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2018 DIGILAW 95 (ORI)

Muralidhar Digal v. State of Odisha

2018-01-17

K.R.MOHAPATRA, SANJU PANDA

body2018
JUDGMENT S.PANDA, J. - This appeal has been filed by the appellant challenging the judgment dated 19.07.2002 passed by the learned Sessions Judge, Phulbani in S.T. Case No.16 of 2000 convicting the appellant under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on 05.08.1999 at about 7.30 P.M. one Lalita Digal, the informant went to Khajuripada Police Station and orally reported before the Officer-in-charge that on that day her husband had been to the forest to collect fire wood. Her brother-in-law Bishnu Sahani along with his wife Sairendra Sahani came in a bicycle to her house and Bishnu Sahani asked her as to which place her husband had gone. He was in a drunken stage. She replied that her husband had been to the forest. Thereafter he abused her in filthy language and also to one Murali Digal. Out of fear the informant remained silent. Murali Digal went inside his house and brought a “Tangi” by which he gave a blow on the head of Bishnu Sahani as a result of which he succumbed to the injury. Thereafter Murali Digal went to his house and changed his dress and proceeded towards Khajuripada Police Station. In the meanwhile her villagers came to the spot and she advised them to call her husband. Bishnu Sahani was residing at Phulbani. He has married the elder sister of her husband. On the basis of the aforesaid report, Khajuripada P.S. Case No.35 of 1999 was registered and investigation commenced. In course of investigation the Officer-in-charge of Khajuripada P.S. had conducted inquest over the dead body, sent the dead body of Bishnu Sahani for post-mortem examination, seized the incriminating materials. After completion of investigation, charge sheet was submitted against the accused persons. 3. The prosecution in order to establish the charges examined as many as eleven witnesses and exhibited several documents which were marked as Exts. 1 to 14.The weapon of offence and photographs were marked as M.O.I. and M.Os. II to II/5.Out of the witnesses examined by the prosecution P.W. 1 is the informant. P.Ws. 2 to 4 and 6 to 9 are independent witnesses. P.W. 5 is the Doctor, who had conducted post-mortem examination. P.W. 11 is the daughter of the deceased and a material witness. P.W. 10 is the Investigating Officer. II to II/5.Out of the witnesses examined by the prosecution P.W. 1 is the informant. P.Ws. 2 to 4 and 6 to 9 are independent witnesses. P.W. 5 is the Doctor, who had conducted post-mortem examination. P.W. 11 is the daughter of the deceased and a material witness. P.W. 10 is the Investigating Officer. The plea of the appellant was complete denial of the prosecution case. 4. The learned Sessions Judge on analyzing the evidence on record held that the prosecution has proved the case beyond all reasonable doubt and accordingly found the appellant guilty under Section 302 of I.P.C. and convicted him thereunder. 5. Learned Counsel appearing for the appellant submits that the Court below only basing on the evidence of P.W. 11, the daughter of the deceased has convicted the appellant. He further submitted that the evidence of P.W. 11 is to be discarded as no witness has whispered a single word about presence of P.W. 11.That apart P.W. 11 was not charged sheeted witness. He also submitted that the Court below has not examined the independent witnesses to the occurrence and has acted arbitrarily in accepting the evidence of interested witnesses. It is submitted that the prosecution having failed to prove its case beyond reasonable doubt, the benefit should be extended in favour of the appellant. As such the impugned judgment of conviction and sentence is not sustainable in law and liable to be set aside. In the alternative he has submitted that the sentence needs to be reduced appropriately. 6. Learned Addl. Government Advocate while supporting the impugned judgment submitted that the trial Court after taking into consideration the evidence of the witnesses rightly convicted the appellant under Section 302, I.P.C., and the impugned judgment does not warrant any interference in the appeal. 7. Considering the rival contentions of the parties, we have examined the evidence pertaining to incident as available on record. It appears that P.W. 1 is the informant. Though in the FIR she had stated to be present at the time of occurrence, but in her examination in chief, she had deposed that at the time of occurrence she along with her husband had gone to the field to work as labourers. During their absence, the deceased Bishnu Sahani came to their village. Though in the FIR she had stated to be present at the time of occurrence, but in her examination in chief, she had deposed that at the time of occurrence she along with her husband had gone to the field to work as labourers. During their absence, the deceased Bishnu Sahani came to their village. On return they found that deceased Bishnu was lying dead in a pool of blood on the Village Road in front of their house and his wife Sairendri was sitting and crying near the dead body. She had subsequently retracted her earlier statement before the police for which she was declared hostile. P.W. 9 is the wife of the deceased Bishnu Sahani. She stated that she and the deceased on the date of occurrence had left Phulbani by means of a bicycle to the house of the accused at Gundribadi. Her husband purchased two bottles of liquor and consumed the same on the way. The accused and his family members were absent from their house. So they sat on the varandah of the accused. Her husband complained that he was not pulling well, so he slept in the varandah. After a while he woke up and went for urination. At that time he fell down and his head struck against a piece of stone lying on the ground and sustained bleeding injury on his head. She brought water to nourish him but the deceased expired. P.W. 11 is the daughter of the deceased. The Trial Court issued summons to P.W. 11 during the trial and considered her as a material witness. However, she was neither examined by the Police earlier nor the witnesses to the occurrence deposed about her presence at the spot. However, P.W. 6 who is the sister of the deceased, had categorically stated that on the date of occurrence the deceased with his wife had been to the house of the appellant to ascertain the reason as to why they had not attended the marriage ceremony of his daughter. On the same night, she heard about the occurrence. Getting such information she along with her son, Ajit and P.W. 11 went to Gunduribadi and found Bishnu to be lying dead. On the same night, she heard about the occurrence. Getting such information she along with her son, Ajit and P.W. 11 went to Gunduribadi and found Bishnu to be lying dead. This clearly indicates that P.W. 11 is a post occurrence witness and the testimony of P.W. 6 has not also been shaken nor there were any material on record that she was witness to the occurrence. Accordingly the finding of the Trial Court is not sustainable which was based on the evidence of P.W. 11. 8. As per the post-mortem report the death of the deceased was a homicidal one. The Doctor also found several injuries on the person of the deceased. The deceased succumbed to the injuries sustained by him due to Tangia blow. The appellant has also confessed his guilt before P.Ws. 8 to 10 at the Police Station soon after the commission of the offence in presence of some witnesses and handed over the bloodstained tangia to the P.W. 8. Getting information of the crime from the appellant, P.W. 10 rushed to the spot, where P.W. 1 lodged a written report. This fact remained unchallenged even if some of the witnesses retracted from their statement made before the I.O. In view of such, there is no doubt that the accused Muralidhar Digal is the author of the crime. 9. As discussed in the above evidence, it appears that all the witnesses consistently stated regarding the sudden quarrel between the appellant and the deceased and the deceased provoked the appellant and others to such quarrel. The facts do not disclose that the appellant had any premeditation to commit the murder. The incident happened on the spur of the moment and in an uncontrollable and agitated state of enragement. Due to sudden quarrel, in the heat of passion, he assaulted the deceased. Such an attack was without premeditation, for which the appellant is entitled to benefit of Exception-4 of Section 300 IPC. For better appreciation, Exception-4 of Section 300 IPC is quoted hereunder : “Exception-4 –Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” 10. For better appreciation, Exception-4 of Section 300 IPC is quoted hereunder : “Exception-4 –Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” 10. Accordingly, we set aside the order of conviction under Section 302 IPC and sentence of imprisonment for life passed by the learned Sessions Judge, Phulbani in S.T. Case No.16 of 2000 and convict the appellant under Section 304, Part-I of the IPC and sentence him to undergo R.I. for 10 years. Since the appellant has remained more than 10 years inside the custody, in case he is in custody, he shall be released forthwith. The Criminal Appeal is accordingly allowed in part by modifying the impugned judgment of conviction and sentence to the extent indicated above. Appeal allowed in part.