Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 351 (ORI)

Maruti Hontal v. State of Orissa

2004-08-11

P.K.TRIPATHY, R.N.BISWAL

body2004
JUDGMENT P. K. TRIPATHY, J. — Heard both the parties and this Jail Criminal Appeal stands disposed of in the following manner. 2. Petitioner was charged for the offence under Section 302, I.P.C. with the allegation that on 2.12.1994 at about 9 p.m. he dealt an axe blow by M.O. No.1 with the intention to kill Smt. Haribala Khora (hereinafter referred to as ‘deceased’) and caused instantaneous death of the deceased. Denying to that allegation, appellant claimed for trial in Sessions Case No.87 of 1995 of the Court of Sessions Judge, Koraput. On completion of the trial learned Sessions Judge as per the impugned judgment dated 27.9.1996 found the appellant guilty of the said offence and after hearing him sentenced him to imprisonment for life. 3. In substance, the prosecution case is that deceased is the mother-in-law of the accused being mother of P.W. No.7. In other words, P.W. No.7, Annapurna Khora is the wife of the accused. Accused was living as an illatom son-in-law in the house of the deceased. That house is being inhabited by Mani Khora, husband of the deceased, the son and the daughter-in-law, Gori Khora (P.W. No.8) and their blind child. The deceased had no appreciation for the conduct of the accused and therefore, there was frequent quarrel between the two. In view of that, P.W. No.6 suggested to the accused either to keep peace or else to leave their house. On the said ultimatum of P.W.6, accused left the house of the deceased on the Wednesday i.e. on 30th November 1994 giving threatening to do harm to them (inmates of the house). On Friday, 2.12.1994 at 9 p.m. when the P.Ws. 6 and 7 along with the deceased and the blind child were in the process of going to the night sleep, though they were all awake and a country lamp (dibiri) was burning on the outer verandah, the place where they were sleeping, accused on being armed with the axe (M.O.I) came and dealt a blow on the face of the accused which resulted in her instantaneous death. 4. On receipt of the allegations, Police conducted and completed a routine investigation and submitted charge sheet. 5. 4. On receipt of the allegations, Police conducted and completed a routine investigation and submitted charge sheet. 5. To substantiate the accusation against the appellant, prosecution examined as many as 11 witnesses and relied on post mortem report and other documents vide Exts.1 to 13 so also exhibited the aforesaid material objects besides the wearing apparels of the deceased, M.O.II. Ext.1 is the post mortem report and Ext.2 is the opinion report of the P.W. No.1 (the Doctor who conducted the post mortem examination) with the opinion that the injury found on the dead body of the deceased is possible by M.O.I. Exts. 6, 8, 10 and 11 are the seizure list of different articles including the M.Os. I to V and the bloodstained and sample earth etc. Ext.13 is the report from the S.F.S.L. 6. Relying on the evidence of P.W. 1 and the post mortem report (Ext.1), trial Court recorded the finding that deceased suffered a homicidal death due to the cut injury of 6.5 inches length, 1.3 inches width and 2.2. Inches depth extending half inch above the left ear to half inch below the left side of the nose on the upper lip of the mouth and that such injury was ante mortem in nature and was sufficient in ordinary course of nature to cause death due to the shock and haemorrhage. Learned Sessions Judge discussed the evidence of P.Ws. 6, 7 and 8 and also above noted seizure list and report from the S.F.S.L. and found that direct evidence of P.Ws.6, 7 and 8 sufficiently substantiate and corroborate to prove the accusation against the appellant beyond any reasonable doubt. Trial Court imposed the sentence of impris¬onment for life to the appellant for his conviction under Section 302, I.P.C. 7. While challenging to the aforesaid order of conviction, learned counsel for the appellant with the best of the ability pointed out to persuade us to give benefit of doubt with the suggestion that a mistaken identity of the assailant is very much made out because the assailant was then wearing black coloured dress and that evidence of P.Ws.6 and 7 are not reliable relating to the manner in which they have narrated to have seen the occurrence. Besides that, she also argues that the axe was not seized on being produced by the accused; therefore, mere recovery of the axe would not be attributed as a substantial proof against the appellant. 8. Learned Standing Counsel on the other hand advances argument supporting the impugned order of conviction. 9. After going through the evidence on record, we do not find that the aforesaid argument of the appellant is acceptable inasmuch as according to the evidence of P.Ws. 6, 7 and 8, by the time of occurrence, P.W. 7 was lying by the side of the deceased and P.W. 6 was in a sitting position about 4 cubits away and a country lamp was lighting that area. Therefore, simply because the assailant was wearing a black lungi, black shirt and black cap, that could not have resulted in mistaken identity by the inmates of the said house, when they are all well acquainted with him. On the other hand, on perusal of the evidence on record and the assessment of the same by the trial Court, we find that learned Sessions Judge has analysed the evidence within the legal boundary and appreciated and accepted the same as per the norms. Therefore, we do not see any reason to disturb that factual finding. 10. Alternatively, learned counsel for the appellant argues that it may be found to be a case under Section 304 first part of I.P.C. inasmuch as only one blow was dealt by the appellant. As rightly learned Standing Counsel states that offence under Sec¬tion 302, I.P.C. cannot be made out from that circumstance when the appellant with premeditative intention came prepared on Friday to do away with the deceased as a reaction to the incident that occurred on Wednesday and therefore, the offence amounts to a culpable homicide amounting to murder. Because of the nature of the evidence on record, we accept the aforesaid argument of learned Standing Counsel and reject the contention of the appel¬lant. 11. For the aforesaid reason, we do not find any merit in this appeal and accordingly dismiss the same and confirm the conviction and sentence imposed on the appellant. R. N. BISWAL, J. I agree. Appeal dismissed.