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2023 DAILYLAW 866 (ORI)

Madan Mahunta v. State Of Odisha

2023-02-10

D Dash, S K Panigrahi

body2023
JUDGMENT : S.K. Panigrahi, J. 1. The Appellant has preferred this criminal appeal challenging the judgment of conviction and order of sentence dated 26.09.2014 passed by the Learned Additional Sessions Judge, Chatrapur (Ganjam) in S.T Case No.211 of 2013, arising out of G.R Case No.226 of 2009 corresponding to P.S. Case No.107 of 2009; wherein the Learned Sessions Judge, Chatrapur (Ganjam) has convicted the Appellant for commission of offence punishable under section 498A & 302 of the I.P.C and accordingly, sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/-, and in default to undergo further R.I for a period of six months for the offence under section 302. The Appellant was also sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs. 2000/- and in default to undergo further rigorous imprisonment for three months for the offence under section 498A of the IPC . I. CASE OF THE PROSECUTION 2. The case of the prosecution in brief is that Appellant was an alcoholic and used to quarrel with the deceased for money to consume alcohol. On 29th July 2009 at about 11 pm, the Appellant returned home in an inebriated state and the deceased served him dinner but the Appellant did not eat. On the contrary, he quarreled with the deceased and assaulted her by means of a “BERUAN PATI” and the same was witnessed by their daughter (P.W.13) and son (P.W.14). 3. When the deceased fell down and did not respond, P.W.13 and P.W.14 rushed to the house of a village health worker (P.W.6) and insisted him to check the condition of the deceased. P.W.6 conducted a pathological check and found her dead. On the next day, an FIR was lodged by the mother of the deceased (P.W.1) at Kabisurya Nagar Police Station and the same was registered as Kabisurya Nagar P.S Case No. 107 of 2009 and the Appellant was charge-sheeted under section 498A & 302 of the IPC . 4. P.W.6 conducted a pathological check and found her dead. On the next day, an FIR was lodged by the mother of the deceased (P.W.1) at Kabisurya Nagar Police Station and the same was registered as Kabisurya Nagar P.S Case No. 107 of 2009 and the Appellant was charge-sheeted under section 498A & 302 of the IPC . 4. On analysis of evidence on record and taking into consideration the documents exhibited in the aforesaid case, the learned Additional Sessions Judge, Chatrapur (Ganjam) vide judgment dated 26.09.2014 held the Appellant as guilty of the offence under Section 302 and 498-A of I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/- and in default, to undergo further R.I for a period of six months for the offence under section 302. The Appellant was also sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs.2000/- and in default to undergo further rigorous imprisonment for three months for the offence under section 498-A of the IPC . II. SUBMISSIONS ON BEHALF OF THE APPELLANT 5. It is submitted by Learned Counsel for the Appellant that in absence of production of material objects like weapons of offence, the prosecution fails to prove that the death of the deceased was caused by a particular mode or means actuated by the Appellant. Since, the case of prosecution is based on circumstances, the weapon of offence is a vital link to complete the chain. Moreover, the prosecution has also failed to establish motive of crime. 6. Moreover, the learned trial court affirmed that the Appellant was beating the deceased regularly in an intoxicated state by relying upon evidence of PW.1 (informant/mother of the deceased), PW.4 (scribe of the FIR) and PW.5. However, the same is faltered with material irregularities as the evidence relating to "regular assault by appellant to deceased", is uncontroverted, particularly when the defence in cross examination has brought out from the mouth of PW.I that she had never lodged FIR to police nor did she complain about the incidents before the present FIR (Ext.2). Similarly, PW.4 and 5 deposed that they had not stated to the I.O. the fact that the son and daughter had stated to them that the Appellant had assaulted the deceased. 7. Similarly, PW.4 and 5 deposed that they had not stated to the I.O. the fact that the son and daughter had stated to them that the Appellant had assaulted the deceased. 7. It is further contended by Learned Counsel for the Appellant thatapart from the above these evidences, the evidence rendered by PWs.1,4and 5 pertaining to assault on the deceased by the Appellant, are hearsay evidence as these witnesses have categorically stated that they heard the same from PW.13 and 15. Hence, it is not reliable and admissible. III. SUBMISSIONS ON BEHALF OF THE RESPONDENT 8. Per Contra, it is contended by Learned Counsel for the Respondent that as per the evidence of P.W.10 (the doctor), the death of the deceased was not under normal circumstances. Rather, it was opined by P.W.10 that the death of the deceased was homicidal in nature. Moreover, the Appellant has also presented a false statement that the deceased was suffering from acute asthma. 9. It is further submitted by Learned Counsel for the Respondent that from the evidence of P.W.1, it can be reasonably ascertained that the Appellant was subjecting the deceased to cruelty on a regular basis and from the conduct and antecedents of the Appellant as deposed by P.W.1, an adverse inference can be drawn against the Appellant with respect to allegations under section 498A of the IPC . IV. COURT’S ANALYSIS AND REASONS 10. During the course of trial, the prosecution examined as many as 16 witnesses, while in defence, the Appellant examined himself as D.W.1.P.W.1 is the mother of the deceased who lodged FIR and deposed about the incident as post occurrence witness. P.W.2 & 3 are the uncle and sister of the deceased respectively. P.W.4 is the scribe of the FIR. P.Ws.5 & 6 are the co-villagers who deposed about the incident that occurred in the house of the Appellant. P.W-7 is a barber who served in the marriage of the Appellant and deceased.P.W.8 is the inquest witness and P.W.9 is the police constable who escorted the dead body to the mortuary for autopsy.P.W-10 is the doctor who conducted the autopsy of the cadaver of the deceased.P.W.12 is the I.O.P.Ws 13 & 14 are the daughters of the deceased and Appellant. P.W-15 is the son of the deceased and Appellant. P.W. 16 is the sister-in-law of the deceased - a post occurrence witness. 11. P.W-15 is the son of the deceased and Appellant. P.W. 16 is the sister-in-law of the deceased - a post occurrence witness. 11. In a case involving murder, the primary point that arises for consideration is whether the death of the deceased was homicidal in nature. According to the deposition of P.W.10, all the injuries found on the body of the deceased were ante- mortem in nature and the cause of death was due to cardio respiratory failure(death by Asphyxia). The time since death was within 18 to 24 hours from the time of post mortem examination. However, P.W.10 also opined that there was no injury to brain or cranial bones and there was no ligature mark on the neck of the deceased. Further, in the cross-examination, P.W.10 opined that in case of strangulation, fracture of thyroid bone is a common feature and the mark left on the throat due to strangulation are dark brown in colour and generally corresponds to the shape of fingers. The mark of thumb and fingers are always found on the neck and sometimes, the mark of violence is visible on dissection. Moreover, protrusion of the tongue out of the mouth is another common feature in cases of throttling, hanging and strangulation. 12. From a bare perusal of the postmortem examination report, it is clear that there were no ligatory marks on the neck of the deceased and P.W.10 had also not noticed the protrusion of tongue out of the mouth. Therefore, on the basis of materials on record, a prima facie case of death due to strangulation is not established. However, P.W.10 in his cross-examination categorically remarked that the death in the instant case could have been due to mechanical pressure over mouth, face and nose which may be by hands or by any foreign material. Merely because there is no material available on record to show that the deceased was strangulated with the use of physical force, it cannot be concluded mechanically that the death of the deceased was not homicidal in nature. As opined by P.W.10, death by Asphyxia can also be effected through mechanical pressure over mouth, face and nose and there is an extreme possibility that the aforementioned medium was used in the instant case. According to the deposition of P.W.10, the time of death of the deceased was within 18-24 hours from the time of the postmortem examination. As opined by P.W.10, death by Asphyxia can also be effected through mechanical pressure over mouth, face and nose and there is an extreme possibility that the aforementioned medium was used in the instant case. According to the deposition of P.W.10, the time of death of the deceased was within 18-24 hours from the time of the postmortem examination. It is clear from the deposition of P.W.5 & P.W.6 that the son and daughter of the deceased approached them at about 3 A.M, seeking help for their mother who was unconscious due to the Appellant’s assault. P.W.5 has categorically deposed that he went near the Appellant’s house after being approached the Appellant’s children and found the dead body of the deceased. On the other hand, P.W.4 who was also approached by the son and daughter of the Appellant has stated that he saw the dead body of the deceased during the early morning hours of 30.07.2009. As per the deposition of P.W.15 who is also the only eyewitness to the entire occurrence, the incident took place at about 10 P.M on 29.07.2009. Further, it is pertinent to mention that the post mortem examination was conducted on 30.07.2009 at about 4 P.M. From a bare perusal of medical opinion of P.W.10 as to the time since death of the deceased i.e., within 18-24 hours from post-mortem examination and the deposition of P.Ws 4, 5, 6 &15 as to the time of occurrence of the alleged incident, it can be ascertained that the time intervals in both the situations correspond to each other. 13. Further, as per the deposition of P.W.10 there was presence of cyanosis on the face of the deceased and brain and lungs were swollen and congested. The symptoms found on the body of the deceased are typically found in cases of suffocation due to mechanical pressure over nose and mouth. The post mortem examination report neither reveals any abnormality in stomach nor there is any material available on record to show that the death of the deceased was due to Asthma. On the contrary, the Appellant while deposing as D.W.1 has categorically stated that the death of the deceased was due to Asthma which was later disproved through medical evidence. The post mortem examination report neither reveals any abnormality in stomach nor there is any material available on record to show that the death of the deceased was due to Asthma. On the contrary, the Appellant while deposing as D.W.1 has categorically stated that the death of the deceased was due to Asthma which was later disproved through medical evidence. Moreover, the presence of multiple injuries on face, nose and neck of the deceased also provides a strong inference that the deceased was assaulted and then subjected to mechanical pressure over nose and mouth following which she died. The chain of events leading to the incident is compelling enough to establish the death of the deceased was homicidal in nature and neither there is any iota of doubt nor has any material been produced by the Appellant to dispute the same. Therefore, it can be well inferred that the death of the deceased was homicidal in nature. 14. The next issue that arises for consideration is whether on 29.07.2009 at about 10 P.M, the Appellant committed the murder of the deceased by intentionally causing her death. According to the deposition of P.W.15, the Appellant was addicted to liquor and had no source of income. He would take away the money earned by the deceased and consume liquor. For the aforesaid reason, there was a constant friction between the Appellant and the deceased. P.W.15 further stated that on the night of occurrence i.e., on 29.07.2009, at about 10 P.M, the Appellant returned home in an intoxicated state and the deceased served him food but, he did not eat. Rather, the Appellant quarreled with the deceased and abused her in the name of her father. Thereafter, the Appellant assaulted the deceased all over her body by means of “BERUAN PATI” following which the deceased fell on the ground. P.W.15 stated that he witnessed the assault and then rushed to the house of one of the pharmacist of the village in order to seek help. The deposition of P.W.15 insofar as the weapon of offence is concerned, is duly corroborated by the deposition of P.W.12 who has also stated that on 30.07.2009, one “BERUAN PATI” was seized from the house of the Appellant or the spot of occurrence. The post mortem report also confirms that the deceased had sustained multiple injuries all over body, particularly on the face and neck. 15. The post mortem report also confirms that the deceased had sustained multiple injuries all over body, particularly on the face and neck. 15. As per the deposition of P.W.6, on 30.07.2009 at about 3 A.M, the son and daughter of the Appellant approached him seeking for help. They informed him that the Appellant assaulted the deceased in state of intoxication and due to the said assault, the deceased became unconscious and did not respond to their call. After getting the said information, P.W.6, being a village health worker, went to the house of the Appellant and saw that the deceased was lying on the floor and froth was coming out from the mouth and nose of the deceased. P.W.6 has also deposed that he had administered a Decadron injection to the deceased and advised for quick treatment at the hospital. However, in the cross-examination, P.W.6 stated that the Appellant was only in a state of intoxication and did not mention anything about the Appellant’s alleged assault on the deceased. The discrepancy in P.W.6’s statements cannot be interpreted as material irregularity, rather it is a mere inconsistency and P.W.6’s statement cannot be disregarded as untrue solely on this basis. The evidence rendered by P.W.6, so long as it is consistent in both the versions narrated to the police and to the court, is admissible as evidence and the same can be taken into consideration for deciding the case on merits. Therefore, the statements of P.W.6 that the children of the Appellant approached him at about 3 A.M citing concern for the deceased and the fact that the Appellant was intoxicated as informed by the children to P.W.6 and as deposed by P.W.6 to the police during investigation and to the court during cross- examination are relevant fact. 16. The evidence rendered by P.W.6 is duly corroborated by the evidence of P.W.5 who had also deposed that the children of the Appellant approached him at about 3 AM and told him that the Appellant had assaulted the deceased. Even though P.W.5 had informed about the same to the I.O, he has maintained his stand during the cross-examination and nothing could be elicited from him to cast a doubt upon the case of the prosecution. Even though P.W.5 had informed about the same to the I.O, he has maintained his stand during the cross-examination and nothing could be elicited from him to cast a doubt upon the case of the prosecution. However, it is pertinent to mention that P.W.5, neither in his statement before the police, nor in his statement before the court, has deposed the Appellant was in an intoxicated state. But, P.W.5 has maintained his stance insofar as the assault on the deceased by the Appellant is concerned. Similarly, as per the deposition of P.W.4, the children of the Appellant approached him during early morning hours of 30.07.2009 and informed him that the Appellant had assaulted the deceased as a result of which the deceased had become unconscious. Even though P.W.4 has not deposed before the police or during cross-examination that he was informed by the Appellant’s children regarding the incident and that the Appellant had assaulted in an intoxicated state, it has been categorically mentioned by P.W.4 that the Appellant had prior history of subjecting the deceased to physical torture and cruelty under the influence of alcohol. P.W.4 further stated in his cross-examination that FIR was not lodged over prior instances of torture and cruelty against the deceased by the Appellant as there village meeting had not been held over the concerned issue. From a bare perusal of evidence rendered by P.Ws 4, 5 & 6, it can be ascertained that on 30.07.2009, during the early morning(mid-night) hours, the Appellant’s children sought for help for their unconscious mother from P.Ws 4, 5 & 6. P.W.6 had undergone training as village health worker and therefore, rushed to the spot of occurrence; and P.W.4 & 5 proceeded to the spot after being approached by the children. All the three post-occurrence witnesses who were approached by Appellant’s children have deposed that the children informed them about the Appellant’s assault on the deceased. The depositions of P.W.4 & P.W.5 that the Appellant assaulted the deceased and they were informed about the same from Appellant’s children are consistent throughout the trial. Both P.W.4 & P.W.5 have not deposed anything in particular regarding the Appellant’s intoxicated during the assault; while, P.W.6 has only deposed consistently about the Appellant’s intoxicated state and has not supported his statement given before the police that the Appellant had assaulted the deceased in an intoxicated state. Both P.W.4 & P.W.5 have not deposed anything in particular regarding the Appellant’s intoxicated during the assault; while, P.W.6 has only deposed consistently about the Appellant’s intoxicated state and has not supported his statement given before the police that the Appellant had assaulted the deceased in an intoxicated state. However, a common element that emanates from the account of all three witnesses is that all of them found the deceased dead by the time they reached the spot. 17. The offshoot of above discussion is that the fact about the Appellant’s children approaching P.Ws.4, 5 & 6 after witnessing the assault, the subsequent discovery by P.Ws. 4 &5 that the deceased was already dead by the time they reached the Appellant’s house, is no more in dispute. Since the admitted fact is no more in dispute, it would be reasonable to construe that the deceased was last seen by P.W.15 with the Appellant. 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. When P.Ws.4, 5 & 6 reached the spot of occurrence, the deceased had already died. 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. However, 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. 18. However, 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. 18. The theory of last seen derives its relevance from Section 7 of the Indian Evidence Act which is called the “Doctrine of Inductive Logic” in which it is stated that if any fact related to the occasion, cause, or effect lead to the circumstance in which that thing occurred or it provided an opportunity for the occurrence of that thing then those facts will be relevant. And in the last seen theory also, the person who was the last present with the victim would have a reasonable opportunity to commit the crime. This 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. Further, the conjoint interpretation of the last seen theory and the ocular evidence rendered by P.W.15 that the Appellant assaulted the deceased with a BERUAN PATI and the subsequent discovery and seizure of the said BERUAN PATI from the spot of occurrence shifts the burden of proof from the prosecution to the Appellant. Moreover, the Appellant has also failed to provide a probable and satisfaction explanation that he was not present at the spot of occurrence at the relevant time. Instead, he has furnished an explanation that the deceased was suffering from chronic Asthma and died due to it. The explanation provided by the Appellant has been negatived by the PM examination report which further allows this Court to take an adverse inference against the Appellant. 19. Instead, he has furnished an explanation that the deceased was suffering from chronic Asthma and died due to it. The explanation provided by the Appellant has been negatived by the PM examination report which further allows this Court to take an adverse inference against the Appellant. 19. Further, this Court also affirms the finding of the Trial Court that 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 on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 20. In the case of State of Rajasthan vs. Kashi Ram , (2006) 12 SCC 254 , the Supreme Court observed: “The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain.” 21. In the case of State of Tamil Nadu v. Rajendran , AIR 1999 SC 3535 , the Supreme Court observed: “In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.” 22. In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, the “BERUAN PATI” seized at the spot of occurrence by P.W.12 was used by the Appellant to assault the deceased and this has been categorically deposed by P.W.15 who witnessed the entire incident. Moreover, on the basis of last seen theory and medical evidence, it can be affirmed that deceased was first assaulted by the Appellant by “BERUAN PATI” and was then suffocated to death through mechanical pressure over mouth and nose. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. In this case, the requisite chain has been established by the prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. In this case, the requisite chain has been established by the prosecution. It is because the time interval between P.W.15 and one of his sisters fleeing from the spot of occurrence to seek help and the subsequent discovery of dead body of the deceased by P.Ws 4, 5 & 6 is very short and it is almost impossible that a third- party or some stranger intervened in between during this particular interval. The discovery of “BERUAN PATI” at the spot of occurrence, the false statement of the Appellant that the deceased died due to chronic Asthma and the ocular evidence of P.W.15 that the Appellant assaulted the deceased by “BERUAN PATI” yields a vital link in the chain of circumstances that point towards the guilt of the accused. Moreover, the accused appellant has not provided any explanation and the failure to do so yields an additional link in the chain of circumstances to make it complete. 23. Learned Counsel for the Appellant has contended that the there is an extreme possibility of P.W.15 being tutored by the deceased’s relatives to depose against the Appellant. In this respect, we are of the opinion that there is no justification as to why P.W.15 would depose falsely against his father. The deposition and testimony of P.W.15 does not suffer from any infirmities as there is no inconsistency in the material particulars of the evidence. Close relationship of witnesses with the deceased or victim is no ground to reject their evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. The statements made by P.W.15 have been duly corroborated by the statements of other post- occurrence witnesses and we find no reason to discredit the account of the eyewitness as untrue. Moreover, this is no inconsistency between the ocular evidence and medical evidence as it has been categorically deposed by P.W.10 that the deceased had multiple injuries all over the body. Moreover, this is no inconsistency between the ocular evidence and medical evidence as it has been categorically deposed by P.W.10 that the deceased had multiple injuries all over the body. The deposition made by P.W.12, in particular, is of greater relevance as he seized the weapon of offence i.e., “BERUAN PATI” from the spot of occurrence and admittedly, this weapon was used by the Appellant for assaulting the deceased as per the deposition of P.W.15. The description of injuries in the PM Examination report further corroborates the evidence of P.W.15 who had stated that the deceased was assaulted with a “BERUAN PATI” and had swelling on her face, neck and other parts of the body. 24. Hence, it can be ascertained that there is no inconsistency between the medical evidence and the ocular evidence to discard the depositions and testimonies as untrue. Even as a young child, P.W.15 has emerged from a long and protracted cross-examination as truthful witness and nothing of any significance could be elicited from him which would in any way detract the massive weight of testimony. Moreover, in our opinion, it was not “unnatural” on the part of P.W.15 to not raise an outcry regarding the incident as P.W.15 has stated in his cross-examination that he tried to alert the neighbors but, was not successful in doing so. Also, P.W.15 was witnessing these incidents of violence towards the deceased on a regular basis and on the relevant day, he could not have thought by any stretch of imagination that his father (the appellant) would murder the deceased. It cannot be expected of P.W.15 to predict the consequences or the conduct of his own father as he is a small child and, therefore, it would be mechanical to assume that P.W.15 could have raised an outcry regarding the incident. 25. The next issue that arises for consideration is whether the Appellant was subjecting his wife to torture and cruelty under section 498-A of the IPC . According to the deposition of P.W.1, the Appellant used to consume liquor and assault her daughter. During cross-examination, she categorically stated that the Appellant would assault the deceased and subject her to cruelty. She also mentioned that the deceased was unhappy as the Appellant was addicted to liquor and ganja. She was informed about the same by P.W.15. According to the deposition of P.W.1, the Appellant used to consume liquor and assault her daughter. During cross-examination, she categorically stated that the Appellant would assault the deceased and subject her to cruelty. She also mentioned that the deceased was unhappy as the Appellant was addicted to liquor and ganja. She was informed about the same by P.W.15. P.W.15 has also deposed that the Appellant was addicted to liquor and would often return home in an intoxicated state and takeaway the hard- earned money of the deceased and subject her to physical torture and cruelty. P.W.4 who is an independent witness has also stated that the Appellant and the deceased had a strained relationship and there were prior instances of cruelty against the deceased by the Appellant. However, according to P.W.4, those instances were not reported via FIR as no village meeting was held on the concerned matter. Thus, from the evidence of P.W.1, P.W.15, P.W.4, it can be ascertained that the deceased and the Appellant had strained relationship and the Appellant habitually subjected the deceased to torture and cruelty in an intoxicated state. Therefore, this Court is of the view that the charges under section 498A stands proved. 26. The final issue that arises for consideration is whether the act of the accused in committing the homicidal death of the deceased amounts to murder as defined under section 300 of the IPC . Since the post mortem examination report does not indicate that the deceased was strangulated by use of physical force, apart from possibility of death through mechanical pressure over mouth and nose, it might be possible that the deceased died within a short period after sustaining multiple injuries. Therefore, the primary point that arises for consideration is whether the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. The medical opinion of P.W.10 as to this question was not obtained. P.W.10 deposed and the post mortem report reveals that the cause of death was Asphyxia which is a condition arising when the body is deprived of oxygen, causing unconsciousness or death; suffocation. Moreover, in absence of evidence that the deceased was strangulated or suffocated by use of physical force, we cannot proceed on the assumption that the death of deceased was caused due to mechanical pressure over nose and mouth. There is a need of conclusive evidence for the same. Moreover, in absence of evidence that the deceased was strangulated or suffocated by use of physical force, we cannot proceed on the assumption that the death of deceased was caused due to mechanical pressure over nose and mouth. There is a need of conclusive evidence for the same. On the other hand, the deceased suffered multiple injuries all over her body and her brain and lungs were swollen and congested. Purely on this standpoint, it cannot also be concluded mechanically that the nature of injuries was not sufficient in the ordinary course of nature to cause death. However, it is a settled position in law that in cases where cloud is cast on the exact nature of injuries on account of absence of clear or satisfactory evidence in that behalf, the benefit of doubt must be given to the accused. In the instant case, the intention of the Appellant need not be proved as there is sufficient evidence which establishes the intent behind commission of the offence. Therefore, it is not in dispute that the Appellant and the deceased used to have quarreled almost on an everyday basis. The Appellant was subjecting the deceased to physical cruelty and torture on a regular basis and this is clear from the depositions of P.W.1, P.W.4 & P.W.15 and other post-occurrence witnesses who were the relatives of the deceased. P.W.4, an independent witness has also affirmed the same. Since, the deceased on that day raised objections to such behavior, the Appellant assaulted the deceased as a result of which she died. That be the case, Section 304 (I) and not Section 302 is the proper provision under which the accused could be convicted. 27. In conspectus of facts and precedents cited hereinabove, we hereby hold that the Appellant guilty for commission of offence under Sections 498 -A and 304 Part-I of the I.P.C. In so far as the sentence, we notice that the Appellant has already undergone more than years of sentence and as such we hold that for the above conviction recorded the period undergone will be sufficient punishment. The Appeal is, thus, allowed in part and to the extent as to modification of conviction and sentence thereunder. We direct that the Appellant (Madan Mahunta) be set at liberty in the aforesaid case, if his detention is not required in any other case. D. Dash, J. I agree.