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2017 DIGILAW 1076 (ORI)

Miniaka Masuri v. State of Orissa

2017-09-16

D.P.CHOUDHURY, SATRUGHANA PUJHARI

body2017
JUDGMENT S.PUJAHARI, J. - The appellant herein, calls in question the judgment of conviction and order of sentence dated 08.11.2004 passed against him in Sessions Case No. 32 of 2001 on the file of the Addl. Sessions Judge, Rayagada. By the impugned judgment, the learned trial Court held the appellant guilty of the charge under Section 302 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5,000/, in default, to undergo R.I. for six months more. 2. Prosecution case as placed before the trial Court is that in the night intervening 25/26.06.2001, the deceased, who happens to be the uncle of the appellant, in a state of inebriation, was shouting in the village and when the father of the appellant (D.W.1) made protest to the same being his elder brother, he (deceased) assaulted him with a ‘Thenga’. The appellant seeing the same, being enraged, assaulted the deceased with ‘Thenga’(M.O.I) causing injury on his chest and head, and the deceased succumbed to the injuries there. The appellant then with his father went to Mandingi Mala (P.W.1) who was in his guard hut in his field to guard his crop and confessed the guilt before him. P.W.1 then along with them came to the village and found the deceased to be lying dead and also ‘Thenga’ (M.O.I) was there and in the morning following such date of incident, P.W. 1 along with others reported the matter orally before the police at Rayagada Police station, pursuant to which the F.I.R. Ext. 1/1 was drawn by the police and investigation was taken up. The police conducted investigation and during course of investigation found the report to have substance and, as such, placed charge-sheet against the appellant under Section 302 of I.P.C. The S.D.J.M, Rayagada committed the case to the Court of Sessions. The trial Court on the basis of materials placed framed charged under Section 302 of IPC against the appellant, but the appellant pleaded not guilty to the charge and claimed to the tried. Prosecution, as such, examined 8 witnesses, exhibited 11 documents and 1 Material Objects. i.e., Thenga (M.O.I) to substantiate the charge framed against the appellant. The appellant, who had taken a plea of denial and false implication examined his father – Miniaka Kurma (D.W.1) as a defence witness in support of his defence plea. Prosecution, as such, examined 8 witnesses, exhibited 11 documents and 1 Material Objects. i.e., Thenga (M.O.I) to substantiate the charge framed against the appellant. The appellant, who had taken a plea of denial and false implication examined his father – Miniaka Kurma (D.W.1) as a defence witness in support of his defence plea. On conclusion of the trial, the trial Curt held the appellant guilty of the charge under Section 302 of IPC and sentenced him as stated earlier. 3. Learned counsel for the appellant contends that the impugned judgment of conviction and order of sentence as returned by the trial Court are unsustainable, as according to him, the evidence of the witnesses implicating the appellant to be the author of the crime, is unworthy of credence. The learned counsel further contends that even if the case of the prosecution case is accepted in its entirety, the same does not attract the ingredients of the charge under Section 302 of IPC, as during course of a quarrel, without any premeditation, the appellant in heat of passion said to have dealt a blow with a ‘Thenga’ on the head of the deceased. The same can at best attract the ingredients of an offence under Section 304, Part-II of I.P.C. and the appellant being a tribal, a lenient view with regard to the sentence be taken against him. 4. On the other hand, Mr. D.K. Mishra, the learned Addl. Government Advocate for the State defends the impugned judgment of conviction and order of sentence, advancing the submission that the appellant having no reason, when the deceased, who happens to be his uncle, was quarrelling with his elder brother, the father of the appellant, dealt lathi blows to the deceased which led to his death and no material being there to indicate of his being provoked, the impugned judgment of conviction and order of sentence warrant no interference of this Court. 5. When the contentions of the parties regarding the sustainability of the impugned judgment of conviction and order of sentence are addressed vis-à-vis the evidence on record, we find the eye witness in this case, i.e., Palaka Ribana (P.W.4) happens to be the co-villager of the appellant as well as the deceased, so also P.W.5- Hapuraka Pujari, an immediate post occurrence witness. 6. 6. As it reveals from the evidence of P.W.4 that in the night of occurrence, hearing the hullah when he came out of the house, he found the deceased to be holding a lathi and quarreling with the father of the appellant and then the appellant asked him as to why he assaulted his father and saying so, he dealt a lathi blow to the deceased, as a result of which he fell down on the ground. P.W. 5 deposed that in the night of occurrence while he was sleeping, hearing hullah he got up and came out of his house and found the deceased to be lying on the ground and the appellant was standing holding a lathi in his hand. Both these witnesses have deposed that since the appellant had extended threat to others not to come near the spot, they did not venture to go near to the spot. There is nothing on record to show that the aforesaid two witnesses had any animosity with the appellant or had any reason falsely implicate him in this case. They are rustic Adibasi co-villagers of the appellant as well as the deceased. 7. The evidence of the aforesaid witnesses, however, is criticized to be worthy of credence inasmuch as the occurrence having taken place in the darkness of night and P.W.4 having stated that he witnessed the occurrence from a distance of 50 yards and admittedly P.W.5 also having not come to the spot, it is difficult to accept their version that they have seen the appellant near the spot of occurrence. In cross-examination of P.W.4 it has been elicited that no electric line was there and admittedly the incident took place on the village road in the night. P.W.4 being a rustic Adibasi villagers, his evidence with regard to seeing the occurrence from a distance of 50 yards is not required to be taken with exactitude inasmuch as the rustic villagers have little idea about the time and distance, to discard his evidence. The same is also fortified from the evidence of this witness that he could not say about the distance but pointed out a place by remaining in the dock of the Court room to be the distance from which he witnessed the occurrence which the Court has measured to be about 50 yards. The same is also fortified from the evidence of this witness that he could not say about the distance but pointed out a place by remaining in the dock of the Court room to be the distance from which he witnessed the occurrence which the Court has measured to be about 50 yards. No evidence is there indicating the fact that it was a pitch dark night. It appears that, hearing the hullah, the aforesaid two witnesses have got up from the sleep and came out from their house. They are all co-villagers and have close acquaintance for many years. In such premises, the evidence of P.W. 4 seeing the occurrence even in the nigh cannot be discarded on the ground of impossibility to identify from such distance, more so when there was quarrel between the appellant and the deceased and when he had acquaintance with the voice and gait of them for many years, especially when he had absolutely no reason to depose against the appellant. For the said reason, the evidence of P.W. 5 is also not open to criticism on the said ground. It is also emerged from the evidence of D.W. 1 that there was quarrel between him with the deceased in which he was assaulted by the deceased though he suppressed his appellant –son’s presence there, also lends corroboration to the version of P.W.4. 8. The evidence of the P.Ws. 4 and 5 is further criticized on the ground that since they have falsely stated that as the appellant extended threat and, as such, they could not proceed to the spot inasmuch as they have omitted to state such a vital piece of evidence before the Investigating Officer, P.W. 8 during their examination, their evidence is unworthy of credence and the Court, therefore, should not accept their version with regard to the occurrence. It is well settled that the maxim of falsus in uno, falsus in omnibus, i.e., false in one thing, false in everything is neither a sound rule of law nor rule of practice in Courts in India to appreciate the evidence of the witnesses, inasmuch as hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore the duty of the Court to scrutinize the evidence carefully and separate the grain from the chaff. It is, therefore the duty of the Court to scrutinize the evidence carefully and separate the grain from the chaff. As in this case, the aforesaid part is clearly separable from the substratum of the prosecution case with regard to the assault and presence of the appellant at the spot, even if the aforesaid is held to be a false one, the same does not affect the credibility of the version of P.Ws. 4 and 5 with regard to the occurrence, as stated earlier, more so when nothing is there indicating that they have any reason of deposing falsehood roping in the appellant in this case. 9. Coupled with the aforesaid fact, as indicated from the evidence of P.W. 1 that on the date of occurrence while he was in his guard hut in his paddy field to guard the crop in the night, the appellant appeared there along with his father and on being asked made a confession before him that Chhalia (deceased) assaulted his father and thereafter then he protested, he (deceased) did not listen and he (appellant) dealt a ‘Thenga’ blow on Chhalia (deceased), as a result of which, he died, P.W. 1 has also deposed that the appellant and his father were also accompanied by; one Randu and one Sunduru then. It is disclosed from the evidence of this witness that thereafter he came to the spot and found the dead body of the deceased lying with the injuries on his head and also a ‘Thenga’ was lying there and in the morning following he went to the Police station and reported the matter orally. Such evidence of this witness also gets corroboration from the F.I.R. version vide Ext. 1/1. No material is there to remotely suggest that this witness, who appears to senior person of the village on whom confidence was reposed soon after the occurrence, had any animosity or reason to falsely implicate the appellant. Nothing is there on record indicating the fact that the aforesaid confession was extracted from the appellant under threat or coercion or inducement. Absolutely nothing was brought in the cross-examination to view such extra judicial confession of this appellant said to have been made before the informant P.W.1 with suspicion. The confession, therefore, being voluntary, quite acceptable, more so when the same also fit into other evidence adduced in this case. 10. Absolutely nothing was brought in the cross-examination to view such extra judicial confession of this appellant said to have been made before the informant P.W.1 with suspicion. The confession, therefore, being voluntary, quite acceptable, more so when the same also fit into other evidence adduced in this case. 10. The Investigating Officer (P.W.8) in his evidence deposed that on receipt of the report, Ext. 1/1, he came to the spot and found the dead body of the deceased there on the spot, prepared a spot map, Ext. 9, held inquest over the dead body of ;the deceased vide inquest report, Ext. 2/1, sent the dead body for postmortem examination, seized the sample earth, blood stained earth vide seizure list, Ext. 3/1 and also seized the ‘Thenga’, M.O.I. stained with blood lying at the spot and also sent the said ‘Thenga’ to the doctor with query as to whether the injuries noticed on the dead body can be caused by the said weapon of offence and seized the wearing apparels of the deceased after postmortem examination vide Ext. 6 and produced the seized physical clues before the S.D.J.M., Rayagada for sending the same to the R.F.S.L. for chemical examination vide Ext. 10 and the chemical examination report vide Ext. 11 indicates that on examining the blood stained earth collected from the spot human blood of group ‘O’ origin, which agrees to the blood group of the deceased found in his wearing apparels. So also, the ‘Thenga‘, M.O.I. seized from the spot stated to be containing blood stained or human origin. The aforesaid, as such, lends corroboration to the version of the aforesaid witnesses, i.e., P.Ws. 1,4 and 5. 11. Furthermore, the evidence of doctor (P.W.6), who conducted the postmortem examination over the dead body of the deceased reveals that he found the following injuries during postmortem examination. “(i) Lacerated injury on the base of index to little finger of left hand/4” x 1" x bone deep. (ii) Contusion along with superficial abrasion on right side of the fore head of size 3" x 2" with depress fracture of right parietal bone. (iii) Contusion 2" x 3" on left parietal bone. (iv) Contusion of left side of lower part of chest and abdomen of size 3" x 2". (v) Contusion on right side of chest wall of size 3" x 2" with fracture 6th, 7th and 8th ribs. (iii) Contusion 2" x 3" on left parietal bone. (iv) Contusion of left side of lower part of chest and abdomen of size 3" x 2". (v) Contusion on right side of chest wall of size 3" x 2" with fracture 6th, 7th and 8th ribs. “ On disSection, the doctor, P.W.6 noticed bleeding present under the scalp on right and left parietal area with fracture of skull bone, with subdural haemorrhage, the brain was congested, Lungs and Pleura congested. On disSection of the abdomen, he noticed bleeding to the peritoneal cavity and rupture of spleen. The doctor further deposed that the cause of death might be due to neurogenic or haemorrhagic shock due to the injuries and rupture of spleen and all the injuries were antemortem in nature and time since death ws 36 to 72 hours. He further deposed that the injuries are sufficient to cause death. Such evidence of this witness also gets corroboration from the postmortem examination report, Ext. 4. The doctor further deposed that the Investigating Officer (P.W.8) had made a query regarding weapon of offence and had sent a wooden Thenga (lathi) and he opined that all the external injuries are possible by the lathi, which was identified to be M.O.I. Such opinion evidence of this witness also gets corroboration from his opinion report vide Ext. 5. No evidence is brought to record to doubt the veracity of such version of this doctor. No criticism to the same is also made to the said evidence in this appeal by the appellant. Therefore, this Court also finds no reason to differ with the verdict of the trial Court in accepting such evidence. The aforesaid lends further assurance to the version of the eyewitness that the appellant had dealt ‘Thenga’ blows on the chest and head of the deceased which ultimately contributed to the death of the deceased. 12. The aforesaid evidence on record categorically indicates that when the deceased-uncle of the appellant in a state of inebriation was making hullah in the village, the father of the appellant (D.W.1) being his (deceased) elder brother came and told him not to raise hullah. However, the deceased assaulted him, for which he sustained injuries and fell down on the ground. The aforesaid evidence on record categorically indicates that when the deceased-uncle of the appellant in a state of inebriation was making hullah in the village, the father of the appellant (D.W.1) being his (deceased) elder brother came and told him not to raise hullah. However, the deceased assaulted him, for which he sustained injuries and fell down on the ground. The appellant who was there, as such, questioned him as to why he assaulted his father and thereafter in a heat of passion dealt the blows by a lathi of substantial girth (Thenga) to the deceased on his vital parts, like his head and chest which resulted fracture in the head and also in the ribs and caused rupture of spleen. The deceased died of shock arising out of the aforesaid injuries. Hence, the act of the appellant contributed to the death of the deceased. The appellant has adduced defence evidence indicating that his father was assaulted by the deceased, but does not dispute the aforesaid evidence. The aforesaid defence evidence brought on record does not militate against the prosecution case, rather strengthens the case of the prosecution, as stated earlier. Hence, prosecution has proved its case that it is the appellant none else had done the deceased to death. 13. Now, coming to the contention with regard to the sustainability of the conviction of the appellant under Section 302 IPC, the learned counsel for the appellant contended that this case squarely attracts the ingredients of a charge of “culpable homicide” but not ‘murder’ which has been disputed by the learned Addl. Government Advocate appearing for the State. To appreciate such contention, it would be apposite to mention here that in the scheme of the Penal Code, ‘culpable homicide’ is genus and ‘murder’ its specie. To put it in other words, all ‘murders’ are ‘culpable homicide’ but not vice versa. ‘Culpable homicide’ sans ‘special characteristic of murder’ is ‘culpable homicide not amounting to murder’. So also, in the scheme of the Code, even if a ‘culpable homicide’ contains the ‘special characteristic of murder’, but if the same has been committed within the circumstances excepted in Section 300 of IPC, the same may amounts to ‘culpable homicide not amounting to murder’ and punishable under Section 304, Part-I or Part-II of the IPC. So also, in the scheme of the Code, even if a ‘culpable homicide’ contains the ‘special characteristic of murder’, but if the same has been committed within the circumstances excepted in Section 300 of IPC, the same may amounts to ‘culpable homicide not amounting to murder’ and punishable under Section 304, Part-I or Part-II of the IPC. To decide whether a ‘homicide’ is culpable homicide amounting to murder’ or ‘not amounting to murder’, the first question that is required to be considered by the Court is that whether ‘homicide’ caused by the accused was falling in any of the three clauses of Section 299 of IPC, i.e., whether the accused intending the death of the deceased caused his death? Whether the accused caused bodily injury which is likely to cause death? Or whether he did an act with the knowledge that his act is likely to cause death? If the act of the accused falls in any of the aforesaid clauses, the same amounts to ‘culpable homicide’ and such ‘culpable homicide’ when covers by the aggravating circumstances as mentioned in Section 300 of IPC, the same would amount to ‘murder’. But, such ‘culpable homicide’ is not covered by any of the clauses mentioned in Section 300 of IPC, the same is a ‘culpable homicide not amounting to murder’ punishable under Section 304 of IPC. Besides the same, even if ‘culpable homicide’ was committed in any of the aggravating circumstances mentioned in Section 300 of IPC, but the same is done in the circumstanced mentioned in exception to Section 300 of IPC, the same does not amount to ‘murder’. The aforesaid particularly speaking the scheme of the Code. 14. Keeping in the mind the aforesaid, when the case in hand is addressed, it appears to this Court that in this case, the injuries caused by the appellant to the deceased contributed to the death of the deceased and such injuries caused by the appellant was intentional inasmuch as nothing is there indicating the fact that the aforesaid injuries were accidentally caused and never intended by the appellant. The aforesaid injuries directly contributing to the death of the deceased, as such, the appellant committed ‘culpable homicide’. 15. The aforesaid injuries directly contributing to the death of the deceased, as such, the appellant committed ‘culpable homicide’. 15. Now, coming to the second stage whether the act of the appellant is covered by aggravating circumstances as mentioned in Section 300 of IPC, it would go to show that the appellant caused the injuries on the vital parts of the body of the deceased, i.e. head and chest and caused certain injuries which are sufficient in ordinary course of nature to cause his death, as deposed by the doctor, P.W.6. Therefore, the overt act of the appellant is covered by Clause Thirdly of Section 300 of IPC. However, from the evidence on record, it is emerged that the aforesaid incident occurred during the sudden quarrel between the father of the appellant and the deceased and also the appellant is a party to the same. The appellant had not come to the spot to assault the deceased. Absolutely, therefore, there is no premeditation. During the course of such sudden quarrel and when without any premeditation, in a heat of passion, i.e, on account of assault made to his father by his deceased-uncle, he assaulted the deceased with the ‘Thenga’, M.O.I. which also appears to have not been brought by him to the spot and he has not taken any undue advantage or acted in a cruel or unusual manner while making such assault, this Court is of the view that such overt act of the appellant is a ‘culpable homicide not amounting to murder’ and punishable under Section 304, Part-I of IPC. The trial Court, however, in oblivious to the aforesaid having convicted the appellant in a charge of ‘murder’, the same is unsustainable. 16. Hence, on reappraisal of the evidence on record, we allow this Jail Criminal Appeal in part by modifying the impugned judgment of conviction and order of sentence dated 08.11.2004 passed by the learned Additional Session Judge, Rayagada in Sessions Case No. 32 of 2001 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo rigorous imprisonment for six months, to one under Section 304, Part-I of Indian Penal Code by substitution the sentence to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-, in default, to undergo rigorous imprisonment for six months, to one under Section 304, Part-I of Indian Penal Code by substitution the sentence to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1000/- (rupees one thousand), in default, to undergo rigorous imprisonment for one month more. L.C.R. received be sent back forthwith along with a copy of this Judgment. Ordered accordingly.