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2008 DIGILAW 196 (ORI)

Manai alias Dhanai Murmu v. State of Orissa

2008-03-10

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT L. MOHAPATRA, J. — This appeal is directed against the judgment and order of conviction and sentence passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.31 of 1995 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (in short ‘I.P.C’) and sentencing him to undergo rigorous imprisonment for life. 2. The case of the prosecution is that on 26.10.94 the deceased was returning with Faka Majhinai (P.W.2), Fagala Murmu (P.W.4) and Fagala’s wife from Bijatala market. On the way Fagala and his wife left the main road and resorted to a short cut route at Balarampur and the deceased along with Faka Majhinai proceeded to their respective villages on the main road. On the way at about 8 P.M. it is alleged that the appellant emerged from his hide out and dealt lathi blows to the deceased. Faka Majhiani (P.W.2) ran away out of fear and concealed herself in the ‘BILO’ for the entire night. Next day morning she went to her village Dalki and informed about the occurrence to P.W.1, the ward mem¬ber, Sidheswar Murmu. P.W.1 thereafter went to the spot and found the dead body of the deceased lying near the land of Ramchandra Hansda and he intimated the Rairangpur Police Station by tele¬phone. The O.I.C., Gorumahisani Police Station received the information at 10 A.M. and entered the said information in the Station Diary. On 27.10.1994 the O.I.C. proceeded to the spot after making a station diary entry and received the report from P.W.1 and thereafter took up investigation. It is alleged in the F.I.R. that the appellant had some kind of relationship with the wife of the deceased and wanted to marry her and relating to the above, there was a Punch in the village. In the Punch the de¬ceased refused to leave his wife and therefore out of anger the appellant committed murder of the deceased. The police after investigating into the case submitted charge sheet for commission of offence under Section 302 IPC. 3. Prosecution examined seven witnesses out of whom P.W.1 is the informant. P.W.2 is the sole eyewitness to the occurrence. P.W.4 is a witness who had initially accompanied the deceased and P.W.2. P.Ws.5 and 6 are the witnesses to the Punch meeting. The police after investigating into the case submitted charge sheet for commission of offence under Section 302 IPC. 3. Prosecution examined seven witnesses out of whom P.W.1 is the informant. P.W.2 is the sole eyewitness to the occurrence. P.W.4 is a witness who had initially accompanied the deceased and P.W.2. P.Ws.5 and 6 are the witnesses to the Punch meeting. P.W.3 is the doctor who conducted postmortem examination of the de¬ceased and P.W.7 is the I.O. The plea of the defence is complete denial of the prosecu¬tion allegation. The trial Court on the basis of the evidence adduced on behalf of the prosecution, convicted the appellant for commission of the said offence with reference to the evidence of sole eye¬witness to the occurrence P.W.2, the motive behind commission of such offence as deposed to by P.Ws.5 and 6 as well as postmortem examination report. 4. The learned counsel for the appellant assails the impugned judgment on the ground that the evidence of the sole eyewitness P.W.2 is not believable and even accepting the evi¬dence of P.W.2, no offence under Section 302 is made out. Accord¬ing to the learned counsel, the evidence of P.W.2 does not cor¬roborate the evidence of P.W.3 who conducted postmortem examina¬tion and, therefore, the appellant could not have been convicted for commission of the aforesaid offence. The learned counsel for the State referring to the evidence of P.Ws.2 and 3 submitted that at least in respect of one injury there is corroboration and, therefore, the injury being on the head, the conviction of the appellant for commission of offence under Section 302 of the IPC is justified. 5. Prosecution has examined P.W.2 as the sole eyewitness to the occurrence. She in her deposition has stated that on the date of occurrence she had been to the Bijatala weekly market. In the evening, she returned with the deceased, P.W.4 and his wife to their village. On the way P.W.4 and his wife left the main road and resorted to another road having shorter distance. She and the deceased proceeded further and on their way the appellant suddenly came from behind and dealt lathi blows on the head of the deceased as a result of which, the deceased fell down in the land of one Ramchandra alias Jhala. She and the deceased proceeded further and on their way the appellant suddenly came from behind and dealt lathi blows on the head of the deceased as a result of which, the deceased fell down in the land of one Ramchandra alias Jhala. Seeing the assault on the deceased, she ran away from that place and concealed herself near a black berry tree and spent the entire night. Next day morning she went to her village and intimated about the incident to the villagers. In cross-examination she has stated that one of her eyes is little defective, but she can clearly see by the other eye. Much reliance was placed by the learned counsel for the appellant on this statement of the witness to support her conten¬tion that this witness being aged about 100 years and having admitted that her eyesight was defective, could not have seen the occurrence after evening. We are unable to accept such contention of the learned counsel considering the fact that the learned Sessions Judge in course of examination of this witness tested the eyesight by showing a pen and the witness could identity the pen from a distance of 8 feet. From the cross-examination of this witness, it appears that the appellant was hiding himself behind a big Ashana tree. It is further stated by this witness that after she and the deceased proceeded about 30 feet ahead of the tree, the appellant suddenly came from behind and assaulted on the head of the deceased. She has specifically stated in the cross-examination that the appellant dealt two blows on the head of the deceased. P.W.3 is the doctor who conducted postmortem examination. In course of his examination, he found one external injury i.e. incised looking wound on the left side of the scalp and an internal injury was found by him in the abdomen, which indicated rupture of the enlarged spleen at two sides. There was no external injury on the abdomen. However, this witness was of the opinion that the cause of death was due to rupture of the enlarged spleen and that the head injury sustained by the de¬ceased was not sufficient to cause death. We, therefore, agree with the learned counsel for the appellant that the evidence of P.W.2 is not fully corroborated by P.W.3. However, this witness was of the opinion that the cause of death was due to rupture of the enlarged spleen and that the head injury sustained by the de¬ceased was not sufficient to cause death. We, therefore, agree with the learned counsel for the appellant that the evidence of P.W.2 is not fully corroborated by P.W.3. Though P.W.2 stated that the appellant dealt two blows on the head of the deceased, during examination the doctor found only one blow on the head of the deceased, which could be caused by lathi. There being no evidence that the appellant dealt a blow by means of a lathi on the abdomen of the deceased and the said injury being the cause of death, it cannot be attributed to the appellant. 6. It is the specific case of the prosecution that the appellant dealt two blows on the head of the deceased and the sole injury found on the head of the deceased is not the cause of death. We therefore hold that the appellant could not have been convicted for commission of offence under Section 302 I.P.C. The evidence of P.W.2 to the effect that the appellant assaulted on the head of the deceased being corroborated by the evidence of P.W.3 and the said injury not being the cause of death of the deceased, we convict the appellant for commission of offence under Section 324 I.P.C. and sentence him to undergo imprisonment for one year. The judgment and order of the trial Court convict¬ing the appellant for commission of offence under Section 302 IPC is set aside. It is stated that the appellant is in custody since the date of his arrest. If that be so, he be set at liberty forthwith unless his detention is required in any other case. The appeal is accordingly allowed in part. B.K. PATEL, J. I agree. Appeal allowed in part.