Partly allowed

Pramod Kandulana v. State

Orissa HC18 Jul 2019JCRLA/65/2010

Case brief

AI extract

What is this about?

High Court allowed appellant's appeal partly, setting aside murder conviction but upholding attempt to murder conviction. Court held evidence did not form complete chain for Section 302 IPC but sustained finding for Section 307 IPC based on medical and dying declaration evidence.

What did the court decide?

Death conviction (Section 302 IPC) set aside; conviction for attempt to murder (Section 307 IPC) upheld with sentence of 7 years R.I. and fine of Rs.2,000.

Pramod Kandulana Vs State — Murder and Culpable Homicide | Orissa HC (2019)

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HIGH COURT OF ORISSA ; CUTTACK

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JCRLA NO.65 0F 2010

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From an order dated 19.8.2010 passed by the learned Addl. District and Sessions Judge(Fast Track Court), Rourkela Camp at Bonai in S.T. Case No.126/114 of 2007-2009.

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----------Pramod Kandulana … Appellant Versus State of Orissa … Respondent ----------For Appellant : M/s.B.L.Tripathy, B.Tripathy & N. Tripathy For Respondent : Addl. Government Advocate.

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------------ P R E S E N T :

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THE HONOURABLE MR. JUSTICE S.K.MISHRA AND THE HONOURABLE DR. JUSTICE A.K.MISHRA

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f judgment:18.7.2019

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S.K.Mishra,J . This is a case of uxoricide. The appellantPramod Kandulana has been convicted for the offence under Section 302 of the Indian Penal Code (hereafter called as the I.P.C. for brevity) and sentenced him to undergo R.I. for life and to pay a fine of Rs.5,000/(rupees five thousand) in default to undergo R.I. for two years for having caused the death of his wife and for

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having attempted to cause the murder of Salani Munda (hereinafter call as the “injured” for brevity) on 23.5.2007 vide order dated 19.8.2010 passed by learned Addl. Sessions Judge Fast Track Court, Rourkela Camp at Bonai in S.T. Case No.126/114 of 2007-2009.

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Bereft of all unnecessary details, the case of the prosecution is that Harman Munda (P.W.1) lodged a written complaint that the accused committed murder of his wife on 23.5.2007 at about 4 A.M. as well as attempt to commit murder of the injured (P.W.2). Basing on such report, police registered Lahunipara P.S. Case No.62 dated 23.5.2007 and took up investigation. After completion of investigation, the police submitted charge sheet against the accused under Sections 302 and 307 of the I.P.C.

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The plea of the accused is of complete denial and false acquisition.

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To establish its case, the prosecution has examined twelve witnesses. Out of whom, P.W.2 is the injured-Salani Munda who has been put forth as a star witness by the learned Addl. Sessions Judge. P.W.1 is the informant. P.Ws.3,4 and 5 are the post occurrence witnesses. P.W.6 is a witness to the inquest. P.W.7 is the Medical Officer, who conducted autopsy over the dead body of the deceased. P.Ws.8 and 9 are the police constables who are witnesses to the seizure of some incriminating articles. P.W.10 is another Medical Officer who examined the injured Salani Munda. P.W.11 is the Executive Magistrate and P.W.12 is the Investigating Officer.

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The defence has not examined any witness. The prosecution has also seized the knife and marked as M.O.1 and two other wearing apparels of the deceased marked as M.Os.II and III. The banion of the accused marked as M.O.IV.

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In order to first decide whether the prosecution has proved its case beyond reasonable doubt that the accused committed murder of the deceased, the first duty of the Court is to determine whether the death of the deceased was homicide or not. From the evidence of P.W.7, who conducted autopsy over the dead body of the deceased on 24.5.2007, it is clear that he found one incised injury on the left lateral side of the neck of the size 6 c.m. x 5 c.m. x 5 c.m. which trails posteriorly. On dissection of the injury in neck he found that the muscles of the neck were cut on the left lateral side of the neck and the deep vesicles are cut through passing up to the body of the vertebral column. He opined that the injury was ante mortem in nature and the weapon of offence as per his opinion must be moderately heavy and sharp cutting weapon. He has specifically opined in his post mortem report that the injury described was sufficient in the ordinary course of nature to cause death. The cause of death as opined by the Doctor was due to shock and haemorrhage and the time since death of the deceased was 12 to 36 hours prior to post mortem examination. Though the doctor was cross-examined by the defence, nothing substantiated has been brought out from his mouth. Moreover, the doctor has also examined the weapon of offence, i.e. M.O.I and opined that the injury was possible by M.O.I. Therefore, we are

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of the opinion that the death of the deceased was homicidal in nature.

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Now the question arises as to whether the accused had caused the death of the deceased or not. Learned Addl. Sessions Judge took into consideration four circumstances to fasten the guilt of the accusedconvict having committed murder of his wife. First one is homicide in nature of death of the deceased which has been caused by sharp cutting weapon, i.e. the knife M.O.I. The second circumstance is that when Salani Munda came out for urination she found that the deceased lying dead. She presumed that the accused has committed murder of his wife. The third circumstance is that the accused and P.W.2 were only present at the place of occurrence and no other persons were present there. The fourth circumstance is that P.W.3 saw the accused running away from the spot.

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Admittedly, there is no eye witness to the occurrence. As far as circumstance no.2 is concerned, it cannot be taken into consideration as the witness P.W.2 suspected that the accused committed the murder of the deceased. Suspicion howsoever be strong cannot take place on the substantive evidence and the circumstance no.2 cannot be relied upon to hold that the accused has committed the murder of the deceased. In other words, the circumstance no.2 as mentioned above is not consistent with the theory of guilt of the accused only as it can be explained otherwise also.

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The third circumstance that there is no other person except the accused, deceased and P.W.2. However, this is also not consistent with the thesis of

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the guilt of the accused as P.W.2 has not categorically stated that she saw the accused and the deceased sleeping together and non else was present there and immediately thereafter she found the deceased to be dead and the accused to be present there. In other words, the evidentiary principle of last seen theory will not be attracted in this case. The last circumstance forthcoming is P.W.3 saw the accused running away from his house. This circumstance is also not only consistent with the guilt of the accused.

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So in that view of the matter by applying the ratio laid by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra ; A.I.R 1984 SUPREME COURT 1622, we are of the opinion that the circumstance appearing in the case do not form a complete chain unerringly pointing towards guilt of the accused.

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Now coming to the question of conviction for the offence under Section 307 of the I.P.C., we have to examine the statement of P.W.10, who has examined P.W.2 Salani Munda. He has stated on oath on oath that on 23.5.2007 at about 5.45 P.M. he has examined one Saloni Munda and found one cut injury with gapping of the size 4 c.m. x 2 c.m. x deep into body cavity on lower part of chest wall on right side. The nature of the injury was reserved awaiting the report of the radiologist. He has also point out that the injury might have been caused by sharp cutting weapon having sharp tip and edge, like knife. The age of the injury is within 12 to 24 hour before examination. He has also opined that the patient was very serious and requires immediate surgery. So she was referred to R.G.H., Rourkela after

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giving fast aid treatment. His report is marked as Ext.10. On 23.5.2007 he has also recorded the dying declaration of P.W.2 which corroborates the fact that she has been stabbed by the accused by means of a sharp cutting knife. The evidence of P.W.2 also reveals that on the occurrence night when she came out for urination, the accused caught hold of her, gagged her mouth by putting cloth and attached her by means of knife, as a result of which she sustained cut injury on her chest and shoulder. The accused also pressed her neck. Thereafter, she cried for help and lost sense. Thus, it is apparent that the evidence of P.W.2 is corroborated by evidence of P.W.10. The contents of the injury report Ext.10 and dying declaration recorded by P.W.10 clearly shows that offence under Section 307 of the I.P.C. is made out against the appellant.

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In that view of the matter, we allow the appeal in part and set aside the conviction of the appellant for the offence under Section 302 of the I.P.C. However, we uphold the conviction of the convict-appellant for the offence under section 307 of the I.P.C. and sentence him to undergo R.I. for 7 years and pay a fine of Rs.2,000/(rupees two thousand) as has been inflicted by the learned Addl. District and Sessions Judge, F.T.C., Rourkela for the offence under Section 307 of the I.P.C., in default of payment of fine the appellant shall undergo R.I. for three months. The period undergone shall be set off against the substantive sentence.

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It is brought out our notice that the appellant is in custody for about twelve years. So on payment of fine or on expiry of the default sentence as the case may

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be he may be released from the custody if his detention

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is not necessary in any other case.

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In the result, the JCRLA is allowed in part to the

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extent as mentioned above.

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L.C.R. be returned to the lower court

immediately.

….….….………..…..

S.K.Mishra, J

Dr.A.K.Mishra,J.

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I agree.

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….….…………………..

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Dr. A.K.Mishra, J

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Orissa High Court, Cuttack Dated 18^th July, 2019 /A.K. Behera.

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Pramod Kandulana v. State

Case brief

What is this about?

What did the court decide?

Pramod Kandulana v. State

Case brief

What is this about?

What did the court decide?

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