The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.137 OF 2016 In the matter of an Appeal under section 374(2) of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 9th March, 2016 passed by the learned Additional Sessions Judge, Bhanjanagar in S.T. Case No.44 of 2010 arising out of G.R. Case No.34 of 2010. Siba Shankar Sethi ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. G.K. Nayak, Advocate. For Respondent - Mr. S.K. Nayak, Addl. Govt. Advocate. CORAM:
Legal Reasoning
MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING :03.01.2023 : DATE OF JUDGMENT: 27.01.2023 D.Dash, J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 09.03.2016 passed by the learned Additional Sessions Judge, Bhanjanagar, in Sessions Trial Case No.44 of 2010. The Appellant (accused) has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the Page 1 of 10 CRLA NO.137 OF 2016 {{ 2 }} IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo simple imprisonment for a period of one year. 2. Prosecution case in brief is that the eldest daughter of the Informant namely, Bharati had married the accused five years prior to her death. After marriage, some dispute arose between the accused and his wife-Bharati, the elder daughter of the Informant namely, Jayasen (P.W.3). It is stated that for such dispute, Bharati had come to her father’s house and stayed there for about one year. Some time thereafter as per the decision of the village gentries, compromise having been arrived at, Bharati again went back to the house of the accused and stayed there. Bharati having conceived there, after three months, the pregnancy got terminated and therefore, she fell ill and again came back to her father’s place. She was taking medicines as advised by the Doctor. On 21.01.2010, the accused without consulting any Doctor, pushed one injection to his wife and for that, Bharati suffered from severe dysentery and she vomited and fell ill. The Doctor being then consulted Bharati returned to her father’s place. It is stated that on 22.01.2010 night around 9.30 pm without consulting any Doctor, the accused again gave an injection to his wife. Within half an hour of gave an injection, Bharati became senseless. So, she was immediately shifted to Sub-Divisinal CRLA NO. 137 OF 2016 Page 2 of 10 {{ 3 }} Hospital, Bhanjanagar where the injection vial pushed by the accused upon Bharati had been shown to the Doctor who declared Bharati dead. It is also stated that the accused was regularly assaulting, torturing Bharati and subjecting her to cruelty both mentally and physically. 3. The father of the deceased-(P.W.3) after the death of his daughter- Bharati, lodged a written report before the Officer-in-Charge (OIC), Bhanjanagar Police Station, which led to the registration of P.S. Case No.10 of 2010. The investigation then commenced. The Investigating Officer in course of investigation, examined the Informant and other witnesses, seized the incriminating articles including the medicine kit bag containing medicines, ointment, tonic, injections, syringes etc. with the prescriptions for the treatment of the deceased. On completion of the investigation, Final Form was submitted placing the accused for trial for commission of offence under section-498-A/313/302/406 of the Indian Penal Code, 1960 (for short ‘the IPC’). 4. In the trial, the defence has taken the plea of denial and false implication. The prosecution in total has examined thirteen (13) witnesses; whereas the Defence has examined two. The prosecution too has proved several documents such as the F.I.R., Ext.2, inquest report, Ext.1, postmortem report, Ext.11, seizure lists etc. CRLA NO. 137 OF 2016 Page 3 of 10 {{ 4 }} 5. The Trial Court upon examination of evidence both oral and documentary and their evaluation has found the prosecution to have failed to prove the charges under section-498-A/313/406 of the IPC as against the accused. However, evidence being found sufficient to establish the charge under section-302 of the IPC beyond reasonable doubt that the accused has committed the murder of his wife (Bharati) by intentionally causing her death by administering the poisonous injection, the accused has been held guilty for committing the said offence and accordingly, he has been sentenced as aforestated. 6. Mr. G.K. Nayak, learned Counsel for the Appellant (accused) submitted that the evidence of the prosecution witnesses ought not to have been relied upon by the Trial Court to fasten guilt upon the accused for commission of offence under section-302 of the IPC. He further submitted that the evidence let in by the prosecution that it is this accused whose act of pushing injection upon the deceased has led to her death as thereby he had administered organophosphorus poison upon the deceased has not been proved beyond reasonable doubt. Therefore, he submitted that the accused ought not to have been held guilty for committing offence under section- 302 of the IPC. 7. Mr. S.K.Nayak, learned Additional Government Advocate submitted that the prosecution has proved the death of the deceased to have occurred CRLA NO. 137 OF 2016 Page 4 of 10 {{ 5 }} on account of organophosphorus poisoning. He further submitted that the prosecution by examining witnesses whose evidence are wholly reliable and trustworthy has proved that the accused had administered poisonous injection to the deceased when the other circumstance emerging from evidence also provide strong support as to the complicity of the accused in administering the poisonous injection which led to the loss of sense of the deceased within half an hour or so causing her death. He, therefore, contended that the Trial Court has rightly convicted the accused for commission of the offence under section-302 of the IPC which is not liable to be interfered with. 8. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction passed by the Trial Court. We have also gone through the depositions of the witnesses, P.Ws. 1 to 13 examined from the side of the prosecution and those examined from the side of the defence as D.Ws. 1 & 2 and have perused the documents admitted in evidence and marked Exts.1 to 15. 9. At the risk of repetition, it be stated here that this accused having faced the charges for commission of offence under section-498- A/313/302/406 of the IPC has been acquitted of all those charges except the one under section-302 of the IPC, for commission of which he has been held guilty. CRLA NO. 137 OF 2016 Page 5 of 10 {{ 6 }} 10. The prosecution has examined the Doctor, who had conducted postmortem over the dead body of the deceased and he is P.W.9. It is his evidence that he had found cyanosis on the head, neck and upper arm and had noticed froth to be coming out of the mouth and nostril of the deceased emitting smell of organophosphorus substance. At the time of his examination, venflam was fixed on the left wrist and on dissection, he had found the internal organs to be congested as liquid blood coming out from the lungs and solen stomach contained 400 ml of liquid with small amount of semi-digested food strongly smelling organophosphorous like. His evidence is that the death of the deceased-Bharati was on account of organophosphorus poisoning. As per his evidence, the death was within 12 to 24 hours of the examination. All these, he has indicated in the postmortem report, Ext.11. With the above evidence on record, the next the examination stands as to whether the prosecution has been able to prove the fact that it is the accused who has caused the death of his wife by way of organophosphorus poisoning by pushing that injection whereafter, the deceased lost her sense and died. For that, the evidence on record needs scrutiny. 11. It has been stated by P.W.1 that the marriage between the accused and the deceased had taken in the year 2006 and after sometime; the deceased was physically tortured at her in-laws place which she was CRLA NO. 137 OF 2016 Page 6 of 10 {{ 7 }} disclosing whenever she was coming to her father’s house and she was saying that it was for the reason of non-fulfillment of demand. He has also stated that there was a meeting in this connection and dispute had been settled. It is his evidence that the deceased had given birth to a female child who expired six months after birth and as the deceased became ill, she came back to her father’s house and accused was also staying with her and giving her medical treatment. It has been stated by P.W.1 that the accused was professing the practice in medicine and giving medicines to his ailing wife. He has further stated that no sooner did the accused give one injection to his wife, she fell ill and died. It has also been the evidence of P.W.1 that after the accused pushed the injection, deceased fell unconscious and died. The evidence of this witness on the above fact stand totally unshaken. Even, no such material has been elicited from him so as to entertain any doubt over said testimony that accused having pushed the injection; the deceased lost her sense and died. It has further been deposed by P.W.2 that the accused administered injection to the deceased for which she became senseless and on being immediately brought to the hospital, she was declared dead. The evidence of P.W.1 and P.W. 2 run at par with one another so far as that administration of injection by the accused upon the deceased is concerned and the immediate after effect. It has been stated by CRLA NO. 137 OF 2016 Page 7 of 10 {{ 8 }} P.W.2 that the Doctor then stated that said death was due to the injection given by the accused. P.W.3 is the father of the deceased. It has also been stated by him that the accused gave injection to his daughter and then she became senseless and when was taken to the hospital, she was declared dead. Both these witnesses being cross-examined, We find no such material to have been elicited from them to raise any suspicion as to their presence then and as such the occasion to see the accused pushing the injection. The prosecution having established all these circumstances, it is for the accused to explain as to what injection, he pushed at the deceased on the relevant date and time as that fact was within his special knowledge which the prosecution could not have specifically proved. The accused thus was under the legal obligation to show that he had administered the injection in good faith and that was not at all poisonous but necessary for the treatment either as advised by the Doctor or even otherwise ordinarily given in that condition and with such symptoms. In the case at hand, that explanation is wholly wanting nor any such circumstance in support are shown. Thus it stands proved beyond reasonable doubt that for that part played by the accused in pushing the injection, the death has taken place soon thereafter. The evidence on record clearly establish that the deceased who is the wife of the accused had died due to organophosphorus poisoning. The accused CRLA NO. 137 OF 2016 Page 8 of 10 {{ 9 }} was a village quack and was in possession of number of medicines including injections and he had administered the injection which made the deceased senseless and death was within a very short span of time. The prosecution has also established that the accused was subjecting the deceased to cruelty both mentally and physically for non-fulfillment of the demand and he too had caused her miscarriage. All these circumstances in the absence of any explanation coming from the side of the accused that he had given that injection in good faith for the treatment of deceased in view of the ailment that she was then having, being cumulatively viewed form the chain so complete that there is no escape from the conclusion that within all human probability, it is the accused who having pushed the poisonous injection upon the deceased, has intentionally caused her death. These circumstances taken together are incapable of explanation on any other hypothesis than that of the guilt of the accused being consistent with his guilt and inconsistent with his innocence. On a conspectus of discussion of evidence as hereinabove, We are of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302 of IPC is well in order and the accused has rightly been convicted thereunder. CRLA NO. 137 OF 2016 Page 9 of 10 {{ 10 }} 12. In the result, the Appeal stands dismissed and the judgment of conviction and order of sentence impugned in this Appeal are hereby confirmed. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. True Copy P.A. Narayan CRLA NO. 137 OF 2016 Page 10 of 10