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2021 DIGILAW 66 (ORI)

Bunda Munda v. State Of Orissa

2021-02-17

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K.Mishra, J. - In this appeal, the sole appellant-Bunda Munda has challenged the judgment and order of conviction and sentence dated 21.6.2006 for the offence under Section 302 of the Indian Penal Code (hereinafter referred to as "Penal Code" for brevity) passed by the learned Adhoc Addl. Sessions Judge, Bonai in S.T. Case No.23/50 of 2004. He has been sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- (rupees ten thousand) in default to undergo further rigorous imprisonment for one year. 2. The case of the prosecution in brief is that on 13.9.2003 at about 7.00 P.M. when the informant Rupa Munda (P.W.6) returned to his house, his wife Masali Munda informed him that in the evening at about 5 P.M. while she (Masali Munda) along with Gahma Munda (deceased) and one Mahajana Munda (P.W.2) were sitting on their Varandah, at that time the accused (younger brother of deceased) being armed with Dauli (M.O.III), came there and assaulted his brother Gahma Munda (deceased) repeatedly on his head and leg as a result of which the deceased fell down with profuse bleeding injury and died on the spot. Hearing this incident from Masali Munda, the informant went to the spot and found the deceased lying dead and out of fear, he left the spot with his wife Masali and stayed in his brother-in-law's house in the night and on the next day on 14.9.2003 morning, he reported the fact to the villagers and lodged F.I.R. in the Loira Police Station orally which was reduced into writing by the I.O. (P.W.7). Thereafter, the O.I.C. registered P.S. case No.42/2003 and took up investigation of the case. 3. The defence took the plea of complete denial to the involvement of the appellants in the alleged incident. 4. In order to bring home the charges levelled by the prosecution, it examined eight witnesses. P.W.1, Crime Havildar, is a witness to the seizure, P.W.2 is an eye witness to the occurrence, P.W.3 is witness to the confessional statement, P.W.4 is a witness to the seizure of wearing apparels of the accused, P.W.5 is a witness to inquest, P.W.6 is the informant and post occurrence witness, P.W.7 is the Investigating Officer and P.W.8 is the doctor who conducted the post mortem examination over the dead body of the deceased-Gamha Munda. After completion of investigation, the I.O. submitted charge sheet against the appellant for the offence under Section 302 of the Penal Code. 5. The learned Ad hoc Addl. Sessions Judge, Bonai accepting the evidence of P.W.2, Mahajan Munda, as corroborated by doctor's evidence i.e. the evidence of P.W.8, Dr. Narendra Murmu, Medical Officer, Koira C.H.C. and the leading to discovery of the weapon of offence came to the conclusion that the prosecution has proved its case beyond all reasonable doubt and she proceeded to convict the appellant. 6. In assailing the conviction of the appellant by the learned Ad hoc Addl. Sessions Judge, Bonai, learned counsel appearing for the appellant, submits that the evidence of solitary eye witness P.W.2 Mahajan Munda is not reliable and has to be disbelieved. Therefore, she argues that the appellant should be set at liberty forthwith by acquitting him of the offence under Section 302 of the Penal Code. 7. Sk. Zafrulla, learned Addl. Standing Counsel for the State, on the other hand, submits that there is no material on record to hold that P.W.2 is not a reliable witness. 8. We have carefully examined the evidence of all witnesses. Eight number of witnesses have been examined on behalf of the prosecution. The evidences P.W.2, Mahajan Munda, P.W.8-Dr. Narendra Murmu and P.W.7, Judhistir Sahoo, the I.O. are important in this case. From a reading of the materials available on record, the following salient features come forth as well established by the prosecution. They are:- (I) The death of the deceased is definitely homicidal, caused by assault to his head and leg by means of a sharp cutting weapon like that of a Dauli (M.O.III). (II) The evidence of P.W.2, Mahajan Munda, is clear about the assault made on the deceased by the appellant by means of a sharp cutting Dauli (M.O.III). His evidence does not suffer from any kind of embellishment or contradiction. This Court comes to the conclusion that the reliance on P.W.2 by the learned Trial Judge is correct. (III) The evidence of the solitary eye witness, P.W.2, gains support from other objective circumstances in this case. They are:- (i) The evidence of P.W.8, Dr. Narendra Murmu, who has categorically stated that the injuries are possible by the Dauli M.O.III produced before him. The contents of the Ext.13 also support the statement of the doctor, P.W.8. (III) The evidence of the solitary eye witness, P.W.2, gains support from other objective circumstances in this case. They are:- (i) The evidence of P.W.8, Dr. Narendra Murmu, who has categorically stated that the injuries are possible by the Dauli M.O.III produced before him. The contents of the Ext.13 also support the statement of the doctor, P.W.8. (ii) From the evidence of P.W.7, Judhistir Sahoo, the S.I. of Police, it is apparent that the appellant has made a disclosure statement before the witnesses in his presence and has led to the discovery of the weapon of offence, i.e. M.O.III. M.O.III was found to be stained with blood though no opinion could be rendered regarding its origin and grouping. (iii) The wearing apparels of the appellant were stained with blood. (iv) The spot of the occurrence has been objectively determined in this case by the I.O. 9. Hence, keeping in view the materials on record, we are of the opinion that the prosecution has proved its case beyond all reasonable doubt and the learned Adhoc Addl. Sessions Judge, Bonai has not committed any error by convicting the appellant. This is also not a case of culpable homicide not amounting to murder as the appellant gave two blows on the head and two blows on the leg of the deceased by means of a sharp cutting Dauli (M.O.III) and there is not even a suggestion from the side of the defence that there was any quarrel preceding the assault on the deceased. So, we confirm the conviction of the appellant under Section 302 of the Penal Code. 10. However, keeping in view the facts of the case, we are of the opinion that the fine of Rs.10,000/-(rupees ten thousand) imposed upon the appellant should be set aside as the appellant is in custody for more than seventeen years. So, the fine imposed by the learned Adhoc Addl. Sessions Judge, Bonai is hereby set aside. 11. We further observe that this is a fit case where the State should exercise its discretion for premature release of the appellant. Hence, it is directed that the State may take up the case of the prisoner-appellant and examine if he is entitled to be so released or not. 12. The JCRLA is dismissed. T.C.Rs. be returned to the lower court immediately.