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2010 DIGILAW 188 (ORI)

Sonu Munda v. State of Orissa

2010-03-22

B.P.RAY, PRADIP MOHANTY

body2010
JUDGMENT PRADIP MOHANTY, J. : This jail criminal appeal is di¬rected against the judgment and order dated 30.10.2000 passed by the learned Additional Sessions Judge, Sambalpur in S.T. Case No. 154/21 of 1998-99 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on the date of occurrence i.e., 19.03.1998, all the co-sharers of the disputed land “KHAJILOR ATA” had gone there for an amicable partition. The appellant Sonu Munda being the son of Pandab Munda belonged to one branch. Informant Chandra Munda (P.W.1) and deceased Rabi Munda being the sons of Laxman Munda, and Janardan Munda (P.W.2), Purna Chandra Munda (P.W.3) and Basanta Munda (P.W.10) being the sons of Raghu Munda belonged to other two branches. They had taken with them Shankar Munda (P.W.4) of their Sahi as Bhadralok. P.W.1 went to the disputed land later on with Shiba Dhal, Madhab Dhal and Chinta Dehury (P.W.6) of Chasa Sahi. When he arrived there, he found his brothers quarreling with the appellant (Sonu Munda) over the question of allotment of share and there was exchange of hot words between his deceased brother (Rabi Munda) and the appellant. At that time, the appellant gave a blow by the sharp side of the axe, which he was holding, on the back side neck of the deceased. As a result, the deceased fell down on the ground and succumbed to the injury. Other co-sharers present there chased the appellant but could not catch hold of him. Thinking his brother (deceased) to be alive, P.W.1 pulled the axe sticking to his neck but found that he was already dead. Immedi¬ately, he went to the police station with P.W.2 and lodged an oral report. The O.I.C., Naktideul P.S. registered the case and proceeded with the investigation. During the course of investiga¬tion, the police held inquest over the dead body of the deceased and sent it for postmortem examination, seized the weapon of offence and the wearing apparels of the deceased as well as of the accused, and on completion of investigation submitted charge sheet against the appellant. 3. The plea of the appellant is complete denial of the allegation. His specific plea is that on the date of occurrence all the co-sharers (brothers) were present in the land in ques¬tion and all of them denied to give any share to him. 3. The plea of the appellant is complete denial of the allegation. His specific plea is that on the date of occurrence all the co-sharers (brothers) were present in the land in ques¬tion and all of them denied to give any share to him. When he insisted for share, P.Ws. 2, 3 and 10, Rabi Munda (deceased) and others surrounded him to kill being armed with axe. When P.W.3 (Purna Munda) tried to assault him with an axe, the blow acciden¬tally fell on the neck of deceased. 4. The prosecution has examined as many as 11 witnesses including the I.O. and doctor and exhibited 10 documents. The defence has examined none on its behalf. 5. The learned Additional Sessions Judge, Sambalpur, who tried the case, by his judgment dated 30.10.2000 convicted and sentenced the appellant as mentioned earlier basing upon the evidence of P.Ws. 3, 4 and 8 as also Ext. 10, the chemical examination report and the blood stained wearing apparels of the appellant. 6. Mr. Mohanty, learned counsel appearing for the appellant assails the impugned judgment on the following grounds : (i) Presence of P.W.1 Rama Chandra Munda at the spot during the occurrence was doubtful since he came there later on. (ii) P.W.3 is an interest witness since he attempted to deal a blow to the appellant Sonu Munda. (iii) P.W.4 is also an interested witness, as he belonged to the rival group of the appellant and his presence at the spot during the course of occurrence is doubtful. (iv) The material witnesses have been withheld by the prosecution. Therefore, adverse inference is to be drawn against the prosecution. Ultimately, he argued that the facts and circumstances would reveal that due to sudden provocation the occurrence took place. Therefore, the act committed by the appellant would come within the purview of Section 304 (II), IPC. 7. Mr. Pattnaik, learned Additional Government Advocate, on the other hand, submits that there is no material to disbe¬lieve the evidence of P.Ws. 3,4 and 8. Their evidence is very clear and cogent to the effect that the appellant gave an axe blow to the neck of the deceased. The medical evidence also corroborates their version. Blood stains of human origin were detected in the wearing apparels of the accused which were seized during the course of investigation and no explanation has been offered by the accused in that regard. The medical evidence also corroborates their version. Blood stains of human origin were detected in the wearing apparels of the accused which were seized during the course of investigation and no explanation has been offered by the accused in that regard. Therefore, no illegality or infirmity has been committed by the trial Court in passing the impugned judgment and order warranting interference by this Court. 8. Perused the L.C.R. P.W.1 is the informant. He is the younger brother of the deceased and cousin of the accused. He specifically stated that on the date of occurrence all the co-sharers of the disputed land had gone there for partition. When they were sitting, all on a sudden the appellant went to the deceased and gave a blow by means of an axe on the back side of his neck. Receiving the blow by the sharp side of the axe, de¬ceased Rabi Munda fell down on the ground with profuse bleeding injury. The axe was sticking to the neck of Rabi Munda. He found that the deceased was still under respiration. Thinking that the deceased may survive, he brought out the axe. But, by that time the deceased had already died. Nothing has been elicited from this witness in cross-examination. P.W.2 is the cousin of both the accused and the deceased, who had accompanied the informant (P.W.1) to the police station to lodge the F.I.R. Nothing has been elicited in cross-examination from him. P.W.3, Purna Chandra Munda is the cousin of both the accused and the deceased. He deposed that all the heirs of the three branches were present at the spot. Sonu Munda, the appellant, claimed share over the place where they were sitting. But the deceased told him that his share was on the other end of the plot. There was hot exchange of words between Sonu Munda (appellant) and Rabi Munda (deceased). All on a sudden, the appellant assaulted Rabi Munda (deceased) by the sharp side of an axe on the back side neck of the deceased. At the time of assault, the deceased was sitting and after re¬ceiving the blow he fell down on the ground with profuse bleeding injury. Thereafter, Sonu Munda fled away from the spot. P.W.4 is an independent witness to the occurrence. At the time of assault, the deceased was sitting and after re¬ceiving the blow he fell down on the ground with profuse bleeding injury. Thereafter, Sonu Munda fled away from the spot. P.W.4 is an independent witness to the occurrence. He stated that on being called by P.W.1 and P.W.10 he had gone to the spot as Bhadralok for partition of the disputed land amongst the co-sharers. His evidence is to the same effect as deposed by P.W.3. Nothing has been elicited from him in cross-examination. P.W.5 is the nephew of the appellant and the deceased. He is a post-occurrence wit¬ness. He is a witness to the seizure of the axe (M.O.I) vide seizure list Ext. 5. He proved his signature in Ext. 5 marked Ext. 5/1. P.W.6 is another post occurrence witness and he is also the cousin of both the appellant and the deceased. He specifical¬ly deposed that while he was going to the spot, he saw the appel¬lant running away from the spot to the village. P.W.7 is the police constable and a witness to the inquest. P.W.8 is the Medical Officer who conducted autopsy over the dead body of the deceased. He found an incised wound of seize 3" x 1/2" x 1" x 3" on the back of the neck at the root more towards right side. He opined that the death was due to severing of the spinal cord at the level of C-7 vertebra and the wound was ante mortem in na¬ture. He further opined that the injury found by him during post mortem examination was possible by the weapon of offence (M.O.I). P.W.9 is a witness to the seizure of the weapon of offence (M.O.I.) P.W.10 is a co-villager. He deposed that he along with all the brothers of Sonu Munda and Rabi Munda and some other villagers had gone to the spot for partition of the disputed land. He was holding a stick to measure the land. Sonu (appel¬lant) was holding an axe and some stumps to put the measuring mark. He was asked by the accused to go towards the end of the land to take measurement by means of the stick. Accordingly, he went from the spot. As the occurrence took place thereafter, he could not see the same. This witness was declared hostile by the prosecution. Nothing has been elicited in cross-examination. He was asked by the accused to go towards the end of the land to take measurement by means of the stick. Accordingly, he went from the spot. As the occurrence took place thereafter, he could not see the same. This witness was declared hostile by the prosecution. Nothing has been elicited in cross-examination. P.W.11 is the I.O. who registered the case, held inquest over the dead body, sent the wearing apparels of the deceased, blood stained earth and the weapon of offence (axe) to the Chemical Examiner and after collecting the chemical examination report (Ext.10) submitted charge sheet against the appellant. Nothing has been elicited in cross-examination to demolish his evidence. 9. On evaluating the evidence of the prosecution witness¬es, this Court comes to a conclusion that P.W.1 was not an eye witness to the occurrence. He can, at best, be considered as an immediate post-occurrence witness, if the evidence of P.Ws. 1, 4 and 6 is read together. However, P.W.3 is a witness to the occur¬rence. His evidence is very clear with regard to the assault on deceased by the appellant with an axe. There is no material to disbelieve the evidence of P.W.3 who is related both to the deceased and the appellant. There is also nothing on record to indicate that P.W.3 is interested for the prosecution. P.W.4 is also a witness to the occurrence. He has categorically narrated how the appellant assaulted the deceased by means of an axe. There is no material before this Court that he is an interested witness. Rather, he is an independent witness, as he was called by all the co-sharers to settle the matter as Bhadralok. His presence at the spot was admitted by most of the witnesses. P.W.10 corroborates P.Ws. 3 and 4 inasmuch as in his cross-exami¬nation he has deposed about the quarrel between the deceased and the appellant that preceded the fatal assault. He further deposed in his examination-in-chief that on hearing hullah when he re¬turned to the spot he saw the dead body of the deceased and there was mark of injury on the back side of his neck and the axe was sticking to the situs of the injury. The evidence of P.Ws. 3 and 4 also corroboration from P.W.6 who stated to have seen the appellant running across him from the spot on his way to the village. The evidence of P.Ws. 3 and 4 also corroboration from P.W.6 who stated to have seen the appellant running across him from the spot on his way to the village. The medical evidence also supports the evidence of the eye witnesses. The chemical examination report reveals that ‘A’ group blood of human origin was found on the wearing apparels of the accused. No explanation has been given by the accused how the ‘A’ group blood stains came into his wearing apparels. Taking all these aspects into consideration this Court arrives at the con¬clusion that the appellant is the assailant of the deceased. 10. Let us now examine whether the act committed by the appellant comes within the purview of Section 302 or Section 304 Part-II, IPC. Admittedly, there was a land dispute and P.W.4, the only Bhadralok, was present at the spot. P.W.10 was measuring the land by means of a stick. The appellant was holding an axe and some stumps to put the measuring mark. All of a sudden, there was a quarrel and hot exchange of words between the appellant and the deceased. Being enraged due to sudden provocation, the appellant assaulted the deceased by means of the axe which he had taken for the purpose of putting the measuring mark. On the face of this evidence, it can be safely inferred that the appellant had no intention to kill the deceased. So, keeping these attending circumstances in view, this Court holds that the act committed by the appellant will come within the ambit of Section 304 Part-I, IPC. 11. In the result, the Jail Criminal Appeal is allowed in part. The conviction of the appellant under Section 302, IPC is converted to one under Section 304, Part-I, IPC and he is sen¬tenced to undergo rigorous imprisonment for ten years. It is stated at the Bar that the appellant Sonu Munda by now has remained in custody for more than ten years. If that be so, he be set at liberty forthwith, unless his detention is required otherwise. B.P. RAY, J. I agree. Appeal allowed in part.