S.K. Mishra, J.1. The sole convict/appellant- Dhruba Charan Das assails his conviction under Sections 498A and 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the Penal Code” for brevity) recorded by the learned Adhoc Additional Sessions Judge (F.T.C.-III), Cuttack in S.T. Case No.28 of 2000 (arising out of G.R. Case No.839 of 1998 of the court of the learned J.M.F.C. (R), Cuttack, corresponding to Niali P.S. Case No.93 of 1998. He has been sentenced to undergo imprisonment for life under Section 302 of the Penal Code. No separate sentence has been passed under Section 498A of the Penal Code.2. The prosecution case, bereft of unnecessary details, may be enumerated as follows: -The deceased- Kamini Das (hereinafter referred to as “the deceased” for brevity) was given in marriage to the appellant about 12 years prior to her death. However, their marriage was a troubled one as it is alleged that the appellant was having relationship with another woman. For that he was torturing the deceased. Several settlements were made by the Bhadraloks. But, thing did not improve. On 26.08.1998 the appellant assaulted the deceased and tore her blouse and at about 2.00 P.M., P.W.4, the informant ( Akshya Kumar Rout) got information from his father that the deceased had died. So, he went to the house of the accused and heard from the neighbors and his nephew P.W.1 (Ayasa Kanta Das) that the accused/appellant had assaulted Kamini (deceased) by means of an iron rod and then hung her. Suspecting foul play, he lodged the report.On receipt of the written report, Sri Raghunath Sahu, A.S.I. of Police, Niali Police Station (P.W.13) took up investigation of the case, as the O.I.C., Niali Police Station was absent. The said witness examined the witnesses; deputed a Constable to guard the dead body at the spot; held inquest over the dead body of the deceased on 27.08.1998 and sent the dead body for Postmortem Examination to the Department of Forensic Medicine and Toxicology, S.C.B. Medical College and Hospital, Cuttack; and made seizures. He handed over the charge of the investigation to P.W.14 (Jagatbandhu Rai), the S.I. of Police, Niali Police Station who also conducted part of the investigation and submitted charge-sheet against the appellant under Sections 498A and 302 of the Penal Code.3. In course of trial, the appellant took the plea of denial of the allegations made against him. He further took the specific plea that the deceased had committed suicide as his brother-in-law (P.W.4) had taken a sum of Rs.50,000/- and did not return the same and the appellant was defamed by his brother-in-law and others of having affair with another lady, the deceased committed suicide.4. To substantiate its claim, the prosecution examined 14 witnesses; exhibited nine documents, but did not exhibit any material object. The prosecution in the instant case relies on the evidences of 5 witnesses examined by it. P.W.4- Akshya Kumar Rout is the informant, he happens to be the brother of the deceased; P.W.1-Ayaskanta Das is the son of the appellant and the deceased and was aged 8 years at the time of occurrence; P.W.12- Dr. Prasanna Kumar Mohanty has conducted post-mortem examination on the dead body of the deceased; P.W.11-Dr. Bhagirathi Barik had given opinion on the rope seized by the investigating officer in this case and P.W.13-Raghunath Sahu is the A.S.I. of Police, Niali Police Station who carried out the first part of the investigation in this case. Rest of the witnesses are either formal witnesses or the witnesses who proved the marriage between the appellant and the deceased or witnesses to seizures.The defence in this case examined one witness on its behalf i.e. D.W.1-Shankar Dash to establish that there was good relationship between the appellant and the deceased, and that the informant-P.W.4 has taken a sum of Rs.50,000/- from the appellant and did not pay the same.5. Basing mainly on the evidence of these witnesses, learned Adhoc Additional Sessions Judge, FTC-III, Cuttack arrived at the conclusion that the prosecution has proved its case beyond reasonable doubt. He, therefore, proceeded to convict the appellant for the offences under Sections 302 and 498A of the Penal Code and sentence him to undergo imprisonment for life.6. In assailing the conviction of the appellant for the aforesaid offences, Mr. C. Mohanty, learned counsel for the appellant argues that in this case, the prosecution has not established that the death of the deceased was homicidal in nature. Referring to various contradictions in the evidence of P.W.1, he further submits that the learned Adhoc Additional Sessions Judge, FTC-III, Cuttack has committed error in relying upon the evidence of P.W.1, a child witness, in view of glaring contradictions in his evidence.7. Mr. M.S. Sahoo, learned Additional Government Advocate, on the other hand, supporting the findings recorded by the learned Adhoc Additional Sessions Judge, FTC-III, Cuttack urges the Court to uphold the conviction recorded by the learned Adhoc Additional Sessions Judge, FTC-III, Cuttack.8. In a criminal proceeding of murder, the primary duty of the prosecution is to establish the homicidal nature of death of the deceased. This principle may have certain exceptions but that is not the question in this particular case. Since the dead body of the deceased has been subjected to post-mortem examination, it was the duty of the prosecution, especially in this case, to establish that the deceased met a homicidal death. The defence did not dispute the identity of dead body which was subjected to postmortem examination.9. P.W.12-Dr. Prasanna Kumar Tripathy conducted autopsy on the dead body of the deceased and found that there was no external injury on the dead body of the deceased except a noncontinous ligature mark on the neck; the base of ligature mark was parchmentized and margins were congested. However, on dissection of the tissues underneath the ligature mark, he found the deceased had contuse with extravasations of blood, Hyoid bone, thyroid cartilage and other larngial catteleue along with tracey reason were intact. Soft tissues of the neck were intact and congested. He opined that the ligature mark was ante-mortem in nature. He further opined that death was due to asphyxia resulting from hanging. He has not given any opinion regarding homicidal nature of death of the deceased. In such situation, it is the duty of the trial judge to seek an opinion from the doctor who conducted post-mortem examination regarding nature of death. In case the doctor does not give a clear opinion then also the trial judge should give a clear finding regarding the nature of death of the deceased. Was it homicidal in nature or not? Such finding can be given in the absence of clear opinion of the doctor from the evidence available on record. In his cross-examination, the doctor has further stated that death was due to hanging and asphyxia. Learned Adhoc Additional Sessions Judge, FTC-III, Cuttack at paragraph 11 of the impugned judgment has discussed the evidence of the doctor-P.W.13 and further observed that the deceased was found lying on a cot. The learned trial judge further observed that P.W.1 has stated to have seen the accused pulling the neck of the deceased by means of a rope. No evidence is forthcoming to show that the deceased was found hanging from the rope and thereafter she was removed to cot. Learned Adhoc Additional Sessions Judge, FTC-III, Cuttack has discussed the material available on record but has not given any clear finding that death of the deceased was homicidal in nature which appears to be an erroneous approach to this case.10. In order to determine whether actually the deceased met with a homicidal nature of death and the appellant was responsible for causing her death, the evidence of P.W.1 is of utmost importance. He was a child, aged about 12 years, at the time of examination in Court. He was about 8 years when the occurrence took place. He has stated in the court about the torture meted out to his mother by the appellant and the appellant’s extra-marital relationship. Regarding the occurrence that took place on 25.08.1998 on the day when Ganesh Puja was being performed, he stated before the Court that his mother washed the utensils and cleaned the courtyard, thereafter, he and his mother went to take their bath. After taking bath, they came back to home. He saw that the blouses of his mother were tore by the accused. On seeing the cloth, his mother cried and called Jaladhar. Jaladhar came and on seeing the blouses to be tore, he gave Rs.2/- to his mother and asked her to go and to stitch the blouse, but his mother did not accept the money. At that time, the accused abused her mother by saying “JALADHAR TO BOPA JE SABU KATHARE DAKUCHU”. Then, his mother gave this witness Chuda along with Banana. He ate and went telling his mother to cook Arua rice. When he returned after performing the Puja, he saw the accused by putting a rope on the neck of his mother was pulling the same. He also noticed bleeding from the ear of his mother and an iron like Hema Dasta, stained with blood was lying on the cot. A blouse was gagged in the mouth of his mother. When he caught hold of the leg of the accused, the accused dealt a kick blow to his mouth and went away. He also followed the accused and saw the accused caught hold of the back side of the bus and by riding the ladder of the bus went away. Then, he informed his Mausi (aunt) through a school boy and on 26.08.1998 he narrated the matter to his maternal uncle Akshya Kumar Rout (P.W.4). He denied the defence suggestions in cross-examination that he had not stated before the police that when he came, he saw the accused was pulling the neck of his mother with a rope and blood was coming from the ear; that he saw the blood stained Hema Dasta on the cot and that blouse was gagged on the mouth of his mother. He has also made some other contradictory statement with respect to his statement before the police. Those can be seen as peripheral probative shortfalls and not major contradictions. However, P.W.1 has admitted that the accused/ appellant was pulling the neck of his mother with a rope and blood was coming out of her ear and that blood stained Hema Dasta was on the cot; and that blouse was gagged in the mouth of his mother.11. These contradictory evidence juxtaposed with the evidence of P.W.4 and the contents of the F.I.R., were examined by us. P.W.4 has lodged the F.I.R. wherein in the later part of the same he has narrated that the appellant has assaulted the deceased by means of an iron rod and hung her by means of a rope. In his statement before the court he has submitted that P.W.1, the son of the deceased told him that his father assaulted Kamini by means of an iron rod and by tying her neck in a rope was pulling. In the cross-examination, however, he had denied that he had not written in his F.I.R. that his nephew told him that the accused by tying the neck with a rope hanged Kamini. It is well established from the F.I.R. exhibited in this case as Ext.6 that in fact he has mentioned in the F.I.R. that his nephew told him that the appellant hung the deceased (TANGI DELA) by means of a rope.12. Thus, on a conspectus of the entire material on record, it is apparent that P.W.12 the doctor who conducted post-mortem examination has not given definite opinion regarding homicidal nature of death of the deceased. Secondly, the doctor has opined that death of the deceased was caused due to asphyxia by hanging. The prosecution has not proved that the deceased was hung by the appellant. On recall, P.W.1 has stated in his cross-examination that he was not present at the time of death of his mother in the house. He stayed in the school and stayed for the whole day and returned home at 4.00 P.M.13. Coupled with the above, absence of clear finding of the learned trial judge that the death of the deceased was homicidal in nature, this Court is of the considered opinion that reasonable doubt arises in this case regarding complicity of the appellant in commission of the crime of murder. Since genuine and reasonable doubt arises regarding complicity of the appellant in commission of the crime of murder, the appellant should be extended the benefit of doubt. So, this Court comes to the conclusion that the prosecution has failed to prove, beyond all reasonable doubt, its case of culpable homicide amounting to mu
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rder against the appellant. But, this Court is of the opinion that the learned trial judge did not commit any error in coming to the conclusion that offence under Section 498A of the Penal Code is made out in this case.14. In the result, the appeal is allowed in part. The conviction of the appellant under Section 302 of the Penal Code and sentence to undergo imprisonment for life recorded vide judgment and order dated 09.09.2005 by the learned Adhoc Additional Sessions Judge (F.T.C.-III), Cuttack in S.T. Case No.28 of 2000 are hereby set aside. The appellant stands acquitted of the charge under Section 302 of the Penal Code.15. However, the conviction under Section 498A of the Penal Code is upheld. Since the appellant has already undergone imprisonment for a long period of 15 years, there is no need to pass separate sentence for the offence under Section 498A of the Penal Code.Since the appellant-Dhruba Charan Das is in custody, he be set at liberty forthwith, unless his detention is required in any other case.The L.C.R. be returned back forthwith.As restrictions are continuing due to COVID-19 pandemic, learned counsel for the parties may utilize the soft copy of this order available in the High Court’s official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587, dated 25.03.2020.Savitri Ratho, J.I agree.