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2017 DIGILAW 1368 (ORI)

Jairam Minz v. State of Odisha

2017-11-27

K.R.MOHAPATRA, S.PANDA

body2017
JUDGMENT : K.R. Mohapatra, J. This appeal has been entertained by this Court on a petition of the convict, namely, Jairam Minz from the Special Jail, Rourkela. The convict in this appeal seeks to assail the judgment and order of conviction and sentence dated 16.10.2004 passed by learned Addl. District & Sessions Judge, Rourkela in S.T. Case No. 102/10/2004 (arising out of G.R. Case No. 1706 of 2003 corresponding to Biramitrapur P.S. Case No. 126 of 2003 being committed by learned S.D.J.M., Rourkela). The appellant in the aforesaid case has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life. 2. Prosecution story in brief as revealed from the F.I.R. is that on 11.10.2003, while the deceased, namely, Ganeswar Minz, was assisting his mother namely, Gouri Minz (P.W.2) to enter into his house from the courtyard, she (his mother) fell down. The appellant, namely, Jairam Minz, who is a nephew of the deceased and saw the incident from a distance, thought that the deceased was assaulting his (deceased) mother. Hence, he rushed to the spot and challenged the deceased as to why he was assaulting his mother (grand mother of the appellant). Out of anger, he brought out an axe from the house of the deceased and dealt successive blows on the head of the deceased causing his instantaneous death. After the incident, the appellant fled away from the spot throwing the weapon of offence (axe) in the cashew field. After the incident, the daughter of the deceased, namely, Koili Minz (P.W.1) reached home and found her father dead. On being asked, her grand-mother (P.W.2) disclosed about the incident. Accordingly, she lodged the F.I.R. at Biramitrapur Police Station, which was registered as Biramitrapur P.S. Case No.126 of 2003. Since the F.I.R. disclosed a cognizable case, the I.I.C., Biramitrapur PS (PW-9) took up investigation. 3. During the investigation, P.W. 9 visited the spot and found the dead body of Ganeswar Minz with bleeding injuries lying inside his house. Thus, he made inquest of the dead-body in presence of the witnesses and prepared the inquest report vide Ext. 2. He also prepared the spot map (Ext.7) and dispatched the dead-body to Kuarnmunda P.H.C. for postmortem examination along with dead-body challan vide Ext. 8. He also seized sample earth and blood stained earth vide Ext.4 and examined the witnesses present there under Section 161 Cr. 2. He also prepared the spot map (Ext.7) and dispatched the dead-body to Kuarnmunda P.H.C. for postmortem examination along with dead-body challan vide Ext. 8. He also seized sample earth and blood stained earth vide Ext.4 and examined the witnesses present there under Section 161 Cr. P.C. The wearing apparels of the deceased was seized vide Ext.10. On 15.10.2003, the appellant was arrested. During interrogation, the appellant led the I.O. (P.W. 9) and other witnesses to the cashew field, wherefrom the weapon of offence was recovered and seizure list under Ext.3 was prepared. Subsequently, the weapon of offence was sent to the Medical Officer for his opinion vide Ext.6/2. Ext. 6 is the opinion of the Medical Officer affirming the query to the effect that the injury could be possible by the weapon of offence. After the autopsy, the Medical Officer (P.W.8) submitted the postmortem report vide Ext.5. The postmortem report disclosed the following external and internal injuries:- “External Injuries (i) One cut injury of length 2½” x breadth ¼” and depth 2 ½ ” over the backside of head; (ii) One cut injury 2 ½” length ½, breadth and ½” depth over the back side head 1” lateral to injury No.(i) (iii) One defused swelling over right parietal area of head almost oval shed having 2” length x 1 ½” depth. Internal Injuries (i) On dissection there was fracture of occipital bone in apposition to injury No.(i) & (ii) separately with menigeal tear, injury to brain matter and blood clot inside. There was blood clot and ecchymosis and at the scalp in apposition to injury No. (iii).” P.W. 8 further opined that all injuries were ante mortem in nature and injury Nos.(i) & (ii) were sufficient in ordinary course to cause death. The cause of death was most probably due to injury to vital part like brain. Time since death till the post-mortem examination, was within 24 hours. 4. After completion of the investigation, charge-sheet under Section 302 I.P.C. was submitted against the appellant. The appellant in turn, denied his involvement in the alleged incident and pleaded that a false case has been foisted against him. 5. Learned Additional Sessions Judge taking into consideration the evidence, both oral and documentary available on record as well as contentions raised by learned counsel for the parties, convicted the appellant under Section 302 I.P.C. and sentenced him to undergo imprisonment for life. 5. Learned Additional Sessions Judge taking into consideration the evidence, both oral and documentary available on record as well as contentions raised by learned counsel for the parties, convicted the appellant under Section 302 I.P.C. and sentenced him to undergo imprisonment for life. 6. Mr. P.C. Panda, learned counsel for the appellant challenged the impugned judgment on the ground that learned Additional Sessions Judge has failed to appreciate the materials on record from its proper perspective. Elaborating his argument, he submitted that P.W.2, the grand-mother of the appellant, is stated to be the only eyewitness to the occurrence. Referring to her deposition, he submitted that P.W. 2 had a defective eyesight and she could not properly count fingers shown to her by learned counsel for the defence during cross-examination. Hence, it is not safe to rely upon her statement and come to a conclusion that she had seen the occurrence. There was no enmity between the deceased and the appellant. There was neither any premeditation nor motive of the appellant to commit such crime. The weapon of offence although seized was not produced before the trial Court. The injuries on the head of the deceased could be possible by a fall on a sharp edged substance. Hence, the conviction is only based upon summarizes and conjectures, which is not sustainable in law. In the alternative, learned counsel for the appellant took a plea that the prosecution story, if accepted in toto, would not end in conviction of the appellant under Section 302 I.P.C. It may in the worst case, attract a conviction under Section 304 Part-II I.P.C. Hence, he prayed for setting aside the impugned judgment and order of conviction and sentence. 7. Mr. S.S. Mohapatra, learned Additional Standing Counsel for the State, on the other hand, refuted the contention raised by learned counsel for the appellant. It is his submission that P.W.2, the grandmother of the appellant, had seen the occurrence from a very close proximity. She, in her re-examination, has categorically stated that she is an illiterate lady and knows counting up to two and no more. She, in her examination-in-chief, has categorically stated that the appellant (Jairam) killed his son (deceased) by giving two axe blows on his head. The appellant did not care to the oral protest raised by P.W.2. She, in her re-examination, has categorically stated that she is an illiterate lady and knows counting up to two and no more. She, in her examination-in-chief, has categorically stated that the appellant (Jairam) killed his son (deceased) by giving two axe blows on his head. The appellant did not care to the oral protest raised by P.W.2. He further submitted that when there was no enmity between the parties, there was no reason as to why the appellant would be implicated falsely by the P.W. 2, more particularly, when the appellant is her grandson. Referring to the evidence of P.W. 8, the Medical Officer, who conducted the postmortem, he submitted that the brutality of the assault is clear from the gravity of the injuries on the vital part of the body, i.e., head of the deceased. P.W.8, in his evidence, has categorically deposed that the injuries were ante mortem in nature and the cut injuries were sufficient in ordinary course of nature to cause death. P.W.8, in his evidence, has also stated that the injury could be possible by the weapon of offence. Taking all these factors of the consideration, learned counsel Additional Sessions Judge has rightly convicted the appellant under Section 302 I.P.C., which needs no interference. 8. We have heard learned counsel for the parties in detailed and perused the records meticulously. 9. There is no dispute to the effect that death of the deceased was homicidal in nature. The next question that arises for consideration is, whether the appellant was the author of the crime. P.W.2 who is the only eyewitness to the occurrence has categorically deposed in her evidence that the deceased was his eldest son. Accused Jairam (the grandson of P.W.2) killed him by inflicting two axe blows on his head. He did not care to her (P.W.2’s) oral protest. He (accused), thereafter, fled away with the axe. In her cross examination, she has stated that “it is not a fact that I am unable to see the things properly. Five fingers are shown to me (learned counsel for the defence had actually shown her four fingers after closing the thumb). It is not a fact that I am unable to see the things even from close quarter”. She also in her re-examination, has stated that she was illiterate and knew counting up to two and no more. Five fingers are shown to me (learned counsel for the defence had actually shown her four fingers after closing the thumb). It is not a fact that I am unable to see the things even from close quarter”. She also in her re-examination, has stated that she was illiterate and knew counting up to two and no more. Her evidence with regard to blows dealt on the head of the deceased was corroborated by the evidence of the Medical Officer (PW-8). Although she was cross-examined by the defence in detail, the credibility of her evidence could not be shaken. There is no reason as to why she would depose falsely against her grandson, when she had no enmity with him. The evidence of P.W.2 clearly disclosed that she had seen the occurrence from a close proximity. Wrong counting of fingers shown by learned counsel for the defence in Court is of a little significance, when she in her reexamination has categorically deposed that she knew counting up to two and not beyond that. Further, the defence had not suggested the P.W. 2 that she had not seen the incident properly due to her defective eyesight. On a close reading of the deposition of P.W. 2 coupled with the evidence of the Medical Officer P.W.8 gave a clear picture of the incident. There is nothing on record to discredit the evidence of P.W.2 as well P.W. 8. P.W.1, the informant as well as her husband P.W.3, who ascribed the F.I.R. (Ext.1) supported the case of the prosecution and there is nothing on record to disbelieve their evidence. Learned counsel for the appellant also took a plea that although the weapon of offence is stated to have been seized by the police and was sent to the Medical Officer (P.W.8) for his opinion, the same was not produced before the court, which is fatal to the case of the prosecution. Learned Additional Standing Counsel, on the other hand, submitted that non-production of weapon of offence in Court, may not be fatal, when other evidence available on record are sufficient enough to bring home the charge against the accused. 10. As discussed above, the evidence of eye-witness, P.W. 2, could not be shaken by the defence in her cross-examination. Further, the evidence of P.W. 8 (Medical Officer) also supports the case of the prosecution in all material particulars. 10. As discussed above, the evidence of eye-witness, P.W. 2, could not be shaken by the defence in her cross-examination. Further, the evidence of P.W. 8 (Medical Officer) also supports the case of the prosecution in all material particulars. This Court in the case of Mangal Hansada vs. The State, reported in 1985 CRI.L.J. 1589, at para-3 held as follows: “3........... It is not necessary in every case that the weapon of attack must have been recovered in a case of murder and non-recovery of the weapon of attack would not affect the other evidence if found to be reliable and acceptable.” 11. In the instant case, we do not find any reason to disbelieve/discard the evidence of the prosecution witnesses, more particularly, the evidence of P.Ws. 1, 2, 3 and 8. Although P.Ws. 4, 6 and 7 are seizure witnesses and did not support the case of the prosecution, the same is inconsequential in view of the undisputed evidence of P.Ws. 2 and 8 coupled with the evidence of P.Ws. 1 and 3. In that view of the matter, we are constrained to hold that the appellant is the author of the crime. 12. The next question that arises for consideration is whether culpability of homicide committed by the appellant would amount to murder. 13. Learned counsel for the appellant submitted that when the appellant saw his grandmother (P.W.2) falling down while entering into the house of the deceased, he was under impression that the deceased had assaulted the P.W.2. Hence, without any premeditation and in the heat of passion, the appellant brought out an axe from the house of the deceased and dealt two blows on the head of the deceased. As such, it squarely comes under Exception-4 under Section 300 I.P.C. Hence, if the prosecution story is accepted in toto, it would attract a conviction under Section 304 Part-II I.P.C. 14. Learned Additional Standing Counsel, on the other hand, submitted that the appellant knowing well that the injury would cause instantaneous death of the deceased, dealt two severe blows on the head of the deceased. Further, there was neither any provocation from the side of the deceased nor there was any quarrel or fight between the parties, which led to the incident. The brutality of the assault and severity of the injuries squarely attract Section 302 I.P.C. and not 304 Part II I.P.C., as submitted. 15. Further, there was neither any provocation from the side of the deceased nor there was any quarrel or fight between the parties, which led to the incident. The brutality of the assault and severity of the injuries squarely attract Section 302 I.P.C. and not 304 Part II I.P.C., as submitted. 15. From the evidence available on record, it is apparent that there was no premeditation of the appellant to commit the offence. With a mistaken impression that the deceased was assaulting his grandmother, the appellant rushed to the spot, brought out the weapon of offence from the house of the deceased and dealt two successive blows on his head. It was certainly in a heat of passion, the appellant had dealt the blows. The mens rea of the appellant to commit murder of the deceased is conspicuously absent in this case. At the same time, the appellant had the knowledge that the injuries caused on the vital part of the body are sufficient to cause instantaneous death of the deceased. 16. In the case of Madangi Samburu vs. State, reported in 1985 (I) OLR 271, this Court considering the lifestyle and nature of the aboriginal tribes held that they are short tempered and proved to be inflamed easily. 17. Thus, taking into consideration the totality of the facts and circumstances of the case, we are of the opinion that the appellant is liable to be convicted under Section 304 Part-I, I.P.C. Accordingly, the impugned judgment and order of conviction and sentence is set aside. The appellant is, therefore, convicted under Section 304 Part-I, I.P.C. and sentenced him to undergo R.I. for 10 years. He being the poor tribe, is defended by Legal Aid Counsel, we refrain ourselves from imposing any fine. 18. It is seen from the record that the appellant was arrested on 15.10.2003 and has been released on bail by this Court vide order dated 14.05.2009 passed in Misc. Case No. 26 of 2009. We, therefore, direct that the appellant be taken to custody immediately to suffer the rest part of the sentence. 19. The impugned judgment and order is modified accordingly. 20. L.C.R. be sent back immediately to enable the learned trial court to take further action in the matter.