The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.12 of 2023 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 31st May, 2022 passed by the learned Sessions Judge, Malkangiri, in C.T. No.86 of 2017. Era Madkami ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Suryakanta Dwibdi Advocate as Amicus Curiae (Advocate) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 03.08.2023 : Date of Judgment:11.08.2023 The Appellant, by filing this Appeal from inside the D.Dash,J. jail, has called in question the judgment of conviction and order of sentence dated 31st May, 2022 passed by the learned Sessions Judge, Malkangiri, in C.T. No.86 of 2017 arising out of G.R. No.209 of 2017 corresponding to Malkangiri P.S. Case No.74 of JCRLA No.12 of 2023 Page 1 of 13 {{ 2 }} 2017 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Malkangiri. The Appellant (accused) thereunder has been convicted for committing the offence under section 302/447 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 302 of the IPC; and undergo imprisonment for three (3) months for commission of the offence under section 447 of the IPC with the stipulation that both the substantive sentences would run concurrently. 2. Prosecution Case:- On 23.07.2017 around 02.40 p.m., Kasa Padiami (informant- P.W.2) lodged a written report with the Inspector-in-Charge (I.I.C.) of Malkangiri Police Station stating therein that in view of continuous dispute between his son, namely, Muka Madkami and this accused relating to the landed properties; on 22.04.2017 around 08.00 p.m., the accused, having gone near the house of Muka Madkami, pierced an arrow on the abdominal area and his son (Muka Madkami) had been taken to Malkangiri Hospital for treatment. Receiving the said written report from the informant
Legal Reasoning
(P.W.2), the I.I.C. treated the same as FIR (Ext.6), registered the Page 2 of 13 JCRLA No.12 of 2023 {{ 3 }} case and directed one Sub-Inspector of Police (S.I-P.W.13) to take up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.13) examined the informant (P.W.5) and other witnesses. He issued injury requisition (Ext.3/2) to the Medical Officer of Malkangiri Hospital. He then proceeded to District Headquarters Hospital, Malkangiri and seized the arrow in presence of the witnesses under seizure lsit (Ext.1/1). In the afternoon, he visited the spot and prepared the spot map (Ext.7). He also seized the blood stained and sample earth from the spot under seizure list (Ext.8). He then examined other witnesses. On 26.04.2017 in the afternoon, the I.O. (P.W.13) arrested the accused and forwarded him in custody to Court. On 27.04.2017, he received the injury report (Ext.3) and on 07.05.2017 afternoon, he got the information about the death of Muka Madkami. So, he issued necessary requisition for post mortem examination of the dead body of Muka Madkami and after holding inquest over the same, he prepared the report to that effect (Ext.2). The seized incriminating articles were sent for chemical examination through Court and reports (Ext.13) were obtained. The I.O. (P.W.13) had recorded the statement of Muka Madkami when he was lying injured and undergoing treatment, which has been admitted in evidence and marked Ext.14. On completion of the investigation, the I.O. (P.W.13) submitted the Final Form placing the accused to face the JCRLA No.12 of 2023 Page 3 of 13 {{ 4 }} Trial for commission of the offence under sections 447/302 of the IPC. 4. Learned S.D.J.M., Malkangiri, on receipt of above Final Form, took cognizance of the said offences and after observing all the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offences against the accused. 5. In the Trial, the prosecution, in support of its case, has examined in total nineteen (19) witnesses. As already stated, P.W.2 is the informant, who happens to be the father of the deceased and he had lodged the FIR (Ext.6). P.Ws.3, 4, 5, 7, 8, 9 & 10 are the post occurrence witnesses. P.W.6 is the wife of the deceased and she is the eye witnesses to the occurrence. The Doctor, who had medically examined Muka Madkami when he was admitted in the Hospital has been examined as P.W.11 whereas the Doctor, who had conducted autopsy over the dead body of Muka, has come to the witness box as P.W.19. The I.O. is P.W.13 and other witnesses are the witnesses to the seizure, inquest etc. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents, which have been admitted in evidence and marked Exts.1 to 15. Important of those are the FIR (Ext.6), inquest report (Ext.2), spot JCRLA No.12 of 2023 Page 4 of 13 {{ 5 }} map (Ext.7), post mortem report (Ext.15) and the statement of the deceased recorded by the I.O. when he was undergoing treatment in an injured condition has been admitted in evidence and marked Ext.14. 6. The plea of the defence is that of complete denial and false implication. However, being called upon, the accused had not led any evidence in support of said plea. 7. The Trial Court, on going through the evidence of the prosecution witnesses and upon their examination at its level, has arrived at a finding that it is the accused, who has committed the murder of Muka Madkami by piercing the arrow on his abdominal region.
Legal Reasoning
8. Mr.S.K.Dwibedi, learned Counsel for the Appellant (accused), without disputing the nature of death of Muka Madkami to be homicidal, as it reveals from the evidence of the Doctors (P.Ws.11 & 19) and their reports (Exts.4 & 15) as also the evidence of P.W.6, the eye witness; submitted that the Trial Court has committed error by placing reliance upon accepting the evidence of P.W.6, the solitary eye witness to the occurrence, as projected by the prosecution, as reliable. He further submitted that P.W.6 is none other than the wife of the deceased and as such is an interested witness for the success of the prosecution and, therefore, the Trial court ought to have scrupulously scrutinized JCRLA No.12 of 2023 Page 5 of 13 {{ 6 }} her evidence to find out as to whether it is of starling quality and that exercise, having not been done undertaken, just in a causal fashion, by simply going on reproducing the depositions of the prosecution witnesses in the judgment, without any analysis and consequentially, without appreciation, has concluded that the accused was the author of the injury found on the abdominal region of the deceased which has led to his death. He, in the alternative, submitted that taking a cumulative view of the facts and circumstances of the case, as those emanate from the evidence on record, the Trial Court ought not to have held the accused liable for commission of the offence under section 302 of the IPC and instead, it should have recorded the conviction for commission of the offence under section 304-II of the IPC and accordingly, awarded the appropriate sentence. 9. Mr.D.K.Mishra, Additional Government Advocate for the Respondent-State submitted all in favour of the finding of guilt against the accused, as has been returned by the Trial Court. He submitted that the evidence of P.W.6 is bound to be accepted as their surfaces no such infirmity therein. According to him, merely because P.W.6 is the wife of the deceased, her evidence is not liable to be eschewed from consideration in the absence of any such glairing infirmity shaking the foundation of the prosecution case by saying that she is an interested witnesses when the fat remains that the circumstances, under which the occurrence took JCRLA No.12 of 2023 Page 6 of 13 {{ 7 }} place, she was the only natural witness. He further submitted that the facts of P.W.6 finds corroboration from the evidence of other witnesses before whom the incident was disclosed by her when she first got the opportunity to meet them. He further submitted that the facts and circumstances emerging from the evidence, being cumulatively viewed would not take the case out of the purview of section 302 of the IPC so as to be held that the accused, for the role that he had played, is not liable to be punished thereunder. 10. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution as P.Ws.1 to 19 and have perused the documents admitted in evidence marked as Exts.1 to 15. 11. In the instant case, the deceased having received the injury, was taken to the Malkangiri Hospital and he, being admitted, was first of all treated by P.W.11, who, being the Medical Officer, then on duty, had admitted him vide OPD No.4056/23.4.2017. He had noted one laceration of size ½” X ½” bone deep on the lateral side of left side of chest 2” below the arm pit and another lacertation ijury of size of ½” X ½” bone deep situated one inch below the other laceration. He too had examined the arrow sent by P.W.13 to him and he has opined that the injuries noticed were possible JCRLA No.12 of 2023 Page 7 of 13 {{ 8 }} by the said arrow. That Muka Madkami, being admitted, underwent treatment and he died on 07.05.2017. P.W.19 is the Doctor, who had conducted the autopsy over the dead body of Muka Madkami. He had noticed one stab wound extended into peritoneal cavity with injury to descending colon, peritoneal cavity packed with pasted small intestine, omentum and faecal matter. As per his evidence, the cause of death was coma due to septicemia caused by colon injury and faecal peritonitis. P.W.19 has indicated all these injuries and feature in his report Ext.15. When even there is no attempt to impeach such injuries, we conclude that Muka Madkami met a homicidal death. 12. Having said as above, as here the star witness for the prosecution is P.W.6, who happens to be the wife of the deceased, let us first examined her evidence. She has stated that in the night of occurrence, when her husband was taking meal, the accused entered into the house with arrow and stabbed her husband near the belly. She has further reiterated during cross-examination to be very much present in the house near the place where the accused attacked her husband. She has also stated that at that time, no other person were present at the spot and the place where the accused stabbed the arrow upon her husband was near the entrance door of the house. Her evidence is to the effect that when the accused stabbed her husband was about to come from the house and at that moment, the accused rushed towards him JCRLA No.12 of 2023 Page 8 of 13 {{ 9 }} and inflicted the injury. We find absolutely no infirmity in the evidence of said witness nor we are able to gather any such features so as to entertain any doubt as to her presence at the relevant time in the house so as to view her evidence with suspicion when in ordinary course, her presence in the house at that hour of night was normally expected, which here is not shown otherwise by eliciting anything on that score. So, simply because she is the wife of the deceased, that is no ground to disbelieve her version when it is also not shown that the prosecution has withheld any other witness who had the occasion to see the incident. 13. P.W.2, who is the father of the deceased, has further stated that his son, i.e., Muka Madkamai while lying injured informed him that the accused had injured him by using arrow. That is also the evidence of P.W.3, who has stated that when he rushed to the house of the deceased, he found an arrow was stuck on the belly of Muka Madkami (deceased) and he then told him that the accused had caused such injury. It has also been so stated by P.W.5 that in the Hospital, he was so told informed by the deceased attributing the authorship of the injuries to the deceased. P.W.7 is another witness, who too has stated that when he went to the spot and saw the accused with the injury by means of arrow, which had pierced into his stomach and when he asked Page 9 of 13 JCRLA No.12 of 2023 {{ 10 }} him, he told that the accused had done so. Evidence of all the above witnesses on the score, as discussed, have not been shaken in any manner nor anything is shown to have surfaced in their evidence to doubt their versions. Therefore, we hold that the prosecution has proved that it is the accused, who had caused said injury on the abdomen area of the deceased in that night in his house. 14. Coming to address the alternate submission of the learned counsel for the Appellant (accused), it cannot be laid down as an universal rule that when one arrow shot or knife injury is inflicted, for the said act, attraction of the offence under section 302 of the IPC shall stand automatically ruled out. It would, however, depend upon the facts and circumstances of each case. The mere fact that only blow was given, or arrow shot made, though fatal by itself, cannot automatically take the case out of the purview of the provisions of Section 300 IPC, if the requisite ingredients of that section are proved. In order to bring in Clause- 3 and section 300, prosecution must prove the following facts:- 89(a) it must establish quite objectively, that a bodily injury is present; (b) the nature of injury must be proved. These are purely objective assessments; JCRLA No.12 of 2023 Page 10 of 13 {{ 11 }} (c) it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional. Once these three elements are proved to be present, the enquiry proceeds further; and (d) it must be proved that the injury of the type described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective.” 15. Bearing the aforesaid in mind, we find that the deceased and the accused hail from the rural background from a District, which is within the scheduled are of the State. They too are the members of the Scheduled Tribe Community. When it is said in the FIR (Ext.6) that there was long standing dispute between the accused and the deceased in relation to the landed property, that is neither stated by P.W.6 nor by P.W.2, the informant in the Trial. P.W.6 is, however, giving a hint during cross-examination that when her husband was in the house, the accused stabbed and that her husband when was about to come, the accused gave a blow. The incident has happened near the entrance door of the house. The I.O. (P.W.13), despite such averment made in the FIR as regards the prior dispute between the accused and the deceased, has not directed the investigation in that light. The accused is not the co-villager of the deceased. No witness has stated to have seen the accused proceeding in the village of the deceased up to his house. The incident, having taken place on JCRLA No.12 of 2023 Page 11 of 13 {{ 12 }} 22.04.2017, the injured, in course of treatment in the Hospital, has died on 07.05.2017, i.e., after more than fifteen (15) days and the cause of death is due to septicemia. The medical evidence is not that straight that even with better treatment in some other advanced medical centre, the life could not have been saved. It is not the prosecution evidence that the accused, after causing solitary injury, did any further overt act. 16. Taking a cumulative view of all these above circumstances appearing in the evidence, as discussed; we are of the view that the offence could be properly categorized as one punishable under section 304-I of the IPC. We are thus of the considered opinion that for the role played by the accused and the act done, he would be liable for conviction under section 304-I of the IPC. 17.
Decision
In the result the Appeal is allowed in part. The judgment of conviction and order of sentence dated 31st May, 2022 passed by the learned Sessions Judge, Malkangiri, in C.T. No.86 of 2017 for commission of offence under section 302 of the IPC is altered to one under section 304-I of the IPC and in so far as the conviction for the offence under section 447 of the IPC is concerned, the same stands confirmed. Consequently, the Appellant (accused) is sentenced to undergo rigorous imprisonment for a period of ten (10) years for the offence under section 304-I of the IPC and rigorous imprisonment for three (3) months for the offence under JCRLA No.12 of 2023 Page 12 of 13 {{ 13 }} section 447 of the IPC. These substantive sentences, as awarded, would run concurrently. 18. With the modification as to the judgment of conviction and order of sentence dated 31st May, 2022 passed by the learned Sessions Judge, Malkangiri, in C.T. No.86 of 2017. to the extent, as indicated above, the Appeal stands disposed of. Dr.S.K. Panigrahi, J. I Agree. Basu (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 17-Aug-2023 16:49:27 JCRLA No.12 of 2023 Page 13 of 13