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2014 DIGILAW 169 (ORI)

NIRANJAN MAHARANA v. STATE OF ORISSA

2014-03-12

D.DASH

body2014
JUDGMENT : D. Dash, J. - The appellant from inside the jail has called in question the judgment of conviction and sentence passed by the learned Ad-hoc Additional Sessions Judge, FTC, Bhubaneswar convicting him for offence punishable under Section 304 (Part-II) and 201 of I.P.C. and sentencing him to undergo rigorous imprisonment for a period of seven years and two years respectively followed by the order that the substantive sentences would run concurrently. 2. Case of the prosecution is that:- On 11.11.2002 evening the informant P.W.3 came to his house after finishing his work when he found his son crying and on being asked he stated that his father, the appellant to have killed his mother. The appellant then came there and disclosed that when his wife refused to provide water, he dealt two to three blows by means of a bamboo stick on her resulting her fall on the ground and ultimately there occasioned the death in further stating to have buried the dead body. Oral report being made before the Officer of the concerned Police Station necessary case was registered and investigation commenced. On completion of investigation charge-sheet was submitted placing the appellant for trial for commission of offence punishable under Sections 302 and 201 of I.P.C. and that is how the appellant faced the trial. 3. During trial, prosecution examined 13 witnesses Defence has examined one. 4. The trial Court on analysis of evidence-has first of all arrived at a conclusion that deceased Jasoda met a homicidal death. Next going to the complicity of the appellant relying on the oral evidence of P.W.3 and P.W.5 who is the witness to the extra judicial confession of the appellant and P.W.5 who is the minor son of appellant and eye witness, finally has given the finding that it is the appellant who had assaulted his wife by means of a lathi and then had buried the dead body on the cremation ground. Accordingly conviction against the appellant has been recorded. 5. Learned counsel for the appellant submits that the evidence of P.W.3 and 5 ought not to have been relied upon in view of the glaring discrepancies and basic infirmities emanating there from. It is also his submission that absolutely no evidence remains against the appellant in respect of assaulting his wife. Accordingly conviction against the appellant has been recorded. 5. Learned counsel for the appellant submits that the evidence of P.W.3 and 5 ought not to have been relied upon in view of the glaring discrepancies and basic infirmities emanating there from. It is also his submission that absolutely no evidence remains against the appellant in respect of assaulting his wife. P.W.5 being a child witness, his evidence ought not to have been accepted without strong corroboration and without fully overruling the scope of tutoring. Therefore, he urges for acquittal of the appellant. Learned Additional Government advocate submits that the trial Court after critical examination of the evidence tendered during trial has rightly arrived at the conclusion in holding the appellant guilty for commission of offence punishable under Section 304 (Part-II) and Section 201 of I.P.C. which is unassailable. According to him the evidence of P.W.3 and 5 being critically examined from all angles can't be discarded for a moment in respect of the incident or any part thereof and the same successfully pass through all the acid tests as regards acceptability. 6. With these submissions now let me go to the evidence of P.W.3 and 5 as they are the most important witnesses examined during trial as one claims to have seen the occurrence and the other is a witnesses to the extra judicial confession. P.W.5 is none other than the son of the appellant and the deceased. The boy aged about 8 years after facing necessary test has finally remained in the witness box his answers being found to be rational and given by understanding the implication of the questions. He has been therefore, examined during trial upon administration on oath. He has in a very simple manner stated that the appellant assaulted his mother by a lathi and killed her and that was at the time when he was going to bed with his younger brother Tapu and Lipu. It is also his evidence that after his mother died appellant took her dead body and buried in the cremation ground. During cross-examination he has further asserted to have been in the house although and to have gone to the cremation ground while specifically stating that he had not by then i.e. when the appellant assaulted his mother, gone to sleep. On being questioned he has answered to have not at all been tutored by any. During cross-examination he has further asserted to have been in the house although and to have gone to the cremation ground while specifically stating that he had not by then i.e. when the appellant assaulted his mother, gone to sleep. On being questioned he has answered to have not at all been tutored by any. This witness has been further cross-examined on recall. Then again in a plain and single manner he has accepted the suggestion that at times his father and mother used to quarrel as it happens in normal life in every family and the parents used to take liquor at times and on that day they had also so taken. Next, he has also stated that on that day his mother had not gone outside for work. At one point of time this child witnesses stated to have gone to School and on return found his mother dead, but on the very next moment he has gone to correct it by stating that when he returned from school his mother was cooking food and the death of his mother took place during noon hours after his return from school at 10.00 A.M. This can't be taken to be such serious an infirmity so as to discard his sworn testimony as he being of tender age while facing cross-examination having committed the mistake inadvertently when has rectified it immediately. The same is found to be quite usual and natural in case of children of such age. P.W.3 has also stated that at 7.30 P.M. when he returned home, he found P.W.5 crying and on being questioned he immediately replied that the appellant had assaulted his mother and caused her death. This witness then claims to have gone inside the house and found the appellant very much there and to have called him. It is stated that the appellant then told him there itself that as he asked his wife to give water which was not complied with and so out of anger he assaulted by means of a split wood which resulted in the death. The exact verbatim has been stated by the witness as to have been then told the appellant told to him which is "TO MAUSIKU PANI MAGILI, TORA MOUSI PANI DELANAHI, RAGARE KATHA FALIARE BADEIDELI, MARIGALA". Practically no challenge to this version has at all been advanced on this score. The exact verbatim has been stated by the witness as to have been then told the appellant told to him which is "TO MAUSIKU PANI MAGILI, TORA MOUSI PANI DELANAHI, RAGARE KATHA FALIARE BADEIDELI, MARIGALA". Practically no challenge to this version has at all been advanced on this score. There remains no reason to even conceive in mind for a moment that the son of the appellant i.e. P.W.5 would be falsely implicating the appellant when nothing is shown that he had any axe to grind against the appellant. More particularly the minor son stating against the father can't be said to be a false assertion, when he had no prior reason to have felt aggrieved and that too at the risk of great hardship. This rather shows P.W.3's urge to remain truthful despite of being visited with hale of problems and their invitation. P.W.5's evidence also corroborates the evidence of P.W.3 and the vice-versa. Thus I find the evidence of P.W.3 and P.W.5 to be trustworthy and they establish the complicity of appellant beyond reasonable doubt. Also another piece of evidence remains which provide corroboration to the above i.e. the appellant giving recovery of bamboo lathi MO-I which has been duly established through evidence of P.W. 10 and the evidence of D. W. 1 has no substance and is not acceptable on the face of clinching evidence coming from the lips of P. Ws.3 and 5 receiving further corroboration. Nothing surfaces as to why this P.W.3 would be also going to falsely implicate the appellant. In the fact situation, the appellant finding this P.W.3 at that condition and place, reposing confidence is nothing unusual but rather quite natural. 7. In the above state of affair in evidence, I find no such justifiable reason to record any disagreement with the factual finding rendered by the trial Court as regards the complicity of the appellant in holding that it is he who dealt blows by means' of split wood resulting death of his wife. However, the facts and circumstance as emanate from the evidence show that such act was without the intention to cause the death or such bodily injury as is likely to cause death although it was with the knowledge that the same is likely to cause death. Thus the conviction recorded for offence punishable under Section 304 (Part-II) IPC receives the seal of approval. Thus the conviction recorded for offence punishable under Section 304 (Part-II) IPC receives the seal of approval. As regards the conviction for offence under Sections 201 IPC, the evidence of P.Ws. are quite clear that the appellant showed the place where the dead body was buried and then the dead body was exhumed and further more P.W.3 has also stated about the appellant burying the dead body of his mother which has remained unshaken. The said finding is thus not liable to be interfered with. The sentences as imposed for above offences in the facts and circumstances of the case can neither be termed to be excessive nor disproportionate calling for interference. 8. In the result, the judgment of conviction and sentence impugned in this appeal is hereby confirmed and accordingly the JCRLA stands dismissed.