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2008 DIGILAW 1181 (ORI)

NACHIKA SINDURU v. STATE OF ORISSA

2008-12-23

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : 1. Appellant was prosecuted for the offence u/s 302, Indian Penal Code and convicted for that offence by Learned Sessions Judge, Koraput at Jeypore in Sessions Case No. 163 of 1996. That order of conviction is under challenge. 2. Nachika Dumuri is the deceased in this case. P.W. 1 Nachika Sikunu is his brother and P.W. 3 Nachika Sapai is his widow. The occurrence took place in front of the house of P.W. 2 Tadingi Wana and she is the solitary eye witnesses to the occurrence. P.W. 4 Tadingi Saru is the son of P.W. 2. 3. According to the case of the prosecution, on 04.02.1996 while P.W. 2 suffering from fever was lying on her outer Verandah, accused came and entered into her house and stated that "ask the deceased to call him (accused) out". Then the deceased arrived there and called the accused. In reaction to that accused who had picked up the wooden pound (M.O. III) from inside the room dealt a blow to the head of the deceased and latter succumbed at the spot sustaining bleeding injury on the head. P.W. 2 intimated that fact to P.W. 3 and gathering such information, P. Ws. 1 and 3 and some other villagers arrived at the spot. Then P.W. 4 returning from the field and learning about the occurrence entered inside his house (house of P. Ws. 3 and 4) and brought out the accused with M.O.III. To the query of P. Ws. 1, 3 and 4 and the other villagers about the reason, the Appellant simply replied that 'he killed' (MARI DELI). Since evening was setting in, therefore on the following day i.e. on 05.02.1996 P.W. 1 with others went and reported the matter before the Officer In-charge, Narayanpatna Police Station i.e. P.W. 6. The latter received the F.I.R. (Ext. 1) and registered the P.S. case and took up the investigation. In course of investigation, he visited the spot, prepared the spot map, seized the bloodstained and sample earth, arrested the accused and also seized M.O.III from him besides his blood-stained wearing apparels, held inquest over the dead body and forwarded the same for postmortem examination. He also sent the seized materials with the forwarding letter Ext. 11 of Learned J.M.F.C., Laxmipur for chemical analysis and serological test. He also sent the seized materials with the forwarding letter Ext. 11 of Learned J.M.F.C., Laxmipur for chemical analysis and serological test. P.W. 6 submitted charge-sheet and the Trial Court framed charge against the Appellant u/s 302, Indian Penal Code for the homicidal death of the deceased. 4. In course of the trial, prosecution examined seven witnesses to substantiate the charge. In addition to the above named six witnesses (P. Ws. 1 to 6), P.W. 7 is the doctor, who conducted postmortem examination and proved the postmortem report, Ext. 13 and the opinion report, Ext. 9/1 after examining, M.O.III. The report from the S.F.S.L. is marked as Ext. 12. 5. Accused took the plea of denial and also the alternative plea of insanity but did not adduce any evidence oral or documentary. 6. Learned Sessions Judge with reference to the evidence on record held that the evidence of P.W. 7 and the postmortem report, Ext. 13 proves death of the deceased due to the head injury and such death being homicidal. He also referred to the evidence of same witness and the opinion report, Ext. 9/1 to hold that M.O.III was the weapon of offence. Learned Sessions Judge relied on the evidence of P.W. 2, the solitary eye witness to the occurrence notwithstanding her statement that she had poor eye-sight by the date of occurrence and also the evidence of other witnesses on the extra judicial confession and the circumstantial evidence emerging from Ext. 12, inasmuch as, the report from the S.F.S.L. indicates that human blood of group AS was found from the blood-stained earth, the wearing apparels of the deceased and the wearing apparels of the accused. Accordingly, Learned Sessions Judge recorded the order of conviction and the sentence of imprisonment for life. 7. Miss Tripathy, Learned Counsel for the Appellant vehemently urges that when P.W. 2 has admitted about her poor eye-sight, Learned Sessions Judge was wrong in relying on that evidence so as to fix the crime on the accused. The aforesaid argument is attractive but devoid of substance inasmuch as it is not only the direct evidence of P.W. 2 but also the corroborative evidence emerging from other circumstances which was taken into consideration so as to find the Appellant guilty. In that respect, evidence of P. Ws. The aforesaid argument is attractive but devoid of substance inasmuch as it is not only the direct evidence of P.W. 2 but also the corroborative evidence emerging from other circumstances which was taken into consideration so as to find the Appellant guilty. In that respect, evidence of P. Ws. 1, 3 and 4 that when they arrived at the spot of occurrence, accused was there inside the room together with the weapon of offence, M.O.III, has not been disputed by the accused at any stage, much less at the stage of cross-examination of the witnesses. Evidence of P.W. 7 indicating that M.O.III was the possible weapon of offence, has not been disputed by the defence. The factum of same group of human blood was found from the wearing apparels of the accused and the deceased and the blood-stained earth seized from the spot has also remained undisputed. Above all, P.W. 2 being a co-villager and she was being in close distance from the accused and the deceased at the time of occurrence, there could not have been any mistake on identifying them. Learned Sessions Judge has rightly taken note of the circumstance emerging from the evidence of P.W. 2 that immediately after the occurrence P.W. 2 went and intimated P.W. 3 about her husband's death by the accused. All theses evidences put together nullify the submission of the Appellant. 8. Then Miss Tripathy argues that the prosecution witnesses have admitted about no enmity or dispute between the accused and the deceased and under such circumstance, the plea of insanity advanced by the accused should have been duly considered. We find that in paragraph 10 of the Judgment, Learned Sessions Judge has examined that aspect with due reference to the citations relied on by the parties and recorded the conclusion that the plea of insanity was never proved by the accused and therefore he cannot get the benefit thereof. We find that in paragraph 10 of the Judgment, Learned Sessions Judge has examined that aspect with due reference to the citations relied on by the parties and recorded the conclusion that the plea of insanity was never proved by the accused and therefore he cannot get the benefit thereof. Indeed, Section 84 of the Indian Penal Code appearing in Chapter 4 (general exception) provides that "Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." The plea of insanity or unsoundness of mind is a fact which is required to be proved through cogent evidence like proof of any other fact. In this case the accused having not tendered any evidence from his side nor could bring admission from the mouth of the prosecution witnesses in relation to the mental condition or unsoundness of mind, therefore, he cannot get any benefit as provided u/s 84, Indian Penal Code Thus, such argument of the Appellant also does not bear any merit. 9. Learned Counsel for the Appellant alternatively argues for recording conviction u/s 304, Indian Penal Code instead of maintaining the order of conviction u/s 302, Indian Penal Code In that respect, she puts forth the simple reason that the admitted case of the parties is about friendly relationship between the deceased and the accused and it is in the context of a bat, which can be inferred from the evidence of P.W. 1 and the narration in the F.I.R. that the accused entered into the room of P.W. 2 and the deceased called him out. She argues that in the above context, the life style of the tribals in the interior part of Koraput district has to be taken into consideration and Learned Sessions Judge has not taken note of such circumstance. Learned Standing Counsel argues to the contrary and states that when the blow inflicted was sufficient in ordinary course of nature to cause the death of the deceased, all the aforesaid theory has no place to replace the order of conviction from murder to culpable homicide not amounting to murder. 10. Learned Standing Counsel argues to the contrary and states that when the blow inflicted was sufficient in ordinary course of nature to cause the death of the deceased, all the aforesaid theory has no place to replace the order of conviction from murder to culpable homicide not amounting to murder. 10. On due consideration of the rival contentions, we find that prosecution has not disputed either on the documents presented in the Court or in course of the trial about any enmity or dispute between the accused and the deceased. What was the fact circumstance that led the accused to enter into the house of P.W. 2 and deceased to call him (accused) out is also not rendered by any evidence. Admittedly, the accused was not armed when he entered into the house. From such circumstance, it can be reasonably inferred that till the time of entering into the house, accused had no intention to cause any harm to the deceased much less to kill him. Though the evidence is totally absent about any bat between the accused and the deceased leading to the unfortunate occurrence but the fact on record proves that when the deceased called the accused to come out then only the accused dealt the solitary blow which fell on the head of the deceased, P.W. 2 does not say that the accused aimed that blow to the head of the deceased. Thus, taking into consideration all such circumstances, we concede to the argument of the Appellant for his conviction u/s 304, first part, Indian Penal Code 11. For the reasons indicated above, we set aside the order of conviction u/s 302, Indian Penal Code and the sentence of imprisonment for life imposed on the Appellant by Learned Sessions Judge and in its place we find him guilty for the offence of culpable homicide not amounting to murder punishable u/s 304, first part, Indian Penal Code and sentence him to rigorous imprisonment for a period of 10 (ten) years and the Jail Criminal Appeal is accordingly allowed in part. 12. It is seen on record that accused was arrested by P.W. 6 on 05.02.1996. Admittedly, the accused was inside the jail during the trial. He preferred the appeal from the jail and this Court has not granted bail at any stage. 12. It is seen on record that accused was arrested by P.W. 6 on 05.02.1996. Admittedly, the accused was inside the jail during the trial. He preferred the appeal from the jail and this Court has not granted bail at any stage. Under the aforesaid circumstance, we find that he has already been detained inside the jail custody for over a period of ten years, unless in the intervening period, he was released on parole or otherwise, as per the direction of the State Government or Jail authorities. Be that as it may, the period of detention is to be set off u/s 428, Code of Criminal Procedure. and calculating the total period of detention, if it comes to a period of ten years, then the Appellant be set at liberty forthwith, unless his detention in jail custody is required in connection with any other criminal case. Release warrant be issued accordingly.