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2017 DIGILAW 415 (ORI)

Sukra Khilla v. State of Orissa

2017-04-17

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. PUJAHARI, J. 1. The appellant herein calls in question the judgment of conviction and order of sentence passed against him in C.T. No.27 of 2009 on the file of the Addl. Sessions Judge, Malkangiri. The learned Addl. Sessions Judge, Malkangiri vide the impugned judgment and order held the appellant–Sukra Khilla guilty of the charge under Section 304, Part-II of the Indian Penal Code (for short “the I.P.C.”) and sentenced him to undergo R.I. for seven years. 2. Prosecution case placed before the trial court is that on 06.01.2009 the appellant picked-up quarrel with his deceased father and when he protested, the appellant assaulted on his stomach by one split wood, as a result, the deceased fell down on the ground and died. Hearing hullah of the wife of the deceased, the informant came there, found the dead body of the deceased and thereafter lodged report at Govindapalli Police outpost, basing on which, a case was registered and investigation commenced and after completion of investigation, charge-sheet under Section 302 of IPC was submitted against the present appellant. The case was committed to the Court of Session and the learned trial court placing reliance on the case of the prosecution, framed charge against the appellant under Section 302 of IPC, but the appellant having not pleaded to guilt to the charge, trial was held, in course of which, the prosecution examined fifteen witnesses and exhibited some documents in supports of its case. On the other hand, the appellant did not examine any witness on his behalf. On conclusion of trial, the learned trial court while acquitting the appellant from the offence under Section 302 of IPC, held him guilty under Section 304, Part-II of IPC and convicted and sentenced him there under, as stated earlier. 3. During course of hearing of the appeal, the learned counsel for the appellant contended that the impugned judgment of conviction is not sustainable in law inasmuch as the same is against the weight of evidence on record. It is contended that the evidence of the witnesses being full of material contradictions, the trial court ought not have accepted the same as worthy of credence more particularly when the weapon of offence was not produced before the trial court. Hence, the judgment of conviction and order of sentence are indefensible. 4. On the other hand, the learned Addl. It is contended that the evidence of the witnesses being full of material contradictions, the trial court ought not have accepted the same as worthy of credence more particularly when the weapon of offence was not produced before the trial court. Hence, the judgment of conviction and order of sentence are indefensible. 4. On the other hand, the learned Addl. Standing counsel supported the impugned judgment of conviction and order of sentence. 5. Perused the materials on record. P.W.1, the scribe, stated that as per the instruction of the informant, he scribed the F.I.R. (Ext.1). The informant (P.W.2) stated that one day in the month of ‘Pausa’ at about 8 p.m. while he was in his house, the wife of the deceased came to his house shouting that the appellant had killed her husband and hearing her shouts, he went to the house of the appellant and found the deceased was dead. On the next morning, he (P.W.2) went to P.W.1, requested him to scribe the F.I.R. and he lodged the same in Govindapalli Police outpost. P.W.3, the second wife of the deceased, who was an eyewitness to the occurrence, stated that in the night of occurrence, the appellant came and quarreled with the deceased and suddenly dealt a blow with a split wood on the stomach of the deceased causing his death and she went to the house of P.W.2 (informant) and told him about the occurrence who came to her house and saw the dead body of the deceased. During cross-examination, she specifically stated that at the time of incident, the deceased was sitting inside the house and she was cooking inside the kitchen and saw the incident from the kitchen. She also stated that her house consists of two rooms, out of which one is a living room and the other one is a kitchen room. P.W.4 stated that he heard about the murder of the deceased and on the following morning, went to the house of the appellant and found the dead body lying in the house. He further stated that the police held inquest over the dead body of the deceased and also stated about the seizure of one split wood and wearing apparels of the appellant by the police. During cross-examination, he categorically stated that the wife of the deceased (P.W.3) came to his house and informed about the incident. 6. He further stated that the police held inquest over the dead body of the deceased and also stated about the seizure of one split wood and wearing apparels of the appellant by the police. During cross-examination, he categorically stated that the wife of the deceased (P.W.3) came to his house and informed about the incident. 6. P.W.5 stated to have heard that there was quarrel among the appellant and the deceased and in the process, the deceased died and he went to the spot and found the deceased lying dead. P.W.6 is a constable who stated about the seizure of the wearing apparels of the deceased. P.W.7 stated that on 07.01.2009, the informant came and presented a written report before him and he entered the same vide S.D. Entry No.95 dated 07.01.2009 and sent the same to Mathili Police Station through the Gramrakshi. P.W.8 stated that in the night of occurrence, wife of the deceased came to his house and told that the appellant killed her husband and then he went with her to her house and found the deceased lying dead on the road and subsequently, police came and seized one split wood under Ext.3 and he also proved the seizure of one pant and shirt of the appellant by the police vide Ext.4. Of course, during cross-examination he stated that none was present when the wife of the deceased came to his house and informed about the incident. P.W.9 stated about the seizure of nail clipping, blood sample and command certificate by the Investigating Officer under Ext.5 and further stated that he had taken the appellant to Mathili hospital for his medical examination. P.W.10, the Head constable stated to have taken the dead body of the deceased for postmortem examination and he also stated about the seizure of one Lungi, one shirt and his command certificate by the Investigating Officer vide Ext.2. P.W.11, the Home guard stated about the nail clipping, sample blood and command certificate of P.W.9 by the Investigating Officer under Ext.5. 7. P.W.12, the Medical Officer, who had conducted postmortem examination over the dead body of the deceased, stated that he found swelling over abdomen and also found white fluid coming from both the nostrils and on dissection, he found there was rupture of liver and other organs were intact. 7. P.W.12, the Medical Officer, who had conducted postmortem examination over the dead body of the deceased, stated that he found swelling over abdomen and also found white fluid coming from both the nostrils and on dissection, he found there was rupture of liver and other organs were intact. He opined that the cause of death was due to shock, as a result of internal bleeding due to rupture of liver. He also stated that the injuries were ante mortem and homicidal in nature, and the same were sufficient to cause death of the deceased in ordinary course of nature and he proved his postmortem report vide Ext.6. P.W.12 also stated that on 21.01.2009, on the query of the Investigating Officer, he examined the weapon of offence, i.e., one splitted wood sent by the Investigating Officer and opined vide Ext.7 that the injuries on the body of the deceased were possible by the same. During cross-examination, the P.W.12 admitted that he has not mentioned in the postmortem examination report that the above injuries are sufficient to cause death in ordinary course of nature, which is inconsequential. P.W.13 only stated about the inquest held by the police over the dead body of the deceased. P.W.14 stated that he heard that the appellant had killed his father and went to his house and found the dead body of the deceased. During cross-examination, he fairly admitted that he had not ascertained from others as to how the deceased died. P.W.15 is the Investigating Officer who had investigated into the case, examined the witnesses, visited the spot, seized the weapon of offence, wearing apparels of the appellant and the deceased, sample blood and nail clippings of the appellant. He also stated about the sending of weapon of offence to the Medical Officer and after completion of investigation, he submitted charge-sheet against the appellant under Section 302 of I.P.C. 8. From the evidence on record, it is crystal clear that P.W.3 is an eyewitness to the occurrence who had categorically stated about the assault by the appellant to the deceased with split wood. P.Ws.2 and 8 consistently stated that in the very night, they heard about the occurrence, went to the spot and found the split wood was lying there and they also stated about the seizure of the same. P.Ws.2 and 8 consistently stated that in the very night, they heard about the occurrence, went to the spot and found the split wood was lying there and they also stated about the seizure of the same. Evidence of the Investigating Officer also corroborates to the fact of seizure of the weapon of offence. The learned trial court has referred to a decision of the Apex Court in the case of Rama Shray Yadev and others vrs. State of Bihar, 2005(4) Crimes 214 (S.C.), wherein it was held that when the witnesses soon after the incidence heard about the same, their evidence lends corroboration to the prosecution case. 9. As regards the contention about the non-production of the weapon of offence, the same is immaterial as because the evidence of the witnesses is consistent and corroborative to each other regarding seizure of the weapon of offence. In this regard, the learned trial court has rightly placed reliance on a decision of the Apex Court in the case of State of Rajasthan vrs. Dhool Singh, 2004(1) Crimes 165 (SC). So far other contention about the discrepancy, it is seen that no material discrepancy is pointed out to disbelieve or discard the testimony of the witnesses, rather the evidence of P.Ws.2 and 8, so also of the Medical Officer and the Investigating Officer lends enough corroboration to the version of the P.W.3, the eyewitness. Of course, P.W.3 is the wife of the deceased, her evidence cannot be discarded on the ground of relationship. The learned trial court has rightly placed reliance on the decision of this Court in the case of Peju @ Hrudananda Behera vrs. State of Orissa, 2007(2) Crimes 588 (Orissa) wherein it was held that mere relationship is not a ground to discard the evidence of a witness. 10. Nothing substantial was elicited during cross-examination of the witnesses to disbelieve their testimony, particularly no ground has been made out to discard the testimony of P.W.3 who was an eyewitness to the occurrence. I also do not find any reason as to why P.W.3 would entangle the appellant with the offence alleged leaving the real offender. 10. Nothing substantial was elicited during cross-examination of the witnesses to disbelieve their testimony, particularly no ground has been made out to discard the testimony of P.W.3 who was an eyewitness to the occurrence. I also do not find any reason as to why P.W.3 would entangle the appellant with the offence alleged leaving the real offender. It is well settled that where the killing took place without any premeditation, without any undue cruelty at the spur of the movement and on a sudden provocation, the act of the appellant was definitely without any intention on his part to cause the death of the deceased but with knowledge that it is likely to cause death. The learned trial court has also held that there is no clear evidence to show the intention of the appellant to cause the death of the deceased. Admittedly, the appellant has dealt a single blow by the split wood on the stomach of the deceased. In view of such facts and circumstances of the case, the appellant was rightly convicted under Section 304, Part-II of I.P.C. and the said judgment of conviction of the learned trial court does not suffer from any infirmity or perversity. As regards the quantum of sentence, the same appears to be commensurate to the facts and circumstances of the case and needs no inference by this Court. 11. Hence, this criminal appeal is devoid of merit and, as such, stands dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed. L.C.R. received be sent back forthwith along with a copy of this Judgment.