MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.15 OF 2010 In the matter of an Appeal under section-383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 17th November 2009 passed by the learned Additional Sessions Judge, Malkangiri in Criminal Trial No.43 of 2009. ---- Krushna Muduli …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== Ms. Satabdi Samantaray, For Appellant - Advocate.
Legal Reasoning
For Respondent - Mr. P.K. Maharaj, Additional Standing Counsel. CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING : 18.07.2024 :DATE OF JUDGMENT:20.08.2024 D.Dash,J. The Appellant, from inside the jail, has assailed the judgment of conviction and order of sentence dated 17th November, 2009 passed by the learned Additional Sessions Judge, Malkangiri in Criminal Trial No.43 of 2009 arising out of G.R. Case No.61 of 2009 corresponding to Malkangiri P.S. Case Page 1 of 9 JCRLA No.15 of 2010 No.25 of 2009 of the file of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Malkangiri. By the same, the Appellant (accused) therein has been convicted for commission of offence under section-302 of the Indian Penal Code,1860 (for short called as ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life. 2. The prosecution case is that 19th March 2009 around 4.30 pm, when deceased-Shyamala Murmu was coming in his bicycle from his house, it was near village Lathiaguda, the accused assaulted him by means of lathi on his head. Receiving the lathi blow, Shyamala fell down and died thereafter, when the accused fled away from the spot carrying that lathi. It is further stated that some witnesses and the local people chased the accused and caught hold of him with the lathi near DNK Colony, Malkangiri. The accused then disclosed his name on being asked and told to have killed the deceased due to previous grudge. Rabin Murmu, the brother of Shyamala (deceased) having received the information, reported the matter in writing before the IIC, Malkangiri Police Station. That being treated as F.I.R. upon registration of the case, the investigation was directed. Having received the instruction of the IIC, Malkangiri P.S., the Sub-Inspector (S.I.) of Police, Malkangiri P.S. (P.W.9) took up investigation. In course of investigation, the I.O.(P.W.9) Page 2 of 9 JCRLA No.15 of 2010 examined the informant (P.W.1) and other witnesses, went to DNK Colony where the accused was apprehended by the local people, seized the weapon of offence i.e. one lathi on production by the Informant at the said place and prepared the seizure list (Ext.5). He seized the wearing apparels of the accused on production by him at the same place and prepared the seizure list (Ext.9). The accused after some time of his apprehension by public, tried to escape for which he was chased by the public and in course of the same he sustained bleeding injury. The accused was also therefore sent for his medical examination to District Headquarter Hospital, Malkangiri. P.W.9 visited the spot and held inquest over the dead body of the deceased and prepared inquest report (Ext.2). The I.O. (P.W.9) sent the dead body of the deceased to DHH, Malkangiri for postmortem examination. He (P.W.9) then seized the blood-stained earth, sample earth and one bicycle from the spot and prepared the seizure list (Ext.3). Seized the wearing apparels of the deceased. The I.O. (P.W.9) arrested the accused and forwarded him in custody to Court. After receipt of the postmortem report from the Medical Officer, the I.O.(P.W.9) then sent the blood-stained earth, sample earth and nail clippings of the accused to the RFSL, Berhampur for chemical examination through the Court. On completion of investigation, the I.O. (P.W.9) submitted the Final Form, placing JCRLA No.15 of 2010 Page 3 of 9 this accused Krushna Muduli to face the trial for the offence under section-302 of the IPC. 3. The learned S.D.J.M., Malkangiri having received the Final Form as above, took cognizance of said offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused. 4. In the Trial, the prosecution has examined in total nine (9) witnesses. As already stated P.W.1 is the Informant, who had lodged the F.I.R. (Ext.1) and he is none other than the brother of the deceased-Shyamala. P.W.2 is the co-villager of the Informant and the deceased and post occurrence witness, P.W.3 also being the co-villager of the Informant and deceased is also a witness to the seizure made by the police at the spot, P.W.4 who is another co-villager of the Informant is also a witness to inquest report prepared by the Police. P.Ws.5 and 6 are the co-villagers of the deceased and the Informant as also the witnesses to the occurrence. P.W. 7 is the Doctor, who had conducted autopsy over the dead body the deceased and given the report, P.W.8 is another Doctor, who had examined the accused-Krushna on police requisition. At the end, the I.O. has come to the witness box and has been examined as P.W.9. 5. The prosecution besides leading the evidence by examining the above witnesses has also proved several Page 4 of 9 JCRLA No.15 of 2010 documents, which have been admitted and marked as Exts.1 to 13. Out of those, as already stated the F.I.R. is Ext.1 whereas the inquest report is Ext.2. The postmortem examination report has been admitted in evidence and marked as Ext.6 whereas the injury report of the accused is Ext.8. 6. The plea of the defence is that of complete denial. Defence has examined one witness as D.W. 1. 7. The Trial Court on going through the evidence let in by the prosecution and upon their analysis has returned the finding as against this accused as to have assaulted Shyamala (deceased) to death and accordingly, the accused has been held guilty of committing the murder of the deceased (Shyamala Murmu) punishable under section-302 of the IPC. 8. Learned Counsel for the Appellant (accused) from the beginning without impeaching the prosecution evidence as regards act done and the role played by the accused in the incident submitted that the evidence of the prosecution witnesses more importantly, the P.W.5, is clearly suggestive of the fact that he is suppressing something which had happened prior to the dealing of the blow by the accused. She then takes us to the evidence of D.W.1, who states that seeing the accused, the deceased on the bicycle had stopped the movement. She thus submitted that the evidence of P.W.5 that the blow had been aimed at the head is not believable. Her submission was that the Page 5 of 9 JCRLA No.15 of 2010 prosecution evidence that it was the accused without any prior exchange of words with the deceased dealt the blow on the head of the deceased is not acceptable. She further submitted that it is not the prosecution evidence that the accused after dealing the first blow had even attempted for the second. She submitted that keeping in view the fact that the parties hail from rural background where their temper mostly run high and they exhibit showing abnormal and unexpected behavior even in silly matters and taking judicial note of the same; the accused ought not to be convicted for committing the offence under section-302 of the IPC. She therefore, in the facts and circumstances of the case, urged for alteration of conviction to one under section-304-I of the IPC and appropriate modification of the sentence as deemed just and proper. She placed reliance on a recent decision of the Apex Court in case of Anbazhagan Vs. The State represented by the Inspector of Police; AIR 2023 SC 3660. 9. Learned Counsel for the Respondent-State submitted that even though it is a case of solitary blow that having inflicted upon the head of the deceased with the evidence on record, when it is proved that the result of the same has led to the death of the deceased, the conviction of the accused for the offence under section-302 of the IPC is well in order. 10. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court. We have Page 6 of 9 JCRLA No.15 of 2010 also extensively travelled through the depositions of the prosecution witnesses i.e. P.Ws. 1 to 13 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 9. 11. In order to appreciate the rival submission, confined to the question of alteration of conviction of the accused, let’s straight way proceed to the evidence of P.W.5, who according to the prosecution is the eyewitness to the occurrence. He has stated that he was then returning on his bicycle and the deceased was coming on his bicycle towards their village. As per his evidence, accused then came from opposite direction with a lathi and suddenly assaulted the deceased aiming at his head. He has stated that at that time, the deceased was coming on his bicycle. He does not state anything about the reaction of the deceased in seeing the accused approaching him with a lathi which was unexpected. He is also silent about his reaction when he saw the accused appearing with lathi and stopping his movement. On the other hand, the evidence of D.W.1 has not been shaken that it is this witness P.W.5 who had assaulted him (D.W.1). The evidence of P.W.5 being read as a whole provides hint that he is suppressing some happenings prior to the actual dealing of the blow upon the deceased by the accused. It is the evidence of P.W.5 that the injuries received by the deceased has resulted from single blow. JCRLA No.15 of 2010 Page 7 of 9 Evidence of P.W.7, the Doctor who had conducted postmortem examination reveals that the death was on account of the injuries to the brain. He does not say that such injuries noticed by him have resulted from repeated blows. The parties hail from the rural background and earn their livelihood by working as labourers. The judicial notice of the fact can be taken that most of the time, their temper run high and for the silly reasons, they often behave and respond unexpectedly, majority in an and aggressive manner. 12. So, the evidence, as above, discussed being cumulatively viewed and being made to pass through the legal-prison as set forth in the decision in case of Anbazhagan (supra); further taking judicial notice of the fact that the parties hail from rural pocket of the Scheduled Area of the State where ordinarily their temper run high and for silly reasons, they many a times behave differently, at times in a quite unexpected manner; we are of the view that the offence could be properly categorized as one punishable under section 304-II of the IPC. We are thus of the considered opinion that for the role played by this accused and the act done, he would be liable for conviction under Section 304-II of the IPC. 13. Now coming to the question of sentence; the record being perused it is seen that the incident took back on 19th March 2009 and by now, there has been lapse of more than 15 years. The Page 8 of 9 JCRLA No.15 of 2010 accused having faced the trial at the age of 45 is now about 60 years old and he being on bail, no such material is placed that he has indulged himself in any criminal activity during the period. Nor it is shown that he was having criminal cases prior to the present one. It is further submitted that the accused is now dependent on others and is having no independent source of income of his own. It was also submitted that the accused has remained in custody for more than 12 years. Taking all these above factors into consideration, this Court feels that while maintaining the conviction of the accused for the offence as aforestated, if he is sentenced to the period undergone; that would be in the interest of justice, and which is hereby so done to serve the ends of justice and meet its end. 14. In the result, the Appeal is allowed in part, with the alteration of conviction and modification of the sentence to the extent as indicated above. V. Narasingh, J. I Agree. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 22-Aug-2024 18:46:43 JCRLA No.15 of 2010 (D. Dash), Judge. (V. Narasingh), Judge. Page 9 of 9