Orissa High Court
Laxminarayan Mahanto @ Lakshmi Narayan ... vs State Of Orissa on 28 January, 1993
Equivalent citations: I(1994)DMC95
JUDGMENT D.M. Patnaik, J.
1. The appellant assails his conviction under Sections 304. Part II and 201 of the Indian Penal Code and sentence of R.I. for 5 years and 2 years respectively awarded by the Additional Sessions Judge, Jeypore.
2. To draw it mild, prosecution case is, the deceased was the wife of the appellant. The marriage between the two took place in 1979. At the relevant time the appellant was serving as Teacher in the A.D.A.V. High School, Sunabeda and was staying in a quarter with the deceased with their child aged about two years.
It was alleged that on 18-7-1982 about 9 a.m. the prosecution witnesses who were also occupying portion of the same building complex suddenly heard the shout of a lady and went to the quarter. They found the deceased lying dead with burn injuries. Some of the prosecution witnesses also found the appellant sleeping in the down-stair of the building. The appellant lodged a written repart with the police that his wife died of an accidental fire on the night of 17/18-7-1982. Thereafter the police came and investigated into the matter and after registering U.D. Case No. 8 dated 18-7-1982 inquest was held over the dead body and subsequently the dead body was sent for post-mortem examination which was held in 19-7-1982 by P.W.9. Thereafter the dead body was handed over which was subsequently hurried. About two months thereafter, the matter was again reopened treating the case as one of murder and on the second occasion after the post-mortem examination was held by P.W. 17, a case under Section 302/201, I.P.C. was instituted, and after completion of investigation charge-sheet was submitted and the appellant faced trial.
The appellant denied the prosecution allegation as is found from the 313 statement.
3. Mr. S.K. Mund, the learned Counsel for the appellant took this Court to the evidence on record. According to the learned Counsel, in view of the contradictory nature of the medical opinion and conflicting nature of evidence of the prosecution witnesses, it would not have been proper on the part of the Trial Court to record a finding of conviction.
Mr. O.K. Misra, learned Counsel appearing for the State, on the other hand, supported the judgment of the learned Additional Sessions Judge.
4. The learned Additional Sessions Judge has held that the conduct of the appellant at the time of occurrence was somewhat peculiar and was not expected of a person witnessing his own wife on fire. The learned Additional Sessions Judge also considered adversely Ext. 20 i.e copy of the F.I.R. in the U.D. case by the appellant which showed therein that the deceased caught fire by accident. No other circumstance is found to have relied on by the learned Additional Sessions Judge in recording the conviction.
5. P.W. 2 is the Doctor who at the first instance conducted the postmortem examination of the dead body on 19-7-1982 at 9.15 a.m. and found the following external injuries. He described the appearance of the dead body as follows :
(i) "The deceased was a young woman, of average built.
(ii) Her whole body was burnt and the skin was peeled off, charred, Blouse pieces adhering to the chest wall. Hairs fallen and charred. Face completely burnt and not identifiable. Eyes closed, mouth closed, ears, anus, vaginal canal free, pupils dilated. Rigour mortis present in a flexed attitude (pugilistic attitude). The post-mortem lividity was absent.
(iii) There was no evidence of any external injury or legature mark."
The Doctor (P.W. 9) mentioned in the report that there was no mark of external injury or legature mark. The result of death was due to the severe shock resulting from extensive burn. The time since the death was 36 hours at the time of conducting the post-mortem examination. In cross-examination in para 5, he further confirmed that the death was not due to any injury or violence but due to burns. He further stated that he touched the dead body and felt the thyroid cartilage was normal. According to him, if there would have been any damage to inside tissue, there must have been swelling on the outer surface of the skin. He further opined that the thyroid cartilage usually breaks in case of hanging and some times in case of strangulation. When great force is used there will be legature mark over the thyroid cartilage. The legature mark can be produced only by rope, chain or string like thing.
P.W. 17 was the doctor who conducted the post-mortem examination on 20-9-1982 on the second occasion after the dead body was exhumed. At the time of examination while describing the appearance of the body he stated that such burns would have been post-mortem burns. The kidnies, bladder, uterus and its appendages were absent. So far as the ante-mortem injury was concerned, he found a 'V' shaped contusion over the left side of chest wall with apex towards the left side of the size of 3" x 3" gap 2" and width 1 1/2" located in between the intercostal space. He found a 3/4" wide legature mark that encircled the neck horizontally and continuous over the thyroid cartilage. Muscle fibres of the neck were engorged and prominent above and below the legature mark. Corresponding to the external injury, internally he found the fracture of the thyroid cartilage at its mid portion. The hyoid bone was in tact. He further found a haemorrhagic zone corresponding to the external legature mark. According to him, death was due to the homicidal strangulation by application of legature described as above and thereafter the body was burnt.
6. When the doctor (P.W. 9) who first examined the body attributed the cause of death to the extensive burn injuries, on the second occasion after the body was exhumed, P.W. 17 the Doctor who conducted the postmortem examination attributed the cause of death to homicidal strangulation. This contradictory nature of the medical opinion definitely casts a doubt in the prosecution case. The appellant might have been the author of the crime, but as the saying goes, there is a lot of difference between the cup and the lip and so also the difference between the moral conviction and the legal conviction to sustain the punishment for any crime. The appellant can be only punished after a legal conviction arrived at being satisfied with the truthfulness and reliability of the prosecution evidence.
P.Ws. 2, 3 and 4 were staying close to the quarters of the appellant and so much so P.W. 4 was staying in the same building. All these witnesses stated that when they went to the upstair of the building, they found the dead body of the deceased was lying with burn injuries. Except the medical opinion as stated above regarding stangulation, the prosecution did not place any material before the Court even to reasonably believe that the appellant did any act of strangulation.
7. The circumstance recorded by the learned Additional Sessions Judge regarding the conduct of the appellant as already mentioned above is not borne out by any supporting evidence so far as the medical opinion are concerned. In such circumstance, the conviction cannot be maintained merely on the basis of the medical opinion when it is conflicting to that of the other evidence on record. The recording of conviction under Section 201, I.P.C. is also misconceived inasmuch as the appellant himself at the first instance had reported the matter before the police. The very fact that information was with the police that the wife of the appellant was dead and that as a matter of fact the dead body was subsequently sent for postmortem examination, the question of causing disappearance of evidence by the appellant does not arise. The learned Additional Sessions Judge has misdirected himself in not properly analysing the implication of Section 304 part-II of the I.P.C. in the absence of a reasoning as to how he considered the case as a culpable homicide not amounting to murder and so punishable under Section 304, part-II of the I.P.C.
8. In the result, considering the nature of the evidence as already stated above, the conviction and sentence of the appellant is set aside. The criminal appeal is allowed and the appellant is acquitted. Bail bond executed stands discharged.