The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 24 of 2005 From the Judgment of conviction and order of sentence dated 03.12.2004 passed by the learned Adhoc Addl. Sessions Judge (F.T.), Champua in S.T. Case No.29/87 of 2004-01. Sinku Munda ...… Appellant --------------- -Versus- State of Odisha ...…. Respondent Advocate(s) appeared in this case: __________________________________________________________ For Appellant : M/s. C.R. Sahu & P.K. Mishra, Advocates For Respondent: Mr. J. Katikia, Addl. Government Advocate __________________________________________________________ CORAM: THE HONOURABLE SHRI JUSTICE S. TALAPATRA THE HONOURABLE SHRI JUSTICE SASHIKANTA MISHRA JUDGMENT 20th February, 2023 S. TALAPATRA, J Heard Mr. C.R. Sahu, learned counsel appearing for the appellant and Mr. J. Katikia, learned Addl. Government Advocate appearing for the State. Page 1 of 11 2. By means of this appeal under Section 374(2) of the Cr.P.C., the judgment and order of conviction and sentence dated 03.12.2004 has been called in question. By the said judgment, the appellant has been convicted under Section 302 of the IPC and sentenced to suffer rigorous imprisonment for life, surprisingly without any fine. 3. Briefly stated the prosecution case is that on 06.09.2000 at about 1.45 p.m. one Ghasi Munda of village Kaliapal, Kendumundi Sahi arrived at Bamebari Outpost and orally reported that his elder brother, Sinku Munda has committed murder of his mother, Budhuni Munda in the preceeding night. Based on the said complaint, Joda P.S. Case No. 136 of 2000 under Section 302 of the IPC was registered and taken up for investigation. After the investigation was complete, the police report under Section 173(2) of the Cr.P.C. was filed chargesheeting the appellant under Section 302 of IPC for committing murder of his mother. The records having been committed to the Court of Sessions, charge was framed under Section 302 of the IPC by the Adhoc Additional Sessions Judge (Fast Track), Page 2 of 11 Champua, Keonjhar. The appellant pleaded his innocence and denied the charge. 4. The prosecution in order to substantiate the charge has examined as many as 10 (ten) witnesses, including P.W.-2, who has claimed to be the eye-witness of the occurrence, P.W.-1, the autopsy Doctor and P.W.-10, the Investigating Officer. Some documentary evidence (Ext. 1 to Ext. 11) were also admitted in the evidence for the prosecution. No evidence has been led by the defence. After recording the prosecution evidence, the appellant was examined under Section 311(1)(b) of the Cr.P.C. to have his response in respect of the incriminating materials, those surfaced in the evidence of the prosecution. 5. On appreciation, the finding of the conviction
Legal Reasoning
has been returned. Mr. Sahoo, learned counsel appearing for the appellant has stated that except P.W.-2, none has eye-witnessed any part of the transaction of crime. As such, the decision of the trial judge would appear absolutely misdirected if the testimony of P.W.-2 is properly appreciated. According to Mr. Sahoo, learned counsel, Page 3 of 11 P.W.-2 has testified in the trial that the appellant is his son. At the time of occurrence, he and the wife of the appellant along with P.W.1 and two other younger sons were in the house. 6. His wife, Budhuni, the deceased asked the wife of the appellant to offer rice for her night meal, but the appellant’s wife did not offer rice to the deceased. All on a sudden, the appellant came with a wooden plank and dealt a blow on the head of his wife, for which she fell down and became unconscious. The deceased succumbed to the injury. It has been stated by P.W.-2 that before assaulting by the wooden plank, the appellant have given kicks and blows and out of fear, the deceased started running away from the place. At that point, the deceased struck the blow by the wooden plank. In the cross-examination, he has stated that at the time of assault, the appellant was in a state of drunkenness. He has further added that the village is a rocky place. Pieces of stones are ordinarily scattered near their house. As the appellant did not look after them, they were not having good relation with him, but he has Page 4 of 11 denied the suggestion that his wife died out of fall on the stones, in the state of drunkenness and succumbed to the injury. 7. Mr. Sahoo, learned counsel has also referred to the testimony of P.W.-7, Dr. Bidyadhar Jethi. Dr. Jethi carried out the autopsy on the dead body of the deceased on 07.09.2000, the following day of the occurrence and he has found the following external injuries over the dead body of the deceased. “(i) The deceased is of advanced stage of putrefaction; (ii) Emites fown nuseatign odour, (iii) Chest wall abdomen swellen, toungue swellen and distended, skin over these areas are pealed up, vains in the route of the neck, shoulder, chest wall abdomen groin are prominent and greenish coloured, (iv) Subcueaneous listning whitis, orange colour looks like mozaice appearance, (v) Tongue swellen protruded out in between the teeth, (vi) Reddish colour fluid discharged from the nustrils and mouth, (vii) Eyes was swellen and protruded out the suckets, (viii) Pendulous female external genetalia, breasts distended, eggs of the flies present in natural orifices. (ix) No external injury is detected. (x) Rogour notice absent in all four limbs.” According to Dr. Jethi, the cause of death is due to the injury to the vital part of the brain causing Page 5 of 11 intracranial haemorrhage and shock. He has also indicated the tentative time of the death. In the cross-examination, Dr. Jethi has clearly stated that he had not found any external injury over the dead body of the deceased. According to him, one cannot sustain such type of injuries if somebody falls on hard and blunt surface. Even if someone is pushed down, such injuries cannot occur. Only if sufficient force is applied by an object, it may cause such type of injuries. He has admitted that he was never shown the wooden plank (M.O.-1) for his examination. 8. Mr. Sahoo, learned counsel having referred to the testimony of P.W.-10, Sujit Kumar Say, the Investigating Officer has contended that the Investigating Officer has measurably failed to investigate into the aspect regarding the reason for the dispute. Whether the assault was committed on sudden quarrel or in the hit of passion? According to Mr. Sahoo, the offence even if assumed to have been committed by the appellant, cannot be blocked within the definition of Section 300 of the IPC. At best, it will fall under the category of culpable homicide not Page 6 of 11 amounting to murder in view of Exception-4 below Section 300 of the IPC, which provides that culpable homicide is not 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. 9. P.W.-2 has clearly stated that when the mother of the appellant asked his wife to offer the rice for her night meal, as she had refused, suddenly the appellant got extremity irritated and started assaulting her mother, and later on hit her on head by a plank of wood. P.W.-2 has also stated at the time of point of occurrence the appellant was in a state of drunkenness. Mr. Sahoo, learned counsel has pointably argued that even if the entire testimony of P.W.-2 is believed, there is no evidence of premeditation or the brutality in the action. Therefore, the conviction under Section 302 of the IPC is liable to fall through. 10. In order to repeal the submission of Mr. Sahoo, learned counsel appearing for the appellant, Mr. J. Katikia, learned Addl. Government Advocate appearing for the State Page 7 of 11 has submitted that it is a case of matricide and it is very difficult to believe someone simply out of passion had hit so hard on the head of his mother that the lady had succumbed to death. According to Mr. Katikia, learned counsel at least there is evidence that the appellant was in sense to understand the consequence of such blow on the vital part of the body i.e., the head and as such, intention can be gathered, if not premeditation for the assault. Mr. Katikia, learned counsel has fairly submitted that this Court may consider the conviction untenable, under Section 302 of the IPC but there are hard evidentiary materials to convict the appellant under Section 304 Part-I of the IPC. Since the other evidence are formal in nature, those witnesses have not stated anything so material which can give us a new direction to analyze the evidence afresh. 11. Having appreciated the rival contentions as recorded by us and having a glance to the evidence as recorded by the trial court, we are of the view that two aspects as noted before have definitely escaped the attention of the trial judge. It is evident that on a spur of Page 8 of 11 the moment, the appellant struck hard on the head of his mother, (i) there is no evidence of previous enmity of such nature which might have prompted the appellant to commit the murder of his mother and (ii) there was no preparedness, or premeditation and the blow was dealt with out of sudden anger. There is no incidence of brutality to consider it differently. As such, we hold that the charge of murder punishable under Section 302 of the IPC cannot be sustained. According to us, the inimical act is culpable homicide not amounting to murder being covered by Exception-4 below Section 300 of the IPC. 12. Having observed thus, we set aside the conviction under Section 302 of IPC and at the same time we quash the sentence as awarded on the appellant for committing offence punishable under Section 302 of the IPC. But, we agree with proposition Mr. Katikia, learned Addl. Government Advocate, there are hard evidentiary materials to hold that the appellant has committed the culpable homicide, not amounting to murder. Page 9 of 11 13. Manslaughter is divided into two categories under Section 304 of the IPC viz. (i) culpable homicide not amounting to murder with intention of causing death or causing such bodily injury as is likely to cause death and (ii) if the culpable homicide is done with the knowledge i.e., likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. 14. Having revisited the evidentiary materials, we are convinced that there was no intention to cause death. The appellant was in an inebriated condition and was not in total control of his activities and suddenly being irked by the quarrel between his mother and his wife he hit hard on the head of his mother. 15. In our considered view, this overt act is covered by Section 304 Part-II of the IPC. Having taken recourse to Section 222 of the Cr.P.C., we do not like to frame any formal charge inasmuch as the offence punishable under Section 304 Part II of the IPC is cognate and minor in nature in relation to offence punishable under Section 302 Page 10 of 11 of the IPC. Based on the materials already on evidence, we convict the appellant under Section-304 Part II of the IPC. It has been stated by Mr. Sahoo, learned counsel that the appellant has already served out 12 years in the prison. Be that as it may, in terms of conviction under Section 304 Part II of the IPC we sentence the appellant to suffer rigorous imprisonment for 10 years but without any fine. As the petitioner has already served 10 year of rigorous imprisonment, is entitled to be released forthwith, if he is not wanted in any other case. Accordingly, it is ordered. 16. 17.
Decision
In the result, the appeal stands partly allowed. LCRs, if any, still lying with the registry, be returned. (S. Talapatra) Judge (Sashikanta Mishra) Judge Orissa High Court, Cuttack, The 20th February, 2023/ A.K. Rana, P.A. Page 11 of 11