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2009 DIGILAW 257 (ORI)

KHETRA DEHURY @ SABAR v. STATE OF ORISSA

2009-03-24

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT : Pradip Mohanty, J. - The Appellant having been convicted for commission of offence u/s 302 I.P.C. and sentenced to imprisonment for life by the learned Sessions Judge, Sundargarh in S.T. Case No. 115 of 1998, has preferred this appeal from jail. 2. The case of the prosecution is that on 31.12.1997 at about 8 P.M., the accused-Appellant and his wife (deceased) came to their house situated at Sidima, a hamlet of village Kododiha under the Koida Police Station under the influence of liquor. Due to some reason, there was altercation between them. The accused-Appellant assaulted the deceased by means of a wooden plank in presence of their son Jethu Sabar. When he protested, the accused-Appellant threatened him. The nearby witnesses, namely, Laxmidhar Barik, Satali Mahakud, Para Barik and others protested but the accused-Appellant threatened to assault them. Due to such assault, the deceased died. The witnesses fearing for their lives, fled away from the spot and reported to one Kabi Barik (P.W.1), who came and found that the deceased was lying dead inside the house and the accused was sleeping in a drunken state. Thereafter, a report was lodged. Police took up investigation and on completion of the same filed charge-sheet against the accused Appellant u/s 302 I.P.C. 3. The plea of the Appellant was a complete denial of the allegation and of false implication. 4. In order to prove its case, prosecution examined as many as nine witnesses including the doctor and I.O. and exhibited eleven documents, whereas none was examined on behalf of the Appellant. 5. Learned Sessions Judge, Sundargarh, who tried the case by his judgment dated 10.02.2003 convicted the Appellant as stated hereinbefore with a finding that the Appellant had committed homicidal death of the deceased by assaulting her by means of a piece of wood. 6. Learned Counsel for the Appellant assails the impugned judgment on the ground that the eye-witnesses are not believable and developed the case in Court. In fact, they have not seen the occurrence. Moreover, Jethu Sabar, the son of the Appellant and the deceased, who is a material witness has not been examined in this case, which creates a serious doubt about the prosecution case. According to the learned Counsel benefit of such doubt should be extended to the Appellant and he should be acquitted. In fact, they have not seen the occurrence. Moreover, Jethu Sabar, the son of the Appellant and the deceased, who is a material witness has not been examined in this case, which creates a serious doubt about the prosecution case. According to the learned Counsel benefit of such doubt should be extended to the Appellant and he should be acquitted. In the alternative, he argued that the prosecution case, if believed in its entirety, comes u/s 304, Part-II of the I.P.C. because the incident occurred due to sudden quarrel and both the Appellant and the deceased were in drunken state. The Appellant had also given only one blow Therefore the conviction of the Appellant should be altered from one u/s 302 I.P.C. to that u/s 304, Part-II I.P.C. and the sentence should be suitably reduce. 7. Mr. Mohapatra, learned Counsel for the State vehemently opposes the contentions of the learned Counsel for the Appellant on the ground that the Appellant had the intention to kill the deceased. Earlier, there was a quarrel between them and it was not immediately before the occurrence. The evidence of P.Ws.2, 3 and 4 is clear and cogent with regard to the assault given by the Appellant to the deceased, which finds ample corroboration from the medical evidence. There is no reason to discard the evidence of those witnesses. According to the learned Counsel, the trial Court has rightly convicted the Appellant u/s 302 I.P.C. and this Court should not interfere with the same. 8. Perused the record. In the instant case, P.W.1, the informant, lodged F.I.R. after hearing from Jethu Sabar, the son of the deceased and the Appellant, about the assault to his mother (deceased) by the Appellant with a wooden splainter. Thereafter, P.W.1 went to the spot. Before P.W.1, P.Ws.2 and 3 also stated about the occurrence. They specifically staled that when the Appellant assaulted the deceased, they tried to prevent him, but were threatened by the Appellant. Nothing has been elicited by the defence from-their cross-examination. P.W.2 is a witness to the occurrence. After hearing from the son of the deceased, he along with P.W.3 went to the spot and saw the occurrence. The accused also chased them. He also admitted that they came with a torch light and saw the occurrence. Nothing has been elicited from his cross-examination. P.W.2 is a witness to the occurrence. After hearing from the son of the deceased, he along with P.W.3 went to the spot and saw the occurrence. The accused also chased them. He also admitted that they came with a torch light and saw the occurrence. Nothing has been elicited from his cross-examination. P.W.3, another witness to the occurrence stated that prior to the date of occurrence, the accused was usually quarrelling with the deceased and he along with P.W.2 saw the deceased chasing the deceased by holding a fire wood. He along with other witnesses tried to intervene but the Appellant threatened them and took the deceased into his own cottage. Nothing has been elicited by the defence. P.W.4, another eye witness, who is a co-villager of the Appellant, corroborated the statement of P.W.3 with regard to the assault to the deceased by the Appellant with a fire wood. He admitted that both the deceased and the Appellant were in drunken state and he assaulted the deceased on her fore-head by means of fire wood. P.W.5, another co-villager, stated that Para Barik (P.W.4) and wife of Satali Barik came to his house to spend the night. They informed him that one Sabara had committed the murder of his wife and out of fear they came to his house. P.W.6 is a seizure witness. P.W.7 is the doctor who conducted autopsy and found the following external and internal injuries. (i) An abrasion of the size 3" X 1" in to skin depth situated over the left sheen over the tibia. (ii) Laceration of the size 1" X 1/2" X 1/2" situated over the left side of the head over the left parietal region. (iii) Bruise of the size 3" X 3" over the left arm, which was bluish black in colour. (iv) Bruise of the size 3" X 3" over left side back between 6 to 12th rib of the left side. (v) The 8th, 9th and 10th ribs of the left and back side were found to be fractured. (vi) The Spleen was found to be ruptured. (vii) The pleura cavity contained blood, peritoneal cavity also contained blood. He opined that the cause of death was due to haemorrhage and shock caused by rupture of the spleen. The injuries found on the dead body of the deceased can be caused by a weapon like a thick firewood. (vi) The Spleen was found to be ruptured. (vii) The pleura cavity contained blood, peritoneal cavity also contained blood. He opined that the cause of death was due to haemorrhage and shock caused by rupture of the spleen. The injuries found on the dead body of the deceased can be caused by a weapon like a thick firewood. P.W.8 is a witness to the seizure and P.W.9 is the I.O. 9. After scrutinizing the evidence of witnesses, it is crystal clear that both the Appellant and the deceased were quarrelling in a drunken state. P.Ws.1 and 2 have developed the story in the Court. The I.O. admitted in his cross-examination that P.W.2 had not stated before him that Jethu, the son of the deceased had come to his house shouting for help that he went with a torch light and on reaching the house of the Appellant, saw the Appellant assaulting the deceased and that the Appellant threatened to stab them with a knife in case they went near him. In this view of the matter, it is clear that P.W.2 has tried to develop the story and so his evidence cannot be accepted. P.W.3 had seen the occurrence and there is no reason to disbelieve his evidence. Though some minor contradictions are there with regard to the assault by the Appellant, his evidence is clear and cogent. Defence has not elicited anything from him to disbelieve his evidence. P.W.4, another witness stated in his deposition about the assault to the deceased by the accused by a fire wood, but she had not stated so before the I.O. In view of the above, it is found that P.W.4 has developed the prosecution story. That apart major contradictions are there in her evidence. Therefore, this Court is not inclined to rely upon her evidence. 10. After scanning the evidence of independent witnesses and the medical evidence, this Court comes to a conclusion that the Appellant had no intention to kill the deceased inasmuch as he only assaulted the deceased by a fire wood. At that time, both were in a drunken state. According to the doctor, the cause of death was due to injury No. ii given by the thick fire wood by the Appellant. Therefore, this Court sets aside the judgment and order of conviction u/s 302 IPC passed by the learned Sessions Judge. At that time, both were in a drunken state. According to the doctor, the cause of death was due to injury No. ii given by the thick fire wood by the Appellant. Therefore, this Court sets aside the judgment and order of conviction u/s 302 IPC passed by the learned Sessions Judge. Instead, this Court convicts him u/s 304, Part-II I.P.C. and sentence him to R.I. for seven years. It is stated at the Bar that the Appellant is already in custody for more than eleven years. If that is so, he be released from jail custody and set at liberty forthwith, unless his detention is required in connection with any other case. L. Mohapatra, J. 11. I agree.