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2012 DIGILAW 383 (ORI)

Sania Jhigidi v. State of Orissa

2012-08-30

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT PRADIP MOHANTY, J. : This jail criminal appeal is directed against the judgment and order dated 22.09.2003 passed by the learned Addl.Sessions Judge, Malkangiri in Sessions Case No.63 of 1999 convicting the appellant under Section 302, IPC sentencing him to undergo imprisonment for life. 2.The prosecution case in brief is that on 23.04.1997 at 4.30 P.M. the informant P.W.1 lodged an F.I.R. alleging therein that on 22.04.1997 at night Hadi Sisa, Soma Sisa and Sania Sisa went to Jhigidi Sahi to dance. But, on being prevented by accused, they returned to their respective houses. On the next morning, i.e., 23.04.1997 at about 7.00 AM being armed with bow and arrow accused came to Sisa Sahi and challenged Buda Sisa (deceased) as to why he in the previous day abused his mother. When the deceased asked him to return home, accused short an arrow from the bow held by him and fled away. The arrow hit at the abdomen of the deceased. Then, immediately the deceased removed the arrow from his abdomen and went to his house. On receipt of the FIR, initially a case was registered under Sections 324/307, IPC. But, subsequently as the deceased died on 24.04.1997, while undergoing treatment at District Headquarter Hospital, Koraput, the case was turned to one under Section 302, IPC and investigation taken up. On completion of investigation, police submitted charge-sheet against the appellant under Section 302, IPC. 3.The plea of the appellant was one of complete denial of the prosecution case. His specific plea was that at the time of occurrence he was at school and the witnesses due to village dispute have falsely implicated him in the case. 4.The prosecution, in order to prove the charge, examined as many as 8 witnesses including the I.O. and exhibited 13 documents. Defence examined none. 5.The learned Addl.Sessions Judge on conclusion of trial convicted the appellant under Section 302, IPC and sentenced him to undergo imprisonment for life mainly basing upon the evidence of P.Ws.2 and 3, who are said to be the ocular witnesses, and the postmortem report Ext.12. 6.Mr. Jee, learned counsel for the appellant assails the impugned judgment inter alia on the ground that P.Ws.2 and 3 are in fact post occurrence witnesses and they have projected themselves as eyewitnesses as because they are inimically disposed towards the appellant. 6.Mr. Jee, learned counsel for the appellant assails the impugned judgment inter alia on the ground that P.Ws.2 and 3 are in fact post occurrence witnesses and they have projected themselves as eyewitnesses as because they are inimically disposed towards the appellant. He further submits that the appellant had no intention to kill the deceased for which this is a fit case to convert his conviction under Section 302, IPC to one under Section 304, Part-II, IPC. 7.Mr. Sk. Zafuralla, learned Additional Standing Counsel, on the other hand, supports the impugned judgment and vehemently contends that P.Ws.2 and 3 are actually witnesses to the occurrence and their evidence is quiet believable. The weapon of offence, i.e., the arrow, which was seized from the house of the appellant, found containing human blood, as revealed from the chemical examination report, and in regard to that no explanation has been offered by the appellant. He further submits that no fault having been committed by the trial Court in convicting the appellant under Section 302, IPC relying upon the evidence of P.Ws.2 and 3 and other post occurrence witnesses, the impugned judgment of conviction does not warrant interference by this Court. 8.Perused the LCR and gone through the depositions of the witnesses minutely. P.W.1, who is the informant, in his examination-in-chief stated that the deceased was his brother and he died at Jeypore Hospital. He orally reported the matter before the O.I.C., who reduced the same to writing, read over and explained the contents thereof and took his L.T.I. P.W.2 claims to be an ocular witness. In her examination-in-chief the stated that on the date of occurrence, at the early morning, the accused in front of the house of the deceased shot an arrow at the deceased which hit on his belly. Subsequently, the deceased died at Koraput hospital. She also stated that P.W.3 had seen the occurrence. A suggestion was given by the defence that there was enmity between the accused and the deceased prior to the occurrence but she denied the same. In cross-examination she admitted that after hearing hullah she came to the spot and saw the arrow pierced in the belly of the deceased. P.W.3 is a co-villager who specifically stated in his examination-in-chief that accused shot an arrow at the deceased which hit on the belly of the deceased. The deceased removed to Koraput hospital where he died. In cross-examination she admitted that after hearing hullah she came to the spot and saw the arrow pierced in the belly of the deceased. P.W.3 is a co-villager who specifically stated in his examination-in-chief that accused shot an arrow at the deceased which hit on the belly of the deceased. The deceased removed to Koraput hospital where he died. He further stated that P.W.2 was with him at the time of occurrence. P.W.4 is another brother of the deceased and a post occurrence witness. He stated that he came to the spot after the occurrence and accompanied the deceased to the hospital. He further stated that he heard the incident from P.Ws.2 and 3. P.W.5 is the Constable who on being commanded had guarded the dead body and carried the same to the hospital for postmortem. He had received the wearing apparels of the deceased from the postmortem doctor and produced the same before the I.O., who seized the same under Ext.3. He proved the command certificate (Ext.1), dead body challan (Ext.2) and the seizure list (Ext.3). P.W.6 has not supported the prosecution case in any manner. P.W.7 is the A.S.I. of police, who registered the case and took up investigation during the course of which he examined the witnesses, proceeded to the spot and prepared the spot map, arrested the accused, seized the arrow, i.e., the weapon of offence and sent the same to the Medical Officer for opinion and also sent the material objects for chemical examination. On 27.06.1997 he handed over the charge of investigation to the O.I.C., Mudulipada P.S. P.W.8 is the O.I.C. of Mudulipada P.S., who stated to have received the charge of investigation from P.W.7 and simply on perusal record submitted charge sheet. 9.In the instant case, the postmortem doctor has not been examined. But the postmortem report (Ext.12) and the injury report (Ext.13) have not been challenged by the defence. In other words, they have been marked exhibits on the admission of the defence. The injury report (Ext.13) reveals that the deceased had sustained one grievous oval shaped stab injury of size 1.5 inches penetrating into the abdomen and his omendum was protruding out. According to the post mortem report (Ext.12), the death was due to generalized massive peritonitis resulting from Abdominal injury and the time since death was within 24 hours of autopsy. The injury report (Ext.13) reveals that the deceased had sustained one grievous oval shaped stab injury of size 1.5 inches penetrating into the abdomen and his omendum was protruding out. According to the post mortem report (Ext.12), the death was due to generalized massive peritonitis resulting from Abdominal injury and the time since death was within 24 hours of autopsy. In the opinion report (Ext.7/2), which was also exhibited on admission by the defence, the Medical Officer has opined the injury of the deceased could have been caused due to the arrow produced before him for examination and the injury of the deceased was ante mortem in nature. Thus, there is no dispute that the death of the deceased was homicidal. 10.Now, it is to be seen whether the appellant is the author of the death of deceased. P.W.2, the sister of the deceased, deposed that at the time of occurrence she was in front of the house of the deceased. The accused shot an arrow at the deceased which hit on his belly. The deceased was shifted to Koraput hospital for treatment but he died there. P.W.3 corroborated the evidence of P.W.2 in material particulars. From the evidence of these two witnesses, it is clear that due to the arrow shot by the accused the deceased got injured and died at the hospital. There is no reason to disbelieve the evidence of these two witnesses. The arrow, which was seized by the I.O. from the house of the accused and sent for chemical examination, found to have contained human blood, and with respect to that no explanation has been offered by the accused. For all these reasons, this Court holds that the present appellant was the author of the crime. 11.Now, the question arises whether, as urged by the learned counsel for the appellant, the act of the appellant would come under the purview of Section 304, Part-II, IPC or Section 302, IPC. In the instant case admittedly the appellant shot an arrow which pierced into the belly of the deceased and though the incident took place on 23.04.1997 around 7.00 A.M., the deceased died on the next day (24.04.1996) at 5.00 A.M., i.e., after 22 hours of the occurrence. In the FIR it is narrated that after the arrow hit the belly of the deceased, the deceased immediately pulled the arrow and went to his house. In the FIR it is narrated that after the arrow hit the belly of the deceased, the deceased immediately pulled the arrow and went to his house. The contention of the learned counsel for the appellant is that the pulling of arrow by the deceased might have resulted in heavy bleeding leading to his death. This Court finds some force in the contention of the learned counsel for the appellant and having regard to the attending circumstances and the fact that only one arrow was shot at the deceased which pierced into his belly, holds the intention of the appellant to kill the deceased has not been proved by the prosecution though the prosecution has been able to prove that the appellant had knowledge that the injury inflicted by him may cause death. Therefore, by applying the ratio decided in Naju Mallik (supra) this Court holds the appellant guilty of commission of offence punishable under Section 304, Part-II, IPC. 12.In the result, the appeal is allowed in part. The impugned judgment and order dated 22.09.2003 passed by the learned Additional Sessions Judge, Malkangiri in Sessions Case No.63 of 1999 convicting the appellant under Section 302 IPC is set aside. Instead, the appellant is convicted under Section 304, Part-II, IPC and sentenced to undergo rigorous imprisonment for ten years. It is stated at the Bar that the appellant Sania Jhigidi is in custody from the date of arrest and in the meantime has already undergone more than ten years. If that be so, the appellant Sania Jhigidi be ‘set at liberty forthwith, unless his detention is required otherwise. B.K. MISRA, J.I agree. Appeal allowed in part.