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2010 DIGILAW 458 (ORI)

Madhaba Benia v. State of Orissa

2010-07-07

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT 1. In Sessions Case No. 228 of 1996, learned Sessions Judge, Koraput at Jeypore found the present appellant guilty of the offence punishable under Section 302, I.P.C. and sentenced him to suffer imprisonment for life. The aforesaid judgment and order of sentence are impugned in the present appeal. 2. A compendium of the prosecution case is as follows:- Deceased Nilabati Benia is the wife of the present appel¬lant. She is the niece of informant Baidehi Khilla (P.W.3). After the death of her first husband, deceased Nilabati married the present appellant. She had a daughter named Suryamani from her first marriage. As the present appellant was working as a N.M.R. at Kolab, he was staying there at Kolab with his wife (deceased) and daughter Suryamani. About two months prior to the occurrence there was some misunderstanding between the husband and wife, and deceased Nilabati with his daughter Suryamani came to stay with the informant (P.W.3) at Chakarliguda. The occurrence happened at about 4.30 p.m. on 17.04.1996. On that day sometime before 4.30 p.m. the present appellant came to the house of the informant P.W.3 to call the deceased to accompany him to his house for celebrating ‘Paraba’. Deceased Nilabati assured the present appellant to go to his house next day. Thereafter the informant (P.W.3) and deceased Nilabati left the house to sell earth (‘Murja’). While they were so leaving the house, the present appellant came from behind and gave a blow on the left shoulder of the deceased with a knife. After giving such a blow he ran away towards the nearby hillock. As the knife stuck to the wound, deceased Nilabati asked the informant (P.W.3) to remove the same from the wound, and when the informant (P.W.3) could not remove the knife, deceased herself removed the knife and requested the informant to tie the wound with a piece of cloth. However, the deceased collapsed at the spot with profuse bleeding from the wound. The informant (P.W.3) immediately went to Kolab Out-Post and reported the incident orally. At that time the I.O. (P.W.9), who happens to be the Officer-in-Charge of Koraput Sadar P.S., was present in Kolab Out-Post on duty. He reduced the oral report into writing vide Ext.8, sent the report for registration of the case and took up investigation himself. The informant (P.W.3) immediately went to Kolab Out-Post and reported the incident orally. At that time the I.O. (P.W.9), who happens to be the Officer-in-Charge of Koraput Sadar P.S., was present in Kolab Out-Post on duty. He reduced the oral report into writing vide Ext.8, sent the report for registration of the case and took up investigation himself. On completion of the investigation he filed charge-sheet implicating the present appellant with the offence punishable under Section 302, I.P.C. 3. Prosecution has examined ten witnesses to prove the charge. P.W.3 is the informant and sole eye-witness to the occur¬rence. P.W.4 has testified about the fact that he saw the present appellant running away from the spot towards the nearby hillock. P.W.5 is a witness to the disclosure statement of the present appellant and consequent discovery of the wearing apparels of the present appellant, which he had put on at the time of occurrence. P.Ws. 2 and 6 are the witness to the inquest. P.W.7 is the Police Officer of Jeypore Town P.S., before whom the present appellant Madhaba Benia appeared, identified himself and confessed to have stabbed his wife with a knife, and on the basis of such informa¬tion he (P.W.7) made Station Diary Entry No. 474, dated 17.04.1996. P.W.10 is the A.S.I. of Police of Kolab Out-Post, who produced Station Diary Entry No. 384, dated 17.04.1996 made on the basis of oral statement of the informant P.W.3. P.W.1 is the Medical Officer, who conducted autopsy over the dead body of the deceased and P.W.10 is the Investigating Officer. The defence plea is one of complete denial and false impli¬cation. 4. Learned counsel appearing for the appellant does not dispute the fact that death of the deceased Nilabati is a homici¬dal death. Such fact is otherwise proved by the evidence of the Medical Officer (P.W.1) and the informant (P.W.3). She contends that there are material discrepancies in the evidence of the prosecution witnesses and no conviction would lie on the basis of such evidence. Such fact is otherwise proved by the evidence of the Medical Officer (P.W.1) and the informant (P.W.3). She contends that there are material discrepancies in the evidence of the prosecution witnesses and no conviction would lie on the basis of such evidence. In the alternative, it is contended by learned counsel for the appellant that the appellant having given one knife blow on a non-vital part of the body of the deceased like her left shoulder without any pre-meditation, the overt act alleged against the present appellant constitutes an offence under 3rd Clause of Section 299, I.P.C. which is, at best, pun¬ishable under Section 304, Part-II of the I.P.C. Learned counsel for the State on the other hand supports the impugned judgment. 5. P.W.3 is the sole eye-witness so far as the occurrence is concerned. Perusal of the evidence of P.W.3 (informant) shows that there is no effective cross-examination of her to discredit her testimony so far as the assault by the present appellant on the deceased by knife is concerned. There is nothing in her evi¬dence to show that she has had any motive to implicate the present appellant falsely. Further, P.W.3 has been corroborated in material particulars by P.W.4, who is an immediate post occur¬rence witness and has seen the present appellant running away from the spot towards the hillock side. He also saw the deceased lying on the road and P.W.3 crying by sitting by her side. On seeing P.W.4, P.W.3 disclosed that the present appellant assault¬ed the deceased with a knife and she (P.W.3) also requested P.W.4 to save the deceased. P.W.4 also saw the knife lying at the spot and that was stained with blood. From the cross-examination of P.W.4, it is found that the present appellant was known to him and he had seen him on many prior occasions. The evidence of P.W.4 lends corroboration to the evidence of P.W.3 under Section 11 of the Evidence Act. Further, M.Os. II and III are the shirt and pant respectively of the present appellant. Those M.Os. were seized at the instance of the present appellant in presence of P.W.5, before whom the present appellant had made disclosure statement prior to the seizure of the aforesaid M.Os, vide Ext.2. The chemical examination report speaks of presence of human blood on the aforesaid M.Os. II and III. Those M.Os. were seized at the instance of the present appellant in presence of P.W.5, before whom the present appellant had made disclosure statement prior to the seizure of the aforesaid M.Os, vide Ext.2. The chemical examination report speaks of presence of human blood on the aforesaid M.Os. II and III. There is no explanation by the present appellant in his statements recorded under Section 313, Cr.P.C. as to under what circumstance his pant and shirt came to be stained with blood. This piece of evidence is another corroboration to the evidence of P.W.3. In that view of the mat¬ter, we do not find any justification to disbelieve P.W.3 so far as the occurrence is concerned. 6. Coming to the alternative contention of the learned counsel for the appellant, it is found from the evidence of the Medical Officer (P.W.1) that the deceased had sustained stab injury above the lateral end of the left clavicle of size 1" x 1/2" x chest depth. On dissection P.W.1 found that the aforesaid external would had directed medially downwards penetrating the pleura, upper lobe and middle lobe of left lung with massive haemorrhage and clots in the left side of the chest. There are also two minor external injuries, one bruise on the right fore¬head and another bruise below right eye over zigoma. Cause of death is opined to be stab wound on the left clavicle. The evi¬dence of P.W.1, therefore leaves no room for doubt that the present appellant had given single blow on the left shoulder of the deceased. According to P.W.3, the occurrence witness, such knife blow was given from behind the deceased while both appel¬lant and the deceased were on standing position. P.W.3 has fur¬ther testified that the present appellant aimed the blow to the left shoulder of the deceased with a knife. It is further found from the evidence of P.W.3 that on the relevant date the present appellant had come to the house of P.W.3, where his deceased wife was living since two months past and requested her to come to his (appellant’s) house to celebrate ‘Paraba’. The deceased had left her matrimonial home owing to some dispute between her and the present appellant. The deceased had left her matrimonial home owing to some dispute between her and the present appellant. When the present appellant, on the relevant date of occurrence, had come to call his wife (deceased) to his house, it cannot be said that he had premeditated to kill her on that day. From the cross-examination of P.W.3 it is found that there was no quarrel between the present appellant and the de¬ceased prior to the occurrence. As it seems, when the deceased showed no interest to return to the house of the present appel¬lant on that day saying that she will join him tomorrow, the appellant probably got annoyed and assaulted her in the manner as alleged by P.W.3 by giving a single blow to the left shoulder of the deceased with a knife. No intention on the part of the present appellant to cause the murder of his wife can be inferred from the totality of facts and circumstances proved in the case. 7. Regard being had to the totality of the circumstances, as discussed supra, it is held that the present appellant by assaulting his deceased wife by a knife with single blow had necessary knowledge that by such of his act he is likely to cause death of his wife, and the offence committed by him squarely falls under 3rd Clause of Section 299, I.P.C., which is punisha¬ble under Section 304, Part-II of the I.P.C. 8. In the result, therefore, we modify the conviction of the appellant to one under Section 304, Part-II, I.P.C. and set aside his conviction under Section 302, I.P.C. Accordingly, we sentence the appellant to suffer rigorous imprisonment for a period of seven year. Regard being had to the economic condition of the appellant, as submitted by learned counsel for the appel¬lant, we do not propose to impose sentence of fine any further. It is submitted by learned counsels for the parties that the appellant is in custody since the date of his arrest on 18.04.1996 and he has already suffered the sentence recorded in this appeal. If that be so, the appellant be released from custo¬dy forthwith, if his detention is not required in connection with any other case. The Jail Criminal Appeal is accordingly allowed in part. Appeal allowed in part.