Mesa Sahu vs State Of Odisha

Dr. S.K. Panigrahi, J.

In this JCRLA, the convict/ Appellant (Mesa Sahu) challenges the judgment of conviction and order of sentence dated 09.11.2010 passed by the learned District and Sessions Judge, Kalahandi-Nuapada in Sessions Case No.108 of 2008, whereby the Appellant was convicted and sentenced to undergo imprisonment for life with a fine of Rs.5000/- i.d. to undergo R.I. for a further period of six months for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the I.P.C.” for brevity).

I. CASE OF THE PROSECUTION:

The prosecution case, in brief is that on 13.03.2008 at 2 P.M. at Kanakpur under Jaipatna police station, the accused and his wife (hereinafter “the deceased”) being neighbours of the informant (P.W.1) returned home and that the accused allegedly quarrelled with his wife i.e. the deceased in his house on the ground that the latter did not cook rice for him. It is alleged by the prosecution that the deceased borrowed cooked rice from the informant’s wife (P.W.2) and took it to the house of the accused and served it to him. Subsequently, while she was talking to P.W.2 near the verandah of his house, the accused, all of a sudden, came there with a lathi in his hand and dealt blows by that lathi on the head of the deceased.

It is alleged that the deceased died on the spot and on the same day at about 4 p.m. the informant lodged this present F.I.R. at Jaipatna P.S. on the basis of which this case was registered. Police, after due investigation, charge sheeted the accused U/s.302 I.P.C. whereunder he subsequently stood committed to this court for sessions trial. After the charge was framed, the trial was completed by the Learned District & Sessions Judge, Kalahandi-Nuapada and the Appellant was convicted u/s 302 of IPC and sentenced to undergo imprisonment for life. Hence, this appeal.

II. SUBMISSIONS OF THE APPELLANT:

Learned Counsel for the Appellant strenuously argued that the appellant is innocent. The plea of the defence is one of complete denial and false implication. The specific case/plea of the defence as it borne out from the statement of the accused u/s.313 of the Cr.PC. is that he (accused) is in no way connected or concerned with the death of the deceased. He had further deposed that he cannot say who has killed the deceased, however, he was not involved in the incident.

Learned Counsel further contended that if at all, the accused should be charged under culpable homicide not amounting to murder. He submitted that P.Ws 1 to 3 have stated in their respective deposition that there was quarrel between the accused and the deceased on the spot. Therefore, the attack on the deceased by the accused was not premeditated, rather, it was sudden and in the heat of the moment.

III. SUBMISSIONS OF THE STATE/ RESPONDENT:

The prosecution examined ten witnesses in all besides exhibiting a number of documents vide Exts. 1 to 14 and the weapon of offence i.e. the lathi vide M.O.I and on the other hand, the accused neither examined any witness nor proved any document in his defence.

Learned Counsel for the State submitted that in the deposition of the doctor (P.W.10), he has clearly stated that, the injuries were ante mortem in nature, that the cause of death was due to the complications arising out of her head injury and that her death could be possible by the seized wooden lathi vide M.O.I which he had medically examined.

Learned Counsel for the State submitted that from the unassailed testimony of the eye witnesses i.e. P.Ws.2 and 3 which finds ample corroboration with each other coupled with the medical evidence i.e. the evidence of the doctor (P.W.10), it can be safely concluded that, none else but the accused is the author of the injuries found on the body of the deceased.

IV. COURT’S REASONING AND ANALYSIS:

Heard both the parties and went through the judgement of the Trial Court. After extensively perusing the documents adduced by the prosecution and the depositions of the witnesses, this Court is of the view that there are two points of determination in the present case:

i. Whether the death of the deceased is homicidal in nature?

ii. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellant led to the death of the deceased?

iii. Whether the act of the appellant was premeditated and with an intention to cause the death of the deceased?

V. Whether the death of the deceased is homicidal in nature?

The medical officer (P.W.10) stated that on 14.03.2008, he was the medical officer of Jaipatna P.H.C. On police requisition, he conducted post mortem examination of the dead body of the deceased and found one lacerated wound over her right arm along with four other abrasions thereon and over her right thigh and one lacerated wound over the parietal area of scalp and opined that the cause of her death was due to complication arising out of her head injury. The time since her death was within 18 to 24 hours and that the nature of the injuries were ante mortem.

P.W.10 provided the post mortem examination report vide Ext.13 and further stated that on 29.04.2008 on police requisition he examined a lathi and opined that the death of the deceased could be possible by that lathi. He proved such opinion vide Ext.14. He has deposed that there is no dispute that the deceased expired on 13.03.2008 at her house and it is revealed from the medical evidence read with the post mortem examination report and the other reports of the medical officer vide Exts.13 and 14 respectively that the injuries were ante mortem in nature, that the cause of death was due to the complications arising out of her head injury and that her death could be possible by the seized wooden lathi vide M.O.I which he had medically examined. The lathi vide M.O.1 is in fact is quite thick besides being a dangerous weapon and there cannot be any dispute that with that lathi the death of a human being can very well be caused by dealing blows on the vital part like the head. Therefore, this Court has no doubt is iterating that the death of the deceased was homicidal in nature.

VI. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellant led to the death of the deceased?

The case of the prosecution mainly rests upon the testimony of eyewitnesses i.e., P.W.2 and 3. P.W. 1 is the informant and the neighbour of the accused. P.W.2 is the wife of the informant and an eye witness to the crime. P.W.3 is a child witness, 12 yrs of age and also an eye witness to the crime. P.W.1 and 6 are post occurrence witnesses.

P.W.1 has deposed that on 13.3.08 at about 3 pm while he was taking rest in his house, the deceased came to his house and borrowed some cooked rice. After some time, he heard the cry of his son (P.W.3) that the deceased was killed. Thereafter, he came out and found that the deceased was lying dead on the verandah of his house and that the accused was standing beside her with a lathi in his hand.

P.W.1 has deposed that his wife (P.W.2) told him that accused killed his wife. Subsequently, P.W.1 made the accused sit there and reported the matter at the police station. Accordingly, the police held inquest over the dead body of the deceased and also seized some blood stained earth and sample earth from the spot and the lathi of the accused. The police seized the weapon of offence i.e. the lathi vide M.O.1.

The son of the informant i.e. P.W.3 who had cried that the deceased was killed is a child witness being aged about 12 as on the date of his examination. He has fully corroborated the deposition of P.W.1 and further testified that on 13.3.08 at 2 pm while he was reading on the outer verandah of his house his mother and the deceased were talking to each other. Thereafter, the accused came there with a lathi in his hand and that the accused assaulted the deceased by that lathi on her head and arm. He further stated that the deceased died on the spot due to the bleeding injury. Subsequently, after hearing his shouting the informant came, saw the accused standing besides the dead body of the deceased with a lathi in his hand and thereafter his father i.e. the informant went to the police station to report the matter. According to him, the police also held inquest over the dead body, sent the dead body for P.M. examination and also seized some sample soil, some blood stained soil and the lathi vide M.O.I by which the accused assaulted the deceased.

The informant's wife (P.w.2) has fully corroborated the deposition of the P.W.1 and P.W.3 and her testimony is unassailed in the cross-examination. P.Ws.6 and co-villagers stated that on 13.3.2008 at about 2 p.m. he came to the house of the informant after hearing the shout of P.W.2 and found there that the deceased was lying dead with bleeding from her head, that the accused was also standing there and P.W.2 told him that the accused killed the deceased by a lathi vide M.O.I and that the accused was also standing there.

Learned Counsel for the appellant has raised concerns regarding the reliability of the testimony of the child witness. In Panchhi & Ors. v. State of U.P. AIR 1998 SC 2726, the Apex Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.

Additionally, in Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:

"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

In this regard, the Trial Court has stated that though P.W.3 is a child of 12 years of age, as this Court finds, not only gave rational answers to the questions put by the court but his evidence as an eye witness to the occurrence also remain totally unshaken in cross examination.

Additionally, the eye witness account of both the witnesses i.e. P.Ws.2 & 3 are very clear to the effect that the accused dealt lathi blows with M.O.I on the head of the deceased being his wife and that both of them not only saw the occurrence but also saw that the deceased died on the spot itself. The evidence of other eye witness i.e. P.W.2 also remain totally undemolished in cross-examination. and the evidence of the informant (P.W.1) and that of P.W.6 that immediately after the death of the deceased by the lathi blows of the accused the P.W.2 and P.W.3 raised hullah to that effect and that P.W.2 told them then and there that the accused killed, the deceased by lathi blows on her head. In the facts and the circumstances, it gets the requisite further support and corroboration to the eye witness account of P.Ws.2 and 3. The evidence of these two post-occurrence witnesses (PWs1 and 6) was also not shaken in any manner in cross examination and as a matter of fact, there is neither any discrepancy nor any contradiction within the meaning of section 162 Cr.P.C. in their evidence in the court.

In this regard, the Trial Court concluded that the aforesaid unassailed testimony of the doctor (P.W.10) corroborated through the evidence of P.Ws.2 and 3 coupled with the plea of the defence i.e. no dispute to the homicidal nature of death of the deceased points to the irresistible conclusion that, the nature of death suffered by the deceased is neither accidental nor suicidal, rather the same is purely homicidal one. Therefore, this Court is of the view that the prosecution has been able to prove beyond reasonable doubt that the act of the appellant has led to the death of the deceased.

VII. Whether the act of the appellant was premeditated and with an intention to cause the death of the deceased?

With regard to the second issue, the prosecution witnesses i.e. P.Ws 2 and 3 have not been able to provide whether there was any kind of existing quarrel between the two parties. In addition to this, the prosecution has not established that the act of the accused shall not fall under the Exception 4 of Section 300 of IPC. The exception provides that culpable homicide not amounting to murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

It is pertinent to note that none of the prosecution witnesses has deposed that there used to be regular quarrels between the accused and the deceased or there was some sort of prior enmity or family disputes between the parties. Therefore, it is difficult to point towards a motive in the present case.

In this regard, it is well established by law that culpable homicide becomes murder if the case comes under any one of the clauses out of the four defined in section 300 of the I.P.C. and the same becomes punishable u/s.302 of the I.P.C. But the culpable homicide is not murder if the case falls within any one of the exceptions out of five of the said section 300 of the I.P.C. and then the same becomes culpable homicide not amounting to murder and punishable u/s.304 of the I.P.C., but not u/s.302 of the I.P.C.

However, if an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I IPC and not under Section 302 IPC. In this regard, the Supreme Court in Virsa Singh v. State of Punjab AIR 1958 SC 465 as also in Shankar Narayan Bhadolkar v. State of Maharashtra (2005) (9) SCC 71, opined :

"Applying the principles of law, as noticed hereinafter, I am of the considered opinion, that the offence committed by the appellants does not fall within the definition of Section 300 of the IPC, nor does it fall within the definition of offence, punishable under Section 304II of the Indian Penal Code. In my considered opinion, the learned trial Court rightly held that the nature of the offence, falls within the definition of Section 304-I of the IPC Section 304 deals with situations, where culpable homicide does not amount to murder, i.e. does not fall within the definition of murder, as contained in Section 300 of the IPC. Section 304 is sub-divided into two parts. If an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I, however, if there is no intention to cause such an injury, but there is knowledge that such an injury can cause death, the offence would fall within the definition of Section 304-II. Thus, is intention. If intention to cause such an injury as is likely to cause death, is established, the offence would fall under Part-I but where no such intention is established and only knowledge that the injury is likely to cause death, it would fall under Part-II."

"However, the nature of the injury, the weapon of offence, the intention and knowledge of the assailants, in my considered opinion, clearly places the offence as one under Section 304-I of the IPC. Appellant No.1 inflicted the injury with knowledge and intention that the injury, if inflicted is likely to cause death, but with no intention to cause death. However, as from the facts and circumstances of the present case, and the fact that it was a sudden fight, a single blow inflicted with the reverse side of a Kassi, it cannot be stated that he had an intention to cause death, as required to make out an offence under Section 300 of the IPC."

Reliance has also been placed on the decision of the Supreme Court in the case of State of Punjab v. Tejinder Singh & Anr. AIR 1995 SC 2466  In this case, two persons inflicted Gandasa blows on the deceased. The altercation had already taken place four days prior to the incident over the boundary line of the plots of the parties. The accused persons came heavily armed shouting that the deceased should not be spared at a point of time when his wife had brought breakfast for him and he had gone to hand pump to bring water in a pitcher. It was even in the aforementioned situation, the Apex Court held:

"In view of our above findings we have now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC."

In the present case, it has been clearly established by the prosecution that the accused inflicted a serious injury on the deceased. This has been established owing to the deposition of two eye-witnesses P.W.2 and 3; due corroboration of the deposition of P.W.10 and the medical report submitted by P.W.10, the medical officer. The prosecution has further established that the injury was inflicted upon the deceased with the knowledge and intention that it is likely to cause death. However, he has not been able to prove whether the attack was premeditated and with an intention to cause death. Therefore, even if the injury inflicted was a serious one, it by itself may not be decisive but is one of the relevant factors in regards to the application of fourthly of section 300. Application of the said provisions must be made keeping in mind the fact situation obtaining and the legal principles noticed hereinbefore.

For the reasons aforementioned, we are of the opinion that the appellant is guilty of commission of the offence under Section 304 Part-I and not Section 302 IPC thereof.

Therefore, we allow the appeal in part. Accordingly, the conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo R.I. for a further period of six months for commission of offence under Section 302 of the I.P.C. recorded by the learned District and Sessions Judge, Kalahandi-Nuapada in Sessions Case No.108 of 2008, as per the judgment of conviction and order of sentence dated 09.11.2010 are hereby set aside. Instead, the appellant is convicted for the offence under Section 304, Part-I of the I.P.C. and sentenced to undergo R.I. for the period already undergone. The period of detention already undergone by the Appellant during investigation, the trial as an U.T.P. and during the pendency of the appeal is set off under Section 428 of the Cr.P.C.

The Appellant (Mesa Sahu) be set at liberty forthwith in the aforesaid case, unless his detention is not required in any other case.

Accordingly, this JCRLA is allowed in part.

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