State of Orissa vs Sk. Sadiq Ali

B. Panigrahi, J.—In this appeal the State Government has assailed the order of the District & Sessions Judge, MayurBhanj, Baripada convicting the Respondent u/s 324 instead of 302 of the Indian Penal Code directing him to undergo R.I. for a period of 16 months for causing hurt to the deceased Salma Khatun.

The Respondent was prosecuted for having committed the murder of this wife Salma Khatun on 4.7.1983 at 10.55 P.M. It is stated in the FIR that on 4.7.1983 between 8.30 to 9.00 A.M., P.Ws. 1 and 2 alongwith other persons were standing in Kostha Bazar. At that time the deceased Salma Khatun who was staying with her husband (accused) in a rented house which was very close to the bus stoppage, came running to P.W.1 with severe bleeding injuries and fell down by narrating that she was assaulted by the accused-Respondent. The Respondent was then about to beard a bus from where he was picked up by the passengers. That is how the Respondent was apprehended. It is further narrated in the trial Court that the Respondent had admitted to have assaulted the deceased on account of a family brawl. The injured Salma Khatun was removed to the Kostha P.K.C., but the Doctor having found a lacerated injury on her head, referred her to Baripada Headquarters Hospital for treatment where on the subsequent date (5.7.1983) at about 10.55 P.M. she succumbed to the injuries

P.W.4 who was the brother-in-law of the deceased then serving as a teacher came to his house and learnt about the incident at about 4.30 P.M. He went to Kostha P.H.C. and noticed the injured Salma Khatun lying unconscious with bleeding injuries on her head, face etc. He proceeded to Sulipada Police Station and lodged a report there at 10.00 P.M. on 4.7.1983. The officer-in-charge, Sulipada Police Station registered a case under Sections 307, 324 and 325 of the Indian Penal Code. But consequent upon the death of Salma Khatun the case was turned into a case of murder punishable u/s 302 of the Indian Penal Code.

During investigation the Investigating Officer visited the spot and also Barioada Hospital, held inquest over the dead-body, sent the dead-body for post mortem examination, examined some of the witnesses, seized a knife, a paniki, a small stick and a white terricotton Panjabi from the house of the Respondent, arrested the Respondent and forwarded him to custody, sent the incriminating materials for chemical examination and on completion of investigation placed charge-sheet in Court

The plea of the Respondent in the trial Court was one of denial of occurrence and he claimed to have been falsely implicated in this case.

The prosecution has examined 9 witnesses.

P.Ws. 1 and 2 came near the deceased after she came out of her house in an injured condition and narrated the incident to them. P.W.4, who was the brother-in-law of the deceased lodged an information at the Police Station. P.W.5 was the father of the deceased. P.W.6 was the Medical Officer of Kostha P.H.C. who examined the injured immediately after the assault. P.W.8 was the Medical Officer who conducted the post-mortem examination over the dead body of the deceased. P.W.9 was the Investigating Officer.

The trial Court on the basis of the statement of witnesses held the Respondent guilty of assaulting his wife. The Respondent too admitted to have assaulted his wife out of domestic quarrel.

P.W.8 who conducted the post mortem examination over the dead-body has opined that the death was due to compression of brain, shock and haemorrhage. There was a haemotoma on the head. The trial Court has rightly held the Respondent guilty. But it is to be considered as to under which section the accused is to be punished for the offence he committed. At the penultimate paragraph of the lower Court judgment it is stated that the injuries could have been caused by a bamboo stick like a lathi. But without assigning any reason as to how the accused Could be found guilty u/s 324 of the Indian Penal Code, the learned Sessions Judge jumped abruptly to the conclusion that the Respondent had caused hurt on the body of the deceased. We found from the post-mortem report that the deceased had suffered 14 injuries out of which injury No. 13 was described as fatal and the cause of death as narrated in the post mortem report was due to shock and haemorrhage.

While inflicting injuries on the vital part like head, presumably the Respondent had knowledge that such injury would cause death in ordinary course of nature. It is found that all other injuries were simple in nature. But the finding of the learned Sessions Judge that the deceased did not suffer from any fracture on the skull cannot be a ground to reduce the sentence from Section 304. Part I or Part-ll, IPC to one u/s 324. IPC. Once knowledge is imputed against the Respondent that such injury would cause death in ordinary course of nature, it would be sufficient to convict him u/s 304, Part II of the Indian Penal Code. It is submitted by Mr. Mohanty, the learned Counsel appearing for the Respondent that the accused had already suffered imprisonment for about 1 Vi years.

The appeal is pending for over 17 years. Therefore, in order to meet the ends of justice, we direct the Respondent to pay a further fine of Rs. 5,000 (five thousand), apart from the sentence already undergone by him, in default to undergo further R.I. of 6 months.

Accordingly, the appeal is allowed in part and the Respondent is convicted u/s 304, Part II instead of Section 324, IPC and sentenced to pay a fine of Rs. 5,000/- besides the period of sentence already undergone, in default to undergo further R.I. for six months.

P.K. Misra, J.

I agree.