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2009 DIGILAW 824 (ORI)

MATAKA @ PRADHAN MAJHI v. STATE OF ORISSA

2009-10-23

A.S.NAIDU, B.N.MAHAPATRA

body2009
JUDGMENT : A.S. Naidu, J. - The judgment and order of conviction dated 13.11.2000 passed by learned Addl.Sessions Judge, Rairangpur, Mayurbhanj convicting the accused-Appellant u/s 302 I.P.C. and sentencing him to undergo R.I. for life in S.T. No. 23/98 of 2000 is assailed in this Jail Criminal Appeal. 2. The prosecution case as it appears, from the F.I.R.-Ext.7 lodged by Lusa Majhi (not examined as a witness) at Badampahad Police Station on 04.12.1999 reveals that his first wife left him by leaving a three years old child namely Mataka @ Pradhan Majhi (the Appellant). After few years Lusa married for the second time but then there was no issue through his second marriage. After Mataka became major, he married and was blessed with a son who was also named as Lusa Majhi. Few years thereafter Mataka again married and remained in his father-in-law's house as illatom son-in-law. It was alleged that Mataka due to paucity could not maintain his wife and children and often came to the house of the informant and demanded money. Out of Pity the informant had given Ac.1.00 decimals of land to Matka for cultivation. On 03.12.1999 night at about 9.00 P.M. Mataka again came to the house of the informant holding a lathi and demanded from his father Lusa some more lands. Lusa, however did not agree to the request made by Mataka. Being enraged Mataka, it was alleged assaulted the informant and also Jawana Majhi, the wife of Lusa, who was thrashing paddy in the village 'danda'. According to the F.I.R. story Jawana after receiving blows by the lathi fell down and succumbed to the injuries. Seeing the situation the villagers watched the dead body and Lusa went to the Police Station and informed the fact which was reduced to writing. On the basis of the said F.I.R. the Officer-in-Charge-P.W.13 of Badampahad Police Station took up investigation of the case, went to the spot, arrested the accused, seized the bamboo lathi and other incriminating materials like blood stained earth etc., made inquest over the dead body and sent the same for postmortem examination. 3. After completion of investigation P.W. 13 submitted chargesheet against the accused person u/s 302 of I.P.C. in the Court the learned S.D.J.M., Rairangpur in G.R. Case No. 416 of 1999. 3. After completion of investigation P.W. 13 submitted chargesheet against the accused person u/s 302 of I.P.C. in the Court the learned S.D.J.M., Rairangpur in G.R. Case No. 416 of 1999. On being satisfied from the police records that a prima facie case was made out learned Magistrate took cognizance of the offences and committed the case to the Court of Sessions for trial. The plea of the defence was one of complete denial. 4. To substantiate its case the prosecution got 13 witnesses examined. Out of them P.Ws.9, 10 and 11 were witnesses to the occurrence, P.Ws.5, 6 and 7 were post occurrence witnesses, P.Ws, 1, 2 and 3 were the seizure witnesses, P.W.4 heard about the occurrence at a later stage. P.W.8 was the doctor who conducted postmortem examination over the dead body, P.W.12 was the doctor who examined the accused in police station and P.W.13 was the Investigating Officer. On behalf of the accused no evidence was adduced. 5. Learned Addl.Sessions Judge after discussing the evidence in extenso came to the conclusion that the prosecution could establish the case beyond all reasonable doubts and convicted the accused-Appellant u/s 302 of I.P.C. 6. Learned counsel for the Appellant assails the aforesaid judgment mainly on the ground that there being no material to directly connect the Appellant with the alleged occurrence and as there are discrepancies in the evidence of witnesses, learned Addl.Sessions Judge acted illegally in convicting the Appellant u/s 302 of I.P.C. It was further submitted that the order of conviction is based more on surmises and conjectures than admissible evidence and it is a fit case where the same should be varied. 7. Learned Addl.Government Advocate on the other hand relying upon the evidence of P.Ws.9, 10 and 11 who were eyewitnesses to the occurrence as well as the post occurrence witnesses submitted that enough evidence was available on record to establish that the accused committed the offence by assaulting his mother-Jawana by means of a lathi. Further according to learned Addl.Government Advocate the weapon of offence was recovered and the same contains human blood which amply proves that the accused-Appellant alone committed the offence. In short according to learned Addl.Government Advocate, learned Addl.Sessions Judge has taken into consideration all the facts and the conclusions arrived at does not suffer from any infirmity. 8. Heard learned Counsel for the parties at length, Perused the evidence meticulously. In short according to learned Addl.Government Advocate, learned Addl.Sessions Judge has taken into consideration all the facts and the conclusions arrived at does not suffer from any infirmity. 8. Heard learned Counsel for the parties at length, Perused the evidence meticulously. The evidence of the doctor-P.W.8 who conducted the postmortem examination coupled with the postmortem report clearly reveals that the death of Jawana was a homicidal one and occasioned due to the injuries sustained by her. The said doctor has found the following injuries in the body of Jawana (deceased) :- (i) lacerated wound 2" X 1/4 X bone depth situated at left periatal bone 2" above left ear; (ii) fracture of mendible right ramus; (iii) fracture of 5th, 6th, 7th, 8th and 9th ribs on left side. The doctor has clearly opined that all the injuries were ante mortem in nature and the cause of death was due to shock out of hemorrhage and nerogenic origin. After going through the aforesaid evidence this Court is satisfied that the death was a homicidal one. Learned Addl.Sessions Judge has arrived at the same conclusion. This Court is therefore, not inclined to interfere with the same. 9. The only other point which needs to be considered is as to who was the author of the aforesaid Crime. The evidences of PWs 9, 10 and 11 who were eyewitness to the occurrence reveals beyond all reasonable doubt that the accused-Appellant entered into the house carrying the lathi and assaulted his father and thereafter his mother with the same. The injuries sustained by the deceased as explained by the eyewitnesses correspond with the injuries pointed out by the doctor who conducted the postmortem examination. Thus this Court also has no doubt that the accused-Appellant was the author of the crime and he had assaulted the deceased. The finding of learned Addl.Sessions Judge to that effect is also confirmed. But then it appears that the incident took place way back in the year 1999. Ten years have passed in the meanwhile. The Appellant is in custody all through. That apart the relationship between the Appellant and the deceased was that of mother and son. Perusal of the F.I.R. clearly reveals that the Appellant was the son of the informant. He lost his mother from the very childhood and it appears was pampered by his father. The Appellant is in custody all through. That apart the relationship between the Appellant and the deceased was that of mother and son. Perusal of the F.I.R. clearly reveals that the Appellant was the son of the informant. He lost his mother from the very childhood and it appears was pampered by his father. In past the informant had gwen him landed properties so as to enable him to earn his livelihood. On the date of occurrence it is alleged the Appellant came to the house of his father and demanded more lands, to which the informant did not accede. Being enraged by the said fact he assaulted him and also his mother Jawana. who was thrashing paddy in the village 'danda' and the said assault became fatal. Admittedly the deceased as well as the informant are tribal, people. It is well known that the persons of tribal areas have a volatile temperament which becomes uncontrolled on certain events. In the case at hand, it appears that the request made by the Appellant to his father to give him little more lands having been turned down he became enraged and in the spur of the moment, out of heat of passion he assaulted his father and mother. The said fact otherwise reveals that he did not have an intention to kill the deceased and the incident cropped up in the spur of the moment. 10. Considering all these facts this Court feels that the conviction u/s 302 of I.P.C. would not be just and proper. Accordingly this Court while setting aside the order of conviction imposed by learned Addl.Sessions Judge convicts the accused-Appellant u/s 304, Part-ll of I.P.C. In view of the fact that the Appellant is in custody for more than ten years, this Court sentences him to undergo R.I. for the period of imprisonment already undergone by him. It is needless to say that if detention of the Appellant is not required in respect of any other case, he shall be set at liberty forthwith. The Jail Criminal Appeal is accordingly disposed of. B.N. Mahapatra, J. 11. I agree.