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2013 DIGILAW 417 (ORI)

Sukra Munda v. State of Odisha

2013-09-25

B.R.SARANGI, S.PANDA

body2013
JUDGMENT : S. PANDA, J. ” The appellant has filed this appeal challenging the judgment dated 11-12-2003 passed by the learned Sessions Judge, Sundargarh in S.T. No. 253 of 1998 convicting him under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/-. 2. The case of the prosecution is that the deceased was the wife of the appellant. They were residing together in one house at Village-Laramdihi. The deceased went to her mother-” s house few days prior to the occurrence. She alleged before her mother and brother regarding the ill-treatment by the appellant towards her and she was being assaulted by him frequently as the appellant has an affair with another lady. The appellant came to his in-laws house and on the intervention of the Village gentlemen he took his wife back to his house. Thereafter on 11-6-1998 the deceased was assaulted and sustained multiple injuries on her face and head. She was shifted to District Headquarters Hospital, Sundargarh by Ambulance for treatment and succumbed to the injuries sustained, on the next day morning i.e. 12-6-1998. One Jadabananda Patel lodged a written report before Sadar Police Station, Sundargarh and on the basis of the said report of the informant the Sub-Inspector of Police registered Sundargarh Sadar P.S. Case No. 54 of 1998 and investigation was taken up. It reveals from the F.I.R., the informant learnt that on 11-6-1998 evening the accused took up a quarrel with the deceased and at that time Phulmani Munda (sister-in-law of the appellant-P.W. 7) went to bring water and on her return she found that the deceased was lying with multiple injuries on her face and head and the appellant was absent. The injured disclosed before her that she has been assaulted by the appellant and was shifted to District Headquarters Hospital, Sundargarh for treatment. 2.1 In course of investigation the investigating Officer conducted inquest over the dead body and sent the dead body for post-mortem examination. He seized the wearing apparels of the deceased, blood stained earth and arrested the appellant. The appellant while in police custody made a disclosure statement, accordingly the weapon of offence (axe) and wearing apparels of the appellant were recovered and seized leading to discovery. The weapon of offence was produced before the Medical Officer, who had conducted autopsy and opinion was sought for. The appellant while in police custody made a disclosure statement, accordingly the weapon of offence (axe) and wearing apparels of the appellant were recovered and seized leading to discovery. The weapon of offence was produced before the Medical Officer, who had conducted autopsy and opinion was sought for. All the material objects were sent for chemical examination. After completion of the investigation charge-sheet was submitted for commission of offence under Section 302 of IPC. 3. The prosecution in order to establish the charge examined as many as fifteen witnesses. The informant was not examined as he died during pendency of the trial. The FIR Post-mortem Examination report and other seized materials were marked as Exts. 1 to 14. The weapon of offence was marked as M.O.I. The appellant has took a plea of total denial of the prosecution case and neither he has examined any witnesses nor exhibited any document for his defence. 4. The trial Court convicted the appellant on the circumstantial evidence on record and passed the impugned judgment and sentence. The trial court judgment based on the following circumstances : ' i) the accused and the deceased were residing in one house at Village-Karamdihi prior to 11-6-1998. ii) on her visit prior to 11-6-1998 to her mother-” s house the deceased complained that she was being assaulted and ill-treated by the accused. (iii) (a) the spot was determined to be the house of the accused where both the accused and the deceased were residing. (b) the accused acted strangely by not remaining present in his house while the deceased was critically injured and was lying in her house nor he went to the hospital where she died, and, (c) failure of the accused to explain how the occurrence occurred or how his wife sustained severe injuries, which became fatal to her life, (iv) in course of investigation the I.O. seized the weapon of offence i.e. an axe on 21-6-1998 on the disclosure statement of the accused which on chemical examination found to have contained blood and opined by the doctor to have caused the injuries on the deceased. (v) finally, blood stains of the same group as that of the stains found on the wearing apparels of the deceased were found on the wearing Dhoti of the accused.' - 5. (v) finally, blood stains of the same group as that of the stains found on the wearing apparels of the deceased were found on the wearing Dhoti of the accused.' - 5. It appears that on the above narration of fact and finding of the trial Court there are no eye-witnesses to the occurrence in this case. The prosecution case is based on circumstantial evidence. P.Ws. 1 to 7 are co-villagers and neighbourers and relatives of the appellant. They were declared hostile. P.W. 8 also a neighbour of the accused, who has stated that the appellant and deceased were living together in one room in their house and deceased was occasionally visiting her mother-” s house and on the occurrence night he heard hue and cry from the house of the appellant, which situates just front of his house. He saw the deceased was being carried by Ambulance and he has been examined by the police. The said witness was also declared hostile P.Ws. 13 and 15 are the brother and mother of the deceased. They have stated about the ill-treatment and frequent assault to the deceased by the appellant and also they have stated regarding the fact that the appellant has taken back the deceased to his house few days prior to the occurrence. P.W. 12 is the seizure witness. P.W. 10 is the Doctor, who conducted post-mortem examination of the deceased and has stated that the injuries are ante-mortem in nature and the death was due to shock and hemorrhage. The injuries found on the dead body were sufficient in ordinary course of nature to cause death. She has also stated that one axe along with a written requisition produced before her for examination. She opined that the injury found on the head and face of the deceased can be possible by the blunt side of the axe. 6. Learned counsel appearing for the appellant submitted that taking into consideration the evidence of P.W. 8 who was declared hostile it cannot be definitely said that the appellant was the author of the offence as there are other persons residing in the same house and appellant was absent at the spot and nobody had saw him before of after the assault. He further submitted for sake of argument though not conceding in case it was held that chain of circumstances completed and the appellant has assaulted the deceased then the other facts are also to be considered that the accused belongs to Scheduled Tribes and prior to the occurrence there was quarrel between the accused and deceased. The accused also frequently assaulted the deceased as held by the trial Court that it is well known that every quarrel or even assaulted (sic) made by the wife complaints were not being lodged before the police with the hope that there may be settlement of dispute between the parties. P.Ws. 13 and 15 the brother and mother of the deceased also stated that on the intervention of the village gentlemen the deceased was (sic) again come back to the matrimonial house with the appellant and he has cited the decision reported in 1985 (1) OLR 271 wherein the conviction of the appellant who belongs to Scheduled Tribes Category was converted from under Section 302 of IPC to one under Section 304, Part-II of IPC. He also cited the judgment dated 11-10-2007 passed in JCRLA No. 52 of 1997. 7. Learned Addl. Standing Counsel supporting the impugned judgment and sentence passed by the Court below submitted that since the chain of circumstances completed and prosecution has able to prove that the appellant is the assailant, the impugned judgment may not be interfered with. 8. After going through the aforesaid two decisions, it appears that this Court converted the conviction under Section 302 of IPC to one under Section 304, Part-II of IPC on two grounds i.e. (a) the appellants were tribal people with whom normally tempers run high and often they gave vent to their basic instinct without restraint. The offences were committed by them without any premeditation and on the spur of the moment. 8.1 This Court finds that the facts of this case have a strong resemblance to the facts of the aforesaid two cases. Here also the appellant belongs to Scheduled Tribes and inhabitants of tribal area. It appears that such peoples are different mind set and they commit offence on the spur of the moment. In the present case materials available on record reveals that frequently the appellant and his wife were being quarreled and the appellant assaulted her. Here also the appellant belongs to Scheduled Tribes and inhabitants of tribal area. It appears that such peoples are different mind set and they commit offence on the spur of the moment. In the present case materials available on record reveals that frequently the appellant and his wife were being quarreled and the appellant assaulted her. On the date of incident in similar situation his anger provoked him during quarrel and he assaulted his wife on the blunt side of the axe and in tribal family the weapon of offence axe is common instrument available in household. Since he has not assaulted the deceased on the sharp cutting side of the axe, it is obvious that his intention was not to kill the wife. 9. Considering all the above facts, this Court is unable to sustain the conviction under Section 302 of IPC. This Court is of the view that the offence committed by the appellant was not murder but culpable homicide and not amounting to murder. Accordingly, this Court while setting aside the impugned judgment dated 11-12-2003 passed by the learned Sessions Judge, Sundargarh in S.T. Case No. 253 of 1998 convicting the appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life, alters the conviction from under Section 302 of IPC to one under Section 304, Part-I of IPC and sentences the appellant to suffer rigorous imprisonment for ten years, which has already been undergone by him. The appellant is inside the custody since his date of arrest in the year 1998 till date. The appellant be set at liberty forthwith, if he is no longer required to be in custody in any other cases. The JCRLA is allowed in part. Registry is directed to send the release order immediately. Dr. B. R. SARANGI, J.: 10. I agree. Appeal partly allowed.