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2022 DIGILAW 434 (ORI)

Karzi Soy v. State of Odisha

2022-09-14

C.R.DASH, S.MURALIDHAR

body2022
JUDGMENT Dr. S. Muralidhar, CJ. - The present appeal is directed against a judgment dated 31st March, 2018 passed by the learned Additional Sessions Judge, Rairangpur, Mayurbhanj in ST Case No.12 of 2017 convicting the Appellant for the offence punishable under Section 302 IPC and sentencing him to imprisonment for life and fine of Rs.10,000/- and in default of payment of fine, to further undergo rigorous imprisonment (RI) for three months. 2. The case of the prosecution is that the Appellant assaulted his elder sister-in-law Tui Soy by means of a 'Thenga' on her head at around 1.30 pm on 10th December, 2016 as a result of which she fell unconscious. The Informant Nauru Kalah (PW 1) and certain other villagers sent the injured to C.H.C., Jamda in an unconscious state. She was admitted in S.D.H., Rairangpur and again referred to D.H.H. Baripada where she struggled for her life. 3. PW 1 got an FIR scribed at around 5.30 pm at Jamda PS on 11th December, 2016. The FIR was first registered under Section 307 IPC. Nearly four days after the assault, Tui Soy died on 14th December, 2016 at D.H.H. Baripada and the case was converted to one under Section 302 IPC against the Appellant. 4. Padmalochan Panigrahi (PW 19) was the Officer-in-Charge at Jamda PS and therefore, the Investigating Officer of the case (IO). He arrived at the spot on 11th December, 2016 at around 6.30 pm and seized the sample earth, blood stained earth and examined the witnesses. On 13th December, 2016 the Appellant was apprehended from his house. Pursuant to the statement made by him, the wooden badi kept concealed by the side of his cultivable land near his house was recovered. The IO also seized the wearing apparels of the Appellant including the sample blood and blood stained earth. After the death of the injured, conducted inquest over the dead body and then sent her body for post-mortem examination. On 21st December, 2016 he handed over the investigation to Sri M.K. Das upon his transfer from Jamda PS to Tiring PS. 5. On filing of a charge sheet, the accused pleaded not guilty and claimed trial. On behalf of the prosecution twenty-two witnesses were examined. On an analysis of the evidence, the trial Court concluded that the prosecution under which case the Appellant has committed offence under Section 302 IPC. 5. On filing of a charge sheet, the accused pleaded not guilty and claimed trial. On behalf of the prosecution twenty-two witnesses were examined. On an analysis of the evidence, the trial Court concluded that the prosecution under which case the Appellant has committed offence under Section 302 IPC. The trial Court negatived the alternative plea of the accused that this could be an offence punishable under Section 304 Part II IPC. 6. This Court has heard the submissions of Sk. Zafarulla, learned counsel appearing for the Appellant and Mrs. Saswata Patnaik, learned Additional Government Advocate for the Respondent- State. 7. One of the key witnesses to the occurrence was an eyewitness, Kundi Barda (PW 6). Her deposition reveals that she is the sister- in-law of the deceased. She was very much present in the courtyard of the house where the deceased was cleaning the utensils at around 12 noon on 10th December, 2016. She spoke about witnessing the Appellant assault the deceased by means of a Tengha on her head causing bleeding injury as a result of which, the deceased fell down unconscious. PW 6 then went to the Khala (threshing floor) and called Ashok (PW 7), the son of the deceased. Thereafter, they sprinkled water on Tui's face and caused her to sleep on a cot. Since the deceased did not regain her senses, she was taken to Jamda medical for treatment and then she was shifted to D.H.H., Baripada. 8. PW-6 was subjected to detailed cross-examination. However, there was nothing elicited that could even remotely throw a doubt on the credibility of her deposition. Her answer in para 4 of the cross-examination is significant as she denied the following suggestion: '4. It is not a fact that I have stated to the police that the deceased Tui Soy argued with the accused Karzi after cleaning her utensils and that the accused asked Tui Soy to keep silent but Tui did not listen to him and rather shouted at Karzi and at that time the accused got angry and assaulted Tui Soy.' 9. PW 7, the son of the deceased corroborated the evidence of PW 6 in all material particulars. He confirmed that he reached the spot after the assault took place. He heard from PW 6 that the Appellant had assaulted his mother. He accompanied her to the D.H.H. Baripada where she died. PW 7, the son of the deceased corroborated the evidence of PW 6 in all material particulars. He confirmed that he reached the spot after the assault took place. He heard from PW 6 that the Appellant had assaulted his mother. He accompanied her to the D.H.H. Baripada where she died. Again here, nothing was elicited which could even remotely throw a doubt on the credibility of the evidence of PW 7. 10. The evidence of the above eyewitness PW 6 as corroborated by PW 7 was sufficient for the trial Court to base its finding of guilt of the Appellant. Nevertheless, there was further corroboration in the form of the medical evidence of Dr. Kishore Kumar Panda (PW 22) who conducted the post-mortem and confirmed the presence of following external injuries: '(i) Laceration of 3 to 5 days old of size 3 x 1 x 1 cm on the left upper frontal region of the scalp.' 11. The corresponding internal injuries were as under: 'i) Fracture of left paraital and frontal bone of skull; ii) Intra cranial sub-arachnoid haematoma over bilateral parital, bilateral frontal and bilateral frontal region with contusion of bilateral frontal and bilateral parital cerebral cortex; iii) There was conjunction of brain and lungs. The above injuries are ante-mortem in nature.' 12. The cause of death was opined as a result of severe injuries to the brain. The weapon of offence was a wooden bar and the doctor opined that it could have caused the injuries found on the deceased. 13. Mr. Zafrulla, learned counsel appearing for the Appellant submitted that 'single injury' on the vital part was plainly on account of a sudden provocation. Apart from referring to the suggestion put to PW 6, who was the eyewitness, he also referred to the following answer given in cross examination by the IO (PW 19): '9) I have examined P.W.6 (Kundi Barda). It is a fact that she has stated before me that the deceased Tui Soy argued with the accused Karzi after cleaning her utensils and that the accused asked Tui Soy to keep silent but Tui did not listen to him and rather shouted at Karzi and at that time the accused got angry and assaulted Tui Soy.' 14. It is a fact that she has stated before me that the deceased Tui Soy argued with the accused Karzi after cleaning her utensils and that the accused asked Tui Soy to keep silent but Tui did not listen to him and rather shouted at Karzi and at that time the accused got angry and assaulted Tui Soy.' 14. In other words, the denial by PW 6 that there was no such sudden quarrel between the deceased and the accused was not truthful and the answer given by the IO, thus, suggests that there was indeed a grave and sudden provocation, as a result of which the Appellant acted in the manner he did. 15. The fact that there was a single external injury and caused with the wooden bar suggests that this was not a premeditated crime so as to attract Section 302 IPC. It thus appears to have happened at the spur of the moment. 16. Although the Court is conscious that the trial Court has negatived the plea of the offence being punishable under Section 304 Part II IPC, this Court finds that the trial Court failed to consider the extracted portions of the depositions of PW 6 and the IO, PW 19 which suggest that there was in fact a sudden provocation for the Appellant to have acted violently. 17. Having carefully considered the entire evidence, the Court is of the view that the offence could be properly categorized as one punishable under Section 304 Part II IPC and not Section 302 IPC. Therefore, while modifying the impugned judgment of the trial Court and convicting the Appellant for the offence punishable under Section 304 Part II IPC instead of Section 302 IPC, the Court sentences the Appellant to eight years' RI while maintaining the fine amount of Rs.10,000/- as well as the default sentence of three months' RI. 18. The appeal stands disposed of in the above terms, but in the circumstances, with no order as to costs.