Bamhan @ Sadhan Xaxa vs State Of Odisha

D.Dash, J

The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 17th October, 2015 passed by the learned Additional Sessions Judge, Sundergarh, in S.T. Case No.54/02 of 2013 arising out of G.R. Case No.816 of 2012 corresponding to Kinjirkela P.S. Case No.69 of 2012 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundergarh.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for two (2) years for the offence under section 302 of the IPC.

Prosecution Case:-

On 08.10.2012 during noon hour, the mother, aunt and wife of Birsa Xaxa (informant-P.W.1) were harvesting paddy in the field. During then, the father of Birsa (informant-P.W.1), namely, Makunda Xaxa was grazing cattle on a nearby small hillock. The accused, who happens to be his father’s brother’s son, went near his father being armed with an axe and struck at the back side of his head by the said axe. Receiving the blow, he fell on the ground and then it is said that the accused went on assaulting him by means of the said axe. The mother of the informant (P.W.6), wife of the informant (P.W.4) and the aunt of the informant came near him. The wife of the informant (P.W.6) told everything about the incident to him. Thereafter, the informant (P.W.1) went to the spot with his wife (P.W.6) and they brought Makund lying injured on the hillock to their house. The matter, being reported by the informant (P.W.1) with the Officer-in-Charge (O.I.C.) of Kinjirkela P.S., he treated the same as FIR and registering the case, directed one Sub-Inspector (S.I.) of Police of that P.S. (P.W.8) to take up the investigation.

In course of investigation, the I.O. (P.W.8), examined the informant (P.W.1) and the person, who had scribed the FIR (Ext.1), namely, Sumanta Lakra (P.W.2). It is stated that the accused voluntarily appeared before the I.O. (P.W.8) with a blood stained axe and disclosed to have killed the deceased on account of civil dispute. The blood stained axe was then seized under seizure list (Ext.4). The I.O. (P.W.8) then proceeded to the spot and prepared the spot map (Ext.11). The dead body of Makunda being taken to the house, the I.O. (P.W.8) went there and held inquest over the same and prepared the report (Ext.3). The dead body was then sent for post mortem examination. The incriminating articles were seized from the spot. The accused thereafter, being arrested was forwarded in custody to the Court. The incriminating articles were sent for chemical examination through Court and on completion of the investigation, the I.O. (P.W.8) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC.

Learned S.D.J.M., Sundergarh, on receipt of above Final Form, took cognizance of the said offence 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 aforesaid offence against the accused.

In the Trial, the prosecution, in support of its case, has examined in total eight (8) witnesses. Out of them, as already stated, P.W.1, who is the son of the deceased, is the informant. P.W.2 is a post occurrence witness, he is also the scribe of the FIR as well as one of the witnesses to the inquest. P.W.4 is the wife of P.W.1 and P.W.6 is the mother of P.W.1, who is the wife of the deceased. The Doctor, who had held autopsy over the dead body of the deceased is P.W.7 whereas the I.O., at the end, has come to the witness box as P.W.8.

Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents, which have been admitted in evidence and marked Exts.1 to 12. Out of those, the important are the FIR (Ext.1), the post mortem report (Ext.8), inquest report (Ext.3), the spot map (Ext.4) and the seizure list showing the seizure of the axe from the custody of the accused, which has been admitted in evidence and marked as Ext.4.

The accused, in support of his plea of denial and false implication, has examined one witness, i.e., D.w.1, who has been examined to say that it would not be possible for a person standing at a place where P.Ws.4 & 6 were there at the relevant time as they state, to witness the happenings on the side by the hillock.

Learned Counsel for the Appellant (accused), from the very beginning, instead of attacking the finding as to the authorship of the injury upon the deceased attributed to the accused as has been recorded by the Trial Court, confined his submission on the score of altercation of conviction to one under section 304-I of the I.P.C. He submitted that viewing the happenings in the incident as also the subsequent events, the relationship etc. when are kept in view with the fact that the parties belong to Scheduled Tribe Community hailing from remote rural background whose tamper usually run high and behaviour for silly reasons, often becomes abnormal, the Trial Court ought not to have convicted the accused for commission of offence under section 302 of the IPC. He, therefore, urged for alteration of the conviction for commission of offence under section 302 of the IPC to offence under section 304-I of the IPC and accordingly, he contended that the accused be visited with the sentence as would be appropriate for the said offence.

Learned Additional Standing Counsel submitted all in favour of the finding returned by the Trial Court that the accused is liable for commission of the offence under section 302 of the I.P.C. He further submitted that the blow being by an axe, which is a heavy sharp cutting weapon, when has been given on the back side of the head of the deceased, the Trial Court did commit no mistake in holding the accused guilty for commission of the offence under section 302 of the IPC.

Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution as P.Ws.1 to 8 and have perused the documents admitted in evidence marked as Exts.1 to 12.

The star witness for the prosecution is P.W.4. She has stated that when she heard the sound and looked back, the accused had already assaulted his father-in-law, who had fallen down. She stated that the accused assaulted by axe on the right side neck of her father-in-law and receiving that blow, he was lying on the ground, she looked back. She next says that the she had seen the accused dealing blow, he was lying on the ground, on the right side neck of his father-in-law. It is not stated by her that the accused either had given or even attempted to give any blow for the second time. Here, even we disbelieve her version as to have exactly seen the assault being made by the accused upon her father-in-law, her evidence stand quite natural and acceptable that she had seen only this accused with the axe near the deceased who had fallen on the ground with bleeding injury, the authorship of the injury is clearly established to be resting with the accused. This witness is silen as to what had happened before she looked back. This P.W.2 is also not stating that soon before she heard the cry and Lachhu, the brother of the accused, who was grazing cattle nearby with the deceased has neither been examined nor any explanation has been provided for his non-examination, although he would have been the best witness to narrate the happenings right from the beginning till the end. This P.W.4 thus states that said Lachhu being present there at the spot where the occurrence took place had seen the occurrence. He had been examined, it would have come to light as to what had happened before the accused is said to have dealt the blow and whether, the deceased had played any such role in igniting the actual incident.

P.W.6, who is the wife of the deceased, has said that hearing one strike when she looked back, she saw the accused assaulting the deceased. But this is not he evidence of P.W.4. Although she states that she had seen the accused dealing the blows whereafter the deceased fell down, that part of her evidence is not convincing in view of the evidence of P.W.4. Thus, it is seen from the evidence of P.Ws.4 & 6 when they saw that the deceased had fell down on the ground having received the blow on his head.

The Doctor (P.W.7) has noticed one incised wound of size of 3”X 1” present over the occipital region of the head and one laceration of the size 2” X 1” over the left side of the forehead. It is not stated by him that such injuries are only possible by more than one blow or that had not resulted from a single blow. He when has also stated that such laceration is possible by a fall on a rocky surface, admittedly the incident took place at a hillock. The deceased, the accused and the above witnesses hail from remote rural pocket of a Tribal district of the State, i.e., Sundergarh. P.Ws.4 & 6 were not there close to the place where the incident took place and they only looked back hearing the sound or cry, if we may say so. Therefore, the prosecution, having not examined Lachuu, is found to be suppressing the happenings before the deceased received the blow and fell down on the ground. Therefore, it is not possible to conclude that the accused appeared there and suddenly dealt the blow upon the deceased and there was no time gap between his arrival and dealing the blow.

The parties hail from rural background under a tribal dominated district of the State and they too are the members of the Scheduled Tribe Community. Judicial notice of the fact can be taken that the tamper of the members of such community run high and their behaviour many a times for a silly reason becomes abnormal and unexpected.

Taking a cumulative view of all these above circumstances appearing in the evidence, as discussed; we are of the view that the  offence  could  be  properly  categorized  as  one  punishable under section 304-I of the IPC. We are thus of the considered opinion that for the act and role played by the accused in respect of Makunda Xaxa (deceased), he would be liable for conviction under section 304-I of the IPC.

In that view of the matter, this Court alters the conviction under section 302 of the IPC to one under section 304-I of the IPC. Consequently, 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 dated 17th October, 2015 passed by the learned Additional Sessions Judge, Sundergarh, in S.T. Case No.54/02 of 2013, the Appeal stands disposed of.

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