Santanu Podha vs State Of Orissa

Dr. S.K. Panigrahi, J.

In this CRLA, the Convict/ Appellant (Santanu Podha) has assailed the correctness of the judgment of conviction and order of sentence dated 30.08.2022 passed by the learned Additional Sessions Judge, Kantamal in Sessions Trial No.40 of 2020, whereby he has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/-, in default, to undergo rigorous imprisonment for six months more for commission of the offence under Section 302 of the I.P.C. and to undergo rigorous imprisonment for one year for commission of the offence under Section 323 of the I.P.C. It was further directed that both the sentences shall run concurrently.

I. CASE OF THE PROSECUTION:

The case of the prosecution, in short, is that on 24.03.2020 one Chandrama Bagh of village Sargipalli lodged a written report at Kantamal Police Station to the effect that her daughter Sarojini Bagh (the deceased) got married to accused Santanu Podha of village Janimunda six years back. After marriage, the accused Santanu Podha resided at her house with Sarojini Bagh as illatom son-in-law. The accused used to quarrel with Sarojini Bagh in intoxicated condition. On 23.03.2020 at about 8.00 P.M., the accused came to house and abused Sarojini Bagh using obscene words and threatened to do away with her life. Thereafter, the accused picked up one knife and terrorized all of them. The informant Chandrama Bagh and Sarojini Bagh snatched the knife from him. But at that time the accused caught hold of Sarojini Bagh and dealt her with slap and fist blows. When informant protested, the accused beat her with a wooden stick. However, the informant could manage to take the wooden stick from his hand. At that time, due to intervention by Sarojini Bagh, the accused once again put her on the ground and dealt her with fist and kick blows on her chest. Due to such assault, Sarojini Bagh became senseless. The informant sprinkled water to her face after which she regained her sense, vomited and again became senseless. Thereafter, the informant shifted her to Kantamal hospital, but she was declared dead by the medical officer there.

Based on the report of the informant, Kantamal P.S. Case No.40 dated 24.03.2020 was registered for the offences under Sections 498A/304B and 302 of Indian Penal Code and the case was investigated into. During the course of investigation, the Investigating Officer examined the informant and sent her for medical examination. Thereafter, the investigating officer conducted inquest over the dead body of the deceased Sarojini Bagh at CHC, Kantamal in the presence of an Executive Magistrate and dispatched the dead body for post mortem examination to CHC, Manamunda. She seized the wearing apparels of the deceased, visited the spot, examined other witnesses, arrested the accused, seized his wearing apparels, received the injury opinion report of the informant, forwarded the accused to court, received the post mortem examination report of the deceased Sarojini Bagh, got the statement of the informant recorded under Section 164 of Cr. P.C, sent the seized wearing apparels for chemical examination and after completion of investigation, finding prima facie materials, she submitted charge sheet against the accused for the offences under Sections 498(A)/302/323 of the I.P.C.

The accused denied the prosecution allegation.

II. TRIAL COURT’S JUDGMENT:

Upon consideration of materials on record, the trial court framed charges under Sections 498(A)/302/323 of the I.P.C. against the accused/ Appellant.

The defence took the plea of denial and false implication.

In order to establish the charges, the prosecution examined as many as 20 witnesses. The prosecution has also placed reliance on certain documents marked as Exts.1 to 15.

No defence evidence, oral or documentary, was adduced.

Out of the 20 prosecution witnesses, P.W.12 is the mother of the deceased and the informant of the case. P.W.13 is the father of the deceased. P.Ws.1, 2, 4, 5, 6, 7 and 8 are the witnesses to occurrence. P.W.9 is the scribe of F.I.R. P.W. 11 is the Executive Magistrate in whose presence the inquest was conducted. P.W. 14 is a witness to inquest. P.Ws.3, 10, 15, 16 and 18 are official seizure witnesses. P.W.17 is the medical officer who attended the deceased at C.H.C., Kantamal. P.W20 is the medical officer who conducted post mortem examination over the dead body of the deceased. P.W19 is the investigating officer. Several documents have been marked by prosecution from Ext.1 to Ext.15 which include FIR, spot map, inquest report, requisitions of the investigating officer, post mortem examination report, seizure list, zimanama and other documents.

Learned Special Judge placing reliance mainly on the evidence of informant P.W.12, stated to have been corroborated by the evidence of other witnesses and circumstances, held the prosecution to have established the charge and convicted the Appellant as stated supra.

III. SUBMISSIONS ON BEHALF OF THE APPELLANT:

In assailing the impugned judgment, learned Counsel for the Appellant submitted that P.W.1 named Siba Guru (the causin brother of the deceased) has stated in paragraph 9 of his deposition that he did not mark any external injury on the person of the deceased. So, it is borne out from the evidence of this witnesses that the accused/Appellant had not assaulted the deceased by means of a wooden plank (Katha Chhela) to her legs. P.W.2 named Jayadev Bhagha in paragraph 4 of his deposition has stated that both the accused and the deceased had initially led their peaceful life in his village without any kind of confrontation. So, the story made by the prosecution is not believable and trustworthy. P.W.3, Digambar Naga, has stated that he did not know the accused of the case and also he could not say about the nature and contents of the seizure which was subjected to seizure vide Ext.1. P.W.4 named Diga Bhaga in paragraph 9 of his deposition has stated that he had never witnessed any previous quarrel between the deceased and the accused. He further stated that no outsiders were present at the spot at the time of his arrival. P.W.5, Kartik Kumar has stated that he had not seen the occurrence of assault on the deceased by the accused. P.W.6 named Radhakant Sahu has stated in his deposition that he could not say the reason of death of the deceased. P.W.7 named Prafulla Kunhar has stated in paragraph 12 of his deposition that he did not have any direct knowledge about the occurrence or assault on the deceased. P.W.12, Chandrama Bagh, the informant in paragraph 6 of her deposition has stated that prior to the occurrence, she had never reported to police regarding the disturbance created by the accused in house. No village meeting had ever been called in connection with the matter. P.W.14, Nilakanta Bagh in paragraph-3 has stated that he did not see any external injury on the dead body of the deceased. P.W.20, Dr. Manas Ranjan Tripathy, who conducted autopsy over the dead body of the deceased has stated in paragraph-6 of his deposition that he did not find any external injury on the body of the deceased and there was no black mark around the neck.

He further submits that the convict/ Appellant had no motive to commit the crime. So, the present case does not fall under Section 302 of the I.P.C.. This case is also not a case under Section 304, Part-I of the I.P.C. It is also submitted that most of the witnesses including the relatives of the deceased have turned hostile and have not supported the prosecution case. Any of the witnesses examined on behalf of the prosecution did not whisper a single word that the Appellant had demanded dowry or tortured the deceased. Prior to the incident, there was also no such occurrence stating that the accused had tortured the victim demanding dowry. Moreover, the relations of the deceased had not lodged any F.I.R. or station diary at any police station regarding this matter.

It was further submitted that the act of the accused/ Appellant would fall within the 4th exception of Section 300 as it occurred out of a sudden quarrel without any premeditation. But the trial court taking into account the evidence of P.W.12, the informant, mother of the deceased observed that the accused came to home under the influence of liquor. He picked up quarrel with the deceased and threatened to kill her. At the intervention of P.W.12, the accused beat her and thereafter he dealt fatal kick and fist blows to the deceased while he was being requested to calm down. The accused himself picked up quarrel and attacked the deceased in an unusual manner without any aggression from the other side. With the aforesaid observations, the trial court held that the act of the accused did not fall within the purview of 4th exception of Section 300 of the I.P.C. to make it a case of culpable homicide not amounting to murder. The trial court has also held that the fact proved against the accused falls within the ambit of culpable homicide amounting to murder punishable under Section 302 of the I.P.C. He further submitted that though the Appellant does not assail the finding of the learned Additional Sessions Judge, Kantamal that the prosecution has established that the death of the deceased- Sarojini Bagh is homicidal in nature, the findings of the learned Additional Sessions Judge, Kantamal that the prosecution has established that the appellant has committed the offence of culpable homicide amounting to murder is fallacious. It is also submitted that the conviction of the convict/ Appellant under Section 302 of the I.P.C. should be converted to one under Section 304, Part-II of the I.P.C. The trial court without going into the material evidence available on record only based on the evidence of P.W.12 has recorded the conviction against the Appellant.

Hence, the judgment of conviction and the order of sentence passed by the learned Additional Sessions Judge, Kantamal in the aforesaid case may be set aside.

IV. SUBMISSIONS ON BEHALF OF THE STATE

In defending the impugned judgment of conviction and order of sentence, learned Counsel for the State submitted that when the occurrence took place inside the house, it was obvious that it would be witnessed by the family members. Hence, witnessing of the occurrence by the parents of the deceased who were residing at the same place is quite obvious. It was also submitted that the evidence of P.W.12 and 13 clearly revealed that due to the kick and fist blows of the accused on the abdomen and chest of Sarojini Bagh, she fell down and became senseless. Moreover, during cross-examination, P.W.20, the doctor, deposed that the rupture of spleen could be accidental or homicidal but could not be suicidal. He further submitted that the rupture of spleen could not be possible by fall. From the evidence brought on record, there is absolutely no material which is suggestive of accidental injury on the deceased. Therefore, keeping in view the evidence of P.W.12, P.W.13 and the opinion of P.W.20, the trial court has rightly held that the death of the deceased was due to rupture of spleen caused by kick and fist blows of the accused to chest and abdominal area which was homicidal in nature.

He further submitted that since the Appellant had given kick and fist blows on the abdomen and chest, very vital parts of the body of the deceased-Sarojini Bag, learned Additional Sessions Judge, Kantamal is correct in recording that it is a case of culpable homicide amounting to murder. He, therefore, urged that this Court may not disturb the finding of the trial court in any manner and may uphold the conviction and sentence meted out by the learned Additional Sessions Judge, Kantamal.

V. COURT’S ANALYSIS AND REASONING:

Since there is no controversy at the Bar regarding the homicidal nature of death of the deceased and implication of the Appellant in causing the death of the deceased, we consider it not very expedient to re-examine those aspects of the case, as it would be a futile exercise. So, we confine our discussion only to the question whether the offence under Section 302 of the I.P.C. or the offence under Section 304, Part-I or Part-II of the I.P.C. has been made out. For this purpose, we need to examine the very case of the prosecution proposed to be proved and the evidence available on records, which are enumerated below:-

(I) P.W.I deposed that, on that day, the accused assaulted the deceased. On the protest of informant, accused also assaulted her by means of a wooden plank to her leg. Hearing their shout, he went to the spot. At the time of his arrival, the accused had already assaulted the deceased and the deceased was lying on the ground in senseless condition. They sprinkled water on her face and brought her to hospital at Kantamal where she was declared dead. P.W.2 deposed that on that day the accused assaulted the deceased. On the protest of informant and her husband, the accused also assaulted the informant. He further deposed that the accused also dealt kick and fist blows to the deceased as a result of which the deceased fell down on the ground and became senseless. Informant sprinkled water on her face after which she regained her sense for few minutes and vomited. Thereafter, she was shifted to Kantamal hospital. During cross examination, P.W.1 and P.W.2 deposed that, at the time of their arrival to the spot, the deceased was lying on the ground in a senseless condition and she was unable to speak. P.W.4 deposed that, on that day, hearing hulla, he went to the spot where the in-laws of the accused were scolding him for assaulting the deceased. At that time, the deceased was lying senseless on the ground and the other persons were sprinkling water on her face. Subsequently, the deceased was shifted to hospital for her treatment where she was declared dead. P.W.5 deposed that, the accused under the influence of liquor, assaulted the deceased by kick which ultimately caused her death. During cross examination, P.W.5 deposed that, he has not seen the occurrence of assault to the deceased by the accused. P.W.6 deposed that, on the relevant day, the accused under the influence of liquor, quarreled with deceased. The informant intervened and the accused dealt lathi blow to her. When the deceased intervened, the accused assaulted her belly and chest as a result of which she fell down on the ground and lost her sense. The informant and her husband gave water to the deceased after which she regained her sense but again, she lost her sense and fell down. She was shifted to Kantamal hospital where she was declared dead. During cross examination, P.W.6 deposed that, his house is at a distance of half kilometer from the house of the informant. He could not say when he got information about the death of the deceased. He also admitted that he cannot say the reason of the death of deceased. P.W.7 deposed that, he heard from the villagers that, the accused assaulted deceased on her belly by his kick as a result of which she died. During cross examination, P.W.7 deposed that, he has no direct knowledge about occurrence of assault on the deceased. On the relevant day, he heard about the death of deceased and saw her dead body at Kantamal hospital. Further he deposed that, he has not gone to the house of the deceased. P.W.8 deposed that, on the relevant day, the accused returned to house at Sargipali in drunken condition and started abusing the deceased. Then, he gave fist blows and kicks on her chest as a result of which she fell down and became senseless. The informant and her husband sprinkled water on her but she did not gain sense. Thereafter, the deceased Sarojini was brought to C.H.C., Kantamal for her treatment where she was declared dead. During cross examination, P.W.8 deposed that, after half an hour of the death of Sarojini, he came to know about it.

(II) P.W.12 Chandrama Bagh deposed that, the deceased Sarojini is her daughter and accused Santanu Podha is her son- in-law being the husband of Sarojini. Six years back, the accused got married to Sarojini at village Janimunda. After marriage of six months Sarojini resided with the accused at village Janimunda. Thereafter, they asked both of them to stay with them at their house at village Sargipalli as an illatom son- in-law. During stay in her house, the accused used to create disturbance in drunken condition. He also used to abuse and beat Sarojini in intoxicated state of mind. In the year 2020, in the month of Chaitra on one Monday at about 8.00 P.M., the accused came to house in a drunken condition and abused Sarojini using obscene language. P.W.12 further deposed that when she intervened, the accused beat her left thigh by means of a Thenga. Seeing this, Sarojini protested and the accused threatened her to kill showing a knife. P.W.12 requested the accused to calm down with folded hands. On this, the accused put Sarojini on the ground and dealt her with kick and fist blows on her abdomen and chest. Sarojini became senseless due to such beating by the accused. P.W.12 sprinkled water to the face of Sarojini and tried to lift her with the help of her husband. Sarojini regained sense, vomited and again became senseless. Then, they shifted Sarojini to Kantamal hospital by an Autorickshaw. The Medical Officer at Kantamal examined Sarojini and declared her dead. Then P.W 12 went to Kantamal police station and reported the matter. P.W 12 also deposed that the F.I.R. was scribed by one Prema of village Baradipadar as per her narration to which she put her L.T.I. P.W.9 Prema Nag deposed that on 24.03.2020 as per the instruction of Chandrama Bagh, he wrote the F.I.R and read over the contents to her. Finding the contents correctly written, Chandrama Bagh gave her L.T.I. thereon. P.W.9 proved the F.I.R scribed by him as Ext.3.

(III) P.W-13-Baisakhu Bagha deposed that the informant is his wife and deceased Sarojini is his younger daughter. Accused Santanu Podha is the husband of Sarojini. According to him, Santanu and Sarojini were residing with them at village Sargipali. On the relevant day, the accused came to house in a complete intoxicated state of mind and started abusing them. When his wife intervened, the accused beat her with a Thenga. At that time, Sarojini also protested. The accused put her on the ground and dealt her with kick and fist blows to her chest and belly for which she became senseless. Seeing this, he along with his wife sprinkled water to Sarojini who regained her sense and vomited. Thereafter, they shifted her to CHC, Kantamal by an Autorickshaw where the doctor declared her dead. Then, his wife lodged F.I.R. at Kantamal police station.

Now, it is to be seen whether the facts proved, brings the case within the ambit of any of the four clauses of the definition of the murder as laid down under Section 300 of the I.P.C. Section 300 of the I.P.C. defines murder. According to it, except in the cases of four exceptions as laid down under this Section, culpable homicide is murder. If any of the four conditions, enumerated below, is not satisfied, then the offence will be culpable homicide not amounting to murder. These are:-

(i) the act was done with the intention of causing death; or

(ii) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused: or

(iii) with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinarily course of nature to cause death; or

(iv) with the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

This is a case where the accused/Appellant- Santanu Podha gave fatal kick and fist blows on the vital parts such as chest and abdominal area of the deceased which does not appear to be accidental or unintentional.

It is further revealed from the evidence that the dispute started by the accused with the deceased when he was under the influence of liquor. He picked up quarrel with the deceased and threatened to kill her. At the intervention of P.W.12, the accused beat her and thereafter he dealt fatal kick and fist blows to the deceased while he was being requested to calm down. The accused himself picked up quarrel and attacked the deceased in an unusual manner without any aggression from the other side.

So, we are of the opinion that this is not a case, as held by the learned Additional Sessions Judge, Kantamal, of culpable homicide amounting to murder punishable under Section 302 of the I.P.C. Rather, we are of the opinion that this is a case which falls under the category of culpable homicide not amounting to murder punishable under Section 304, Part-I of the I.P.C.

Therefore, we allow the Appeal in part. Accordingly, the conviction and sentence to undergo imprisonment for life under Section 302 of the I.P.C. recorded by the learned Additional Sessions Judge, Kantamal in Sessions Trial No.40 of 2020 vide the judgment of conviction and order of sentence dated 30.08.2022 against the Appellant are hereby set aside and modified the conviction under Section 304, Part-I of the I.P.C. and sentenced him to undergo R.I. for 10 years and to pay a fine of Rs.5,000/- in default, to undergo rigorous imprisonment for six months, in the aforesaid case.

Accordingly, this Appeal is disposed of being allowed in part.

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