Death Due to Fat Embolism and Delayed Treatment Is Not Culpable Homicide: Orissa High Court Converts 30-Year-Old 304 Part-I Conviction to Grievous Hurt

“If Proper Treatment Had Been Given, He Could Have Survived” —  In a significant ruling revisiting a three-decade-old conviction, the Orissa High Court has altered the conviction of two appellants from culpable homicide under Section 304 Part-I IPC to grievous hurt under Section 325 IPC, holding that the death of the victim was attributable to fat embolism arising from fractures compounded by lack of timely medical treatment.

Justice Sibo Sankar Mishra maintained the conviction under Section 452/34 IPC but modified both the conviction and sentence in light of medical evidence and prolonged pendency of the appeal.

Midnight Assault, Property Dispute, and Fatal Outcome

The prosecution case stemmed from an incident dated 27.09.1993, where the appellants allegedly trespassed into the house of the deceased, Sima Konhar, amid an ancestral land dispute.

It was alleged that one accused dragged the deceased outside while another restrained him, and appellant No.1 assaulted him with a “Tangia Fasa” (axe). There was no direct eyewitness to the assault.

The deceased was eventually taken for treatment but succumbed on 03.10.1993. The trial court convicted the present appellants under Sections 304 Part-I and 452/34 IPC, sentencing them to five years’ rigorous imprisonment, while acquitting the co-accused.

Statement Under Section 161 Cr.P.C. Treated as Dying Declaration

A pivotal piece of evidence was the statement of the deceased recorded under Section 161 Cr.P.C. (Ext.21), which was relied upon as a dying declaration.

The High Court affirmed that recording of a dying declaration by a police officer is not a nullity if found voluntary and truthful, relying on Dalbir Singh v. State of Punjab.

The trial court had found that Ext.21 “absolutely corroborated the F.I.R. version” and was voluntary in nature. It also stood corroborated by the medical evidence regarding external injuries.

However, the High Court scrutinised whether this evidence was sufficient to sustain conviction under Section 304 Part-I IPC.

Medical Evidence: Fat Embolism and Possibility of Survival

The post-mortem doctor (P.W.11) found fourteen injuries including fractures and opined that the cause of death was “fat embolism arising from multiple fractures.”

Crucially, in cross-examination, the doctor categorically stated that:

“If proper treatment could have been given to the patient, the patient could have survived.”

The deceased was examined at Phulbani Hospital only on 01.10.1993, several days after the incident. The evidence also revealed that the deceased was a habitual drinker and was allegedly in an inebriated condition at relevant times.

The Court noted that delay in medical treatment materially weakened the causal chain linking the assault directly to death.

“This Is Not a Case of Culpable Homicide”

After analysing the evidence of P.Ws.1, 5, 10 and 11 along with Ext.21, the Court held:

“This is not a case of culpable homicide… rather the appellants have assaulted him indiscriminately, which caused grievous hurt.”

The Court observed that while the assault was established, intention to cause death or such bodily injury likely to cause death was not proved beyond doubt.

The medical evidence, particularly the possibility of survival with timely treatment, broke the chain necessary to sustain conviction under Section 304 Part-I IPC.

Accordingly, the conviction under Section 304 Part-I IPC was altered to Section 325 IPC (grievous hurt).

The conviction under Section 452/34 IPC (house-trespass with common intention) was maintained.

Sentencing: Three-Decade Delay and Advanced Age Considered

The incident dated back to 1993. At the time of appeal disposal in 2026, the appellants were over 65 years of age and had already undergone three months of incarceration.

The Court considered:

• The long pendency of the appeal for more than three decades.

• The advanced age of the appellants.

• Their settled family life and absence of repeat offending.

• The absence of serious opposition from the State to a lenient view.

• The sentence of five years’ rigorous imprisonment was reduced to one year rigorous imprisonment each.

• The fine was enhanced to Rs.7,000/- each, with a default sentence of three months.

The fine amount was directed to be disbursed to the informant or legal representatives of the deceased under Section 357 Cr.P.C.

No separate sentence was imposed under Section 452/34 IPC, and set-off for period already undergone was allowed.

The Criminal Appeal was partly allowed. Conviction under Section 304 Part-I IPC was modified to Section 325 IPC, while conviction under Section 452/34 IPC was affirmed.

The judgment underscores an important principle in criminal jurisprudence: where medical evidence indicates that death was not the direct and inevitable consequence of the assault, and timely medical intervention could have prevented the fatality, conviction for culpable homicide may not be sustainable.

Date of Decision: 12 February 2026