MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.22 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 2nd March 2010 passed by the learned Additional Sessions Judge, Malkangiri in Criminal Trial No.42 of 2009. Samaru Muduli …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.J.K. Panda, (Advocate) For Respondent - Mr.P.K. Maharaj, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 26.07.2024 : Date of Judgment : 20.08.2024 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and order of sentence dated 2nd March 2010 passed by the learned Additional Sessions Judge, Malkangiri in Criminal Trial No.42 of 2009 arising out of G.R. Case No.54 of 2009 corresponding to Malkangiri P.S. Case No.21 of 2009 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Malkangiri. Page 1 of 8 JCRLA No.22 of 2010 The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life. 2. Prosecution case is that on 08.03.2009, the Informant (P.W.3) was absent in his house situated in Indira Colony under Malkangiri Police Station. Having returned home on the next morning around 9 am, the Informant (P.W.3) learnt from his neighbour that the accused had intentionally killed the deceased (wife of accused) after they had a quarrel. The Informant (P.W.3) went to the house of the accused and found the dead body of the accused lying in front of his house with injuries marks on her body. The accused being present at a little distance from the dead body, the Informant (P.W.3) and other villagers asked him about the incident. It is stated that the accused then disclosed that on the previous night around 9 pm, they had quarreled, and the accused being annoyed with his wife (deceased) had assaulted her by means of split wood which led to her death. As per the decision taken in the village meeting, the Informant (P.W.3) went to the Malkangiri Police Station and lodged a written report to the above effect before the Inspector-In-Charge (IIC), Malkangiri Police Station. JCRLA No.22 of 2010 Page 2 of 8 The I.I.C. of Malkangiri P.S., receiving the above report,
Facts
treated the same as FIR (Ext.1) and upon registration of the criminal case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.10), in course of the investigation, examined the informant (P.W.3) and other witnesses. The I.O. (P.W.10), having visited the spot, prepared the spot map (Ext.8), held the inquest over the dead body of the deceased, prepared the report to that effect (Ext.4) and sent the dead body of the deceased for postmortem examination. He (P.W.10) seized the wearing apparels of the accused and bangles etc. under seizure list (Ext.5). The I.O. (P.W.10) on completion of the investigation, submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Malkangiri, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 5. The prosecution, in support of its case, has examined in total ten (10) witnesses during Trial. Out of them, the P.W.1. P.W.2 is the scribe of the FIR (Ext.1) as per the instruction of the Informant (P.W.3), P.W.2 is the Police Constable attached to Page 3 of 8 JCRLA No.22 of 2010 Malkangiri P.S., P.W.3 is the Informant and the seizure witness, P.W.5 is the witness to the occurrence and the mother of the deceased, P.W.4, P.W.8 and P.W.9 are the post occurrence witnesses. P.W.7 is the Medical Officer, who stated to have conducted the autopsy over the dead body of the deceased on police requisition. At the end, the Investigating Officer (I.O.) has come to the witness box and examined as P.W.10. 6. 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 9. Out of those, the important are, the FIR (Ext.1), the spot map (Ext.8) and the inquest report (Ext.4). 7. The accused person has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea. 8. Learned Counsel for the Appellant (accused) from the beginning instead of questioning the finding of the Trial Court that the prosecution has proved that it was the accused who had assaulted the deceased by means of split wood, submitted that there being no evidence on record that the accused was for a long time not pulling on well with his wife (deceased), quarrel having been preceded before the assault by the accused upon the deceased which usually happens in the household as the parties JCRLA No.22 of 2010 Page 4 of 8 hail from rural background, that too from the Scheduled area of the State where usually their temper run high and for silly reasons many a times they behave unexpectedly and their response is aggressive, taken with the seat of injuries as stated by the Doctor (P.W.7) over the left hand of the wrist, right and back side of the thigh, the Trial Court ought not to have held that for the role played and act done by the accused is liable under section-302 of the IPC. According to him, even accepting the prosecution version that accused had assaulted his wife (deceased) and had caused the injuries as stated by the Doctor (P.W.7) which as are not on the vital part, the conviction of the accused need be altered to one under section 304-II of the IPC and he be visited with the sentence as deemed appropriate for the said offence committed under the circumstance as placed by the prosecution. He further submitted that since the accused has served out the sentence by remaining in custody for more than ten (10) years and four (4) months; it is a fit case where the sentence need to be reduced to the period undergone. 9.
Legal Reasoning
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 8th March 2009 and by now, there has been lapse of more than 15 years. The JCRLA No.22 of 2010 Page 7 of 8 accused having faced the trial at the age of 42 is now about 57 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 to his credit prior to the present one. It was also submitted that the accused has remained in custody for more than 10 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, 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. Signature Not Verified Narayan Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 22-Aug-2024 18:46:43 JCRLA No.22 of 2010 (D. Dash), Judge. (V. Narasingh), Judge. Page 8 of 8
Arguments
Learned Counsel for the State submitted all in favour of the conclusion of the Trial Court that the accused is found guilty for commission of offence under section-302 of the IPC. He submitted that it having been proved through Doctor (P.W.7) that the death has resulted from the injuries caused by the accused; keeping in view the relationship between the accused and the deceased as JCRLA No.22 of 2010 Page 5 of 8 husband and wife, the Trial Court has rightly held the accused guilty for commission of offence under section-302 of the IPC. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.10) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.9. 11. Coming to address the rival submission confined to the altercation of conviction and modification of sentence, it be first stated that the Doctor P.W.7 who had conducted autopsy over the dead body of the deceased had noticed one lacerated injuries of the size of 5cm X 1/4 cm over the left hand at writ joint; one bruise over the right lateral side of the thigh and one laceration of backside of the thigh on the left side. However, on internal examination, has found rapture in the spleen has led to the death. When it has been found that spleen has been ruptured, there is no corresponding external injury on the abdominal area or on the front side of the body of the deceased. The injuries have been caused by a split wood which is only available on the left hand wrist joint, right lateral side of the thigh and backside of thigh on the left side. It has not been stated by the Doctor, P.W.7 that these three injuries neither independently nor cumulatively can lead to the death. JCRLA No.22 of 2010 Page 6 of 8 The eyewitness, P.W.5 who is the mother of the deceased has stated that after the quarrel between the accused and the deceased, the accused suddenly assaulted her by means of lathi on her waist, back and legs. There is no evidence on record that the relationships between the accused and the deceased was not cordial prior to date of incident nor it is stated that the accused was torturing or ill-treating the deceased in past. Judicial notice of the facts can be taken that the parties hail from rural background where their temper usually run high and they exhibit abnormal and unexpected behavior even for silly matters. 12. All these above discussed facts and circumstances, being cumulatively viewed and 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