Jakaka Dama vs State of Orissa

B. Panigrahi, J.—This appeal at the instance of the appellant Jakaka Dama is directed against the order dated 13.5.1993 passed by the learned Additional Sessions Judge, Jeypore, in Sessions Case No. 36 of 1992. By the said order, the appellant has been convicted under Sections 302 and 323 of the Indian Penal Code (for short "IPC") for committing the murder of Jakaka Lachi and for voluntarily causing hurt of Jakaka Arja. He has been sentenced to undergo imprisonment for life for the offence u/s 302 IPC and rigorous imprisonment for six months for the offence u/s 323, IPC.

The skeletal picture of the prosecution story as stated in the trial court''s judgment is as follows :

The appellant and one Jakaka Jiramajhi had gone to the house of the deceased on 25.1.1992 at about 8 P.M. and assaulted Jakaka Arja by means of a yoke. It is stated that when the deceased Jakaka Lachi raised severe protest and asked the appellant and his associate not to assault her husband, both of them attacked Jakaka Lachi and her son P.W..2. The appellant is said to have inflicted injuries by means of a lathi on Jakaka Lachi as a result of which she immediately collapsed. The matter was reported at the Narayanpatna Police Station on 26.1.1992 at 10.15 P.M. P.W. 9, the A.S.I, of Police of the said police station reduced the oral report to writing, treated the same as F.I.R. registered it as Narayanpatna P,S. Case No. 7 of 1992 u/s 302/323/34, IPC and immediately sprang into action. In course of investigation, he visited the spot, held inquest over the dead body of Jakaka Lachi, despatched the dead body for post - mortem examination, seized the weapon of offence, and issued requisition for medical examination of the injured, Jakaka Arja, P.W. 7. Then he made over charge of Investigation to the Officer-in-charge, P.W. 8. The Officer-in-charge, Narayanpatna Police Station arrested the appellant and his associate and submitted charge-sheet u/s 302/34, IPC and 323/34, IPC against them.

The defence plea was one of denial of the occurrence.

In order to substantiate its case, prosecution examined as many as ten witnesses. P.Ws. 2, 3 and 7 are said to be the eyewitnesses to the occurrence and P.W. 4 is a post - occurrence witness. P.W. 1 is a witness to the seizure, P.W. 5 is a witness to the inquest. P.W. 6 is the doctor who conducted post - mortem over the dead body of the deceased and P.W. 10 is the doctor who examined the injured (P.W. 7) on police requisition. P.Ws. 8 and 9 are police officers.

The trial court on closely studying the evidence convicted the appellant under Sections 302 and 323 IPC and sentenced him as stated earlier. It, however, acquitted the other accused Jakaka Jirmajhi of the charges.

In order to determine the implication of the appellant, it is to be decided as to whether Jakaka Lachi died a homicidal death. In this regard, P.W. 2, Jakaka Mariga is the star witness of the prosecution. He was also one of the injured persons. He lodged oral report at the Police Station which was reduced to writing by P.W. 9 and a case u/s 323/324/34, IPC was registered. On seeing the post - mortem report conducted over the dead body of Jakaka Lachi, it appears that she sustained three injuries : (1) contusion over the left face and mandible, (2) contusion over the mons veneris, and (3) contusion over the pericardium. On dissection it was found that there was haematoma over the muscles of the face and haemorrhage under the skin of mons veneris corresponding to external injuries Nos. (1) & (2). The meninges were congested. There was haemorrhage in the brain matter in form of clots. The doctor (P.W. 6) opined that death was due to coma due to the head injury. P.W. 6 also opined that the all the injuries were ante-mortem in nature. It has been stated that the appellant had given one blow resulting in two external injuries which corresponded to haematoma and haemorrhage and the death was due to come. Had the injured been brought to the Hospital immediately and provided treatment, there was possibility of regarding her sense. Since she could not be shifted to the hospital immediately following such injuries and due to lapse of time, her condition was further deteriorated and finally she died.

In order to sustain the conviction against the appellant, the evidence of P.Ws. 2, 3 and 7 lends support to the prosecution story. They are son, daughter and husband respectively of the deceased. It is also admitted in evidence that there was land dispute between the appellant and his associate on one hand and P.W. 7 on the other. The appellant was the nephew of the said P.W. 7 and there was dispute over the landed property belonging to the family. It is in the evidence that the appellant and his brother had been to the house of the deceased and reminded her husband to attend the Panchayati which was being convened at the instance of the appellant, to which the husband of the deceased did not agree and a quarrel ensured. It is further borne out from the evidence that the appellant did not carry any arms with him and after reaching the house of the deceased picked up a yoke and first assaulted P.W. 7, the husband of the deceased. When the deceased intervened, he was incensed with anger and gave a stroke by a lathi on her head. From this it cannot be said that he had any intention to do away with the life of the deceased Jakaka Lachi. This aspect of the evidence was not considered by the learned Sessions Judge. He simply, on the basis of the evidence available on record, held the appellant guilty u/s 302, IPC for committing the murder of Jakaka Lachi and u/s 323, IPC for voluntarily causing hurt to P.W. 7. since it is a case where the offence was committed at the spur of the moment and being immediately incensed with anger out of sudden provocation, the appellant should have been convicted u/s 304, Part-l and Section 323, IPC. we accordingly, confirm the order of conviction of the appellant u/s 323, IPC, But, so far as his conviction u/s 302, IPC is concerned, we alter the same to Section 304, Part-1, IPC.

Learned counsel appearing for the appellant has invited our attention to the fact that his client is in custody since 1992 and has suffered imprisonment for more than 10 years. Keeping this in view, we, in order to meet the ends of justice, while convicting the appellant u/s 304, Part-l and Section 323, IPC, sentence him to suffer imprisonment for the period already undergone. He be released for jail custody and set at liberty forthwith. If his detention is not required in connection with any other case.

In the result, the appeal is allowed in part to the extent indicated above.

P.K.. Misra, J.

I agree.