Laxmidhar Naik vs State of Orissa

judgment of Learned Sessions Judge, Mayurbhaj at Baripada in S.T. Case No. 34 of 1995 is under challenge. Appellant was the sole accused to face that trial for the offence u/s 302, Indian Penal Code on the allegation that in the occurrence night of 25.8.1994 at about 10 p.m. he committed murder of his wife by dealing axe blows. Learned Sessions Judge, on completion of the trial, found the Appellant guilty u/s 302, Indian Penal Code and sentenced him to undergo imprisonment for life, wrongly mentioning it to be R.I. for life. Appellant has challenged that order of conviction from the jail and has claimed innocence against the charge framed.

As it appears from the materials on Trial Court''s record and the impugned judgment, relationship between the accused and the deceased Arati as husband and wife is not in dispute. The prosecution case that Bijayananda Naik (P.W. 9) is their son and besides that the accused and deceased had two daughters by the date of occurrence is also not in dispute. Similarly the contention that Mohan Dehuri (P.W. 1) is their adjoining neighbour is also not in dispute.

According to the case of the prosecution, accused and the deceased had frequent quarrel and for which the deceased, for sometimes, stayed with her parents in the same town, and about two months before the occurrence she had returned to her matrimonial home on the request of the accused. In the occurrence night the accused questioned the deceased as to why she undertook family-planning operation (tubectomy) and the deceased retorted and that gave rise to the quarrel and in the process of that quarrel accused dealt blows by axe (M.O. 7), which was inside that room. The two infant and minor daughters were then asleep, but P.W. 9 who was then about 10 years old, saw the said occurrence and came out of the room and raised alarm attracting attention of P.W. 1 and other neighbours. On the telephonic message received, the Police Sub-Inspector arrived at the spot, accepted written report (Ext. 1) from P.W. 1 and undertook the investigation. After completion of a routine investigation, charge sheet was submitted and ultimately accused was asked to face the trial commitment of the case to the Court of Sessions.

Learned Sessions Judge framed the charge for the offence u/s 302, Indian Penal Code. To substantiate the charge, prosecution relied on the evidence of ten witnesses, out of whom P.W. 9 is the solitary eye-witness to the occurrence and P.W. 4 is the Doctor who conducted post-mortem examination and proved the post-mortem report, Ext. 5. Accused took the plea of denial and examined D.W. 1 in support of that plea that by the time of occurrence he was absent in the house and when he returned to his house, his wife was lying dead with injuries. Learned Sessions Judge disbelieved the said defence plea and appreciated and accepted the evidence of P.W. 9 to record the finding that Appellant is guilty of the offence punishable u/s 302, Indian Penal Code.

We notice from the impugned judgment that the Trial Court has not recorded specific finding that deceased suffered a homicidal death. In the absence of such a finding, conviction u/s 302, Indian Penal Code cannot be maintained. Be that as it may, this Court while in seisin of the matter as the Appellate Court has jurisdiction to peruse the evidence and to record necessary findings. Evidence of P.W. 4 and the post-mortem report - Ext. 5 has remained unchallenged. It appears from the said evidence that there were four incised wounds of considerable dimensions on the head, right side neck, over the right ear and right arm two inches below the right shoulder joint along with the corresponding internal injuries. According to P.W. 4 all the injuries were ante-mortem in nature and cause of death was due to shock and haemorrhage. Because of injury to the vital organs like brain, pyretic artery and jugular vain. P.W. 4 also opined that the injuries were sufficient to cause death in ordinary course of nature. In that respect he proved his opinion Ext. 5/3 and opined that injuries were possible by axe - M.O. 7. The aforesaid evidence is sufficient to hold that the deceased suffered homicidal death. Mr. Nanda, Learned Counsel for the Appellant also does not challenge to the evidence of P.W. 4 and the logical conclusion deducible from that regarding the homicidal death of the deceased.

P.W. 9, the son of accused and the deceased, was about 12 years old by the date of his deposition. Since the trial took place more than one year after the occurrence, therefore, it can be deduced that P.W. 9 was about 10 years old by the date of occurrence. Learned Sessions Judge found the evidence of that child witness to be true and trustworthy and also clinching to prove the charge against the Appellant. Mr. Nanda, Learned Counsel for the Appellant argues that in view of the provision in Section 118 of the Evidence Act and the ratio in the case of Dayanidhi Bhukta v. State of Orissa (1997) 12 OCR 145 the evidence of the child witness is not acceptable in this case, because Learned Sessions Judge did not reflect on the body of the deposition or record (order-sheets) as to what questions he put to that child witness to ascertain and certify about competency of the witness to testify about the facts by giving rational answer. We find from the said citation that in paragraph-9 their Lordships have held that:

9.... A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. However, before the evidence of a child witness is recorded, the Court must by preliminary examination test his testimonial competency by putting appropriate questions. Therefore, it is desirable for the Trial Court who has a child witness before him to preserve on record, apart from the child witness''s evidence, the questions that were put and the answers elicited, so that the Appellate Court can come to the conclusion whether Trial Court''s decision in regard to competency of the witness was correct or erroneous. But then omission to make such note in the deposition of the witness does not affect the admissibility of his evidence or render his evidence unworthy of credit, since it is merely an irregularity and not illegality...

In view of the above ratio, consideration of the deposition of P.W. 9 cannot be regarded as illegal and that evidence is liable to be considered once Learned Sessions Judge has appended the certificate on the competency of that witness to depose and to give rational answers.

Learned Counsel for the Appellant argues that evidence of P.W. 9 does not appear to be true and trustworthy and there is chance of tutoring by P.W. 1 and that fact be ascertained from the circumstance that P.W. 1 having lofty eye on the homestead property of the accused, he engineered the whole case against the accused and ultimately demolished the house and occupied that premises. On consideration of that contention and perusal of the evidence on record, we find that though P.W. 9 has stated that P.W. 1 is occupying that premises after demolition of that house, as rightly observed by Learned Sessions Judge, that circumstance alone is not sufficient to make an inference that P.W. 9 was tutored by P.W. 1 to depose against the accused who is none other than the father of P.W. 9. The Trial Court also took note of the fact that P.W. 9 was examined by the Investigating Officer about 12 hours after the occurrence, but before that the name of the Appellant as the author of the crime was already indicated in the FIR, Station Diary Entry and all other relevant documents prepared in the meantime. We find valid and cogent reason in the aforesaid analysis of fact and appreciation of the evidence by the Trial Court. Therefore, we are not in a position to discard the evidence of P.W. 9 as untruthful or non-credible. On the otherhand, on appreciation of that evidence we find the same to be acceptable.

Learned Counsel for the Appellant alternatively argues that it is made out from the evidence of P.W. 9 that accused attacked the deceased because of a sudden quarrel and then he was deprived of the self-control and therefore it may not be regarded as a simple case of culpable homicide amounting to murder and the fact situation involved in this case attracts Exception-1 u/s 300, Indian Penal Code to make it culpable homicide not amounting to murder punishable u/s 304, Indian Penal Code. Learned Standing Counsel, however, does not concede to this argument and states that in view of the multiple injuries by the accused on the vital part of the body, Appellants conviction u/s 302, Indian Penal Code is justified.

On due consideration of the aforesaid argument of the parties, we find that the argument of the Appellant is more acceptable inasmuch as the quarrel took place when the accused put question to his wife (deceased) and that is amply established form the evidence of P.W. 9. The weapon of offence, i.e., axe (M.O. 7) was lying inside the room and therefore the Appellant had not to make any preparation for committing the crime. Therefore, what he did was under the heat of passion and being deprived of self-control and he did not invoke the provocation voluntarily but it emerged from the altercations between the deceased and him. Exception No. 1 to Section 300, Indian Penal Code reads as follows:

Exception 1. When culpable homicide is not murder: Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:

First: That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly: That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly: That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation: Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

On assessment of the fact available in this case, we find that above noted Exception-1 is squarely applicable in this case. In the impugned judgment Learned Sessions Judge has not considered that aspect. On due consideration of that fact situation and the provision of law though we find that Appellant is the author of the crime by causing death of his wife, but that does not amount to murder but culpable homicide punishable u/s 304, First Part, Indian Penal Code.

Accordingly, we modify the impugned order of conviction and consequentially we also modify the order of sentence by setting aside the sentence of imprisonment for life and instead impose sentence of rigorous imprisonment for ten years. If the Appellant has already spent that period of ten years, inside jail custody and his detention in jail is not required in connection with any other criminal case, then he be set at liberty forthwith.

The Jail Criminal Appeal is accordingly allowed in part.

Appeal partly allowed.