Kulamani Naik vs State of Orissa

L. Mohapatra, J.—This appeal is directed against the judgment and order dated 5th January, 1993 passed by the Learned Sessions Judge, Mayurbhanj in S.T. Case No. 92 of 1992 convicting the Appellant for commission of offence u/s 302 of the Penal Code and sentencing him to imprisonment for life.

The case of the prosecution is that on 10.2.1992 in the morning hours the Appellant assaulted his mother and sister. After this incident, the mother and sister of the Appellant went to the house of the deceased to take shelter. Soon thereafter, the Appellant came to the house of the deceased and started shouting. In order to pacify the Appellant, when the deceased came out of his house, the Appellant dealt several blows by means of a bell-metal pot (Lota) on the head of the deceased as a result of which the deceased sustained injuries and fell down on the ground. A few moments thereafter, the deceased succumbed to the injuries. On the basis of such allegation, FIR was lodged by P.W. 5 and after investigation, charge-sheet was submitted for commission of offence u/s 302 of the Penal Code.

In course of trial the prosecution examined 10 (ten) witnesses and on the basis of the evidence adduced before the Trial Court, an order of conviction was passed. From the judgment of the Trial Court it appears that the Learned Sessions Judge convicted the Appellant on the basis of certain circumstances such as handing over of the weapon of offence by P.W. 1 to the Appellant, handing over of the weapon of offence by the Appellant to P.W. 3 blood stains found on the weapon of offence as well as on the Lungi of the Appellant.

Miss. D. Mohapatra, the Learned Counsel appearing for the Appellant challenges the order of conviction and sentence on the ground that though two witnesses were examined on behalf of the prosecution as eye-witnesses to the occurrence, they did not support the case of the prosecution. It is further contended that as per the prosecution case, the Appellant was of unsound mind when the occurrence took place. Under such circumstances, the Trial Court should have held that at the spur of the moment the Appellant lost control over him and assaulted the deceased without any intention of causing death. The Learned Government Advocate, on the other hand, submitted that several injuries were sustained by the deceased and the Lota by means of which the Appellant had assaulted contained blood stains and the Lungi used by the Appellant also contained blood stains of human origin and, therefore, under these circumstances, even if the eye-witnesses are disbelieved, the order of conviction and sentence should be maintained.

On examination of the records, we find that P. Ws. 2 and 6 were cited as eye-witnesses to the occurrence. P.W. 2 is the wife of the deceased Rabindra. The Appellant is also the nephew of the deceased. Though this witness was cited as eye-witness to the occurrence, she in her deposition has not stated anything about witnessing the occurrence and on the other hand she has specifically stated that on the date of occurrence she and her husband were sleeping in their room when the Appellant called her husband. Sometime after her husband left the house, she came out of her house to find out where he is and found him lying in front of the house of the Appellant on the verandah, bleeding from head where after he died. More or less similar is the evidence of P.W. 6 who was cited as eye-witness to the occurrence. Both the aforesaid witnesses having not stated anything about witnessing the occurrence, in absence of any other eye-witness, the Court has to now consider the circumstantial evidence available against the Appellant. P.W. 1 in his deposition has stated that on the date of occurrence the Appellant came to his house and asked for drinking water. He gave some water in a bel-metal pot (Lota). The Appellant drank the water and left with the Lota towards a tank. Half an hour thereafter this witness heard the sound of weeping and crying from the house of the Appellant and when he went there, he found the deceased lying dead with injuries on his head, P.W. 2 in her evidence has only stated to the effect that on the date of occurrence she was sleeping with her deceased husband and on being called by the Appellant, her husband went out of the house. P.W. 8 who conducted the post-mortem examination found ten external injuries. Out of the ten injuries, eight are lacerated injuries of different sizes mostly on different parts of the head and this witness is of the opinion that the depressed fractures of the skull causing injuries to the brain were the fatal injuries and out of ten injuries, three are such injuries. It also appears that the Lota by means of which the Appellant assaulted the deceased was seized from P.W. 3 and the Lungi, which the Appellant was wearing on the date of occurrence, had also been seized and sent for chemical examination. The report of the Chemical Examiner indicates that the Lungi worn by the Appellant on the date of occurrence contained human blood of AB group whereas no opinion could be given in respect of the Lota. It further appears that the deceased had the blood group of AB. On analysis of the above evidence, it is clear that the following circumstances exist for consideration:

The Appellant had obtained a Lota from P.W. 1.

The Appellant called the deceased from his house and the deceased being called had gone out of the house.

The deceased had sustained several lacerated injuries on the head out of which three were such injuries, which could cause the death.

The wearing apparels of the deceased and the Appellant were stained with human blood and of same group as that of the deceased.

There being no explanation from the side of the Appellant as to how his Lungi was stained with human blood that to of the same group as that of the deceased, it is difficult to agree with the Learned Counsel for the Appellant that there are no circumstances available on record to come to a conclusion that the Appellant might not have assaulted the deceased. On the other hand, the circumstances as indicated above clearly establish that the Appellant is the assailant. However, on examination of the evidence of the witnesses examined on behalf of the prosecution, we find that even the wife of the deceased who was examined as P.W. 2 has stated in her evidence that the Appellant was of unsound mind and used to loiter here and there. Though this evidence is not conclusive proof of insanity of the Appellant on the date of occurrence as claimed by the Learned Counsel for the Appellant, at the same time such evidence cannot be brushed aside from consideration as to whether the conviction u/s 302 of the Penal code is sustainable or not.

In view of the circumstances existing against the Appellant in the case and on consideration of nature of injuries sustained as well as the fact that on the date of occurrence in the morning hours the Appellant had assaulted his mother and sister and they took shelter in the house of the deceased and that the Appellant came to the house of the deceased and called him where after such occurrence took place, we are of the view that the Appellant in stead of being convicted u/s 302 of the Penal Code, he should have been convicted for commission of offence u/s 304, Part-II. It is stated by the Learned Counsel for the Appellant that the Appellant was in custody since 1992 till he was granted bail on 21.1.2000 and has already served more than seven years imprisonment in the meantime.

We, therefore, allow the appeal in part by convicting the Appellant u/s 304, Part II of the Penal Code and sentence him to undergo rigorous imprisonment for the period already undergone.

Sujit Barman Roy, C.J.

I agree.

Appeal partly allowed.