LAWS(ORI)-2008-6-31

SARBESWAR PARIDA AND ORS. Vs. STATE

Decided On June 20, 2008
Sarbeswar Parida And Ors. Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) ELEVEN persons faced trial for commission of offences under Sections 302, 498 -A, 201 read with Section 34 of the Indian Penal Code. The Sessions Judge Puri by Judgment dtd. 23.8.1998 convicted Sarbeswar Parida (Appellant No. 1) for commission of offence under Section 304 Part -II I.P.C. and also convicted the said Appellant and eight other accused persons for commission of offence under Section 201 read with Section 34 I.P.C. and sentenced Sarbeswar to undergo R.I for three years and others to R.L for one year. The sentence was directed to run concurrently. The Sessions Judge however acquitted Rukuna Parida and Niru @ Nirupama Parida. Being aggrieved the Appellants have approached This Court.

(2.) THE criminal action was set in motion on the basis of an F.I.R. filed by P.W. 16, at Tangi Police Station on 24th April, 1986, inter alia, alleging that Sarbeswar had married Chanchala, the deceased, who happened to be the sister of P.W. 16 on 5th of March, 1984. Appellant No. 2, Binod Parida, Appellant No. 3, Makar Parida and Appellant No. 4, Padma Parida were the father and brothers of Appellant Sarbeswar Parida respectively. Appellant No. 8, Subal Swain and Appellant No. 7, Krushna Ch. Swain were the maternal uncles of Appellant Sarbeswar and Appellant No. 9, Bhagirathi was the son of Appellant No. 8. Appellant No. 6, Okila, was a relation of Appellant No. 5, Rabindra and was a friend of Appellant No. 1. It was alleged that at the time of marriage a cash of Rs. 7,000/ -, four Tolas of gold and other utensils and furniture were given to Appellant No. 1. After the marriage Sarbeswar and Chanchala lived happily for about six months. Thereafter, Appellant No. 1 developed illicit relationship with one Sabitri Mandal, a Bengali refugee. He used to spend most of his time with her and neglect Chanchala. Apart from ill -treating Chanchala he occasionally assaulted her. While his in -laws tried to intervene he misbehaved with them. It is further alleged that the family members of Appellant No. 1 hatched a plan to get rid of Chanchala. They tried to send Sarbeswar and Chanchala to Calcutta. But then Chanchala did not agree to the said proposal and at the intervention of villagers the matter was dropped. On 23rd of April, 1986 morning the father of the deceased Udayanath, P.W.8 came to her house and the deceased complained before him that she was assaulted by her husband. After departure of P.W.8 all the Appellants being enraged, assaulted Chanchala severely inside the Court yard and she succumbed to the injuries caused. In the night the Appellants carried the deadbody of Chanchala and threw it on the Railway Track which was near the village. On the next day one Hati Swain, Gangman, found the deadbody of a female being run over by train. After getting the news the informant, his father and other villagers went to the spot. The informant identified the deadbody to be that of his sister Chanchala. He alleged that neither Appellant No. 1 nor any members of his family came to see the deadbody. After inquest the deadbody was taken to Khurda Hospital for post mortem and thereafter it was handed over to the informant. None of the Appellants was present at the time of inquest or post mortem, nor were they present when the body was cremated. All of them were found absent in their house. After investigation by the local Police the matter was handed over to Crime Branch. During investigation the I.O., P.W.29, seized six letters said to have been written by Chanchala to her mother and brother which were marked as Ext. 4 series. He also seized some letters marked 'X'. On 22nd September, 1986 P.W.29 handed over charge of the investigation to P.W.26 of the Crime Branch. In course of investigation Appellants Sarbeswar, Bhagirathi and Nirupama surrendered and forwarded to Court. The investigation report also reveals that there was a further demand of dowry and Rs. 2,000/ - besides a wristwatch and a radio -by Sarbeswar and as the informant's father did not comply with the same, Chanchala was put to severe torture. After completion of investigation charge sheet was filed.

(3.) IN order to substantiate its case, the prosecution got 30 witnesses examined. P.Ws. 1 and 2 were the eye witnesses to the occurrence, P.W.3 was a witness before whom Chanchala was stated to have complained with regard to ill -treatment and assault by her husband and others and through whom was sending letters, vide Ext. 4 series, P.Ws. 4, 5 and 6 were the witnesses regarding illicit relationship between Sarbeswar and Sabitri, P.W.7 was declared hostile, P.W.8 was the father of the deceased, P.Ws.9 and 10 spoke about concealment of Appellant Sarbeswar in the house of accused Okil Parida for four days after the occurrence, P.Ws. 11 and 13 were the witnesses to the accused persons carrying the deadbody in the night near the Railway Track, P.W.12 spoke about illicit relationship between Sarbeswar and Sabitri, P.W.14 proved the handwriting of Chanchala and letter Ext. 4 series, P.W.15 was declared hostile, P.W.16 was the informant and the brother of the deceased, P.W.17 was an eye -witness to the dead body being carried in the night near the Railway Track, P.W.18 was a Junior Engineer who had drawn the site plan, P.W.19 was the Railway Guard who stated to have seen the deadbody of the deceased on the Track, P.W.20 had accompanied the deadbody for post mortem, P.W.21 had accompanied the informant to the P.S. to lodge F.I.R. and he had taken the photographs of the deadbody of the deceased at the instance of I.O. He was also a witness to the inquest, P.W.22 was the mother of Chanchala, P.Ws.23 and 24 were the doctors who had conducted post mortem of the deceased, P.W.25 had produced the viscera examination report, P.W.26 was the I.O., P.W.27 was the doctor, who gave a report regarding the cause of death of the deceased, P.W.28 was the C.I. of Balugaon who had taken up investigation of the case, P.W.29 was the Inspector of Crime Branch and the I.O. and P.W. 30 was the I.O. who had later on taken over charge of the investigation and submitted the charge sheet. It is pertinent to note that the accused persons did not adduce any evidence, but filed some documents. The Sessions Court after vivid discussion of the evidence and after perusing the post mortem report, injury report and the oral evidence of the eye -witnesses, came to the conclusion that the cause of death was not suicidal but was homicidal. After going through the evidence of P.Ws. 2, 11, 13 and 17 who clearly deposed that they had seen the accused persons carrying the deadbody of Chanchala around at 11 P.M. in the night on 23.4.1986 towards Railway line and other evidence, held that deceased Chanchala had died in the house of Appellant Sarbeswar and due to assaults and throttling of the neck. But then he observed that the evidence adduced by the prosecution through P.Ws.1 and 2 was not sufficient enough to show that the Appellants caused the death of Chanchala, though there was no material to reveal that Appellant No. 1 gave some blows with iron plough -share on the deceased. Perusing the conclusions arrived at by the doctors who had conducted post mortem that the death was due to asphyxia by throttling and as there was no evidence as to throttling, the Sessions Court held that the accused could not be found guilty of commission of offence under Section 302 I.P.C. Analyzing the evidence of P.Ws.1 and 2 and other evidences, the Sessions Court came to the conclusion that the prosecution had been able to establish that Appellant No. 1 was guilty of the offence under Section 304 Part -II I.P.C. and under Section 201 of I.P.C. and the other Appellants were guilty of the offences under Section 201/34 I.P.C. and convicted all of them thereunder. As stated earlier, the said order is assailed before the Court.