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2013 DIGILAW 25 (ORI)

Dengena Patamajhi v. State of Orissa

2013-01-18

B.N.MAHAPATRA, SANJU PANDA

body2013
ORDER On 18.1.2013, the appeal was heard and judgment dictated in Court. Appeal was allowed in part converting the offence under Section 302, I.P.C. to one under Section 304 Part-I, I.P.C. and modify the sentence. Release order communicated. The reasons of the judgment follow : 2.The appellant having been convicted for commission of offence under Section 302 of I.P.C. and sentenced to imprisonment for life by the learned Sessions Judge, Sessions Judge, Kalahandi-Boudh, Phulbani in S.T. No.30 of 1999 has preferred this appeal against the said order of conviction and sentence. 3.The case of the prosecution as revealed from the records is that on 7.8.1998 at about 10 A.M. while Gumburi Sukamajhi (P.W.2) was bringing his bullocks to leave in cattle shed, heard the sound of quarrelling between deceased and her husband on house hold affairs and saw the accused was assaulting the deceased by means of Ghasa Khusuni (M.O.II) as a result there was profuse bleeding from her head and face. She was running towards eastern direction of the village pressing her head shouting ''MARIGALI, MARIGALI.'' P.W.2 informed the incident to some of the villagers including the informant, Risma Sukamajhi (P.W.1) and Tuti Sukamjhi (P.W.5) immediately, who were in their lands. They along with some villagers came to the spot and found the deceased lying dead in the maize field of P.W.1 with profuse bleeding from injuries on her head and face and on different parts of the body. Thereafter, they came to the house of the accused. On being asked, the accused confessed that as his wife was quarrelling with him, being enraged, he assaulted her by means of Ghasa Khusuni M.O.II and Gadi (M.O.I.). The son of the accused, namely, Kudenda Patamajhi and other persons saw the assault made by the accused. On the basis of the F.I.R. (Ext.1) lodged by P.W.1 to that effect, the case was registered and investigation was taken up. After completion of the investigation, charge sheet was submitted against the accused-appellant for commission of offence under Section 302, I.P.C. The statement under Section 164, Cr.P.C. of P.W.2 and the son of the accused was also recorded. 4.The plea of the defence is one of denial and false implication due to enmity. After completion of the investigation, charge sheet was submitted against the accused-appellant for commission of offence under Section 302, I.P.C. The statement under Section 164, Cr.P.C. of P.W.2 and the son of the accused was also recorded. 4.The plea of the defence is one of denial and false implication due to enmity. 5.In order to bring home the charge, the prosecution examined as many as 6 witnesses, of whom P.W.1 is the informant, P.W.2 is an eye witness to the occurrence, P.W.3 is the doctor., P.W.4 is the scribe of the F.I.R., P.W.5 is a witness to the extra-judicial confession made by the accused leading to discovery of the weapons of offence and seizure of blood stained napkin of the accused and other materials and P.W.6 is the I.O. No witness has been examined from the side of the defence. 6.In this case P.W.2 being an eye witness, saw the accused assaulting the deceased by means of a weapon i.e. Ghasa Khusuni (M.O.II). The evidence of this witness also lends support from the evidence of P.W.5 to the effect that the accused had given discovery of the weapons of offence. Those two weapons were used by the accused as a result of such assault the deceased succumbed to the injuries. P.W.5 further stated that on the same day of occurrence towards evening while the accused was in police custody, he confessed to have committed the crime by means of Iron Gadi and Ghasa Khusuni and he kept those weapons in his house under the Bhadi. The accused led the police in presence of P.W.5 to the place where the weapons of offence were concealed and same were seized in the presence of P.W.5. The seizure list was prepared as per Ext.5 and P.W.5 put his signature thereon. P.W.3 is the Doctor, who conducted the post mortem over the dead body of the deceased and submitted his report. From the post mortem report, it reveals that all the injuries were ante mortem in nature and the injuries can cause death in ordinary course and might have been caused by hard and sharp object. He opined that the death was homicidal. The death was caused due to injury to brain, haemorrhage and shock. The death was within 24 to 72 hours from the time of post mortem examination. He opined that the death was homicidal. The death was caused due to injury to brain, haemorrhage and shock. The death was within 24 to 72 hours from the time of post mortem examination. 7.The trial Court on analyzing the evidence on record held that the accused has committed the offence by means of M.Os.I & II. He relied upon the evidence of P.W.2, the eye witness to the occurrence and P.Ws.1 and 5, who are post occurrence witnesses and were immediately came to the spot also corroborated the evidence of P.W.2. 8.Learned counsel for the appellant submits that the appellant as well as the witnesses are from the remote area of Kandhamal and they were/are speaking in Qui language for which an interpreter was engaged in the trial Court, who interpreted the language and thereafter the depositions were recorded by the trial Court, as they belong to aboriginal community. It reveals from the evidence of P.Ws.2 and 5 and the statement recorded under 164, Cr.P.C. that deceased and appellant were quarrelling and on heat of passion, the appellant assaulted the deceased by means of Ghasa Kusumi (M.O.II). Therefore, the offence committed by the appellant is coming under Section 304, Part-I of I.P.C. not under Section 302, I.P.C. Therefore, the judgment and sentence imposed by the trial Court liable to be interfered with. 9.Learned Additional Standing Counsel while supporting the impugned judgment and sentence submits that from the evidence of the eye witness coupled with leading to recovery of weapons of offence, there is no doubt that the accused-appellant is the author of the crime and committed the murder of his wife. The trial Court rightly convicted the appellant and passed the sentence. On the other hand, learned counsel appearing for the appellant submits that the appellant belongs to aboriginal community of a remote area like Kandhamal. Therefore, a lenient view may be taken while imposing punishment since the appellant is in custody from the date of his arrest. 10.In the present case, P.W.2 is the only eye witness to the occurrence. It reveals from his evidence that there was quarrel between deceased on one hand and the appellant on the other and in course of which the appellant assaulted on heat of passion without any premeditation and the blow landed on the head of the deceased. She survived for some time and thereafter succumbed to the injuries. It reveals from his evidence that there was quarrel between deceased on one hand and the appellant on the other and in course of which the appellant assaulted on heat of passion without any premeditation and the blow landed on the head of the deceased. She survived for some time and thereafter succumbed to the injuries. We found the appellant is a resident of Kandhamal, which is a remote area and the inhabitants of that area are tribal. They are making their conversation in Qui language in day to day life. 11.This Court in the decision reported in 1984 (I) OLR 665, Sania Dora alias Badnaik v. State considered the facts and circumstances of the case and held that where there had been a sudden quarrel and on the spur of moment, without any premeditation and being incensed, the appellant-accused who belonging to an aboriginal tribe dealt a blow which landed on the head of the deceased as a result of which the deceased succumbed to the injury. In those circumstances, the order of conviction and sentence passed against the appellant was converted from Section 302, I.P.C. to one under Section 304, Part-II, I.P.C. 12.Similar view has also been taken by anther Division Bench of this Court in a Jail Criminal Appeal in the case of Mandangi Samburu v. State, 1985 (I) OLR 271 wherein the appellant, who belonged to Scheduled Tribe Community was convicted for the offence under Section 302, I.P.C. was converted to one under Section 304, Part-II. 13.In another unreported Jail Criminal Appeal No.52 of 1997 disposed of on 11.10.2007, this Court also took a similar view as the accused was a resident of Nabarangpur, an interior part of the State and inhabitant of that area are tribals. It was held that such people are of different mindset and they committed offences on the spur of moment. 13.In another unreported Jail Criminal Appeal No.52 of 1997 disposed of on 11.10.2007, this Court also took a similar view as the accused was a resident of Nabarangpur, an interior part of the State and inhabitant of that area are tribals. It was held that such people are of different mindset and they committed offences on the spur of moment. The order of conviction under Section 302, I.P.C. and the sentence of rigorous imprisonment for life passed against the appellant was set aside and as the offence committed by the accused was not murder but culpable homicide not amounting to murder and he was convicted under Section 304, Part-I of the I.P.C. 14.Therefore, the ratio decided in the aforementioned cases is squarely applicable to the facts and circumstances of the case at hand, the appellant being a resident of Kandhamal, an interior part of the State and being an aboriginal, on sudden provocation committed the offence on heat of passion without premeditation. 15.Accordingly, the order of conviction under Section 302 I.P.C. and the sentence of rigorous imprisonment for life as passed by learned Sessions Judge, Phulbani is set aside and instead the appellant is convicted under Section 304 Part-I of I.P.C. and we sentence him accordingly. In passing the order of sentence, this Court has taken note of the fact that the appellant has remained in jail since 24.11.2000 i.e. from the date of his arrest and is continuous since then. The appellant is, therefore, directed to be set at liberty forthwith, if he is no longer required to be in custody in connection with any other cases. Order accordingly.