Balsingh Hikaka vs State Of Orissa

D.Dash, J

The Appellant, by filing this Appeal, from inside the jail, has challenged the judgment of conviction and order of sentence 30.11.2015 passed by the learned Sessions Judge, Rayagada in C.T Case No.43 of 2013, arising out G.R. Case No.529 of 2012, corresponding to Kalyansinghpur P.S. Case No. 66 of 2012 of the Court of the learned SDJM, Rayagada.

The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and sentenced to undergo imprisonment for life.

Prosecution case is that on 04.12.2012, accused namely, Balsingh Hikaka took some old gold ornaments of his wife Manguli (deceased) and went to village Khataganta. That night he spent in the said village by sleeping on the veranda of one Chamara Kousalya. On the next morning, the son of the accused namely, Jaya (P.W.5), aunt of the accused Bamuni, wife of the accused Managuli (deceased) went in search of the accused. They saw him on the veranda of that Chamara Kousalya of village Khataganta. Manguli, wife of the accused then enquired from the accused as to why he did not return home in the previous night. At this, it is stated that accused got enraged and dealt a blow by means of a thenga on the head of Manguli. Sustaining the said bleeding injury, Manguli fell down. She was then taken to Community Health Centre (CHC), Kalyansinghpur for treatment. Simultaneously, the son of the accused as well as the deceased, namely, Jaya (P.W.5) informed about the happenings, to Hikaka Kusuna who is the younger brother of the accused and as such his paternal uncle. Having heard about the incident from Jaya Hikaka (P.W.5), Kusuna (P.W.4) lodged a written report with the Inspector-in-Charge (IIC) of Kalyansinghpur Police Station.

The I.I.C., receiving the said written report from Kusuna (P.W.4), treated the same as FIR (Ext.4) and registering the case, took up investigation. In course of investigation, The I.O (P.W.7) examined the informant Hikaka Kusuna (P.W.4), visited the spot and prepared the spot map (Ext.8) and then seized the blood stained and sample earth from that place along with two pieces of ‘Bela Lathi’ under seizure list (Ext.3). He held inquest over the dead body of the deceased and prepared the report to that effect in presence of the witnesses and then issued requisition for post mortem examination being conducted over the dead body of the deceased Manguli. In the evening, at around 6 p.m., the accused was arrested and his wearing apparels were seized, as well as other articles which in the opinion of the I.O. (P.W.7) were incriminating.

On completion of investigation, I.O (P.W.7) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC.

Learned SDJM, Rayagada, on receipt of the Final Form, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused.

In the Trial, the prosecution in total has examined seven (07) witnesses. As already stated, the son of the deceased and the accused has been examined as P.W.5 and he is the important witness for the prosecution as in his presence, the incident is said to have taken place. P.W.1 is the other witness namely, Chamara Kousalya, on the veranda of his house, as per the prosecution version, the incident took place.

Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.14. Out of those, the important are the FIR, Ext.4, Inquest Report, Ext.10, Post Mortem Report, Ext.6 and Spot Map, Ext.8.

The defence in support of his plea of denial and false implication has not tendered any evidence.

It be stated, at this stage, that the finding of the Trial Court that the deceased met homicidal death on receiving injury on his head by means of a hard and blunt object, is not in dispute.

The Doctor (P.W.6), who had conducted autopsy over the dead body of the deceased has clearly stated so in his evidence and his report Ext.6 narrates all such features which she marked over the dead body during post mortem examination. When the nature of death of the wife of the accused namely, Manguli not questioned before the Trial Court, that is also the situation before us.

In view of the evidence, as we find on record, coming from the lips of the Doctor (P.W.6), and the report (Ext.6), as also the subsequent answer to the query made by the I.O when he has stated in clear terms that the death was on account of the head injury which was ante mortem in nature, we find absolutely no difficulty in holding that Manguli met homicidal death.

Learned Counsel for the Appellant (accused) from the beginning instead of questioning the finding of guilt returned by the Trial Court in holding him to be the author of the injury which was received by the deceased, who happens to be his wife on his head submitted that when the entire circumstances surrounding the incident not only those which had taken place before but also the subsequent events, the relationship when exactly the reason for the accused leaving the house and not returning in the night is not forthcoming as the blow is the solitary blow and it was given in a fit of anger; keeping in view the fact that the Parties belong to S.T community hailing from remote rural background whose tamper usually run high and behaviour often even for silly reasons seen as abnormal and unexpected, the Trial Court ought not to have convicted the accused for commission of offence under section 302 of the IPC. He, therefore, confined his submission for altercation of conviction for commission to the offence under section 304-I of the IPC and accordingly, he urged for appropriate reduction of the sentence.

Learned Counsel for the Respondent-State submitted all in favour of the finding of the Trial Court that the accused is liable for committing the offence under section 302 of the IPC. He submitted that the blow having been given on the head of the deceased by a lathi which broke into two parts and thus shows the force used, the Trial Court did commit no mistake in holding the accused guilty for commission of offence under section 302 of the IPC.

Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.7) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.14.

In order to address the rival submission concerning the categorization of the offence for which the accused would be held liable for the act done by him, let us first of all have a glance of evidence of P.W.5.

This P.W.5 is the son of the accused and the deceased is his mother. He has stated that when he with his mother and grandmother went near the accused and asked him about the gold, out of anger, the accused assaulted his mother by a lathi on her head and because of that his mother (deceased) fell down receiving bleeding injury. So his evidence reveals that when accused was alone; they three were together and asked him as to how he dealt with those gold ornaments. This P.W.5 during cross-examination has gone to state that when the accused was sitting and his mother asked about the gold, there was push and pull between them. This witness does not state that the accused was sitting there holding a lathi and also that by such blow, the lathi got broken into two parts. He has further stated in clear terms that due to striking of the head of his mother against veranda of the house of Chamara (P.W.1), during push and pull, his mother sustained bleeding injury. But then P.W.1, in whose veranda, the incident took place has not supported the prosecution case. The injury on the head of the deceased is one. There was no prior planning by the accused for the incident which took place all of a sudden. P.W.5 is silent as to why the push and pull between the accused and the deceased started. The parties are members of Scheduled Tribe community and hail from a remote pocket in a Schedule District of the State. Judicial notice can be taken up the fact that the temper ordinarily runs high amongst the members of the said Community and abnormal and unexpected behaviour is shown by them in very silly matters. It is not the case of the prosecution that after the deceased fell on the ground, the accused further attempted to assault and those were warded of. It is also not said that the accused had made the attempt to escape from the place.

Taking a cumulative view of all these above circumstances, this Court is of the view that the offence could be properly categorized as one punishable under section 304 Part-I of the IPC. We are thus of the considered opinion that for the role played by the accused and act done, he would be liable for conviction under section 304 Part-I of the IPC.

In that view of the matter, the conviction is altered to one under section 304 Part-I of the IPC and accordingly, the Appellant (accused) is sentenced to undergo rigorous imprisonment for a period of ten (10) years.

With the above modification as to the judgment of conviction and order of sentence, the Appeal stands disposed of.

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