The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.754 of 2011 Bhagirathi @ Tima Bibhar …. Appellant State of Odisha …. Respondent -versus- Advocates appeared in the cases: For Appellant For Respondent : : Mr. Bhabani Sankar Das, Advocate Ms. Debaki Marandi, Advocate Mr. J. Katikia, Addl. Government Advocate CORAM: THE CHIEF JUSTICE JUSTICE SAVITRI RATHO JUDGMENT 04.09.2023 S. Talapatra, CJ. 1. Heard Mr. Bhabani Sankar Das, learned counsel appearing for the Appellant and also Mr. J. Katikia, learned Additional Government Advocate for the State-Respondent. 2. The Appellant, by means of this appeal, questions the legality of the judgment dated 26th November, 2011 passed by the Additional Page 1 of 14 Sessions Judge (FTC), Bargarh in C.T. Case No.191/36 of 2009-10 (corresponding to G.R. Case No.316 of 2009 of the court of SDJM, Bargarh and Bheden PS Case No.28 of 2009). 3. By the said judgment, the Appellant has been convicted under Section 302 of the Indian Penal Code, 1860 (IPC) and acquitted from the charge of Section 498-A of the IPC. As consequence upon the conviction, the Appellant has been sentenced to suffer the imprisonment for life with fine of Rs.5000/- with default rigorous imprisonment (RI) of six months. 4. Briefly stated, the prosecution case is that one Jabdu Dip (P.W.17) of village Telipali under Binka PS lodged a written report before the Officer-in-Charge, Bheden PS stating that his daughter, namely, Pramila @ Binodini Bibhar (deceased) was severely beaten by her husband Bhagirathi @ Tima Bibhar, the Appellant herein. On 9th May, 2009 at about 11 PM through one Ananda Bhesra (P.W.18), he came to know about the said occurrence. Without wasting any time, he tried to contact the Appellant. His daughter succumbed to the injuries. The Informant visited the place of occurrence with his son, Upendra Dip (P.W.19) and co-villager Ananda Bhesra. On their return from the place of occurrence, he Page 2 of 14 filed a complaint to the Police on 10th May, 2009. It has been categorically stated by the Informant that he found bleeding injuries on various parts of the body of the deceased. The Informant suspected that, that was a case of murder committed by the Appellant. 5. On the basis of such written report, Bheden PS Case No.28 of 2009 was registered under Section 302 of the IPC. On completion of investigation, charge sheet was filed against the Appellant under Sections 498-A and 302 of the IPC and the case was committed to the court of the Sessions Judge, Bargarh and subsequently, to the court of the Additional Sessions Judge (FTC), Bargarh for trial. The Additional Sessions Judge (FTC), Bargarh (hereinafter referred to as “the Trial Judge”) framed the charge against the Appellant on 27th July, 2010 under Section 302 of the IPC for committing murder of his wife Pramila @ Binodini Bibhar and also under Section 498- A of the IPC for causing cruelty by wilful conduct and causing grave injury or danger to life. 6. The charge was totally denied by the Appellant. In order to substantiate the charge, the prosecution adduced 21 witnesses and
Facts
placed few documents such as inquest report, first information Page 3 of 14 report, postmortem examination report and the chemical examination report in the evidence. After appreciation of the evidence, the Trial Judge returned the finding of conviction under Section 302 of the IPC and did not find any evidence in support of the charge under Section 498-A of the IPC. The Trial Judge has observed that the evidence of PWs 9, 10 and 13 are cohesive and on the basis of the said evidence, it can be deduced that the Appellant has caused the death of the deceased by assault. Such death amounts to murder within the meaning of Section 300 of the IPC. Even the Trial Judge has appreciated the defence evidence. The defence plea, as it evinces from the records, is that the deceased was leading an adulterous life and as the Appellant had witnessed her in a comprising position with the other person whose name has been disclosed by P.W.21 and he got angry and assaulted the deceased mindlessly. The Trial Judge, however, has observed in the impugned judgment on appreciation of evidence as follows: “25. In the facts and circumstances of the case, it is clearly held that the accused caused the death of the deceased by his act with the intention of causing death, but it was not done in the heat of passion or under immediate impulses caused by grave and sudden provocation.” Page 4 of 14
Legal Reasoning
testimonies of P.Ws.9 and 10 in particular, we are of the view that the deceased and the Appellant were engaged in a quarrel over what issue that has not been established by the prosecution, but from the testimony of P.W.21, which is otherwise inadmissible, we may get some light. There is no direct evidence on the adulterous life of the deceased. But, from the evidence that has surfaced, it can be gathered without any amount of suspicion that the assault has taken place while both the deceased and the Appellant were engaged in a quarrel. Despite intervention from P.Ws.9 and 10, they were not dissuaded. 17. We have also taken note of the submission made by Mr. J. Katikia, learned Additional Government Advocate that there was unusual cruel conduct of the Appellant. It is very difficult to infer specifically whether the acts of the Appellant were unusually cruel Page 11 of 14 or not. But, from the nature of the injuries, it appears that there was no plan to kill the deceased, but to cause pain. There were assaults in quick succession. As such, it is very difficult to come to an inference of presence of intention to kill or of unusual cruel conduct. Thus, the benefit should go to the Appellant. 18. It is then stated by Mr. Das, learned counsel for the Appellant that since 11th May 2009, the Appellant is behind the bar. Since we have observed that for absence of intention to kill, the said culpable homicide cannot be treated as murder, at the same time, there are adequate materials to convict the Appellant for committing the culpable homicide not amounting to murder. The culpable homicide amounts to murder when from the nature of injuries, the intention to kill can be established. It is well established principle in the criminal jurisprudence that the number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury and the part of body where those are inflicted. The weapon used in causing such injury is the indicator to the fact whether the accused caused the death of the deceased with an intention of causing death or not (State of Rajasthan v. Dhool Singh: AIR 2004 SC 1264). Page 12 of 14 19. We have seen that there were multiple injuries on the body of the deceased. One injury was fatal and cause of death. The injury on the occipital region has become fatal. But, on overall appreciation of nature of the assault and the pattern, we are of the view that intention to kill cannot be inferred. Therefore, the conviction under Section 302 of the IPC is liable to be interfered with and accordingly, it is interfered and set aside. But, the materials are in abundance to convict the Appellant under Section 304 of the IPC for committing culpable homicide not amounting to murder. The Appellant deserves to be convicted under Section 304 Part-II as intention to kill could not be proved by the prosecution. In this regard, we must observe that even the episode of seeing the deceased in a compromising situation has not been proved by the prosecution to show that the same was the reason to cause murder of the Appellant’s wife. 20. In absence of intention to murder, we convict the Appellant under Section 304 Part-II of the IPC without framing any formal charge taking recourse to Section 222 of the Cr.P.C.. Consequently, the Appellant is sentenced to suffer ten years RI with fine of Rs.5000/- and in default of payment of fine, the Appellant shall further suffer another one year imprisonment. Page 13 of 14 21. As it appears from the records, the Appellant has already served out more than fourteen years of imprisonment in the meanwhile; we direct that the Appellant be released forthwith, if not wanted in any
Arguments
7. Mr. Das, learned counsel for the Appellant has submitted that the said inference is the outcome of inappropriate reading of the evidence. To buttress his contention, he has referred, in particular, the evidence of P.W.9-Sandhya Suna, who testified that on the day of occurrence, they saw the Appellant assaulting his wife, Pramila by a stick and an iron pipe. They tried to pacify the situation, but the Appellant did not listen to them and they left the place of occurrence. At about 11.30 PM, as stated by P.W.9, they came to a nearby place where they found the Appellant and at that time, the Appellant disclosed that he had killed his wife Pramila. Then, they proceeded to the place of occurrence and found Pramila (deceased) who was lying dead in the house of the Appellant with bleeding injuries on her head. During the cross-examination, her statement could not be dented and no material could be extracted which can either destroy the prosecution case or strongly support the defence case. P.W.10-Bedamati Suna has stated almost in the similar tune that of P.W.9. But, P.W.10 has revealed something more. She has stated that the Police was informed by them. She has also stated in the trial that she saw the beating along with P.W.9. They had requested the Appellant not to assault the deceased. They have also given description of the occurrence which took place, in their presence. Page 5 of 14 8. P.W.13-Dr. Kamalini Satpathy was the Assistant Surgeon in the DHH, Bargarh and on 10th May 2009, she was requisitioned to carry out the postmortem examination over the dead body of the deceased. In the course of the postmortem examination, she had observed as follows: “The deceased is a female of average build, dark complexion, rigor mortis over the left forelimbs, eyes have closed, mouth has closed, multiple bruise present over the body and over the scalp and upper part of the vagina.” 9. She has separately given the list of injuries she found at the time of postmortem examination, which are as follows: “ (i) Bruise 2” x 2” over the left eye. (ii) Bruise 1” x ½” above the left eyebrow on decession of clots present below the skin and substantial tissues. (iii) Bruise 2” x 2” of the left side of the left hand. (iv) Bruise 3” x 1” irregular inside over the right upper part of abdomen and right hip joint. (v) Bruise 2” x 1” present on the right upper part of the thigh including the right hip joint. (vi) Bruise 3” x ½” and left side of the back extending up to the back of neck. Page 6 of 14 (vii) Lacerated injury 2” x ¾ the muscle deep present in the external surface of the left forearm. (viii) Lacerated injuries two in number place side by side one cm. apart from each other. The size of injury upper part of vagina bleeding present. (ix) Lacerated injury 2cm x ½” into the bone deep present over the right tibia under tibia bone fracture. (x) Lacerated injury 2” x 1” into the brain deep present over left occipital and present on decession the under occipital and parietal fracture. The brain matter grossly damaged in the fracture side, present blood in the substance of brain. All the above noted injuries are ante-mortem in nature on further decession of the body the brain lacerated into lacerated size both chamber of heart empty, lungs impact. Stomach containing little amount of semi- digested food material. Kidneys pale and intact liver pale intact, spine intact, uture normal size, and imoral normal fitness, all the above feature noted are ante mortem in nature. 10. Thereafter, the postmortem examination report has been filed which is marked as Ext.3. She has clearly stated that due to shock caused by hemorrhage and injuries on the vital organs like brain, the death has occurred. From the side of the defence, no cross- examination has been carried out. Page 7 of 14 11. Mr. Das, learned counsel for the Appellant has persuaded us to see the testimony of P.W.21-Basudev Chhatria, who investigated the case. In his testimony P.W.21 has stated inter alia as follows: “19. The reason of murder of the deceased was due to her illicit relationship with one Manbodh Muguri of village-Acchandapali and she was also found in compromising position with that person by the accused. I have filed a P.R. under Section 493 of IPC against that Manbodh Muguri.” 12. Mr. Das, learned counsel for the Appellant has made a serious attempt to highlight the fact that since the deceased was living an adulterous life and she was found in compromising position, that angered the Appellant and out of that uncontrolled passion, he had mindlessly beaten up his wife. Ultimately, those injuries were proved to be fatal for the life of his wife. According to Mr. Das, learned counsel for the Appellant the act of the Appellant does not constitute murder, but it may be brought under the category of culpable homicide not amounting to murder. According to Mr. Das, learned counsel for the Appellant, the acts of the Appellant can be brought under Exception 4 of Section 300 of the IPC. Exception 4 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon Page 8 of 14 a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. When this Court queried Mr. Das, learned counsel for the Appellant regarding the injury at the parietal region and on vagina, he has immediately stated that the Appellant was mindlessly beating without looking into the parts of the body of the deceased and there was no intention which is apparent from his conduct, to cause murder of his wife. Absence of intention would bring these acts of the Appellants under the category of homicide without being murder. As such, Mr. Das, learned counsel for the Appellant has submitted that the conviction under Section 302 of the IPC be interfered with and the Appellant be convicted for committing culpable homicide not amounting to murder. 13. In response, Mr. J. Katikia, learned Additional Government Advocate for the State-Respondent has clearly stated that there is no doubt about the Appellant’s involvement in beating of his wife. He assaulted her in presence of P.Ws.9 and 10. He had beaten his wife with lathi and iron rod. True it is that P.Ws.9 and 10 have categorically stated that the deceased and the Appellant was quarreling and the Appellant was beating the deceased by iron rod and a lathi. Both the weapons were seized during the investigation Page 9 of 14 by P.W.21. Having referred to the testimony of P.W.13, the postmortem doctor, Mr. Katikia, learned Additional Government Advocate has stated that the said acts of the Appellant cannot be brought under Exception-4, inasmuch as, even there may be quarrel, but the Appellant acted in a cruel and unusual manner. 14. We have perused the testimonies of the witnesses particularly whose testimonies were relied for returning the finding of conviction. The other witnesses who were examined, are the post occurrence witnesses or the formal witnesses or the witnesses of the seizure of the iron pipe or stick (lathi) which were used in the assault. As such, we have not discussed their testimonies in detail. The weapons were also recovered from the accused, but as the defence did not take any plea to question the evidence on assault, we have not dilated the analysis further. There is no challenge against the prosecution’s plea that what were seized are the weapons of offence, and used by the Appellant. The extra judicial confession that was made before P.Ws.9 and 10 becomes admissible as the Appellant made such extra judicial confession voluntarily and without any pressure or coercion. Page 10 of 14 15. Thus, there is no doubt that the Appellant had assaulted the deceased and there were ten injuries spread over her body as it appears from the postmortem examination report. According to the doctor, one injury that was found in the left occipital region caused decession and fracture. 16. Having appreciated the evidence, the nature of injuries and the
Decision
other case. In the result, the appeal stands partly allowed. (S. Talapatra) Chief Justice Judge S.K. Guin (Savitri Ratho) Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Sep-2023 11:21:45 Page 14 of 14