K TIRUMALESWAR RAO @ TIRUMALA Vs. STATE OF ORISSA

JUDGEMENT

(1.) ORDER dated 07.07.2012 passed by the learned Additional Sessions Judge -Special Judge, Vigilance, Jeypore in Criminal Appeal No.34 of 2011 (Criminal Appeal No.43 of 2008) directing the I.I.C., Jeypore Town Police Station/Investigating Officer to further investigate into the matter relating to the death of the victim, K. Deepa and submit his report has been assailed in this criminal revision by the accused.

(2.) THE facts leading to the passing of the impugned order are as follows The accused -petitioner faced trial in C.T. Case No.44 of 2006 in the court of the learned C.J.M -cum -Assistant Sessions Judge, Jeypore for commission of offence under Section 307 of the I.P.C. on the allegation of pushing his wife (the victim) from a running train on 22.04.2006 as a result of which she sustained serious injuries and her right hand and right leg were amputated. The petitioner was ultimately convicted by the trial court for the offence under Section 307 of the I.P.C. Challenging such conviction and sentence the petitioner filed Criminal Appeal No.34 of 2011 (Criminal Appeal No.43 of 2008), which is pending before the learned Additional Sessions Judge -Special Judge, Vigilance, Jeypore. During the pendency of the trial before the trial court, the victim succumbed to her injuries while undergoing treatment, as a result of which a report was lodged by the uncle of the victim before the I.I.C. Jeypore Town Police Station on 16.06.2007 indicating that the victim succumbed to the injuries while undergoing treatment. It was also indicated in the said report that the case relating to the occurrence was pending before the C.J.M. -cum -Assistant Sessions Judge, Jeypore in C.T. Case No.7 of 2006 against the accused for commission of offence under Section 307 of the I.P.C. On receipt of such report the IIC Jeypore Town Police Station registered PS U.D. Case No.19 of 2007 and directed ASI to enquire into the same. On the same day, during course of enquiry, inquest was held over the dead body followed by post -mortem examination. The Enquiring Officer (ASI) sought for the opinion of the doctor conducting post mortem examination about the cause of the death of the deceased, particularly as to whether the amputation of the right hand and the right leg of the victim from shoulder joint and hip -joint respectively led to prolonged illness and whether the death was the result of the injuries becoming septic. The doctor opined that the amputation could lead to prolonged illness and septic which could be sufficient to cause death in course of time. Upon receipt of opinion of the doctor the Enquiring Officer submitted final report in the U.D. Case stating that the cause of death of the victim, K. Deepa was due to septicaemia, as a consequence of prolonged illness. The said report was accepted by the learned C.J.M., Jeypore on 18.02.2008 and the U.D. case was closed accordingly. The above fact was also intimated by the IIC of the Jeypore Town Police Station to the trial court vide his letter dated 22.12.2007 enclosing therewith a copy of the post -mortem report and inquest report for information and necessary action. The impugned order further reveals that the letter of the IIC dated 22.12.2007 and the copies of the post mortem report and inquest report and the opinion of the doctor are available in the trial court case record, but the trial court appears to have not taken note or cognizance of the same and nothing has been mentioned about the same in the order sheet of the trial court records. It further transpires that the prosecution filed a petition dated 04.02.2008 before the trial court stating the aforesaid facts with a prayer to take cognizance of the offence under Section 302 of the I.P.C. The trial court, however, without considering whether on the basis of such petition charge would be altered, rejected the petition vide his order dated 13.03.2008 on the ground that he had no jurisdiction to take cognizance after commitment of the case, more so since no further report was filed by the Investigating Officer under Section 173 (8) of the Cr.P.C. The trial court thereafter proceeded with the trial and convicted the appellant for the offence under Section 307 of the I.P.C. and such conviction order was challenged by the accused -petitioner before the appellate court.

(3.) IN the appellate court two petitions, one by the prosecution and the other by the accused, were filed on 02.07.2012. The prosecution in its petition prayed for admitting the post -mortem report and the inquest report of the victim as additional evidence. The accused -petitioner in his petition prayed for directing the I.I.C., Jeypore Town Police Station to produce bed head ticket of the victim relating to her treatment in S.D. Hospital, Jeypore. While the prosecution urged that the death of the victim was the direct result of the injuries sustained by her during occurrence that led to the amputation, the argument on behalf of the appellant -petitioner was that the bed head ticket of the victim would reveal that she was suffering from malaria fever and died of the same. On considering the petitions, the Additional Sessions Judge, Vigilance, Jeypore in paragraph -8 of the impugned order has observed as under :