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2021 DIGILAW 247 (ORI)

Mahali Ekka v. State Of Orissa

2021-06-11

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S. K. Mishra, J. - In this appeal, the sole appellant-Mahali Ekka calls in question his conviction under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'Penal Code' for brevity) by the 2nd Adhoc. Addl. Sessions Judge, Sundargarh for committing murder of one Alexandar Khalko on 19.02.2003 and sentence to undergo imprisonment for life vide judgment dated 31.03.2005 in Sessions Trial No. 12/139 of 2003-2004. 2. The case of the prosecution is that on 19.02.2003 a feast was organized by one Birsa Ekka, wherein there was a quarrel between the appellant on the one hand and Budhuram Khalko and Lawrence Minz on the other hand concerning playing of a tape recorder. After the feast, the appellant out of anger brought an axe from his house and assaulted the deceased Alexandar Khalko causing bleeding injury on his head and he died. Father of Alexandar Khalko, namely, Chara Khalko lodged a report at Kanshabal Outpost at 12.30 A.M. in the night intervening 19.02.2003 and 20.02.2003. The Police thereafter, took up investigation and after taking all necessary steps for investigation submitted charge sheet under Section 302 of the Indian Penal Code. 3. The defence took a plea of complete denial. 4. The prosecution has examined nine witnesses, led into evidence thirteen exhibits to prove its case. No material objects were produced on behalf of the prosecution. Neither any witness was examined nor any document was marked on behalf of the defence. Out of nine witnesses, P.W.3 (Chara Khalko) is the informant in this case, P.W.1 (Birsa Ekka), P.W.2 (Lawrence Minz) and P.W.7 (Deonish Kulu) are the eye witnesses to the occurrence. P.W.1 (Birsa Ekka) happens to be the elder brother of the accused in whose house the occurrence took place. P.W.4 (Charua Ekka) is a witness to the seizure. P.W.5 (Budhua Barla) is the post-occurrence witness. P.W.8 (Sukra Ekka) though tendered as an eye witness, has not supported the case of the prosecution. P.W.6 (Dr. Umesh Ch. Guru) has conducted post-mortem examination on the dead body of the deceased. P.W.9 (Mayadhar Rout) is the Investigating Officer of the case who has submitted charge sheet against the appellant. 5. The learned 2nd Adhoc. Addl. P.W.8 (Sukra Ekka) though tendered as an eye witness, has not supported the case of the prosecution. P.W.6 (Dr. Umesh Ch. Guru) has conducted post-mortem examination on the dead body of the deceased. P.W.9 (Mayadhar Rout) is the Investigating Officer of the case who has submitted charge sheet against the appellant. 5. The learned 2nd Adhoc. Addl. Sessions Judge, Sundargarh taking into consideration the materials available in shape of the narration of the eye witnesses, the opinion and evidence of the doctor who had conducted post-mortem examination, statement leading to discovery of the weapon of offence, has come to the conclusion that the prosecution has proved its case beyond all reasonable doubt and proceeded to convict the appellant under Section 302 of the Penal Code sentencing him to undergo imprisonment for life. 6. In assailing the conviction, the learned Amicus Curiae Ms. Nanda though did not dispute the finding recorded by the learned 2nd Adhoc. Addl. Sessions Judge, Sundargarh that the death of the deceased was homicidal in nature, contended that the conviction of the appellant by the learned 2nd Adhoc. Addl. Sessions Judge for the offence under Section 302 of the India Penal Code is erroneous. She very empathetically argued that the appellant has not made any preparation for assaulting the deceased and there is no pre-meditation and in the spur of the moment the incident took place due to a very petty matter of playing of a tape recorder in the feast. She therefore, contended that the appellant could not have had the requisite intention of causing death of the deceased or causing such bodily injury, as in the natural course would lead to the death of the deceased. Hence, it was argued that the conviction under Section 302 of the Penal Code be set aside and the appellant be convicted for the offence under Section 304 Part-I of the Penal Code. Ms. Pattnaik, the learned Addl. Government Advocate on the other hand supported the findings recorded by the learned 2nd Adhoc. Addl. Sessions Judge, Sundargarh. 7. In order to appreciate the submission made by the learned Amicus Curiae, it is appropriate to examine the evidence of the eye witness, especially P.W. 1 and P.W.2. P.W. 1 (Birsa Ekka) happens to be the elder brother of the deceased. He was the person who was organizing a feast for observing the death anniversary of his daughter. 7. In order to appreciate the submission made by the learned Amicus Curiae, it is appropriate to examine the evidence of the eye witness, especially P.W. 1 and P.W.2. P.W. 1 (Birsa Ekka) happens to be the elder brother of the deceased. He was the person who was organizing a feast for observing the death anniversary of his daughter. He has stated that the feast commenced about 5.30 P.M. and by 8.30 P.M., the guests had left the place. At about 9.00 P.M., P.W.1 (Birsa Ekka) and P.W.2 (Lawrence Minz) sat down for taking their meal. The deceased was serving food to them. By then, the appellant had taken his meal and gone to his home. The tape recorder that was playing there had been stopped as per the instruction of P.W.1. The appellant insisted the tape recorder should be played but the witnesses protested. Since the appellant-accused made an attempt to throw the battery by which the tape recorder was being operated, some of the boys including the deceased took away the battery from appellant. When P.W.2 (Lawrence Minz) was eating, the deceased was standing a few feet from them. The appellant came suddenly, he was wearing a coat and had concealed an axe inside the coat. The appellant then gave a push to the deceased, who fell down. Thereafter, he gave three blows on the head of the deceased. As a result of which, he sustained severe bleeding injury on his head and became senseless. Similar is in the evidence of P.W.2. P.W.7 (Deonish Kulu) has stated at first that the appellant gave a blow on the head of the deceased by means of a budia. Deceased fell down. Then the appellant gave several blows on the head of the deceased by that budia. 8. Reference to the evidence of P.W.6 (Dr. Umesh Ch. Guru) reveals that the deceased had sustained three injuries; the first was a lacerated wound 5 c.m. long pointed at both the ends gaping in the middle irregular margin, hairs were crushed, blood clots were present. The injury was situated 4 inch above the left ear at the back of head, the second injury lacerated wound of 4 c.m. long and 5 c.m. below the injury no.1 and the third injury was a linear abrasion was found on the neck were corresponding fracture of scalp. The injury was situated 4 inch above the left ear at the back of head, the second injury lacerated wound of 4 c.m. long and 5 c.m. below the injury no.1 and the third injury was a linear abrasion was found on the neck were corresponding fracture of scalp. The doctor has opined that the injuries can be possible by the weapon i.e. an axe produced before him. The said axe has not been produced before the learned Sessions Judge. 9. A comparison of the statement of the evidences of the eye witnesses and the statement of doctor is somewhat discrepant. Moreover, the incident took place out a petty quarrel between two persons regarding playing of a tape recorder in a feast. There is no evidence on record to show that the appellant had actually made any preparation for commission of offence or that he deliberately took steps for committing the offence. Hence, we are of the opinion that this is a case of culpable homicide not amounting to murder. 10. It is apparent from the record that the appellant was in custody for more than 15 years. So, the sentence of period already undergone. Hence, the appeal is allowed in part. The conviction under Section 302 of the Indian Penal Code and consequence sentence are hereby set aside. The appellant is convicted for the offence under Section 304 Part-I of the IPC and sentence of period is already undergone. At this stage Mr. Saswata Pattnaik, learned Addl. Government Advocate submits that she has received information during hearing of the case that the appellant has been released prematurely by the order of the State Government on 18.3.2020. In that view of the matter, the learned Sessions Judge, Sundargarh shall verify whether actually the appellant is released prematurely in the meantime, if this fact is correct then no further steps be taken. On the contrary, if the appellant is still in custody he be set at liberty forthwith, if his detention is not required in any other criminal case. The T.C.R. be sent back to the concerned court below forthwith. As the restrictions due to resurgence of COVID-19 are continuing, the learned counsel for the parties may utilize a printout of this judgment available in the High Courts website, at par with certified copy, subject to attestation by Ms. The T.C.R. be sent back to the concerned court below forthwith. As the restrictions due to resurgence of COVID-19 are continuing, the learned counsel for the parties may utilize a printout of this judgment available in the High Courts website, at par with certified copy, subject to attestation by Ms. Sasmita Nanda, Advocate, in the manner prescribed vide Courts Notice No.4587 dated 25th March, 2020 as modified by Courts Notice No.4798 dated 15th April, 2021