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2007 DIGILAW 481 (ORI)

Ramu Minz v. State of Orissa

2007-06-26

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT The judgment dated 29.10.1997 passed by the Sessions Judge, Sundargarh in S.T. No.185 of 1995 convicting the accused-appellant for the offences under Section 302 of I.P.C. and sen¬tencing him thereunder to undergo imprisonment for life is under challenge before this Court. 2. Succinctly stated the case of the prosecution is that on 21.5.1995 the deceased Mangri Tirkey had been to village Kan¬deberna to witness Jatra. On the next day morning Rafel Ekka (P.W.4), Tophil Kindo, Manbodh Bhairnsal (P.W.10), the accused and the deceased took Handia in the house of Sarojini Toppo (P.W.7). Sometime thereafter accused and deceased Mangri Tirkey went to the house of Raphel (P.W.4) where again they took Handia. Thereafter, while the deceased, accused and P.W.10 were returning to their respective villages through a pathway in Kandeberna jungle on the way accused by holding her hand dragged the de¬ceased. Being annoyed the deceased dealt a slap on the accused, in retaliation the accused also slapped to the deceased for which she fell down. On rising up, while the deceased was running away, accused pelted a stone, which hit her head causing bleeding injuries. At the sight of profuse bleeding P.W.10 fled away. On 25.5.1995 during morning hour while Ranthi Tirkey (P.W.2), daugh¬ter of the deceased was collecting firewood in Kandeberna jungle she saw the dead body of her mother lying naked. On the same date at 5 P.M., P.W.2 alongwith his uncle, Suresh Tirkey went to Kinjirkela police station where he verbally reported the incident before the O.I.C. which was reduced into writing. As the allega¬tion revealed a cognizable offence under Section 302 of I.P.C., the O.I.C. of Kinjirkela P.S. registered the case and swung into action. On the same date at 5 P.M., P.W.2 alongwith his uncle, Suresh Tirkey went to Kinjirkela police station where he verbally reported the incident before the O.I.C. which was reduced into writing. As the allega¬tion revealed a cognizable offence under Section 302 of I.P.C., the O.I.C. of Kinjirkela P.S. registered the case and swung into action. He visited the spot, seized a stone lying there with blood stain, held inquest over the dead body, sent it to the morgue for autopsy, arrested the accused on 25.5.1995, seized his wearing apparels and prepared seizure list in respect thereof, forwarded the accused to Court, sent the seized stone to the medical officer, who conducted autopsy over the dead body to opine whether or not the head injuries found on the dead body could be possible by it, to which he answered in affirmative and after conclusion of the investigation finding a prima facie case against the accused the I.O. submitted charge sheet against him under Section 302 of I.P.C. The accused faced trial for the said offence before the Sessions Judge, Sundargarh. 3. To bring home the charge under Section 302 of I.P.C. against the accused, prosecution examined as many as 14 witnesses as against one by the defence. After assessing the evidence on record the trial Court found the accused guilty of the offence under Section 302 of I.P.C. and sentenced him thereunder to undergo imprisonment for life. Being aggrieved with the said order the accused (hereinafter referred to as “appellant”) while in jail has preferred the present appeal. 4. P.W.10 is said to be the only eye witness to the occur¬rence. So the fate of the case mainly rests on his evidence. Learned counsel appearing for the appellant submitted that the trial Court ought not to have convicted the appellant basing on the solitary evidence of P.W.10. The evidence is to be weighed and not counted. Conviction can be based on the evidence of a solitary witness if it is found to be reliable, clinching and beyond reproach. The evidence of P.W.10 has to be scrutinized carefully whether the same satisfies those tests. D.W.1 alone was examined on behalf of the defence, who deposed that there was ill blood between the appellant and P.W.10 due to land dispute. In cross-examination he stated that no case was filed either by P.W.10 or by the appellant against the other. The evidence of P.W.10 has to be scrutinized carefully whether the same satisfies those tests. D.W.1 alone was examined on behalf of the defence, who deposed that there was ill blood between the appellant and P.W.10 due to land dispute. In cross-examination he stated that no case was filed either by P.W.10 or by the appellant against the other. As it appears from his evidence D.W.1 is not an adjacent land owner of P.W.10 or the appellant. So, the plea of enmity between P.W.10 and the appel¬lant has no leg to stand. It transpires from the evidence of P.W.10 that on the date of occurrence while he alongwith the deceased and the appellant was returning to their respective villages through a pathway in Kandeberna jungle, on the way the appellant dragged the deceased by holding her hands to which she physically protested and gave a slap on the appellant. The appel¬lant also dealt two to 3 fists blows and slaps on the deceased for which she fell down. After getting up, when the deceased was trying to run away, the appellant threw a stone aiming at her head and it hit the target causing profuse bleeding. At the sight of blood P.W.10 became nervous and rushed to his village. During cross-examination it was elicited from him that both the appel¬lant and the deceased were under intoxication at the time of occurrence. Save and except this, nothing substantial could be brought out from the mouth of P.W.10 to disbelieve his veracity. So, in our considered opinion his evidence is reliable, clinching and beyond reproach Ocular testimony of P.W.10 has also been corroborated by the evidence of P.W.11, the doctor, who conducted autopsy over the dead body of the deceased. As per his evidence he found two lacerated wounds one of which was of size 3"x 2"x brain deep with liquified brain matter protruding out on the left temporo parietal region and the other one was of size 2"x1½ x brain deep with liquified brain matter coming out on the right temporo parietal region. It is also found from the evidence of the doctor that on 13.6.1995 the I.O. had sent him a stone to examine and opine as to whether or not the injuries could be possible by that stone to which he opined in affirmative under Ext.5. It is also found from the evidence of the doctor that on 13.6.1995 the I.O. had sent him a stone to examine and opine as to whether or not the injuries could be possible by that stone to which he opined in affirmative under Ext.5. So, it is established beyond all reasonable doubt that the deceased died because of injuries sustained by her due to pelting of stone by the appellant. 5. Learned counsel appearing for the appellant submitted that the manner in which death was caused and the fact that both the appellant and the deceased were under intoxication during the time of occurrence, the case would fall within the ambit of exception IV to Section 300 of I.P.C. and as such the appellant shall be liable for the offence under Section 304 Part-I of I.P.C. As discussed earlier, when the appellant dragged the hands of the deceased, the latter inflicted a blow on his face and being enraged the appellant inflicted three slap and fist blows on her for which she fell down. After rising up, when the de¬ceased was running away the appellant pelted a stone. There is nothing to show that the appellant again assaulted the deceased taking undue advantage of the circumstance in a cruel or unusual manner. The occurrence took place without premeditation in a heat of passion upon a sudden quarrel, when both the appellant and deceased were under intoxication. It seems that the appellant with the intention of causing such bodily injury as likely to cause death, pelted the stone aiming at the head of the deceased which hit the target. So in our considered view the appellant shall be liable for the offence under Section 304 Part-I and not under Section 302 of I.P.C. It would meet the ends of justice if he is sentenced to undergo rigorous imprisonment for ten years. 6. In the result, the order of conviction of appellant under Section 302 of I.P.C. and sentence of imprisonment for life in Sessions Trial No.185 of 1995 of the Court of Sessions Judge, Sundargarh is modified to conviction under Section 304, Part-I of I.P.C. and appellant is sentenced to undergo rigorous imprison¬ment for ten years. 6. In the result, the order of conviction of appellant under Section 302 of I.P.C. and sentence of imprisonment for life in Sessions Trial No.185 of 1995 of the Court of Sessions Judge, Sundargarh is modified to conviction under Section 304, Part-I of I.P.C. and appellant is sentenced to undergo rigorous imprison¬ment for ten years. It is stated at the Bar that the appellant has already served that sentence as an U.T.P. If that be so, the appellant be set at liberty forthwith, if his detention is not required in jail in connection with any other case. Accordingly the Jail Criminal appeal is allowed in part. JCA allowed in part.