Braja Majhi vs State Of Orissa

Dr. S.K. Panigrahi, J.

The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence 5th December, 2015 passed by the learned Additional Sessions Judge, Dharamgarh, in C.T. (Sessions) No.57 of 2013 arising out of G.R. Case No.242 of 2013 corresponding to Junagarh P.S. Case No.90 of 2013 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Dharamgarh.

The Appellant (accused) thereunder has been convicted for committing the offences under section 341/302/452/323 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.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months for the offence under section 302 of the IPC; rigorous imprisonment for one (1) year and pay fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for the offence under section 452 of the IPC; and rigorous imprisonment for one (1) month for the offence under section 323 of the IPC with further stipulations that the substantive sentences would run concurrently and out of the realized fine amount, a sum of Rs.1000/- (Rupees One Thousand) be paid to the victim (P.W.3) as compensation.

I. CASE OF THE PROSECUTION:

On 15.06.2013, it was around 10.00 a.m., Sibarati Majhi, the mother-in-law of the informant, namely, Gonda Majhi (P.W.1) was proceeding on the road. It was then the accused suddenly came and assaulted her by means of a lathi causing head injury and he also assaulted her on his leg. Receiving the assault, the deceased lost her sense. So, P.W.1 (informant), being the son-in-law of Sibarati (deceased) brought her to his house being helped by his wife, namely, Sutaya Majhi (P.W.4). Sibarati died after sometime. It is further stated that the accused then forcibly entered into the house of one Hetu Majhi (P.W.5) and dragged his wife, namely, Susila Majhi (P.W.3) out of their house by holding her hands. Bana Majhi and Hetu Majhi (P.W.5) came to rescue the victim (Susila) and they snatched away the lathi from the accused.

On the same day, around 6.00 p.m., Gonda Majhi (P.W.1) lodged a written report with the Sub-Inspector of Police (S.I) attached of Chiliguda Police Out Post (P.W.13).

The S.I. of Police (P.W.13), receiving the said written report from the informant (P.W.5), entered the said fact in the station diary book maintained at the Chiliguda Police Out Post and took up preliminary investigation. Simultaneously, he sent the written report to the Inspector-in-Charge (I.I.C.) of Junagarh P.S. The I.I.C, receiving the written report of the informant (P.W.1) from P.W.13, treated the same as the FIR (Ext.1) and after registering the case, directed P.W.13 to take up investigation.

In course of investigation, the Investigating Officer (I.O.-P.W.13) examined the informant (P.W.1) and recorded his statement as well as the statements of other witnesses under section 161 of the Code of Criminal Procedure, 1973. He then held the inquest over the dead body of the deceased by going to the spot and prepared the inquest report (Ext.2) as well as spot map (Ext.8). He then sent the dead body of the deceased for post mortem examination by issuing necessary requisition. The incriminating articles including the wearing apparels of the deceased were seized and sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.13) submitted the Final Form placing the accused person to face the Trial for commission of offences under section 341/302/452/307/3023 of the IPC.

Learned S.D.J.M., Junagarh, on receipt of above Final Form, took cognizance of the said offences and after observing all the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offences against this accused.

The prosecution, in support of its case, has examined in total thirteen (13) witnesses. As already stated, the informant (P.W.1), who happens to be the son-in-law of the deceased, has been examined as P.W.1 and he is the eye witness to the occurrence. P.W.2 is a witness to the inquest held over the dead body of the deceased by the I.O. (P.W.13), P.Ws.4, 5 & 7 are three other eye witnesses whereas P.W.9 is the scribe of the FIR and P.Ws.3 & 4 are the two daughters of the deceased. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.10 and the other Doctor, who had examined the other injured, Susila (P.W.3) has come to the witness box as P.W.8. The I.O., at the end, has been examined as P.W.13.

Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents, which have been admitted in evidence and marked Exts.1 to 11. Out of those, the important are the FIR (Ext.1), the post mortem report (Ext.5), inquest report (Ext.2) and the Chemical Examination Report (Ext.11). The seizure lists have been proved and marked Ext.3 and Ext.7.

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

II. SUBMISSIONS ON BEHALF OF THE APPELLANT:

Learned Counsel for the Appellant (accused), from the very beginning, instead of impeaching the finding of the Trial Court as regards the nature of death of Sibarati to be homicidal and that the evidence on record establishing that the act of having assaulted the deceased, which led to his death as also assaulting P.W.13 by entering into the house, confined his submission on the score that even accepting the prosecution version as it emerges from the evidence of all the witnesses examined on its behalf as also other documents including the post mortem report (Ext.5) and the evidence of the Doctor (P.W.10), conviction the accused for committing the offence under section 302 of the IPC could not stand. According to him, basing upon the evidence on record, the conviction ought to have been for commission of the offence under section 304-I of the IPC. In that view of the matter, he urged for appropriate reduction of the sentence imposed upon the accused on that count.

III. SUBMISSIONS ON BEHALF OF THE RESPONDENT/ STATE:

Learned Additional Standing Counsel for the State-Respondent submitted that keeping in view the evidence of informant (P.W.1) and three other eye witnesses (P.Ws.4, 5 & 7) as well as the evidence of the Doctor (P.W.10) and his report (Ext.5) read with Ext.6, the opinion expressed by him on the query of the I.O. (P.W.13), the accused has been rightly convicted for the offence under section 302 of the I.P.C, which needs no alteration.

IV. COURT’S ANALYSIS AND REASONING:

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 13 and have perused the documents admitted in evidence marked as Exts.1 to 11.

The evidence on record reveal that the deceased and the members of the prosecution party as well as the accused hail from rural background and are permanent residents of that village under the jurisdiction of Kalahandi. It has been stated in the FIR (Ext.1) lodged by P.W.1 that when the deceased was going on the road, the accused came running holding a lathi and assaulted on her head and leg, which made her senseless and thereafter, he (son-in-law of the deceased) with his wife (daughter of the deceased) brought the deceased to their house and after one hour, she died. It has been the evidence of P.W.4 that the accused assaulted her mother by a lathi, firstly on her leg and then on her head. Her evidence is specific that single lathi blow on the head of her mother was given by the accused.

P.W.5, another son-in-law of the deceased, when has stated that he heard that the deceased was killed by the accused; he has further gone to say that on his arrival, he found the accused assaulting the deceased by means of a Thenga. Even if his evidence is accepted for a moment that he had seen the assault upon the deceased by the accused, he does not give any details as to the blows being dealt on any part of the body of the deceased. The Doctor (P.W.10), who had conducted the autopsy over the dead body of the deceased, has found fracture of skull on right occipital region and fracture of right mandible. On internal examination, he has further noticed the brain materials to have been congested. According to him, the death was on account of cranio cerebral injury. His evidence is not on the score that such injuries on the head leading to the death of the deceased was the result of successive blows by the lathi and not on account of the solitary blow. He has also stated that the head injuries are possible by fall on a rough and hard surface. In view of the evidence of P.W.5, thus the possibility of the deceased falling on the ground receiving the blows on the legs and then sustaining the head injuries is not altogether ruled out.

P.W.1 is not in a position to say as to what was the reason for the quarrel between the accused and the deceased. Furthermore, P.W.4 has stated that there was a quarrel between the accused and the mother. She is, however, not stating the reason for the same. This shows that some happenings prior to the assault is being suppressed.

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 Sibarati Majhi (deceased), he would be liable for conviction under section 304-I of the IPC.

In that view of the matter, this Court, while confirming the conviction of the accused under sections 341/452/323 of the IPC, 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 and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months for the said offence. Considering the above altercation of conviction and modification of sentence; we too modify the sentence for the offence under section 452 of the IPC that on that count, the Appellant (accused) by confining it to the sentence of rigorous imprisonment for one (1) year only and not to pay fine while not tinkering with the sentence and ordered for commission of offence under section 323 of the IPC. It is further stipulated that the substantive sentences would run concurrently and in the event of realization of fine of Rs.5,000/-(Rupees Five Thousand), the same would be paid to the victim, namely, Susila Majhi (P.W.3).

With the above modification as to the judgment of conviction and order of sentence dated 5th December, 2015 passed by the learned Additional Sessions Judge, Dharamgarh, in C.T. (Sessions) No.57 of 2013, the Appeal stands disposed of being allowed in part.

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