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2007 DIGILAW 347 (ORI)

GURU MAJHI v. STATE OF ORISSA

2007-05-11

P.K.TRIPATHY, R.N.BISWAL

body2007
( 1 ) HEARD. ( 2 ) THE Jail Criminal Appeal is disposed of in the following manner : order of conviction of the appellant under section 302, I. P. C. in Sessions Case no. 323 of 1995 of the Court of Sessions judge, Koraput-Malkanagiri at Jeypore is under challenge. For his conviction under section 302, I. P. C. the trial Court awarded him punishment of imprisonment for life. Appellant preferred the appeal from jail. ( 3 ) THE occurrence took place on 29-7-1995 at about 8. 00 p. m. Accused was arrested at 3. 00 p. m. on 31-7-1995 and thereafter from 1-8-1995 he is in judicial custody. This fact has not been disputed by both the parties. ( 4 ) THE simple and proved fact of involvement of accused in this case is that on the date of occurrence at about 8. 00 p. m. when sarbesawar Majhi (hereinafter referred as 'the deceased'), younger brother of the accused, was taking his night meal (supper), accused came to the house and there was a quarrel between both the brothers. In course of that quarrel, accused dealt axe blows, as a result of which deceased suffered bleeding injuries on the head and scapular region and ultimately succumbed to that injury within a few hours. Their mother Damei Majhi (PW 1) is the solitary eye witness to the occurrence. P. Ws. 2 and 3 are the co-villagers who arrived at the spot soon after the occurrence and heard dying declaration of the deceased. P. W. 3, amongst the other villagers removed the axe from the hand of the accused. P. W. 6 is the doctor who conducted post-mortem examination and proved the post-mortem report (Ext. 14) and the opinion report (Ext. 11/2 ). P. Ws. 4 and 5 are the two Police officers who participated in the investigation. Prosecution has relied on other exhibited documents (marked Exts. 1 to 14) and the material Objects, out of which M. O. I. is the alleged weapon of offence (Tangia ). ( 5 ) ACCUSED took the plea of denial to the allegation of fratricide, but he did not adduce any defence evidence. ( 6 ) LEARNED Sessions Judge made assessment and on appreciation of evidence, both direct and circumstantial, recorded and conclusion that the proved fact of homicidal death from the evidence of P. W. 6 and Ext. ( 5 ) ACCUSED took the plea of denial to the allegation of fratricide, but he did not adduce any defence evidence. ( 6 ) LEARNED Sessions Judge made assessment and on appreciation of evidence, both direct and circumstantial, recorded and conclusion that the proved fact of homicidal death from the evidence of P. W. 6 and Ext. 14 and participation of accused as the author of the injury on the basis of unchallenged evidence of P. W. 1, it is proved by the prosecution that accused is guilty of offence of murder. Accordingly he convicted and sentenced the accused. ( 7 ) WHILE challenging to that order of conviction, mrs. Mohanty, learned counsel appearing for the appellant, argues that trial court lost sight of the fact situation which emerges from the statement of P. W. 1. According to her, P. W. 1 deposed about the quarrel between the brothers and thereafter assault on the deceased by the accused by using the blunt side of the axe. Accordingly she argues that at best a case of culpable homicide not amounting to murder is made out and that should be considered by this court in exercise of appellate jurisdiction. ( 8 ) LEARNED Standing Counsel on the other hand does not concede to that argument and argues that when the injuries found on the dead body of the deceased were sufficient in ordinary course of nature to cause his death, the offence proved against the accused is punishable under Section 302, I. P. C. ( 9 ) IN view of the above noted rival contention raised, We peruse the evidence on record and find that evidence of P. W. 6 read with Ext. 14, it is proved on record that deceased suffered homicidal death. According to the evidence of P. W. 6, injury on the scapular region was fatal to cause the death of the deceased. Indeed PW 1 stated in her evidence that when the deceased was taking meal, accused came to the house and they picked up quarrel and during course of the quarrel accused gave two blows by the blunt side of the axe. Evidence of P. W. 6 about a cut injury is tried to be capitalized as a contradiction, but we do not find any merit in that criticism inasmuch as deceased was assaulted at the spot and he succumbed to the injury. Evidence of P. W. 6 about a cut injury is tried to be capitalized as a contradiction, but we do not find any merit in that criticism inasmuch as deceased was assaulted at the spot and he succumbed to the injury. In the process of the quarrel when random blows were dealt, it might have not been possible on the part of P. W. 1 to see the blows or the result of deflection of blows by blunt side to cause the injury by coming in contact of the sharp edge of the axe. ( 10 ) BE that as it may, it appears that when accused entered into the house, he had no intention to kill his brother or even to cause him any bodily injury. It is in course of the quarrel that he got annoyed and dealt the blows. A hopeless cross-examination by the State Defence Counsel has laid to the unfurling relevant circumstance relating to the duration of the quarrel etc. and we should not overlook that aspect as well. Under such circumstances, we accede to the argument of the appellant for conviction of the appellant under Section 302, I. P. C. Accordingly, we set aside the order of conviction under Section 302, I. P. C. and the sentence imposed for that offence and convict the appellant for the offence under section 304, I. P. C. first part and sentence him to undergo rigorous imprisonment for a period often years. If accused was not released on parole or on interim bail during the trial and pendency of this appeal, then he is already inside the jail for over a period of ten years. Be that as it may, the release warrant be accordingly issued by indicating that on completion of the imprisonment for a period of ten years and in the event of non-requirement of the appellant in any other case, appellant be released from the jail custody forthwith. The Jail Criminal Appeal is accordingly allowed in part. Order accordingly.