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2008 DIGILAW 36 (ORI)

BHARAT MURMU v. STATE OF ORISSA

2008-01-14

B.P.RAY, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the judgment of the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 134 of 1994 convicting the Appellants for commission of offence u/s 302/34 of the Indian Penal Code (in short 'I.P.C.') and sentencing them to undergo rigorous imprisonment for life and further convicting Appellant Bharat Murmu for commission of offence u/s 307 I.P.C. and sentencing him to undergo rigorous imprisonment for ten years and directing both the sentences to run concurrently. 2. The case of the prosecution is that on 19.3.1994 at about 8 P.M. the informant Susanta Kumar Naik, P.W. 1 came out of his house located at village Baliabadi and found the deceased Sai Soren lying dead in front of the house of Karmi Murmu, P.W. 8. He had sustained severe injuries on his belly and chest. The villagers namely, Laxman Soren (P.W. 2), Karmi Murmu (P.W.8), Raghunath Marandi, Chunu Soren and others were near the dead body. He was informed that on the same day preceding the occurrence, the Appellants Sakila Murmu, Laxman Murmu and Bharat Murmu came near the deity's house of the village and started quarreling with the snake-charmers and also threatened them. The deceased Sai Soren and his brother Baya Soren, P.W. 4 dissuaded the Appellants not to quarrel with the snake-charmers but the Appellants got enraged and chased the deceased as well as P.W. 4 being armed with Bhujali, knife and iron rod. P.W. 4 escaped by entering into his house but the Appellants caught hold of the deceased in front of the house of Karmi Murmu, P.W. 8. The Appellants assaulted the deceased by means of knife and Bhujali and such injuries caused instantaneous death of the deceased. F.I.R. having been lodged on these allegations by P.W.1 at the police station, investigation was taken up and on completion of investigation, charge sheet was filed for commission of offence u/s 302/34 as well as 307 I.P.C. However, in course of proceeding before the learned Sessions Judge, all the Appellants faced trial for commission of offence u/s 302/34 I.P.C. and Appellant Bharat Murmu was separately charged for commission of offence u/s 307 I.P.C. for assaulting Laxman Soren, P.W.2. 3. The prosecution in order to prove the charges, examined 10 witnesses whereas one witness was examined on behalf of the defence. The trial Court on the basis of the evidence of P.Ws. 3. The prosecution in order to prove the charges, examined 10 witnesses whereas one witness was examined on behalf of the defence. The trial Court on the basis of the evidence of P.Ws. 3, 4 and 8 and medical evidence found the Appellants guilty of the charges and convicted them thereunder. 4. Shri Mohapatra, the learned Counsel appearing for the Appellants submitted that though P.W.4 has been accepted by the trial Court as an eye-witness to the occurrence, his evidence clearly shows that he had not witnessed to the assault on the deceased and, therefore could not be accepted as an eye witness to the occurrence. According to Shri Mohapatra, the only other circumstance available against the Appellants is that there was a quarrel between the Appellants and the deceased. There being no other evidence on record to connect the Appellants with the commission of the alleged offence, the Appellants could not have been convicted for commission of the offences alleged. In the alternative, the learned Counsel further submitted that the Appellants are tribes and ordinarily found to be short tempered. The Appellants had a quarrel with the deceased and his brother P.W.4 which gave rise to grave and sudden provocation resulting in death of the deceased. If this part of the argument is accepted, the Appellants could only be convicted for commission of offence u/s 304, Part-I, I.P.C. So far as offence u/s 307 I.P.C. relating to Appellant No. 1 Bharat Murmu is concerned, it was contended by the learned Counsel that there is absolutely no evidence to show that Appellant No. 1 had assaulted Laxman Soren. The learned Counsel for the State referring to the evidence adduced before the trial Court submitted that the Appellants had a quarrel with the deceased and this brother, P.W.4 and thereafter they chased the deceased and his brother with arms. The brother of the deceased (P.W. 4) escaped by entering into his house but the deceased was caught hold by the Appellants in front of the house of P.W. 8 and was assaulted by them. In view of such nature of evidence, even if P.W. 4 is not accepted as an eye-witness to the occurrence, the circumstances clearly pointed at the guilt of the Appellants and they have been rightly convicted by the trial Court. 5. In view of such nature of evidence, even if P.W. 4 is not accepted as an eye-witness to the occurrence, the circumstances clearly pointed at the guilt of the Appellants and they have been rightly convicted by the trial Court. 5. P.W. 1, the Ward Member was informed about the death of the deceased and came to the spot. He found the deceased lying dead and his wife crying near him. He lodged the information before the police. P.W.2 is the witness on which much reliance has been placed by the trial Court. This witness in his deposition has stated that on the date of occurrence he found all the Appellants quarreling with the snake charmers under the mango tree in their village. He went there. At that time the deceased Sai Soren and his brother Baya Soren, P.W.4 came and dissuaded the Appellants not to quarrel with the snake-charmers. Thereafter, the Appellants drove out the deceased and P.W.4. The deceased and all the three Appellants met on the Chhaka of their village in front of the house of Karmi Murmu, P.W.8 and at that point of time Appellant Bharat was holding a Bhujali, Sakila was holding a Chaku (knife) and Laxman was holding an iron rod. He intervened and asked the Appellants not to quarrel with the deceased. At this, Appellant Bharat dealt a Bhujali blow on his face causing bleeding injury whereafter he lift out of fear. Thereafter, he found the dead body of the deceased lying with severe injuries. As is evident from the evidence of this witness, immediately after he was assaulted on his face, he left the place out of fear and thereafter he saw the dead body of the deceased lying with severe injuries. Therefore, this witness cannot be treated as an eye-witness to the occurrence. But his evidence with regard to quarrel between the Appellants and the deceased and the assault on him can be accepted and nothing has been brought out in the cross-examination to disbelieve this witness in this regard. P.W. 3 corroborates P.W. 2 to the extent that on the date of incident P.W. 2 had intervened in the quarrel between the Appellant and the deceased P.W. 4 is brother of the deceased. P.W. 3 corroborates P.W. 2 to the extent that on the date of incident P.W. 2 had intervened in the quarrel between the Appellant and the deceased P.W. 4 is brother of the deceased. He has also corroborated the evidence of P.W.2 with regard to quarrel and he has further stated that the Appellants were declaring to shade blood of Soren family and that the deceased was chased by the Appellants and they found the deceased near Karmi Murmu's house. P.W.5 the doctor who conducted post morfem found as many as seven incised wounds and one abrasion over the body of the deceased. The doctor was of the opinion that the all the injuries and puncture could be caused by sharp cutting weapons like knife and Bhujali. P.W. 7 corroborates the evidence of P.W. 2 so far as assault by Appellant Bharat Murmu is concerned. 6. On analysis of such evidence available on record, we find the following circumstances available against the Appellants: (i) They had a quarrel initially near the village temple with the deceased while he dissuading them not to quarrel with the snake-charmers. (ii) Another quarrel ensued in front of house of P.W.8, when P.W.2 intervened and he was assaulted by Appellant Bharat Murmu. (iii) Dead body of the deceased was lying dead in front of the house of P.W.8 with severe bleeding injuries. (iv) The doctor who conducted postmortem examination found seven incised wounds and the punctured wounds which could have caused try sharp cutting-weapons like knife and Bhujali. (v) The witnesses who have supported the prosecution are consistent in their statements that all the Appellants were armed and specifically two of the Appellants were armed with Bhujali and knife which could cause such injuries. Under these circumstances, we are of the view that the prosecution had been able to bring the allegation of murder against the Appellants as well as the charge u/s 307 I.P.C. so far as Appellant Bharat Murmu is concerned. 7. The other submission raised by the learned Counsel for Appellants is that the Appellants are tribes and ordinarily found to be short tempered. The quarrel between the Appellants and deceased which had taken place gave rise to a grave and sudden provocation-resulting in assault by the Appellants on the deceased and consequently caused the death of the deceased. 7. The other submission raised by the learned Counsel for Appellants is that the Appellants are tribes and ordinarily found to be short tempered. The quarrel between the Appellants and deceased which had taken place gave rise to a grave and sudden provocation-resulting in assault by the Appellants on the deceased and consequently caused the death of the deceased. Reliance is placed by the learned Counsel for the Appellants on a decision of this Court in the case of Malia Penthei Vs. State of Orissa. In the said case the accused dealt free blows on the deceased due to grave and sudden provocation and the Court found the accused guilty of the offence u/s 304, Part-I, I.P.C. and converted the order of conviction from Section 302 to 304, Part-I, I.P.C. The other case relied upon by the learned Counsel for the Appellants in the case of Gobardhan @ Goburu Majhi Vs. State of Orissa. In the said case the deceased used abusive language against the Appellant and his associates giving rise to a grave and sudden provocation. This Court found the accused person therein guilty of the offence u/s 304, Part-I, I.P.C. As is evident from the evidence adduced before the trial Court in this case, the Appellants had come to the village to discuss something with the snake-charmers which resulted in quarrel and they had not come with any intention of assaulting either deceased or P.W.4. Due to intervention of the deceased and P.W.2, the quarrel ensued twice which gave rise to grave and sudden provocation. Pursuant to such grave and sudden provocation, the Appellant having assaulted the deceased and P.W.2, we are of the view that there is some force in the contention of the learned Counsel for the Appellants that the Appellants should be convicted only u/s 304, Part-I, I.P.C. 8. In view of the discussions made above, the judgment and order of conviction passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 134 of 1994 u/s 302/34 I.P.C. is set aside and the Appellants are convicted for commission of offence u/s 304, Part-I read with Section 34 I.P.C. for committing murder of Sai Soren and sentenced to undergo R.I. for a period of ten years. So far as charge u/s 307 I.P.C. is concerned, we confirm the order of conviction and sentence passed by the trial Court against the Appellant Bharat Murmu but the sentences shall run concurrently. It is stated that all the Appellants are in custody for about twelve years by now. If that be so, they be set at liberty forthwith, unless their detention is required in any other case. The appeal is allowed in part. B.P. RAY, J. 9. I agree.