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2002 DIGILAW 192 (ORI)

Jakaka Dama v. State of Orissa

2002-03-26

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT B. PANIGRAHI, J. — This appeal at the instance of the appel¬lant Jajaka Dama is directed against the order dated 13.05.1993 passed by the learned Additional Sessions Judge, Jeypore, in Sessions Case No. 36 of 1992. By the said order, the appellant has been convicted under Sections 302 and 323 of the Indian Penal Code (for short “IPC”) for committing the murder of Jakaka Lachi and for voluntarily causing hurt to Jakaka Arja. He has been sentenced to undergo imprisonment for life for the offence under Section 302, IPC and rigorous imprisonment for six months for the offence under Section 323, IPC. 2. The skeletal picture of the prosecution story as stated in the trial Court’s judgment is as follows : The appellant and one Jakaka Jiramajhi had gone to the house of the deceased on 25.1.1992 at about 8. P.M. and assaulted Jakaka Arja by means of a yoke. It is stated that when the de¬ceased Jakaka Lachi raised severe protest and asked the appellant and his associate not to assault her husband, both the them attacked Jakaka Lachi and her son P.W.2. The appellant is said to have inflicted injuries by means of a lathi on Jakaka Lachi as a result of which she immediately collapsed. The matter was report¬ed at the Narayanpatna Police Station on 26.1.1992 at 10.15 P.M. P.W.9, the A.S.I. of Police of the said police station reduced the oral report to writing, treated the same as F.I.R., regis¬tered it as Narayanpatna P.S. Case No. 7 of 1992 under Section 302/323/34, IPC and immediately sprang into action. In course of investigation, he visited the spot, held inquest over the dead body of Jakaka Lachi, dispatched the dead body for post mortem examination, seized the weapon of offence, and issued requisition for medical examination of the injured, Jakaka Arja, P.W.7. Then he made over charge of investigation to the Officer-in-charge, P.W.8. The Officer-in-charge, Narayanpatna Police Station arrested the appellant and his associate and submitted charge-sheet under Section 302/34, IPC 323/34, IPC. against them. 3. The defence plea was one of denial of the occurrence. 4. In order to substantiate its case, prosecution examined as many as ten witnesses. P.Ws. 2, 3 and 7 are said to be the eye-witnesses to the occurrence and P.W.4 is a post-occurrence wit¬ness. P.W.1 is a witness to the seizure. P.W.5 is a witness to the inquest. 3. The defence plea was one of denial of the occurrence. 4. In order to substantiate its case, prosecution examined as many as ten witnesses. P.Ws. 2, 3 and 7 are said to be the eye-witnesses to the occurrence and P.W.4 is a post-occurrence wit¬ness. P.W.1 is a witness to the seizure. P.W.5 is a witness to the inquest. P.W.6 is the doctor who conducted post mortem over the dead body of the deceased and P.W.10 is the doctor who exam¬ined the injured (P.W.7) on police requisition. P.Ws.8 and 9 are police officers. 5. The trial Court on closely studying the evidence con¬victed the appellant under Sections 302 and 323, IPC and sentenced him as stated earlier. It, however, acquitted the other accused Jakaka Jiramajhi of the charges. 6. In order to determine the implication of the appellant, it is to be decided as to whether Jakaka Lachi died a homicidal death. In this regard, P.W.2, Jakaka Mariga is the star witness of the prosecution. He was also one of the injured persons. He lodged oral report at the Police Station which was reduced to writing by P.W.9 and a case under Section 323/324/34, IPC was registered. On seeing the post mortem report conducted over the dead body of Jakaka Lachi, it appears that the sustained three injuries - (1) contusion over the left face and mandible, (2) contusion over the mons veneris, and (3) contusion over the pericardium. On dissection it was found that there was haematoma over the muscles of the face and haemorrhage under the skin of mons veneris corresponding to external injuries Nos. (1) and (2). The meninges were congested. There was haemorrhage in the brain matter in form of clots. The doctor (P.W.6) opined that death was due to coma due to the head injury. P.W.6 also opined that all the injuries were ante mortem in nature. It has been stated that the appellant had given one blow resulting in two external injuries which corresponded to haematoma and haemorrhage and the death was due to coma. Had the injured been brought to the Hospi¬tal immediately and provided treatment, there was possibility of regaining her sense. Since she could not be shifted to the hospi¬tal immediately following such injuries and due to lapse of time, her condition was further deteriorated and finally she died. 7. Had the injured been brought to the Hospi¬tal immediately and provided treatment, there was possibility of regaining her sense. Since she could not be shifted to the hospi¬tal immediately following such injuries and due to lapse of time, her condition was further deteriorated and finally she died. 7. In order to sustain the conviction against the appellant, the evidence of P.Ws.2, 3 and 7 lends support to the prosecution story. They are son, daughter and husband respectively of the deceased. It is also admitted in evidence that there was land dispute between the appellant and his associate on one hand and P.W.7 on the other. The appellant was the nephew of the said P. W. 7 and there was dispute over the landed property belonging to the family. It is in the evidence that the appellant and his brother had been to the house of the deceased and reminded her husband to attend the Panchayati which was being convened at the instance of the appellant, to which the husband of the deceased did not agree and a quarrel ensued. It is further borne out from the evidence that the appellant did not carry any arms with him and after reaching the house of the deceased picked up a yoke and first assaulted P.W.7, the husband of the deceased. When the deceased intervened, he was incensed with anger and gave a stroke by a lathi on her head. From this it cannot be said that he had any intention to do away with the life of the deceased Jakaka Lachi. This aspect of the evidence was not considered by the learned Sessions Judge. He simply, on the basis of the evidence available on record, held the appellant guilty under Section 302, IPC for committing the murder of Jakaka Lachi and under Section 323, IPC for voluntarily causing hurt to P.W.7. Since it is a case where the offence was committed at the spur of the moment and being immediately incensed with anger out of sudden provocation, the appellant should have been convicted under Section 304, Part-I and Section 323, IPC. We accordingly, confirm the order of convic¬tion of the appellant under Section 323, IPC. But, so far as his conviction under Section 302, IPC is concerned, we alter the same to Section 304, Part-I, IPC. 8. We accordingly, confirm the order of convic¬tion of the appellant under Section 323, IPC. But, so far as his conviction under Section 302, IPC is concerned, we alter the same to Section 304, Part-I, IPC. 8. Learned counsel appearing for the appellant has invited our attention to the fact that his client is in custody since 1992 and has suffered imprisonment for more than 10 years. Keep¬ing this in view, we, in order to meet the ends of justice, while convicting the appellant under Section 304, Part-I and Section 323, IPC, sentence him to suffer imprisonment for the period already undergone. He be released from jail custody and set at liberty forthwith, if his detention is not required in connection with any other case. 9. In the result, the appeal is allowed in part to the extent indicated above. CH. P. K. MISRA, J. I agree. Appeal partly allowed.