Madan Majhi vs State of Orissa

R.N. Biswal, J.—The judgment dated 8.1.2001 passed by the Addl Sessions Judge, Jharsuguda in S.T. Case No. 15/4 of 2000 convicting the accused-appellant for the offences under Sections 304 Part-II and 324 of I.P.C. and sentencing him thereunder to undergo RI for ten years and one year respectively is under challenge in this appeal.

It is alleged to be a case of patricide. The accused appellant is the son of deceased Michhu Majhi through his first wife. P.W.8 is the third wife of the deceased. P.W.4 is the daughter of the accused-appellant. After the deceased married P.W.8, the accused appellant got himself separated from his father and lived in a separate house. P.W.4, the grand daughter of the deceased and her husband lived with the deceased and P.W.8 in one house. It is the case of the prosecution that on 16.6.1999 at about 8.00 P.M. deceased asked P.W.4 to serve him supper, but as she did not do it the deceased called for the accused-appellant and complained against P.W.4. In the process a hitch ensued between the accused-appellant and the deceased. Being enraged the accused-appellant brought out a BUDIA (axe) and inflicted a blow with it on his head, above the left ear, causing bleeding injury. When P.W.8 protested, the accused-appellant inflicted a BUDIA blow on her forehead, above the eye lid and throwing the BUDIA in the cow shed left for his house with P.W.4. On 18.6.1999 at 8.00 A.M., P.W.5 lodged a written report before the A.S.I. of Bagdihi Outpost (P.W.12) in this regard. As the allegation contained in the F.I.R. revealed a cognizable case, P.W.12 forwarded the F.I.R. to the O.I.C. of Laikera Police Station (P.W.9) and took up investigation. On receipt of the F.I.R. P.W.9 registered a case u/s 307 of I.P.C. and directed P.W.12 to investigate. Accordingly he investigated it. In course of investigation he visited the spot on 18.6.1999, made arrangement for sending injured Michhu Majhi to District Headquarters Hospital, Jharsuguda, examined the witnesses and seized some Material Objects and since the injured died while being carried to hospital, held inquest over the dead body, sent it to the morgue for autopsy and on the same day (18.6.1999) made over charge of the investigation to S.I. Bhaskar Chandra Prusty of Laikera Police Station (P.W.11) who re-examined the witnesses, examined some more witnesses, seized the inner garment of the deceased on production by the Constable who had escorted the dead body for autopsy, searched for the accused-appellant, but could not trace him out and on his transfer made over charge of investigation to P.W.9, the O.I.C of Laikera Police Station. P.W.9 sent some of the Material Objects through the S.D.J.M., Jharsuguda to Deputy Director, R.F.S.L., Ainthapalli for chemical examination. He also sent injured Nila Majhiani (P.W.8) to the hospital for medial examination, searched for the accused-appellant, but could not trace him out and after completion of investigation, finding a prima facie case, submitted Charge Sheet against the accused-appellant for the offence under Sections 302/307 of I.P.C. showing him absconder.

The plea of the accused-appellant is complete denial of his involvement in the crime in question.

In order to prove its case, prosecution examined as many as 12 witnesses as against none by the defence. After assessing the evidence on record, the trial Court found the accused-appellant to have inflicted an axe blow on the deceased in a fit of anger, in course of a quarrel and accordingly held him guilty of the offence u/s 304 Part-II of I.P.C. and acquitted him of the charge for the offence u/s 302 of I.P.C. Similarly the trial Court found the accused appellant to have dealt an axe blow near the eye of P.W.8, but since the injury found on P.W.8 was simple in nature and not on any vital part of the body and basing on the evidence of P.W.8 herself that when she came to the rescue of the deceased, the accused-appellant gave the BUDIA blow on her, the trial Court held that the accused-appellant had no intention to cause death of P.W.8 and as such, while acquitting him of the charge u/s 307, found him guilty u/s 324 of I.P.C. and sentenced him thereunder as mentioned earlier.

Being aggrieved with the said judgment and order of conviction and sentence, the accused-appellant preferred the present appeal, while in jail.

Out of the 12 witnesses examined on behalf of prosecution, P.Ws. 4, 6 and 8 are said to be eye witnesses to the occurrence. P.Ws. 4 and 6 the daughter and wife of the accused appellant respectively turned hostile to the prosecution. So mainly basing on the evidence of P.W.8 and the doctor (P.W.10), the trial Court found the accused-appellant guilty for the aforesaid offences and convicted and sentenced him thereunder as mentioned earlier.

Learned Counsel appearing for the appellant submitted that without properly appreciating the evidence on record the trial Court convicted the accused-appellant erroneously. He elaborated his submission by stating that as revealed from the evidence of P.W.8 and it is also the case of prosecution that the alleged incident took place during night time in the cow shed of the deceased. It was elicited from P.W. 8 during cross-examination that there was no electrification in her village. She further stated that she was not able to see since the last two years. She was examined on 8.5.2000. So as per her sworn testimony she was not able to see since the month of May, 1998. The occurrence having been taken place on 16.6.1999, it can be said that she was not able to see during the time of occurrence. It was further elicited from her during cross-examination that before her statement was recorded u/s 164 of Cr.P.C, the police had tortured her to speak before the Magistrate that Madan (accused-appellant) had killed her husband and that police personnel were present in the Court during recording of her statement u/s 164 of Cr.P.C.

Learned Counsel for the accused-appellant, next submitted that as found from the evidence of P.W.12, on 17.6.1999 when he visited the place of occurrence he did not find the BUDIA (M.O.I.) on the spot. On 18.6.1999 he found it lying on the spot and seized it. On chemical analysis, blood was not found on M.O.I. as revealed from the chemical examination report (Ext.14). P.W.10, the doctor who had conducted autopsy over the dead body of the deceased found one spindle shaped incised wound measuring 2 1/2" X 1/2" X brain deep situated 1" behind the pina of the left ear. In this context, learned Counsel appearing for the appellant submitted that for causing spindle shaped incised wound, the weapon must be double edged. BUDIA (axe) not being a double-edged weapon, the injury found on the dead body of the deceased could not have been possible by M.O.I. In support of his submission he relied on the decision in Rishi Pal Vs. State, where a Division Bench of Delhi High Court held that if blow is inflicted with a single edged weapon, the injury would be wedge shaped, and if the weapon is double edged, it would be spindle shaped with clear edges. Learned Counsel for the accused-appellant further submitted that when P.W.8 was not able to see during the time of alleged occurrence, her evidence that she was assaulted by accused-appellant and that she saw him assaulting the deceased cannot be believed. Accordingly, learned Counsel for the accused-appellant urged to allow the appeal.

As alleged, the occurrence took place in a cow shed. P.W.12 could not find any weapon of offence on the spot, when he visited it on 17.6.1999. On the next date only he could find M.O.I there. As per the decision cited above the injury found on the dead body could not be possible by M.O.I. Furthermore, as found from the evidence of P.W.12, he visited the spot on 17.6.1999, but F.I.R. was lodged on the next day only. If nobody was there in the house of the deceased except the injured (P.W.8) to lodge F.I.R., the A.S.I. (P.W.12) could have drawn it himself when he visited the spot for the first time, but he did not do so. The delay of two days in lodging the F.I.R. has also not been properly explained. As such, the possibility that it was filed after due discussion and deliberation, cannot be ruled out, particularly when it is found from the evidence of P.W.8 that she herself and the deceased had not been pulling on well with the accused-appellant since long. As discussed earlier, it transpires from the evidence of P.W.8 that she was not able to see during the time of occurrence and that there was no electrification in her village. She further stated that being tortured by the police she stated in her statement recorded u/s 164 of Cr.P.C. that the accused appellant killed the deceased. All these together create a serious doubt about the complicity of the accused-appellant in the crime in question. As rightly submitted by learned Counsel for appellant, the trial Court did not take into consideration all these material facts. So, the impugned judgment passed by the trial Court cannot be sustained.

In the result, the appeal is allowed and the impugned judgment passed by the trial Court in S.T. Case No. 15/4 of 2000 convicting the accused-appellant for the offence under Sections 304 Part-II and 324 of I.P.C. and sentencing him thereunder is set aside and the accused-appellant is acquitted thereof. He shall be released forthwith, if his detention is not required in any other case.