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2021 DIGILAW 75 (ORI)

Trinath Naik v. State Of Orissa

2021-02-19

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K.Mishra,J. - The sole appellant-Trinath Naik has assailed his conviction for the offence under Section 302 of the Indian Penal Code (hereinafter referred to as the "Penal Code" for brevity) by the learned Addl. Sessions Judge, Bhanjanagar in S.C. Case No.47 of 2003/S.C. No.368/2003-GDC. The learned Addl. Sessions Judge has convicted him on 29.1.2005 and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months. 2. The appellant-Trinath Naik happens to be the husband of the deceased. They were married twenty years prior to the occurrence. They were earning their livelihood by collecting fire wood from the forest. On 1.4.2003 at about 6 A.M. accused, Bhabini and others proceeded to the Balabadi jungle for collection of fire wood and charcoal. By the evening, everybody returned except the appellant and his wife. Jatia Naik, brother of Bhabini, and the informant in this case, got the information that during collection of fire wood there was a quarrel between the Bhabini and the appellant. The appellant suspected the character of his wife. Bhabini protested his attitude. Thereafter, Trinath Naik being enraged dealt several tangia blows on her person causing her death. The appellant ran away from the spot with the axe. The informant proceeded to Balabadi and found the dead body of his sister Bhabini. On 2.4.2003 he appeared at Bhanjanagar Police Station at about 1.00 P.M. and presented a written report. The Senior Sub-Inspector of Police, in absence of the I.I.C., treated the said report as F.I.R. and registered P.S. Case No.46/2003 for the offence under Section 302 of the Penal Code and took up investigation. 3. In course of investigation the Investigation Officer, P.W.11, examined the informant in this case, examined witnesses, visited the spot, held inquest on the dead body of the deceased, dispatched the dead body for post mortem and arrested the accused. The accused made a disclosure statement while he was in custody and the I.O. raided the house of Chandra Naik for recovery of the weapon of offence. After completion of investigation, the I.O. submitted charge sheet against the accused for the offence under Section 302 of the Penal Code. 4. The defence took the plea of complete denial. 5. In order to prove its case, the prosecution has examined eleven witnesses. P.W.4, Jatia Naik, is the informant. After completion of investigation, the I.O. submitted charge sheet against the accused for the offence under Section 302 of the Penal Code. 4. The defence took the plea of complete denial. 5. In order to prove its case, the prosecution has examined eleven witnesses. P.W.4, Jatia Naik, is the informant. P.W.1, Pakhi Naik and P.W.2, Tomalo Naik, are the eye witnesses to the occurrence. P.W.5, Niranjan Naik, reached the spot just after the incident. P.W.6, Ghanasyam Naik is a witness to the disclosure statement and is also a seizure witness. P.W.7, Chandra Naik, is the person to whom the appellant sold the iron portion of the tangia. P.W.8, Nirakar Naik, has been declared hostile by the prosecution. P.W.9, Krushna Chandra Padhy, is the Police Constable who escorted the dead body of the deceased. He is also a signatory to the inquest report. P.W.10, Dr. Satyanarayana Mahapatro, has conducted the post mortem examination on the dead body of the deceased and rendered opinion on the examination of the weapon of offence i.e. M.O.III. P.W.11, Uttam Kumar Mohanty, is the Investigating Officer of the case. The prosecution has also relied upon fifteen documents as exhibits and five material objects. The defence, on the other hand, neither examined any witness nor relied any documents to prove its case. 6. Accepting the evidence of P.W.11 and narration of eye witnesses, P.Ws.1,2 and 5, the learned Addl. Sessions Judge, Bhanjanagar came to the conclusion that the death of the deceased was homicidal in nature and the appellant has committed the offence of murder as he has done the deceased to death having the requisite intention by giving repeated blows by means of the tangia. 7. Mr. B.K.Ragada, learned counsel appearing for the appellant, submits that though the appellant does not dispute the homicidal nature of the death of the deceased or the findings of the learned Addl. Sessions Judge that the appellant committed the homicide of the deceased, he emphatically argues that it is not a case of murder. Rather, he argues, it is a case of culpable homicide not amounting to murder. 8. P.W.1 has stated that he along with others after reaching the jungle at about 8 A.M. they were collecting fire wood scatteredly from the said jungle. Trinath and his wife Bhabini quarreled with each other and there was hot exchange of words between them. Then this witness heard Bhabini shouting "BOULO". 8. P.W.1 has stated that he along with others after reaching the jungle at about 8 A.M. they were collecting fire wood scatteredly from the said jungle. Trinath and his wife Bhabini quarreled with each other and there was hot exchange of words between them. Then this witness heard Bhabini shouting "BOULO". He reached at the place where Bhabini was collecting fire wood and found that the accused Trinath gave 2 to 3 tangia blows on the right side neck, on the waist and on the right arm of Bhabini. The evidence of other eye witness is to the same effect. 9. It is not disputed at this stage that in order to bring a case within the scope of Exception 4 of Section 300 of the Penal Code, the following ingredients have to be satisfied:- (i) The accused has not committed any offence with premeditation. (ii) The occurrence took place in a sudden fight. (ii) The offender did not take any un due advantage or acted in cruel or unusual manner, and (iv) The number of injuries are not material. 10. In this case, there is no material on record to show that the appellant has made any premeditation of committing the offence. There is no evidence that he had made any plan to commit the murder. As per the evidence of eye witnesses, the occurrence took place in the spur of the moment after a sudden quarrel between the appellant and the deceased. 11. Mr. M.S. Sahoo, learned Additional Government Advocate submits that the weapon of offence used in this case is the axe. The Court can draw inference that the offender has taken un due advantage and has acted in a cruel and unusual manner. We are unable to accept the arguments advanced by the learned counsel for the State. It is a well known fact that the villagers who depend on forest produce like fire wood and charcoal etc. and while reaching forest for collection of wood etc. carry a tangia. In this case, there is no evidence that he actually carried the axe with him with an intention to use the same only for the purpose of murder. It is the case of the prosecution that they had gone to gather fire wood. Similarly, the number of injuries are also not relevant as far as determination of the offence is concerned. 12. It is the case of the prosecution that they had gone to gather fire wood. Similarly, the number of injuries are also not relevant as far as determination of the offence is concerned. 12. We are of the opinion that the appellant acted on spur of the moment without premeditation, without prior planning and he did not take any undue advantage of the situation and therefore the homicide he has committed does not amount to murder, rather it is culpable homicide not amounting to murder. 13. In the result the appeal is allowed in part. The conviction of the appellant for the offence under Section 302 of the Penal Code and sentence of imprisonment for life and fine of Rs.500/- are hereby set aside. The appellant is convicted for the offence under Section 304 (Part-1) of the penal code. It is borne out from the record that the appellant has been arrested on 04.4.2003. He is in custody since then. He is in custody for more than seventeen years. Therefore, we find it appropriate to pass the sentence of the period already undergone for the offence under section 304 (Part-1) of the Penal Code. We are not inclined to impose fine as the appellant comes from humble walk of life and he is in custody since the date of his arrest. Since he has already undergone the imprisonment inflicted in this case on him, he be set at liberty forthwith if his detention is not required in any other case. T.C.Rs. be returned immediately.