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2012 DIGILAW 423 (ORI)

SANI MAJHI v. STATE OF ORISSA

2012-09-21

C.R.DASH, L.MOHAPATRA

body2012
JUDGMENT : L. Mohapatra, J. - This appeal arises out of the judgment and order dated 31.10.2005 passed by the learned Sessions Judge, Kalahandi, Nuapada at Bhawanipatna in S.C. No. 43 of 2003 convicting the appellant for commission of offence u/s 302 of I.P.C. and sentencing him to imprisonment for life and to pay a fine of Rs. 5,000/- in default to undergo imprisonment for six months. The case of the prosecution as revealed from the evidence is that on 27.9.2002 at about 9.00 P.M. when the deceased Dimbu Majhi was sitting on the verandah of his house along with his wife-P.W. 6 and daughter-P.W. 8, the appellant came with an axe and assaulted on the neck of the deceased. As a result of such assault the deceased died at the spot. With the help of P.Ws. 4 and 5, the wife-P.W. 6 of the deceased could be able to snatch away the axe from the hands of the appellant but the appellant ran away from the spot. The motive behind such assault was that the appellant suspected the deceased of having illicit relationship with his wife. After the incident the matter was reported to the Grama Rakhi and P.W. 4 orally reported the incident at Karlapat Police Out Post under Thuamul Rampur Police Station on 29.9.2002 at about 8.30 P.M. The said oral report was reduced to writing and investigation was taken up. On completion of investigation, charge sheet was submitted for commission of offence u/s 302 of I.P.C. and the appellant also faced trial for commission of the said offence. 2. The prosecution in order to bring home the charge examined ten witnesses. Out of them P.W. 4 is the informant and reached the spot immediately after the occurrence. P.W. 6, the wife of the deceased and P.W. 8, the daughter of the deceased are the two eyewitnesses to the occurrence. P.W. 5 is also a post occurrence witness. P.W. 7 is a post occurrence witness and was informed about the incident by P.Ws. 4, 5 and 6. P.W. 3 is a witness to the seizure of nail clippings and P.W. 1 is the Constable, who had taken the dead body for postmortem examination. P.W. 2 is the Doctor who conducted postmortem examination. P.Ws. 9 and 10 are the two Investigating Officers. 4, 5 and 6. P.W. 3 is a witness to the seizure of nail clippings and P.W. 1 is the Constable, who had taken the dead body for postmortem examination. P.W. 2 is the Doctor who conducted postmortem examination. P.Ws. 9 and 10 are the two Investigating Officers. The plea of the appellant is that at the time of incident he was at Village Jhanjigaon, about 30 Kms. away from the place of occurrence and he also complained of false implication. 3. The trial court relying on the evidence of two eyewitnesses P.Ws. 6 and 8 as well as the three post occurrence witnesses P.Ws. 4, 5 and 6 found the appellant guilty of the charge and convicted him thereunder. 4. Mrs. Pramila Mohanty, learned counsel appearing for the appellant assails the impugned judgment on the ground that there was delay in lodging the F.I.R. and such delay having not been explained by the prosecution, the entire prosecution case cannot be accepted. It was further contended by Mrs. Pramila Mohanty, learned counsel for the appellant that there is inconsistency in the evidence of P.Ws. 4, 5 and 6 in relation to snatching of the axe from the hands of the appellant and to that extent the evidence of these three witnesses cannot be believed. 5. Mr. Das, learned Addl. Standing Counsel placed reliance on the evidence of P.Ws. 6 and 8 and also the evidence of P.W. 2, who conducted the postmortem examination and submitted that the evidence of P.Ws. 6 and 8 get full corroboration from the evidence of P.W. 2 and therefore, the conviction u/s 302 of I.P.C. is justified. 6. We have carefully scrutinized the evidence of all the ten witnesses examined on behalf of the prosecution. P.W. 6 is the wife of the deceased. She deposed that on the date of occurrence she along with the deceased and the children were sitting on the verandah of their house. The appellant came with a Kuradhi (axe) and dealt a blow on the right neck of her husband. She shouted and hearing her hullah P.Ws. 4 and 5 rushed to the spot. She tried to snatch away the axe from the hands of the appellant and with the help of P.Ws. 4 and 5 she could snatch away the axe. The appellant thereafter fled away leaving behind the axe. She shouted and hearing her hullah P.Ws. 4 and 5 rushed to the spot. She tried to snatch away the axe from the hands of the appellant and with the help of P.Ws. 4 and 5 she could snatch away the axe. The appellant thereafter fled away leaving behind the axe. Nothing has been brought out in cross-examination to disbelieve her testimony. 6.1 Similarly P.W. 8, who is the daughter of the deceased, has fully corroborated the evidence of P.W. 6, her mother and nothing has been brought out in cross-examination to disbelieve her statement. 6.2 The evidence of P.Ws. 6 and 8 that the appellant assaulted by means of an axe on the neck of the deceased is fully corroborated by evidence of P.W. 2, who conducted the postmortem examination. P.W. 2 has deposed that he found one incised chop wound located on the right side of the neck 1" above the clavicle in a slanting position. He was of the view that the probable cause of death may be due to severe haemorrahage resulting from severe damage to major blood vessels of the neck. 6.3 The evidence of P.Ws. 6, 8 and 2 get further corroboration from the evidence of P.Ws. 4, 5 and 7. P.W. 4, who is the informant, deposed that after hearing hullah of P.W. 6, he rushed to the house of the deceased and found the appellant pulling the blade portion of the axe from the neck of the deceased. Thereafter, he along with P.Ws. 5 and 6 caught the axe, which the appellant was trying to snatch away. Thereafter, the appellant ran away from the place of occurrence. 6.4 Similar is the evidence of P.Ws. 5 and 7. On examination of the evidence of these witnesses, we find that the prosecution has been able to establish that it is the appellant, who came to the house of the deceased being armed with an axe and assaulted the deceased on the neck by means of the said axe thereby causing his death. 6.5 So far as the delay in lodging the F.I.R. is concerned, we find from the evidence of P.W. 4 that the incident took place late in the evening and on the next day morning the said witness along with one Budu Majhi went to the Grama Rakhi and thereafter proceeded to Karlapat Out Post. 6.5 So far as the delay in lodging the F.I.R. is concerned, we find from the evidence of P.W. 4 that the incident took place late in the evening and on the next day morning the said witness along with one Budu Majhi went to the Grama Rakhi and thereafter proceeded to Karlapat Out Post. They walked the distance and reported about the incident in the evening. From the F.I.R. we find that the Police Station is located about 80 Kms. away from the village of the informant and though the incident took place on 27.9.2012 at about 9.00 P.M. in the night, the informant had to walk all the distance for lodging the F.I.R. and in the Out Post the F.I.R. was received on 29.9.2002 at about 8.30 P.M. We, therefore, find that P.W. 4 has explained the delay in lodging the F.I.R. Having not found any substance in both the contentions of Mrs. Pramila Mohanty, learned counsel for the appellant and being satisfied on consideration of the evidence that it is the appellant who assaulted the deceased by means of an axe and has caused his death, we find no justification to interfere with the impugned judgment dated 31.10.2005 passed by the learned Sessions Judge, Kalahandi, Nuapada at Bhawanipatna in S.C. No. 43 of 2003. The Jail Criminal Appeal being devoid of merit is dismissed. Final Result : Dismissed