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2006 DIGILAW 130 (ORI)

ISWAR MIRDHA v. STATE OF ORISSA

2006-02-15

A.K.SAMANTARAY, P.K.TRIPATHY

body2006
P. K. TRIPATHY, J. ( 1 ) APPELLANT challenges order of conviction under Section 302, IPC in S. T. Case No. 224 of 1994 of the Court of Sessions Judge, Sambalpur. He was charged for that offence on the allegation that he committed patricide on 29. 5. 1994 inside the jungle. ( 2 ) PROSECUTION case is that, appellant and the deceased holding an axe each went to the jungle. In the jungle father (deceased scolded/abused the appellant and retaliating to that, appellant dealt axe blows on the deceased and killed him. After returning alone from the jungle, appellant was put to queries about whereabouts of the deceased and then, before his wife, daughter, cousin and covillagers, he made extra-judicial confession. Thereafter villagers together with appellant went to the jungle i. e. , scene of occurrence, saw the dead body and lodged fir. The dead body was sent for postmortem examination and the Medical officer (P. W. 10) submitted the postmortem report (Ext. 13) with the opinion that deceased suffered homicidal death and injury No, 2 in Ext. 13 was sufficient in ordinary course of nature to cause death. The axe (M. O. 1) was produced before him and he opined that the injuries found on the dead body are possible by that weapon. ( 3 ) IN course of trial, while denying to charge, appellant took alternative plea of his insanity. To prove that plea, accused examined two witnesses and also relied on medical reports of the doctor (D. W. 1) marked Exts. A, B and C. ( 4 ) THOUGH the case is based on circumstantial evidence, trial court found that there is overwhelming evidence of the wife and daughter of the deceased, i. e. , P. Ws. 2 and 3 in support of the extrajudicial confession besides being corroborated by P. Ws. 1, 5, 6 and 7. Trial Court also found that from the evidence of the doctor (P. W. 10) and the post-mortem report (Ext. 13) it is clear that deceased suffered homicidal death and that evidence on record has proved that appellant is the author of the injuries and liable to be convicted under Section 302, ipc. 1, 5, 6 and 7. Trial Court also found that from the evidence of the doctor (P. W. 10) and the post-mortem report (Ext. 13) it is clear that deceased suffered homicidal death and that evidence on record has proved that appellant is the author of the injuries and liable to be convicted under Section 302, ipc. While taking into consideration the defence evidence, Learned Sessions judge only stated that had such facts been brought to the notice of the Court from the beginning, the procedure provided for trial of person of unsound mind could have been followed. No such effort being made on behalf of the accused, the defence is at fault by not bringing such fact to the notice of the Court at the stage of commencement of the trial. We notice that Learned Sessions Judge did not take into consideration implication of evidentiary value and consequence of the evidence, which was tendered in support of the alternative defence plea. ( 5 ) IN course of hearing, Learned counsel for the appellant argues that evidence on record is sufficient to prove the occurrence and he does not want to challenge the same unnecessarily. Such argument of the appellant is fair and appreciable because, on perusal of evidence, it is seen that there is no contradiction in the evidence led by the prosecution to prove the relevant chain of circumstances in proof of the sequences of occurrence. Learned counsel for the appellant argues that defence evidence and the defence plea are sufficient enough to warrant conviction not for the offence under Section 302, IPC but for the offence under Section 304, Part-1 of the ipc. Learned Standing Counsel, however, does not concede to that argument of the appellant. His contention is that the numbers of external injuries found on the body of the deceased would negate the contention of the appellant. ( 6 ) ON reference to evidence to p. W. 10 and the post-mortem report (Ext. 13), it is seen that there were three cut injuries (external injuries), viz. : (i) 3" x " x 1" on the right occipital region, close to nape of neck; (ii) 4" x 1/2" x bone deep on the back of the left arm; and (iii) 2" x 1" x muscles deep on the medial aspect of left arm below the axilla. : (i) 3" x " x 1" on the right occipital region, close to nape of neck; (ii) 4" x 1/2" x bone deep on the back of the left arm; and (iii) 2" x 1" x muscles deep on the medial aspect of left arm below the axilla. There were three abrasions on the thigh, knee and back of right leg. P. W. 10 deposed that, "in my humble opinion, injury No. (ii) (external) is fatal and sufficient in ordinary course of nature to cause death". He also opined that the abrasions were caused due to dragging of the body. ( 7 ) IT is the consistent evidence of the prosecution witness Nos. 1 and 3 that accused was possessing an abnormal mind, i. e. , behaving in a mad manner for sometimes past to the date of occurrence and even by the date of occurrence. In their evidence P. Ws. 2 and 3 respectively wife and daughter of the accused have stated that accused and the deceased were pulling on well all throughout. The materials collected during investigation and particularly the confessional statement of the accused was to the effect that in the jungle the deceased picked up quarrel with him and therefore he dealt axe blows and killed his father. Put together, the unchallenged mental situation of the accused and the factum of quarrel notwithstanding the good relationship between the father and the son indicates that it was not a pre- mediated or intentional act of the accused to do away with the deceased though the accused had sufficient knowledge that the blows given by him was sufficient in ordinary course of nature to cause death of the deceased. The only exception in this case to distract Section 302, IPC is the mental condition of the accused and loss of self-control at the spur of the moment. Under such circumstance, when the doctor's evidence is that only injury No. (ii) was fatal to cause death in ordinary course of nature, therefore, it is proper that accused should be convicted for the offence under Section 304, Part-1 of IPC instead of offence punishable under Section 302, IPC. In that respect the defence evidence adduced by the accused also subscribes to that theory though the trial court, for reasons best known to it, did not consider or evaluate the defence evidence. In that respect the defence evidence adduced by the accused also subscribes to that theory though the trial court, for reasons best known to it, did not consider or evaluate the defence evidence. ( 8 ) ACCORDINGLY, the order of Conviction under Section 302 IPC is set aside and for the death caused to the deceased, accused-appellant is convicted for the offence under Section 304, Part-1, IPC. Keeping in view the nature and gravity of the offence, we sentence him to undergo rigorous imprisonment for a period of ten years. The period of detention as undertrial prisoner and as a convict be set off. The Jail Criminal Appeal is accordingly allowed in part. Appeal allowed partly.