Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 281 (ORI)

RASHI MALLIK v. STATE OF ORISSA

2007-04-19

A.S.NAIDU

body2007
A. S. NAIDU, J. ( 1 ) THE judgment of conviction and sentence dated 20th December, 1986 passed by learned Sessions Judge, phulbani in S. C. No. 25/1986 convicting the appellant under Section 304 (Part II) I. P. C. and sentencing him to undergo R. I. for four years is assailed in this appeal. ( 2 ) BEREFT of unnecessary details the prosecution case in short is that in the year 1985 the informant, P W1, had gone to Kothagarh market. His father-in-law, the deceased, had also gone to the said market. While the informant was on his way back to his house he met the accused who was going along with Sridhar Majhi, PW2, and Bhima Majhi, pw3. Seeing the informant the accused asked him to return Rs. 20 which he had borrowed from him. As the informant expressed his inability to repay the amount, the accused got annoyed and gave him two slaps and threatened to kill his father-in-law, the deceased. After proceeding ahead the accused and PWs 2 and 3 met the deceased near a Nala locally known as 'khari' and seeing him the accused asked him to repay the amount borrowed from him. The deceased also expressed his inability to pay the amount. Consequently a quarrel ensued inter se between them and the accused being enraged collected a stone and assaulted the deceased near his right side ear as a result of which he fell down. It was alleged the accused then assaulted him on his head with another stone and the deceased succumbed to the said injuries at the spot. It was alleged that the accused threw the dead body in the Nala and came to the house of sridhar Majhi, PW2, and Bhima Majhi, pw3, and stayed there for the night, and before dawn he left his house without their knowledge. ( 3 ) AFTER receiving the information about the occurrence PW1 the son-in-law of the deceased lodged written report, Ext. 1, before the O. I. C. , kothagarh P. S. On the basis of the said F. I. R. a P. S. case under Section 302 I. P. C. was registered. After conducting investigation and recording statement of witnesses charge-sheet was submitted against the accused. In his statement recorded under Section 313 Cr. 1, before the O. I. C. , kothagarh P. S. On the basis of the said F. I. R. a P. S. case under Section 302 I. P. C. was registered. After conducting investigation and recording statement of witnesses charge-sheet was submitted against the accused. In his statement recorded under Section 313 Cr. P. C. the accused admitted most part of the prosecution case and stated that there was verbal duel in between him and the deceased regarding repayment of the amount borrowed from him resulting in a tussle and at that relevant time PW2 collected a stone from nearby and assaulted the deceased on his ear and head. ( 4 ) THE prosecution in order to substantiate its case got eight witnesses examined. PW1 is the informant, PWs 2 and 3 are eyewitnesses to the occurrence, PW4 is the witness who found the dead body of the deceased and gave information to PW1, PW5 is a witness to the seizure, PW6 is the doctor who conducted the autopsy, PW7 is another doctor who examined the accused and pw8 is the Investigating Officer. ( 5 ) ACCORDING to post-mortem report, PW6, the doctor found several injuries. He opined that the death was caused due to such injuries. ( 6 ) THE Sessions Court after examining the evidence, both oral and documentary, in extenso arrived at a conclusion that it is the accused who assaulted the deceased by two stones as a result of which the latter succumbed to the injuries. But then it was observed that it cannot be conclusively said that the accused had the intention to cause death. On the basis of such conclusion learned Sessions Judge held the accused guilty under Section 304 Part-II IPC and convicted and sentenced him as stated above. ( 7 ) THE order of conviction and sentence is assailed before this Court by the appellant mainly on the ground that as per the evidence of eye-witnesses the appellant had only given two blows by stone, but then several injuries were found on the dead body on post-mortem report. The prosecution has not explained the said injuries. Thus a cloud of suspicion is raised. The prosecution has not explained the said injuries. Thus a cloud of suspicion is raised. It is also submitted that one independent witness, Parti Mallik, father of PW1 , who was also present along with two eyewitnesses was not examined and thus a vital witness who could have thrown light on what actually happened was withheld from the Court. ( 8 ) THIS submission is strongly repudiated by learned counsel for the State. It is submitted that perusal of the evidence of PWs 2 and 3 who are the eye-witnesses is sufficient to convict the appellant and the trial court has rightly assessed the entire evidence and the order of conviction and sentence is just, proper and in consonance with the crime committed. ( 9 ) I have heard learned counsel for the parties at length and perused the evidence, both oral and documentary. Admittedly, the petitioner is a tribal person. It is well known that the tribal persons have volatile sentiments and temper. Scanning the entire evidence clearly reveals that there was no premeditation or mens rea to commit murder. A quarrel ensued for repayment of Rs. 20 borrowed by the deceased from the accused and all of a sudden in course of a tussle, the accused picked up a stone and gave a blow on the head as would not be evident from the deposition of PWs 2 and 3. The sequence of events lead to a conclusion that out of anger and on sudden heat of temper two blows were given on the head by a stone. Admittedly, the deceased was an old man and unfortunately he succumbed to the said blows. That apart as has been rightly pointed out though the evidence of both the eye-witnesses reveals that only two blows were given by stone on the deceased, PW6, the Doctor who conducted the post-mortem report found several injuries. The prosecution had not explained those injuries and therefore necessary inference is drawn that the prosecution has not come to the Court with clean hands and has not disclosed all the evidence with regard to commission of offences. Some vital witnesses were also not examined. The prosecution had not explained those injuries and therefore necessary inference is drawn that the prosecution has not come to the Court with clean hands and has not disclosed all the evidence with regard to commission of offences. Some vital witnesses were also not examined. ( 10 ) CONSIDERING all the evidence and the fact that the incident in question occurred in the year 1985 and nearabout 22 years have passed in the meanwhile and the further fact that the petitioner has already undergone R. I. for about one year and four months, this Court while confirming the conviction under Section 304 Part-II IPC, modifies the sentence to the period of R. I. already undergone by the appellant and in the alternative imposes a fine of Rs. 3,000 (Rupees three thousand) which shall be paid by the appellant within a period of three months. Out of the said amount a sum of rs. 2,000 (Rupees two thousand) shall be paid l,o the informant who has lost his father. If the accused fails to pay the fine he shall undergo R. I. for a further period of six months. With the aforesaid modification in sentence the Criminal Appeal is disposed of. .