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2008 DIGILAW 1013 (ORI)

BABULI MUNDA @ HAIBURU v. STATE OF ORISSA

2008-11-12

P.K.TRIPATHY, S.R.SINGHARAVELU

body2008
JUDGMENT : 1. Though this case has been listed for orders on the bail application filed by the Appellant-Petitioner, but on consent of the parties, the Criminal Appeal is heard and disposed of in the following manner. 2. According to the case of prosecution, on 16.01.1998 at about 11.30 P.M. in the Labourer's Colony at village Raikela of Koira P.S., Appellant inflicted single axe blow on the head of his wife, Saniar (hereinafter referred as 'deceased') after a quarrel between two at two spells in that night. In the post-mortem report proved by Dr. Mudhusudan Singh, P.W.7 vide Ext-6 and the opinion report, Ext-7, it has been proved by the prosecution that the deceased suffered homicidal death because of the single axe blow of the size 3" x 2" x 2" over right temporal region resulting in fracture of temporal, right partietal and frontal bone and causing severe bleeding and cerebral haemorrhage. To fasten the charge against the Appellant, prosecution relied on evidence of P.W.1, Etua Hembram, the brother of the deceased. P.W.1 was also staying in the same colony and working as labourer. His unchallenged evidence indicates that at about 11.30 P.M. while he came to the hut (residence) of the accused, he found the accused going away from the hut and the deceased with bleeding injury was lying inside the hut and struggling for life and that an axe, i.e., weapon of offence was lying near the deceased. P.W.1 together with many labourers of that colony wanted to catch the accused-Appellant but the latter successfully absconded and on 26.09.1998 he could be arrested from Kantabannia under Motonga Police Station in the district of Dhenkanal, where he was working as labourer. 3. Learned Sessions Judge, Sundergarh, at the outset, formulated following points for determination so as to consider, if the charge has been proved against the accused. (i) The homicide nature of death of the deceased. (ii) The accused and the deceased were married to each other in the month of September, 1997 and were residing in a hut in the hutting meant for the workers of S.K. Mohanty, Mines. (i) The homicide nature of death of the deceased. (ii) The accused and the deceased were married to each other in the month of September, 1997 and were residing in a hut in the hutting meant for the workers of S.K. Mohanty, Mines. (iii) On several occasions the accused and the deceased were found quarreling with each other and in the night of occurrence, at about 9 P.M. they were found quarreling and later on also witnesses have heard their altercation inside the hut, (iv) P.W.1 saw the accused running away from the hut and found the deceased lying inside the hut with bleeding injury writhing in pain and an axe was lying beside. (v) The said hut was determined objectively to be the spot of occurrence in course of investigation. (vi) The accused was found escaping from the spot and that he never returned to the hutting and remained as an absconder till he is apprehended at village Kantabania under Motanga P.S., and (vii) Lastly the accused resorted to false plea. 4. It is needless to say that on assessment and discussion of the evidence led by the prosecution through P.Ws.1 to 8 and Exts.1 to 12, learned Sessions Judge found that all the aforesaid factums have been proved against the accused. Accordingly, he found the accused guilty of offence of murder and sentenced him to imprisonment for life. 5. At the time of arguing on the bail application, the Appellant intended to place evidence on record, so as to state that, at best a case of culpable homicide not amounting to murder has been established and since the accused Appellant is inside the jail custody for a period over ten years, therefore either he may be granted bail or the appeal be disposed of by modifying order of conviction and sentence. Mr. Pattnaik, learned Counsel for the Appellant, fairly states that in view of lack of proper cross-examination of P.W.1 by the defence at the stage of trial, his (accused's) complicity for the anti-mortem injury and homicidal death has been proved and, therefore, accused-Appellant cannot escape the punishment. At the same time, he argues that the admitted case of the party is that both the accused and deceased were staying as husband and wife and that they belong to labour class and further that at times there was quarrel between them. At the same time, he argues that the admitted case of the party is that both the accused and deceased were staying as husband and wife and that they belong to labour class and further that at times there was quarrel between them. He further argues that it is also the prosecution case that in the evening of 16.01.1998, the pay-day of the labourers, there was quarrel between the two and again that quarrel ensued at about 11.30 P.m. He argues that under such circumstance, the act of the accused in dealing one axe blow may not be a reasonable one but it was a reaction at the spur of the moment and, therefore, it should not be regarded as an act of culpable homicide amounting to murder. 6. Mr. Nanda, learned Additional Government Advocate though resist that argument but he is unable to rebut the same by any evidence on record except stating that the severity of the injury is proved to show that accused had knowledge that such injury is likely to cause death and, therefore, Appellant's conviction should not be modified from Section 302, IPC. 7. On consideration of the submissions of the parties and on perusal of the evidence, we note that there is no eye-witness to the occurrence and therefore when admittedly there was quarrel between the accused and his wife, i.e. the deceased, and no details of quarrel is available on record, the volume of provocation which came from the deceased cannot be measured so as to condemn the accused with accusation of murder for the single blow inflicted by him. While the accused in course of quarrel had lost self-control, he could not have controlled the velocity of the blow and under such circumstance, we find that the case of prosecution squarely comes within the provision of Exception 1 of Section 300, IPC and accordingly we find that learned Sessions Judge without taking that circumstance into consideration, wrongly convicted the accused for the offence of murder. Thus, While setting aside the order of conviction, we modify the offence from Section 302 to Section 304 Part 1, I.P.C. and convict the Appellant for the offence of culpable homicide not amounting to murder. Thus, While setting aside the order of conviction, we modify the offence from Section 302 to Section 304 Part 1, I.P.C. and convict the Appellant for the offence of culpable homicide not amounting to murder. Since, the accused Appellant, as stated at the Bar, has already suffered imprisonment over 10 years, we impose the sentence of rigorous imprisonment for 10 (ten) years and allow the Jail Criminal Appeal partly and accordingly. If the detention of the Appellant is not required in connection with any other criminal case, he be set at liberty forthwith and the release order be issued accordingly.