Sarata @ Sarada Bhokta vs State of Orissa

L. Mohapatra, J.—The appellant has been convicted for commission of offences under Sections 302 and 498A of the Indian Penal Code (in short ''I.P.C.'') by the learned Sessions Judge, Phulbani in S.T. Case No. 128 of 1995 for having exerted cruelty on his wife Jayanti Behera and committing her murder. The learned Sessions Judge has imposed sentence of life imprisonment with fine of Rs. 5,000/-- (five thousand) for commission of offence u/s 302 I.P.C. but no separate sentence has been imposed for commission of offence u/s 498A, I.P.C.

The case of the prosecution is that the deceased Jayanti Bhukta is the daughter of P.Ws. 1 and 2. She had married the appellant in or around 1.993-94. The deceased was subjected to cruelty in her matrimonial house and she was complaining of such cruelty whenever she used to visit her parental house. On one occasion, because of such torture at the hands of the appellant, the deceased preferred to stay back in her parental house and only after reconciliation at the instance of caste men, she joined her matrimonial house. On 20th June 1995, the appellant and the deceased came to the house of P.Ws. 1 and 2. The appellant left the deceased in the house of P.Ws. 1 and 2 and went back to his village Vijigora. On 1.7.1995, the appellant came and took back the deceased to his house and on this occasion, P.W.2, who is the mother of the deceased accompanied both of them. Leaving the deceased in her matrimonial house, P.W.2 returned back to her village Bhagamunda on 4.7.1995. On 5.7.1995 around 10.00 A.M., the appellant came to the house of P.W. 1 and in absence of P.W. 1, he informed P.W. 2 that the deceased was suffering from diarrhoea and was vomiting and requested them to come to his house at Vejigora. Hearing the condition of the deceased, P.Ws. 1, 2 and the elder brother of P.W. 1 came together to the house of the appellant and found the deceased dead with marks of injuries on her person. Thereafter, P.W. 1 lodged the F.I.R. and investigation was taken up. On completion of investigation, chargesheet was filed for commission of offences under Sections 498A and 302 I.P.C.

The prosecution in order to prove the charges, examined nine witnesses. The plea of the appellant was that he was not present in the house on the date of occurrence. The learned Sessions Judge found the death to be homicidal in nature and-considering the conduct of the appellant prior to death found him guilty of the charges and convicted him thereunder.

Mrs. Chandana Panda, the learned Counsel appearing for the appellant assails the impugned judgment on the ground that there is no eyewitness to the occurrence and the entire prosecution case is based on circumstantial evidence. The learned Counsel fairly submitted that P.Ws. 1 and 2 speak of ill-treatment meted out to the deceased at the hands of the appellant, but so far as death is concerned, there is nothing on record to show that the appellant was present in the house on the date of occurrence and he caused the death of the deceased. Merefy because the death was homicidal, the trial Court could not have convicted the appellant on suspicion. The learned Counsel for the State, on the other hand, submitted that the evidence adduced before the trial Court clearly show that the deceased and the appellant were not pulling on well and the appellant was assaulting the deceased on several occasions. Due to such behaviour of the appellant, the deceased had decided to stay back with her parents but on intervention of the caste people, there was a compromise and the deceased had gone back to her matrimonial house. A day after the deceased went to her matrimonial house, the occurrence took place and, therefore, it is the appellant, who must have committed the offence and none else.

P.Ws.1 and 2 are the most important material witnesses for the purpose of prosecution case. P.W. 1 is the father of the deceased, who has stated in his deposition that sixteen months prior to the occurrence, the marriage took place between the appellant and deceased. He has also stated that the appellant was intermittingly assaulting the deceased and he came to know about the same from the deceased. Four to five times meetings were convened in the village as the deceased was not willing to go back to her matrimonial house and ultimately a compromise was arrived at. About 10 to 12 days before the death of the deceased, the appellant had come to his house along with the deceased and left the deceased. Ten days thereafter, the appellant came to his house to take back the deceased and the deceased accompanied the appellant to her matrimonial house. On the next day, the appellant informed P.W. 2, the wife of P.W.1 that the deceased was suffering from diarrhoea and was vomiting. This witness further stated that after receiving information from the appellant, he, P.W. 2 and his elder brother went to the house of the appellant where they found the deceased lying dead with injuries on her person. Similar is the evidence of P.W.2, who is mother of the deceased. The combined reading of evidence of P.Ws. 1 and 2 clearly show that the marriage between the appellant and deceased took place about sixteen months prior to the date of occurrence and that the appellant was assaulting the deceased for which the deceased was not willing to stay with the appellant. It is also proved that on the intervention of the caste people, a compromise was arrived at and the deceased went back to her matrimonial house. Nothing has been brought out in the cross-examination to disbelieve these two witnesses so far as ill-treatment at the hands of the appellant is concerned. We are, therefore of the view that so far as offence u/s 498A, I.P.C. is concerned, the same has been well established by the prosecution.

So far as offence u/s 302 I.P.C. is concerned, as it appears from the evidence of P.W. 7, the doctor, who conducted post mortem examination of the deceased that the deceased died a homicidal death. P.W. 7 in his examination-in-chief has specifically stated that the death was due to suffocation consequent to application of obstructive objects over the mouth and nose completely obstructing the airway. There is nothing in the cross-examination to disbelieve the opinion of the doctor that the deceased died a homicidal death. The Court is now called upon to decide as to whether the appellant is the person who caused the death of the deceased or not. Admittedly, a day previous to the date of occurrence, the deceased had come back to her matrimonial house along with her mother and leaving the deceased, her mother left for her house. A day thereafter, the appellant informed P.W. 2 that the deceased was suffering from diarrhoea and was vomiting. When P.Ws. 1 and 2 and his elder brother came to the house of the appellant they found the deceased dead. As it appears from the F.I.R., the appellant was not staying alone in the house and there were other family members. A specific allegation has been made in the F.I.R. that the appellant and his family members have caused the death of the deceased. There is nothing in the evidence of P.Ws. 1 and 2 to show that the appellant was staying with the deceased alone in the house where the incident took place and there was none else. Therefore, the possibility of presence of others in the house of the appellant at the time of occurrence cannot be ruled out. The conduct of the appellant assaulting the deceased may give rise to a suspicion. Law is well settled that suspicion however strong it may be, cannot take because of proof. We are, therefore of the view that merely because the death was homicidal and the appellant was not pulling on well with his wife, he cannot be convicted for commission of offence u/s 302 I.P.C. in absence of any other evidence.

We, therefore feel that the prosecution has not been able to establish the charge for commission of offence u/s 302 I.P.C. against the appellant.

In view of the discussions made above, the appeal is allowed in part and the judgment and order of the trial Court convicting the appellant for commission of offence u/s 302 I.P.C. is set aside whereas his conviction u/s 498A I.P.C. is confirmed. Since the trial Court has not passed any separate sentence for conviction of the appellant u/s 498A I.P.C, we impose a punishment of rigorous imprisonment for a period of two years for his conviction u/s 498A I.P.C. As it appears from the order sheet, the appellant is still in custody. If he has already served sentence of two years, he be set at liberty forthwith, unless his detention is required in any other case.