Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 219 (ORI)

Madhusudan Disari v. State of Orissa

2014-04-02

BISWAJIT MOHANTY, PRADIP MOHANTY

body2014
JUDGMENT In the present Jail Criminal Appeal, the appellant has challenged the order of conviction dated 17.5.2004 passed by the learned Sessions Judge, Koraput in Criminal Trial No.48 of 2002 under Section 302, IPC and consequent sentence to undergo imprisonment for life. 2.The prosecution case in brief is that on 26.1.2002 at about 4.30 P.M., the villagers of village Desonaikguda were celebrating “Puso Pandu Jatra” near the mango grove. Suddenly at that time, P.W.1 came running to her husband, P.W.4 (son of the deceased) and informed him that his mother was murdered by the appellant by an axe blow. Hearing this, the informant (P.W.4) immediately rushed to his house along with others and found the dead body of his mother lying at the spot with bleeding injuries on her back and near that spot one axe (M.O.I.), one cap and one slipper were also lying. Thereafter, P.W.4 along with other villagers searched for the appellant but could not trace him out. Consequently, P.W.4 lodged the F.I.R. before Sadar Police Station, Koraput after the same was scribed and read over to him. Basing upon the said written report, the police registered the case under Section 302, IPC, investigated the matter and on completion of investigation, the police submitted the charge sheet against the appellant. The defence plea is one of complete denial. 3.The prosecution in order to prove charge examined as many as six witnesses including the Doctor and the Investigating Officer and exhibited 10 documents. P.Ws.1 and 2 are the eye-witnesses to the occurrence, P.W. 3 is a post-occurrence witness and a co-villager, P.W.4 is the son of the deceased and informant, P.W.5 is the doctor, who conducted the autopsy and P.W.6 is the I.O. The defence examined none. On completion of trial, the Sessions Judge, Koraput convicted the appellant under Section 302, IPC basing upon the evidence of P.Ws.1 and 2, who are the eye-witnesses to the occurrence and also upon the extra-judicial confession made by the appellant before P.W.3. The appellant also admitted his guilt in the accused statement. 4.Mr. S. Mohanty, learned counsel for the appellant assailed the judgment on the following grounds; (i)P.W.1 and P.W.2 are interested witnesses being the daughters-in-law of the deceased. Therefore, their version cannot be believed. The appellant also admitted his guilt in the accused statement. 4.Mr. S. Mohanty, learned counsel for the appellant assailed the judgment on the following grounds; (i)P.W.1 and P.W.2 are interested witnesses being the daughters-in-law of the deceased. Therefore, their version cannot be believed. (ii)Since the appellant is an Adivasi, he confessed his guilt in the accused statement and admitted the fact and as such, the same cannot be utilized against him. (iii)In the alternative, submitted that the attending circumstances in which the offence was committed, if considered, the case may be converted to one under Section 304, IPC. 5.Mr. B.P. Pradhan, learned Additional Government Advocate vehemently contends that P.W.1 and P.W.2 are the eye-witnesses and they corroborate one another with regard to the core prosecution story. Merely because they are relatives of the deceased, their clear version with regard to assault can not be disbelieved. P.W.3 is another co-villager before whom the appellant confessed his guilt and in addition to this, the appellant admitted the facts under Section 313, Cr.P. that due to previous enmity, he assaulted the deceased. Therefore, Mr. Pradhan contends that the appellant has been rightly convicted under Section 302, IPC and in any way, this case is not coming under the purview of Section 304, IPC as the same is not covered by any of the exceptions to Section 300, IPC. 6.Perused the L.C.R. and gone through the evidence minutely. P.W.1 is the daughter-in-law of the deceased and wife of the informant (P.W.4). In her examination-in-chief, she deposed that she and her mother-in-law (deceased) were sitting in the sun and Moti Desi Nayak (P.W.2) was also with them. At that time, the appellant came there with a Tangia (M.O.I.) in hand and assaulted the deceased with that Tangia on her back. In spite of her protest, the appellant also gave a second blow with that Tangia on the back, as a result of which she sustained severe bleeding injuries and succumbed to the same. Out of fear, P.W.1 went from the spot. The male persons were there in a nearby mango grove on account of ‘Pousa Parba’. She disclosed the occurrence to her husband (P.W.4) in presence of P.W.3 and Daya Disari. Thereafter, they came to the spot and they found a cap, one Tangia as well as one piece of slipper lying near the dead body of the deceased. The male persons were there in a nearby mango grove on account of ‘Pousa Parba’. She disclosed the occurrence to her husband (P.W.4) in presence of P.W.3 and Daya Disari. Thereafter, they came to the spot and they found a cap, one Tangia as well as one piece of slipper lying near the dead body of the deceased. She identified the Tangia which was marked as M.O.I.. In the cross-examination, nothing has been elicited to demolish the evidence of P.W.1. She denied the suggestion that as the deceased abused the appellant, the appellant assaulted her. She also stated that assault was made on sharp side of Tangia. P.W.2 is another daughter-in-law of the deceased. In her examination-in-chief, she deposed that she, P.W.1 and the deceased were sitting together. At that time, the appellant came there with a Tangia (M.O.I.) on his shoulder. He immediately dealt a blow with that Tangia on the back of her mother-in-law (deceased). The deceased protested. In spite of it, the appellant gave another blow on her back. After the second assault, the deceased fell down on the ground and died at the spot. Out of fear, P.W.2 and P.W.1 left the spot and disclosed this occurrence to others. P.W.2 along with others also saw one cap, one slipper and one Tangia (M.O.I.) lying at the spot. By the time P.W.2 returned to the spot, the appellant had already absconded from the spot. In the cross-examination, nothing has been elicited to demolish the evidence of P.W.2. She denied the suggestion that all the villagers were drunk on that date. She also denied the suggestion that the deceased abused the accused in obscene words and as he protested, the deceased started abusing loudly and that out of anger the appellant dealt blow on the deceased. P.W.3 is a co-villager and post-occurrence witness. He heard the incident from P.W.1. He along with the informant (P.W.4) came to the spot and found the dead body of the deceased lying there. He found a cap, one Tangia (M.O.I.) and one slipper lying at the spot and those belonged to the appellant. P.W.3 along with others searched for and caught hold of the appellant and he confessed his guilt of having assaulted the deceased by means of an axe (M.O.I.). Police conducted the inquest over the dead body of the deceased. He found a cap, one Tangia (M.O.I.) and one slipper lying at the spot and those belonged to the appellant. P.W.3 along with others searched for and caught hold of the appellant and he confessed his guilt of having assaulted the deceased by means of an axe (M.O.I.). Police conducted the inquest over the dead body of the deceased. P.W.3 proved the inquest report under Ext.1 and also proved the seizure list under Ext.2. He also proved the seizure of wearing apparels of the appellant under Ext.3. He also identified the material objects. In the cross-examination P.W.3 admitted that he could not say whether in every house of his village there was Tangia. In the cross-examination, nothing has been elicited to demolish his evidence. He denied a suggestion that on his interrogation the appellant has told him that as the deceased abused the appellant, he assaulted her. P.W.4 is the son of the deceased and husband of P.W.1. In his examination-in-chief, he deposed that he was in the mango grove situated at a distance from the spot along with other villagers in connection with ‘Pousa Parba’. There P.W.1 came and told that his mother had been murdered by the appellant be means of a Tangia. He along with others went to the spot and found his mother (deceased) lying dead with injuries on her back. Thereafter, he reported the matter to the police by submitting a written report, which he scribed through a Brahmin man near the police station. After writing of the said report, he affixed his L.T.I. on the said report. He proved the written report under Ext.5. In the cross-examination, he admitted that he reported the matter in the evening and the police came to the spot on the next morning. He denied the suggestion that on their interrogation, the appellant told that as the old lady (deceased) abused him, he assaulted her by means of a Tangia. P.W.5 is the doctor, who conducted autopsy and found the following injuries : “Two incised wounds on the posterior aspect of the trunk on the inter scapular region. Wound No.1 being of size 4 ½” x 3/4” extending from the medial border of right scapula across the mid line in the inter scapular space. No.2 being of size 3” x ½” x 2 ½ x 2” to the left of and parallel to wound No.1 in the interscapular region. Wound No.1 being of size 4 ½” x 3/4” extending from the medial border of right scapula across the mid line in the inter scapular space. No.2 being of size 3” x ½” x 2 ½ x 2” to the left of and parallel to wound No.1 in the interscapular region. Both wounds are ante mortem in nature.” P.W.5 opined that all the injuries were ante-mortem in nature and might have been caused by sharp cutting weapon. He also opined that cause of death was due to haemorrhage from the wounds and that all the injuries were possible by axe. When confronted with axe (M.O.I.), P.W.5 said that injuries could be caused by the said axe. He proved the post mortem report under Ext.6. In the cross-examination nothing material has been elicited to discredit his evidence. P.W.6 was the O.I.C. of Koraput Sadar Police Station. In his examination-in-chief, he deposed that on the date of occurrence, P.W.4 presented the report. Basing upon the same, P.W.6 registered the case and investigated the matter. He examined the witnesses and made inquest over the dead body of the deceased. He sent the dead body of the deceased for post-mortem examination. He proved Ext.3 and seized the wearing apparels of the appellant and forwarded him to the Court and sent material objects for Chemical Examination. In the cross-examination, nothing has been elicited to demolish his evidence. 7.Considering the evidence of P.Ws.1 and 2, who were eye-witnesses to the occurrence, it is crystal clear that the appellant was the author of the crime and the appellant also made extra-judicial confession before P.W.3, who is a co-villager. No doubt P.W.1 and P.W.2 are the daughters-in-law of the deceased, who described the assault given by the appellant with the axe. They specifically stated that the appellant gave two blows to the back side of the deceased and immediately P.W.1 informed P.W.4 and other villagers. We cannot ignore the clear evidence of P.Ws.1 and 2 merely because they are relatives of the deceased. There is nothing to show that they were inimically disposed towards the appellant. Further the conduct of P.W.1 informing her husband P.W.4 (informant) was natural. Thereafter, P.W.3 and others came to the spot and saw the dead body of the deceased lying there along with a Tangia (M.O.I.) and slipper. There is nothing to show that they were inimically disposed towards the appellant. Further the conduct of P.W.1 informing her husband P.W.4 (informant) was natural. Thereafter, P.W.3 and others came to the spot and saw the dead body of the deceased lying there along with a Tangia (M.O.I.) and slipper. On search, the appellant could not be found but subsequently, he was traced out and he confessed his guilt. The Post Mortem Examination report also corroborates the core story of prosecution and there is no dispute that the death is homicidal in nature. All the material objects were sent for Chemical Examination and the Chemical Examination report reveals that human blood was detected from the Tangia (M.O.I.), wearing apparels and when the question was put to the appellant under Section 313, Cr.P.C., he admitted the above facts. He also admitted that due to previous enmity, he had assaulted the deceased on account of previous anger. Admission of guilt by the appellant under Section 313, Cr.P.C. cannot be ignored merely because he is an Adivasi, as contended by the learned counsel for the appellant. Further, there is no dispute that the appellant assaulted the deceased by means of a Tangia (M.O.I.) and gave two blows and there is no material that due to sudden provocation, the appellant assaulted the deceased. Therefore, the case is not coming under the purview of Section 304, IPC. 8.In view of the above, the judgment and order of conviction dated 17.5.2004 passed by the learned Sessions Judge, Koraput is confirmed. The Jail Criminal Appeal is accordingly dismissed. Appeal dismissed.