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2014 DIGILAW 760 (ORI)

Kala Majhi v. State of Odisha

2014-11-13

S.K.MISHRA

body2014
Judgment S.K. Mishra, J. The appellant, having been committed for the offence under Section 304 Part-II of the Indian Penal Code for committing homicide not amounting murder by killing of his wife by the learned Addl. Sessions Judge, Balasore in S.T. Case No.25/253 of 2008 as per judgment dated 8.2.2010, has preferred this appeal assailing the conviction and sentence. 2. The case of the prosecution, in short, is that on 16.1.2008 one Kanhu Majhi lodged a written report before the O.I.C., Basta Police Station to the effect that his daughter, Chhuti Majhi, had married the accused about ten years ago. It was alleged by the informant that after marriage the appellant used to assault his daughter and on 15.1.2008 five co-villagers of the accused informed him that his daughter had died due to a fall. When the informant arrived at the house of the accused, the latter told him that his daughter had consumed poison and died. Since some other co-villagers informed him that there was a quarrel between the accused and the deceased the day before, the informant suspected his son-in-law, the accused, to have killed his daughter. Basing on the report, Basta P.S. Case No.6/2008 was registered and police took up investigation. After completion of investigation, charge sheet under Sections 498-A/302 of the I.P.C. was submitted by the O.I.C., Basta P.S. Hence, the accused stood trial for the aforesaid offence. 3. In course of trial, the accused took the plea of denial. In order to prove its, the prosecution has examined seven witnesses. P.W.4-Jada Majhi, who happens to be the son of the accused-appellant is the sole eye witness to the occurrence. P.W.2-Kanhu Majhi is the informant. P.W.1-Kuanra Majhi is the constable who escorted the dead body of the deceased for post mortem examination. P.W.3-Dr.Ajay Krushna Samal conducted Post Mortem examination on the dead body of the deceased. P.W.5-Phula Majhi is the mother of the deceased. P.W.6-Ramesh Majhi is a co-villager of the informant. P.W.7-Jagmohan Mohanty is the Investigating Officer of the case. The prosecution also relied upon several exhibits. 4. The defence, on the other hand, neither examined any witness nor led any document into evidence. Basing upon the statement of the witnesses the learned Addl. P.W.5-Phula Majhi is the mother of the deceased. P.W.6-Ramesh Majhi is a co-villager of the informant. P.W.7-Jagmohan Mohanty is the Investigating Officer of the case. The prosecution also relied upon several exhibits. 4. The defence, on the other hand, neither examined any witness nor led any document into evidence. Basing upon the statement of the witnesses the learned Addl. Sessions Judge, Balasore came to the conclusion that the accused has committed culpable homicide not amounting to murder and has proceeded to punish him under Section 304 Part-II of the I.P.C. He further sentenced him to undergo R.I. for ten years and to pay fine of Rs.5,000/-, in default to undergo further R.I. of one year. 5. In course of hearing, learned counsel for the defence argued that the evidence of P.W.4 should not have been believed, he being a child witness and, therefore, the conviction of the accused-appellant is bad and is liable to be set aside. Alternatively, he submits that the offence being under Section 304 Part-II, a lesser sentence should be imposed. On the other hand, learned Addl. Government Advocate submits that the learned Addl. Sessions Judge had a correctly oriented view of the evidence of the prosecution and has come to a right conclusion, hence there is no need to interfere with the findings recorded by the learned Addl. Sessions Judge. 6. Admittedly, P.W.4 is a child witness. He was aged about eight years at the time of examination. He was put probing questions by the learned Addl. Sessions Judge. After recording the answers given by him, the learned Addl. Sessions Judge has came to the conclusion that he is capable of giving rational answers. Therefore, he recorded the submission and allowing the prosecution to examine as a witness. The said witness has stated that Kanhu Majhi, the informant, is his maternal grand father. He further states that the name of my mother was Chhuti Majhi. He said that the accused standing in the dock is his father. He further states that his mother expired one year and one and half month ago during day time at about 12 noon in his house at Village Gubura. Therefore, he categorically stated that his mother was killed by his father by means of a pestle of a Hemadasta by hitting on the backside neck of his mother. His mother fell down on the verandah of the house. Therefore, he categorically stated that his mother was killed by his father by means of a pestle of a Hemadasta by hitting on the backside neck of his mother. His mother fell down on the verandah of the house. He categorically stated that he has seen his father assaulting his mother. He further stated that he cannot say why his father assaulted his mother. 7. In course of examination, he has stated that he cannot say the date of incident. He further stated that his father was drunk at the time as he had consumed liquor. There was altercation between his parents. Nothing substantiate has been brought out from the mouth of the witness to discredit him. The witness has denied that he has been deposing falsely being tutored by his maternal grand parents. 8. P.W.3-Dr. Ajay Kumar Samal, who had conducted Post Mortem examination, stated that he was found contusion of size 5 cm x 5 cm of bluish discolouration on right side neck, below ear lobelia on the neck of the deceased. He further stated that in dissection he found congestion in all internal organs. In cross-examination he has stated that vaso vagal shock may be caused due to external blow on neck. He had also found that there was blood stains on both nostrils and cheeks. Thus, it is apparent from the record that the evidence of P.W.4 gets sufficient corroboration from the evidence given by P.W.3. 9. In that view of the matter, this Court comes to the conclusion that the learned Addl. Sessions Judge has come to the right conclusion that the deceased died due to the assault made by the appellant. Learned Addl. Sessions Judge came to the conclusion that the appellant has no intention to commit murder. Hence, the offence of murder is not established against him. Rather the appellant is guilty of culpable homicide not amounting to murder. This Court is in concurrence with the aforesaid findings. So there is no reason to disturb the order of conviction passed by the learned Addl. Sessions Judge. 10. Coming to the alternative submissions made by the learned counsel for the appellant, it is seen that the appellant has been convicted and sentenced to undergo R.I. for ten years and to pay a fine of Rs.5,000/-. So there is no reason to disturb the order of conviction passed by the learned Addl. Sessions Judge. 10. Coming to the alternative submissions made by the learned counsel for the appellant, it is seen that the appellant has been convicted and sentenced to undergo R.I. for ten years and to pay a fine of Rs.5,000/-. It is apparent from the record that eye witness has stated that at the time of occurrence, the appellant was inebriated condition. Therefore, this Court is of the opinion that the punishment of ten years R.I. and imposition of fine of Rs.5,000/-is excessive, which need modification. It is further seen that the accused-appellant is a poor man and he could not engage counsel to defend his case before the trial court as well as in the appellate court. So this Court is of the opinion that imposition of fine should be remitted. 11. Hence, the appeal is allowed in part. The conviction of the appellant under Section 304 part-II of the I.P.C. is confirmed. However, the sentence is modified to the extent that the appellant shall undergo R.I. for a period of seven years. Period under gone be set off. S.C. Parija, J. : I agree.