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2010 DIGILAW 767 (ORI)

MANGULU BEHERA v. STATE OF ORISSA

2010-11-10

B.K.NAYAK, PRADIP MOHANTY

body2010
JUDGMENT : Pradip Mohanty, J. - This jail criminal appeal is directed against the judgment and order dated 29.08.2001 passed by the learned Sessions Judge, Mayurbhanj, Baripada, Camp at Udala in S.T. Case No. 63 of 2000 convicting the appellant under Sections 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on 24.09.1999 at about 7.00 PM the deceased Ramesh Mallik left his house for Nedam Forest Check Gate and did not return till the morning of 25.09.1999. His brother Suresh Mallik (P.W.1.) along with other villagers searched for him in the nearby area but did not trace him out. During search, near an 'Asan' tree situated at the northern side of Sarat-Kaptipada road, they found a pair of chappals, which the deceased had put on, some pieces of bone and patches of blood. Suspecting death of his brother, P.W.1 lodged information at Kaptipada Police Station on the basis of which a U.D. Case was registered. On 27.09.1999, Saiba Mallik, the father of the deceased, received information that severed hand and leg of a human being were found floating at 'Shrabani' Nala. Family members of the deceased rushed to that place and identified the limbs to be those of the deceased. On the same day at 4.00 P.M., police held inquest over he said limbs and sent the same to S.C.B. Medical College and Hospital, Cuttack for post mortem examination by Forensic Expert and for opinion. On 30.09.1999 at 2.00 P.M., P.W.3 Bhagabata Mukhi stated before the police that on 24.09.1999 at about 7.00 PM while he, P.W.6 Shankar Behera, the appellant Mangulu Behera and one Nini were returning from Talapakhari market, they found the deceased coming in a state of intoxication. The deceased challenged appellant Mangulu near the 'Asan' tree for which there was exchange of hot words between them. All of a sudden, appellant Mangulu became violent and gave a heavy lathi blow to the deceased, which landed near the ear of the deceased, as a result of which the deceased sustained injuries and fell down on the ground being unconscious. Suspecting the deceased to be dead, the appellant fled away from the spot. Thereafter, the U.D. Case was turned to one u/s 302, IPC and registered as Kaptipada P.S. Case No. 70 of 1999. On completion of investigation, charge-sheet was filed against the accused-appellant u/s 302/201, IPC. 3. Suspecting the deceased to be dead, the appellant fled away from the spot. Thereafter, the U.D. Case was turned to one u/s 302, IPC and registered as Kaptipada P.S. Case No. 70 of 1999. On completion of investigation, charge-sheet was filed against the accused-appellant u/s 302/201, IPC. 3. On receipt of the charge-sheet, the learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions. The learned Sessions Judge framed charge u/s 302/201, IPC against the appellant who pleaded not guilty and claimed to be tried. From the side of the prosecution, eleven witnesses were examined including the doctor and the investigating officer and eleven documents were exhibited. None was examined on behalf of the appellant in defense. In his statement u/s 313, Cr.P.C, the appellant took the plea of denial. The learned Sessions Judge believed the case of the prosecution, convicted the appellant u/s 302, IPC basing upon the oral testimony of P.Ws. 1, 2, 5, 7, 8, 10 and 11, evidence with regard to leading to discovery, medical evidence as well as the circumstantial evidence and sentenced him to imprisonment for life. 4. Perused the L.C.R., P.W.1, the informant, is the brother of the deceased. He deposed that on the relevant day he went to the house of the deceased. After preparing curry the deceased went towards the forest check gate. At that time, he had worn a Lungi and a pair of plastic chappals. On the following morning, he got information that the deceased had not returned home. He himself, his father, brother and other co-villagers searched for the deceased. During the course of search, they found some blood stains, a plastic chappal and a piece of bone under an 'Asan' tree near Bhalukahudi. Marks of dragging were there. They also found a red color underwear in a nearby field. He identified the underwear marked M.O.I and the pair of chappals marked M.O.II. He reported the matter at Kaptipada police station on the basis of which a U.D. case was registered. He further deposed that during the course of their search, they found that the left forearm and the portion of the leg from knee to loot of a man inside Shrabani Nala. He identified those limbs to be of the deceased. Police held inquest over those limbs in his presence and he put his LTI on the inquest report. He further deposed that during the course of their search, they found that the left forearm and the portion of the leg from knee to loot of a man inside Shrabani Nala. He identified those limbs to be of the deceased. Police held inquest over those limbs in his presence and he put his LTI on the inquest report. P.W.2 is a co-villager of the deceased. He deposed in his evidence that about two years back on a Friday the deceased was missing from the village. During the course of search they saw that the left fore-arm and half portion of left leg of a man had fallen in the water of Shrabani Nala. P.W.1 and his father identified those limbs to be of the deceased. He also stated that police held inquest over those limbs in their presence and prepared inquest report on which he put his LTI. P.W.3 is another co-villager and a witness to the occurrence. He deposed that on the date of occurrence at about 7 P.M. he along with the accused, Nini Behera and Shankar Behera was returning from Talapokhari Hata. After covering some distance, Nini Behera and Shankar Behera went to their house by a bi-cycle. He and the accused were coming on foot. The accused purchased a chicken from the house of Bhagban Bindhani for Puja purpose and handed over the same to him which he was holding. The accused was holding a thenga. When the deceased, who was coming from the opposite direction, shouted "KIASHALA BE ASUCHHU", the accused dealt a blow by means of the thenga, which he was holding, as a result of which the deceased fell down. Seeing the incident, he ran away from the spot out of fear. He also deposed that at that time Rama Barik was standing near his fence. On the way at Jamabani Chhaka he informed a shopkeeper Pagulu Behera that the accused had assaulted the deceased. In cross-examination he stated that the accused was walking 20 to 30 cubits ahead of him and there was a little moon light.' P.W.4 Rama Chandra Barik did not support the prosecution case and turned hostile. P.W.5 is another co-villager of the deceased. He deposed that the occurrence took place about two years back on a Friday. In cross-examination he stated that the accused was walking 20 to 30 cubits ahead of him and there was a little moon light.' P.W.4 Rama Chandra Barik did not support the prosecution case and turned hostile. P.W.5 is another co-villager of the deceased. He deposed that the occurrence took place about two years back on a Friday. Police arrested the accused and while in police custody he disclosed before the police in his presence that he had kept the thenga concealed under a 'BHADI' in his house and so saying led them and the police to his house and gave recovery of a Sala Thenga (M.O.III), which police seized vide seizure list Ext. 1 on which he put his signature. He also deposed that the present appellant showed the mark of dragging extending from 'Asana' tree up to Shrabani Nala. P.W.6 is another co-villager of the deceased. He stated that while he was returning from Talapokhari Hata with his CHAT shop, P.W.3 Bhagabat Mukhi and the accused were coming back from that Hata behind him. From the Chhaka situated near the house of Bhagaban Bindhani he came to his house and P.W.3 and the accused went towards Nedam. P.W.7 is another co-villager of the deceased. He deposed that in the night of occurrence he was sleeping on the verandah of his shop situated at Jamabani Chhak. P.W.3 came running towards his shop from Nedam side and on being asked as to why he was running he told that a murder had taken place in Nedam and so saying he ran away from there. Nothing has been elicited by way of cross-examination. P.W.8 is yet another co-villager of the deceased. His evidence is that on the next day of the occurrence they searched for the deceased and during the course of search they saw under an 'Asan' tree a plastic choppal, a piece of human bone and blood stained stone (M.O.IV). There was mark of dragging extending from the 'Asana' tree towards the nearby paddy field. The brother of the deceased identified the chappal and underwear to be of the deceased. Police seized those articles and he put his signature in the seizure list. P.W.9 is the Forest Guard who at the relevant time was attached to Nedam Forest Check Gate. There was mark of dragging extending from the 'Asana' tree towards the nearby paddy field. The brother of the deceased identified the chappal and underwear to be of the deceased. Police seized those articles and he put his signature in the seizure list. P.W.9 is the Forest Guard who at the relevant time was attached to Nedam Forest Check Gate. He stated that at times the deceased was coming to the forest check gate and was staying in his quarter during night. In the morning of a Saturday i.e., the day following the date of occurrence the family members of the deceased came to the check gate and asked he in the deceased had come to the check gate during the previous night and he replied them in the negative. P.W.10 is the Scientific Officer who visited the spot on police requisition, collected the blood stained earth, sample earth, a piece of skull and a plastic chappal of the right leg from near Nedam forest check gate. He detected stain of blood over a piece of stone and advised to I.O. to send all the articles to S.F.S.L., Rasulgarh. P.W.11, the Investigating Officer, deposed that he received written report (Ext. 4) submitted by P.W.3 and registered a U.D. case. During inquiry of the said U.D. case, on being informed that the deceased was murdered he drew plain paper FIR (Ext.7), registered Katipada P.S. case No. 70 of 1999 under Sections 302/201, IPC and arrested the accused. He further deposed that the accused led him and the witnesses to his house, gave recovery of the thenga (M.O.III) which he seized along with a Lungi in presence of witnesses vide seizure list (Ext.1). He proved the said seizure lit (Ext.1) and his signature thereon marked Ext. 1/1. Nothing has been elicited in cross-examination. 5. On scrutiny of the evidence adduced on behalf of the prosecution, this Court finds that P.W.3 is the only eye witness in this case. He deposed that on the occurrence day at 7 PM he and the appellant were returning from Talapokhari Hata. He was holding a chicken, which was purchased by the appellant, and the appellant holding a thenga was walking a little ahead of him. At that juncture, the deceased, who was coming from opposite direction, made some remark, for which the appellant deal a blow on the head of the deceased. He was holding a chicken, which was purchased by the appellant, and the appellant holding a thenga was walking a little ahead of him. At that juncture, the deceased, who was coming from opposite direction, made some remark, for which the appellant deal a blow on the head of the deceased. Receiving the blow when the deceased fell down, out of fear P.W.3 left the spot and on his way told this fact to P.W.7, who in his evidence has admitted the same. Although P.W.3 stated about presence of P.W.4 Rama Chandra Barik at the time of occurrence, said P.W.4 resiled from his earlier statement made before the police. There is nothing on record to dislodge the evidence of P.W.3. It is established from Exts. 8, 9 and 11 that the deceased was assault by M.O.III. The fact that the appellant while in custody informed the police and gave recovery of M.O.III from his house is established from the evidence of P.Ws. 5 and 11. P.W.6 is another witness, who specifically stated that both P.W.3 and the appellant were coming from the market. All these evidence taken together would go to show that the appellant is the author of the crime. 6. Now, it is to be seen whether the act committed by the appellant comes within the ambit of Section 302, IPC or Section 304 Part-II, IPC. It is in the evidence that both P.W.3 and the appellant were returning from Hata (market). Due to sudden provocation by the deceased, there was exchange of hot words between the two, for which the appellant gave one blow to the deceased by means of a thenga. That apart, the incident took place during night. In face of this evidence, it is difficult to presume that the appellant had the intention to cause death, though he might be imputed with knowledge that the blow dealt by him would cause death of the deceased. Therefore, the act committed by the appellant comes within the ambit of Section 304 Part-II, IPC. In such view of the matter, the conviction of the appellant u/s 302, IPC passed by the learned Sessions Judge, Mayurbhanj, Baripada-Camp at Udala in S.T. Case No. 63 of 2000 on 29.08.2001 is converted to one u/s 304 Part-II, IPC and the appellant is sentenced to undergo rigorous imprisonment for ten years. In such view of the matter, the conviction of the appellant u/s 302, IPC passed by the learned Sessions Judge, Mayurbhanj, Baripada-Camp at Udala in S.T. Case No. 63 of 2000 on 29.08.2001 is converted to one u/s 304 Part-II, IPC and the appellant is sentenced to undergo rigorous imprisonment for ten years. It is stated by the learned counsel for the appellant that the appellant by now has remained in custody for more than ten years. If that be so, the appellant Mangulu Behera is set at liberty forthwith, unless his detention is required otherwise. 7. The appeal stands disposed of accordingly. B.K. Nayak, J. 8. I agree.