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2013 DIGILAW 500 (ORI)

Daniel Dung Dung v. State of Orissa

2013-12-17

D.DASH, PRADIP MOHANTY

body2013
JUDGMENT PRADIP MOHANTY, J. : The appellant, having been convicted for commission of offence under Sections 307/302 IPC and sentenced to undergo imprisonment for life and pay fine of Rs.2000/- with default stipulation of undergoing rigorous imprisonment for one year for commission of offence under Section 302 IPC and to undergo rigorous imprisonment for five years and pay fine of Rs.1000/- in default to undergo rigorous imprisonment for six month for commission of offence under Section 307 IPC, has preferred this appeal from jail. 2.The case of the prosecution, is that Michel Dungdung (P.W.6) and his wife having no issue, adopted the appellant as their son, who was staying with them. In course of time, coming in association of bad company, he developed the habit of drinking and got addicted to alcohol. On the date of occurrence, i.e. on 3.12.2000, P.W.6 was sitting in the outer Court yard of Jayanath Badaik (P.W.1) where his son (P.W.2) and his daughter were preparing tea. At about 7:30 PM, the appellant came there and attacked his adoptive father (P.W.6) by means of an axe by dealing blows on his neck and face. When his wife (Balley Dungdung, the deceased) protested, the appellant, assaulted her by the said axe and she succumbed to injury at the spot. P.W.6, having sustained severe injuries, lost his sense. Jayanath Badaik (P.W.1), who witnessed the incident, lodged the report before the police and on receipt of the same, investigation was taken up and on completion of the same followed by other formalities, charge sheet was filed against the appellant placing him for trial. Finally, the case being committed, came to be tried by the Court of Sessions. 3.The appellant took a specific plea that since he was adopted by P.W.6, and was not well treated by him. As P.W.6 was having illicit relationship with the wife of P.W.1 and when the appellant objected to it, P.W.6 threatened the appellant to assault for which, he was not taking meals in the house of P.W.6. For this reason, it is stated that a false case has been foisted against him. 4.In order to bring home the charge, during trial the prosecution has examined as many as seven witnesses including the doctor and the investigating officer when the defence has examined none despite being provided with said opportunity. For this reason, it is stated that a false case has been foisted against him. 4.In order to bring home the charge, during trial the prosecution has examined as many as seven witnesses including the doctor and the investigating officer when the defence has examined none despite being provided with said opportunity. 5.The trial Court, basing upon the evidence of P.Ws.1, 2 and 6, the ocular witnesses has convicted the present appellant for above offences and sentenced him thereunder. 6.Mr. Samir Kumar Singh, learned counsel for the appellant submits that on the date of occurrence, there was sudden quarrel between P.W.6 and the appellant concerning demand of a sum of Rs.60,000/- and the appellant who was in drunken state assaulted P.W.6 with an axe. In fact P.Ws.1 and 2 had not seen the occurrence and have developed the story subsequently during trial. He further submits that since the offence was committed without pre-mediation, the conviction of the appellant of offence u/s.302 IPC may be altered to one under Section 304-III IPC. 7.Mr. Jafurllah, learned Additional Standing Counsel strongly contends that P.Ws.1, 2 and 6 have specifically stated that the appellant have assaulted both, the deceased and her husband (P.W.6) by axe and the evidence of the doctor (P.W.4), who conducted the autopsy, is that the injuries found on the person of the deceased could be possible by the seized axe. Therefore, he urges that there is no material to interfere with the finding recorded by the trial judge when the evidence of P.Ws.1, 2 and 6 are wholly reliable. It is also his submission that the evidence on record as regards the happening of incident when given due consideration, no case for alteration of conviction for offence u/s. 304-II IPC from that of offence u/s. 302 IPC is made out on the ground of lack of intention on the part of the appellant. 8.Minutely gone through the evidence on record. P.W.1 is the informant of the case who has stated that on the date of occurrence while he was sitting on the Court yard of his house, the appellant came in a drunken state with an axe and gave blows to P.W.6 When the deceased (wife of P.W.6) protested to it, he also gave several blows on her neck, back, head and face as a result of which she died at the spot. Thereafter, he went to the police station and orally reported the matter. Police reduced the version of P.W.1 into writing, explaining the contents of the same to P.W.1 and obtained his LTI which was treated as FIR (Ext.1). Nothing has been elicited during cross-examination to demolish the evidence of this witness on any score and no material surfaces to doubt his testimony. P.W.2, the son of the informant (P.W.1) who claims to be an eye witness to the occurrence. He has stated that he and his sister while preparing the tea in the Court yard of their house, the appellant came with an axe and gave two to three blows on the neck of P.W.6 for which he fell down sustained bleeding injuries. Thereafter, when the deceased came, the appellant also assaulted her and she died at the spot. In cross-examination, just a suggestion has been given to him that he did not sate the above fact to the investigating officer to which he denied. But it has bene proved through P.W.7(I.O.) that he had not so stated during his examination u/s. 161 Cr.P.C. Therefore, during trial it can be said to be an improvement and as such is not believable. P.W.3 is a co-villager and a witness to the seizure of axe seized under Ext.3 and the full pant and T-shirt of the appellant seized from his possession under Ext.4. The doctor (P.W.4) who conducted the autopsy over the dead body of the deceased has found five incised wound and one stab wound. He opined that the cause of death was due to shock and haemorrhage due to the wounds. On examination of the seized axe under Ext.3 in presence of P.W.3 who has so deposed has said that the injuries found on the deceased could be possible by the said axe. It has also been proved by P.W.7 (I.O.) that the axe was seized at the instance of the appellant leading him to the place in giving recovery while in custody. P.W.5 who is the doctor examined the injured (P.W.6), the husband of the deceased has found seven incised wounds and opined that injury Nos.1 to 4 were grievous in nature and might have been caused due to the impact of any sharp cutting weapon or object like KATA and axe. When the injured was brought to the hospital, he was unconscious. When the injured was brought to the hospital, he was unconscious. He also opined that the injuries found on P.W.6 could also be possible by the seized axe. Now, comes the evidence of the star witness (P.W.6) who is the injured and adoptive father of the appellant. He has stated that the appellant had demanded a sum of Rs.60,000/- which he could not meet. While he was sitting in the outer Court yard of P.W.1, the appellant came with an axe and dealt three blows on his neck and face. When his wife (deceased) came and protested, the appellant also assaulted by the said axe and then went to unconsciousness and could not know what happened to the deceased. Thereafter, he was moved to the hospital. He has also admitted that after the incident, he made a statement before the Magistrate which has been proved under Ext.9. In cross-examination, a suggestion was thrown to him by the defence that the accused did not assault his wife (deceased) and that he assaulted his wife by axe in a drunken condition and that when he was escaping after the assault, he fell down on a heap of broken glass pieces and sustained injuries which he has denied. However, no such evidence ever remains that in fact there was a heap broken glasses pieces lying near by so as even to infer for a moment that there remained such a possibility. There appears no such material to doubt his testimony in falsely implicating the appellant. The evidence of P.W.6 is also fully corroborated by P.W.1 and also the medical evidence. P.W.7 is the Inspector-in-Charge of Tangarpalli Police Station and the investigating officer of the case. He registered the case and took up investigation of the case. He stated that while the appellant was in custody, he led the police and other independent witnesses to the place of concealment and gave recovery of the weapon of offence which has been seized under Ext.3. He had also collected the sample blood and nail clippings of the accused. Ultimately, after completion of the formalities, he filed the final form against the present appellant. 9.On analysis of the evidence, it appears that P.W.1, who is the informant of the case, had seen the occurrence with regard to the assault made by the appellant to the deceased by means of the axe. Ultimately, after completion of the formalities, he filed the final form against the present appellant. 9.On analysis of the evidence, it appears that P.W.1, who is the informant of the case, had seen the occurrence with regard to the assault made by the appellant to the deceased by means of the axe. He specifically stated that on the date of occurrence while he was sitting on the Court yard of his house, the appellant came in a drunken state with an axe and gave blows to P.W.6. When the deceased protested the appellant, he also gave several blows on her neck, back, head and face as a result of which she died at the spot. P.W.2 is the son of P.W.1, who in his examination in chief, stated that he has seen the assault made by the appellant. But in the cross-examination, the investigating officer (P.W.7) stated that Mohan Badaik (P.W.2) did not state before him to have seen the accused assaulted by axe to Michel Dungdung and the deceased. Therefore, this Court does not rely upon the evidence of P.W.2. P.W.6 is the injured eye witness who specifically stated about the role played by the present appellant with regard to the assault made to his wife. The doctor (P.W.4) who conducted the autopsy also corroborates the evidence of P.W.6 with regard to the assault with the help of the axe. P.W.5 is the doctor who examined the injured (P.W.6) has also specifically stated that all the injuries could be possible by the seized axe. 10.This now takes us to consider the submission of the learned counsel for the appellant that the appellant, having committed the incident in a drunken state without any pre-meditation, the conviction for offence u/s. 302 IPC needs alteration to one u/s. 304-II, I.P.C. In the present case, there is no evidence that the appellant was at that time in a drunken state. Neither any such plea has been taken nor anything has been elicited from the P.Ws.1, 2 and 6 on that score. Rather it is the case of the defence that P.W.6, being in a drunken state, had assaulted his wife, the deceased and while escaping, had sustained injury by falling on a heap of broken glass pieces as it reveals from the suggestion thrown to P.W.6 during cross-examination which even has no basis and goes without deriving any support from other evidence. It is further seen from the evidence of the witnesses that he came in a normal manner and then went on assaulting the injured (P.W.6) and the P.W.1 when particularly P.W.1 protested the assault on P.W.6. So it appears that he knew what he was about and the rule that a man is presumed to have the intent of the natural consequence of his act or acts gets squarely attracted. Moreover, it is seen that number of injuries have been caused by the appellant with the axe both to the injured eye witness and the deceased within a very short span of time. Therefore, the submission of learned counsel for the appellant regarding alteration of conviction merits no acceptance. Thus, the order of conviction recorded by the trial Court is not liable to be interfered with. 11.In the result, the Jail Criminal Appeal stands dismissed and the order of conviction recorded by the trial Court is hereby confirmed. D. DASH, J.I agree. Appeal dismissed.