Absence of Conclusive Medical Evidence – Not amount murder U/S 302 – Odisha HC

In a latest judgement titled Madan Mahunta Vs State D.D. 10Feb 2023 , 0disha High Court held Post-mortem report does not indicate strangulation by physical force .Primary consideration is whether injuries sustained by deceased were sufficient to cause death , Medical opinion not obtained . Cause of death determined as asphyxia. No conclusive evidence that death was caused by mechanical pressure over nose and mouth.

The case of the prosecution is that the appellant was an alcoholic and used to quarrel with the deceased, his wife, for money to consume alcohol. On 29th July 2009, he returned home drunk, quarrelled with the deceased, and assaulted her, which was witnessed by their daughter and son. When the deceased fell and did not respond, the children rushed to a health worker, who found her dead. The appellant was charge-sheeted under section 498A and 302 of the IPC. The learned Additional Sessions Judge, Chatrapur, found him guilty of both the offences and sentenced him accordingly.

The criminal appeal preferred by the appellant against the conviction and order of sentence wherein he was convicted for the offences punishable under section 498A and 302 of the IPC and sentenced to life imprisonment and fine of Rs. 5000 and imprisonment for two years and fine of Rs. 2000, respectively, for the offence under section 498A.

Appellant contended that the prosecution has relied on the dying declaration of the deceased as recorded by PW.13 (doctor) and PW.15 (police constable), but the same is unreliable as the deceased was not in a fit state of mind to give a statement due to the injuries sustained. Moreover, the statement was not recorded in the presence of a magistrate and there is no evidence to suggest that the deceased was aware of the consequences of making such a statement.

Appellant also Contended that the prosecution has failed to establish the presence of the Appellant at the scene of the crime. The prosecution relies on the testimony of PW.1, PW.4 and PW.5 who claim to have seen the Appellant at the scene, but their evidence is contradictory and unreliable. The prosecution has failed to prove its case beyond reasonable doubt and the Appellant should be acquitted of all charges.

The learned counsel for the respondent contended that the death of the deceased was not under normal circumstances, and it was opined by the doctor that the death was homicidal in nature. The appellant presented a false statement that the deceased was suffering from acute asthma, and the appellant subjected the deceased to cruelty regularly.

The primary issue in a murder case is whether the death was homicidal in nature, and the medical examiner testified that the cause of death was cardio respiratory failure due to asphyxia. However, there were no ligatory marks on the deceased's neck, and the examiner did not notice any protrusion of the tongue out of the mouth. Therefore, it is not established that the death was due to strangulation, but it could still be due to mechanical pressure over the nose and mouth, as opined by the medical examiner. The time intervals of the incident and the post-mortem examination correspond to each other, and there were symptoms of suffocation found on the body of the deceased, such as the presence of cyanosis on the face and swollen lungs and brain. There were also multiple injuries on the face, nose, and neck of the deceased, indicating that she was assaulted before being subjected to mechanical pressure over the nose and mouth. Based on the chain of events leading to the incident and the medical evidence, it is established that the death was homicidal in nature, and there is no doubt about it.

The fact that the Appellant's children approached witnesses after witnessing the assault and the subsequent discovery that the deceased was already dead is no longer in dispute. P.W.15 witnessed the assault on the deceased and fled from the spot with one of his sisters and approached P.Ws.4, 5 & 6 for help. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. In the present case, there is positive evidence that the deceased was last seen with the Appellant and the same can be confirmed through the deposition of P.W.15 who witnessed the assault.

The theory of last seen derives its relevance from Section 7 of the Indian Evidence Act. The presumption of fact is taken under Section 114 of the Indian Evidence Act under which the court can presume that certain facts exist if some other facts are proved to be existing in the cases of natural events, human conduct, and public and private business. In the instant case, P.W.15 has deposed that incident occurred at about 10-11 PM at night and according to P.W.5 & P.W.6, the Appellant’s children approached them at about 3 A.M. Since both these events as deposed by P.W.15 and P.Ws.4, 5 &6, happened in a relatively shorter time interval, there is a high degree of probability that the deceased was murdered by the Appellant as he was last present with the deceased.

The Appellant has not produced on record any cogent explanation regarding his wife’s injuries and under what circumstances she died. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation.

Next issue analyzed by the High Court: Whether Appellant subjected his wife to torture and cruelty under section 498-A of IPC.

Evidence: P.W.1 deposition, Appellant assaulted daughter, Appellant assaulted and subjected deceased to cruelty, deceased unhappy due to Appellant's addiction to liquor and ganja, informed by P.W.15, Appellant habitually subjected deceased to physical torture and cruelty, strained relationship, prior instances of cruelty. Held It proved.

Last Issue analyzed by the High Court of whether accused committed murder under section 300 of IPC.

Post-mortem report does not indicate strangulation by physical force. Primary consideration is whether injuries sustained by deceased were sufficient to cause death, Medical opinion not obtained . Cause of death determined as asphyxia. No conclusive evidence that death was caused by mechanical pressure over nose and mouth. Deceased suffered multiple injuries, cannot conclude injuries were not sufficient to cause death. Benefit of doubt given to accused in cases with absence of clear evidence. Intention of appellant established through evidence of regular physical cruelty and torture of deceased .

Held by the High Court appellant assaulted deceased after she objected to such behavior, resulting in her death. Appellant found guilty of offenses under Sections 498-A and 304 Part-I of IPC. Appellant already served more than two years of sentence, considered sufficient punishment

Appeal allowed in part, modification of conviction and sentence.

Madan Mahunta  Vs State Odisha