reproach that money may be paid afterwards but for her pleasure, P.W. 9 should at least come after the Puja to take her and that she should be taken to the village for at least a day or for three to four hours. Reading the letters, as a whole, it is apparent that there was strained feelings between the father of the deceased and the appellant for which the father was also not coming to the house of the deceased as desired by her, but however there was no question of the deceased being tortured or assaulted. It also appears that Gita had some free will in coming to Banpur. As regards the conduct of the appellant vis-avis the deceased, it also appears from the evidence of P.W. 6, the Doctor who made the D & C operation as also the exhibits proved by her that the appellant was getting the deceased regularly treated for her Gynaecological problems. There does not appear to be any motive for the appellant to commit the murder of the deceased.
9. The third circumstance of the appellant being alone with the deceased at the time of the death is sought to be proved through the evidence of P. Ws. 6 and 7. P. W. 6 is the Doctor who conducted the D & C operation and P. W. 7 is the Doctor who was present during the operation. It is in the evidence of P. W. 7 that after the operation was over she advised the appellant not to take Gita to her quarters immediately. After some time the appellant brought the deceased home at about 11.30 A. M.. At 2.30 p.m. while they were working in the Hospital she heard some hulla coming from the quarters within the Hospital premises and while rushing towards the quarters she met the appellant who was shouting, was restless and called her to see the deceased saying that something had happened to Gita. She accompanied the appellant to her quarter where she found the deceased lying on a cot with a Chadar on. The appellant said that Gita had done something to which P. W. 7 asked as to what she had done and the appellant replied that she had committed suicide by tying her neck by the lace of her saya. She examined the pulse of Gita and found her dead. She found that the back-side door was chained from inside and there was none else present in the quarter except the appellant and the deceased. She went and called P. W. 6 and along with P. W. 6 again came to the quarter. The saya lace (M.O.I.) was lying near the deceased and she also found some marks on the front side of the neck. She advised the appellant to report the matter to the police.
10. The statement that she found- that the back-side door was chained from inside is however a very material omission in her evidence which she did not state before the police. P. W. 7 herself admitted that she did not state such fact before the police since she was not asked about the same. There was admittedly an entrance into the quarter from outside through the backside door. If the backside door was not chained from inside, evidently there was chance of other persons entering through the back door and having access to the room where the deceased was sleeping. It is surprising that P. W. 7 did not state such a vitally important fact to the police and the police did not ask her about it. P. W. 7 is a key witness being the very first person to enter the quarter of the appellant after the death. The crucial question as to whether the backside door was open or closed from inside just prior to the occurrence was thus not investigated properly. The evidence of P. W. 6 is also to the same effect. P. W. 6 reached the spot being called by P. W. 7. Though she stated that while she went to the quarter of the appellant, she found the door of the Bari was chained from inside, yet she stated as not remembering whether she said to the police that the back-side door was chained from inside. P. W. 12 is the Investigating Officer to whom the statement of P. W. 6 was confronted and it was found that she did not state before him that the door at the backside was chained from inside. There is thus no conclusive proof that the appellant was alone in the house of the deceased at the time of occurrence. The theory of the last seen together is not one of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances.
11. The next circumstance relied upon by the prosecution was that the appellant was found restless after the death of the deceased. The fact again appears from the evidence of P. Ws. 6 and 7 who said that while the appellant met them she was restless (Byasta Hauthila). The English rendering of the Oriya words as "Restless" does not convey the proper meaning. The proper English rendering of the Oriya words would be that the appellant was difused, excited, perplexed, agitated or confused. Even if the appellant was restless, there was nothing abnormal about it. It is natural for one whose daughter-in-law suddenly dies to be utterly perplexed and confused and become restless thereby. The appellant did not exhibit any unusual reaction and this is certainly not a circumstance against her.
12. The other circumstance of the deceased having been covered with a Chadar when the Doctors saw her is also not a fact. It is not as th6ugh that the deceased was covered from toe to head which might have been the fact if the appellant already knew that the deceased was dead and having covered her went to call the Doctors. P. W. 7, who first saw the deceased, did not say that the deceased was so covered with the Chadar from toes to head. P. W. 6 is even more specific and said that the deceased was covered with a Chadar from neck to toe. There is nothing unusual for a patient who had an operation to be on the bed covered with a Chadar from neck to toe. The evidence as such does not suggest a circumstance against the appellant.
13. Another circumstance which has been relied upon by the prosecution is that the appellant brought the deceased home on foot after the operation even though she had been asked not to take her home for sometime. P. W. 4 stated that after the operation was over, at 10.30 A.M. or so the appellant expressed her desire to take Gitanjali to her quarter but however P. W. 7 did not agree and told her to take Gita home after sometime, and about 11.30 A.M. the appellant brought Gita to her quarter which is 25 to 30 cubits from the Hospital compound. P. W. 4 who is the pharmacist also stated that D & C operation was a minor operation and that after the operation the patient is allowed to go to the house. P. W. 6 also says that the operation is a very minor one. Thus the appellant had brought the deceased to her quarter not immediately after the operation but after sometime as had been advised by P. W. 7.
14. The last circumstance relied upon by the prosecution was that the appellant lodged information at the Police. Station of the deceased having committed suicide. This certainly is not a circumstance against the appellant since there is no evidence of the appellant having any knowledge that the deceased had met her death by homicidal strangulation. As a matter of fact when the appellant stated to P. Ws. 6 and 7 that the deceased had committed suicide, she was never contradicted by them. If the appellant harboured a notion that the deceased had committed a suicide, she was only to report such fact at the Police Station.
15. There thus does not appear to be any circumstance worth the name which would point to conclusion of the appellant being guilty of having strangulated the deceased. The most important circumstances relied upon by the prosecution, namely, that the appellant was alone in the house with the deceased at the time of the occurrence and that the deceased had been covered with a Chadar from head to toe have not been established and the other circumstances are either not established or are not correct. It cannot be said that the prosecution has established the case against the appellant beyond all reasonable doubt. Screening the whole evidence, it is not possible to reach a certain conclusion that the appellant must have been guilty and on the other hand, there is a reasonable doubt as to whether it is the appellant who is the author of the crime. In this view of the matter, the appellant is entitled to a benefit of doubt and hence her conviction and sentence under Section 302, Penal Code must be set aside which are accordingly quashed. The appellant be set at liberty forthwith.
G.B. Patnaik, J.
16. I agree.