ORISSA HIGH COURT, CUTTACK JAIL CRIMINAL APPEAL NO. 7 OF 2001 From the judgment dated 21.10.2000 passed by Sri A.C. Pattanaik, Additional Sessions Judge, Malkangiri in S.C.No.89 of 1999 (S.C. No.254 of 1998 of Sessions Judge, Koraput, Jeypore). Sukura Hantal ……… Appellant Versus State of Orissa ……… Respondent For appellant : Ms. Sephali Das For respondent : Mr. J.P. Pattnaik, Addl. Government Advocate PRESENT : THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY AND THE HONOURABLE KUMARI JUSTICE S.PANDA ---------------------------------------------------------------------------------------------------------------------- Date of hearing & judgment : 08.04.2010 ---------------------------------------------------------------------------------------------------------------------- PRADIP MOHANTY, J. This jail criminal appeal is directed against the judgment of conviction and order of sentence dated 21.10.2000 passed by the learned Additional Sessions Judge, Malkangiri in S.C. No.89 of 1999 (S.C. No. 254 of 1998 of Sessions Judge, Koraput, Jeypore) convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on 29.06.1998 at about 10.00 AM Balaram Behera (P.W.1) lodged a written report in Kalimela Police Station scribed by Narasingha Pattnaik (P.W.5) alleging therein that on 28.06.1998 at about noon time the accused and his wife quarrelled with each other on the village road. On account of such quarrel, the accused committed murder of his wife and threw her dead body in the canal. One female of Ramagudi village informed about the occurrence. Thereafter, Sarat Behera (P.W.2) and one Pratima Behra came to their village and said about the occurrence. Coming to know about the occurrence, the informant (P.W.1) and other villagers went to the spot and found the dead body of the deceased dipped inside the canal water. The accused was also present there. The accused disclosed before the villagers to have thrown the dead body of the deceased in the canal after committing her murder. On receipt of the information, the police registered the case and took up the investigation during the course of which the I.O. arrested the accused and sent the dead body for post mortem examination. He also examined the eye witnesses and after completion of investigation submitted charge sheet against the accused for commission of offence under section 302, IPC. 3. The defence plea is one of complete denial of the occurrence. 4. In order to prove its case, prosecution has examined as many as eight witnesses including the I.O. and the doctor and exhibited fifteen documents. The defence has examined none. 5. The learned Additional Sessions Judge, Malkangiri after conclusion of the trial found the appellant guilty under section 302, IPC, convicted him thereunder and sentenced him to undergo imprisonment for life basing upon the evidence of P.Ws.2 and 3, the eye witnesses. 6. Ms. Das, learned counsel appearing for the appellant assails the judgment on the following grounds: (i) P.Ws.2 and 3 are interested witnesses and they have developed the story from stage to stage. (ii) P.W.1, the informant, is a post occurrence witness. His evidence does not get corroboration from the FIR (Ext.1). 2 (iii) No motive has been proved by the prosecution. (iv) Non-examination of Pratima Behera, who is said to have witnessed the occurrence, is fatal to the prosecution. Prosecution is duty bound to examine all the eye witnesses, but not according to its choice. (v) Even if the prosecution case is believed in its entirety, the fact remains that there was a sudden quarrel between the appellant and the deceased, for which the appellant got provoked and gave fist blows to the deceased which resulted in her death. In fact the appellant had no intention to kill the deceased. Therefore, his conviction under section 302, IPC is not sustainable. 7. Mr. Pattnaik, learned Additional Government Advocate vehemently contends that P.Ws.2 and 3 are the eye witnesses and there is no material to disbelieve their evidence. Basing upon the information given by P.Ws.2 and 3, the F.I.R. was lodged by P.W.1 which corroborates the prosecution case. He further submits that there is nothing on record to show that the occurrence took place due to sudden quarrel or provocation. The evidence of P.W.2 is very clear and cogent to that effect. P.W.3 also stated that the appellant assaulted the deceased and threw her dead body into the canal. Moreover, the medical evidence also corroborates the ocular evidence. 8. Perused the LCR. P.W.1 is the informant. He stated in his evidence that Sarat Behera (P.W.2) told him that accused killed his wife putting her inside the water of a canal and also assaulting by stone. So, he reported the matter in writing at Kalimela Police Station being scribed by Narasingha Patnaik. He proved the FIR (Ext.1) and his signature thereon marked Ext.1/1. The police conducted inquest over the dead body of the deceased in his presence. He proved the inquest report (Ext.2) and his signature thereon marked Ext.2/1. The police seized one lungi stained with blood from the possession of the accused-appellant vide Ext.3, one broken glass from the spot vide 3 Ext.4 and one broken radio vide Ext.5. In cross-examination he admitted that he had not seen the occurrence and that at the time of occurrence he was in his house. The glass pieces were lying on the open place and people were passing in that way. He also stated that he was pulling on well with the accused. Nothing has been elicited in cross- examination to discard his evidence. P.W.2 is a co-villager and a witness to the occurrence. He deposed that when he himself, Balaram and others were going to the house of Deba they saw on the canal road the accused assaulting the deceased holding her hair and by giving fist and kick blows, as a result of which the deceased fell in the canal and died. There was injury on the person of the deceased. In cross-examination, he admitted that he saw the occurrence from a close distance and there was no tussle. He also admitted that Balaram, son of the deceased, was also with him at the time of occurrence. Nothing has been elicited in cross-examination to belie his testimony. P.W.3 is also a witness to the occurrence. He specifically stated that the accused after assaulting the deceased threw the dead body in the canal. There was bleeding from different parts of the body of the deceased. Nothing has been elicited by way of cross- examination to demolish his evidence. P.W.4 is a post-occurrence witness. He deposed in his evidence that Sarat (P.W.2) came and told him that the accused murdered his wife and threw her dead body in the canal. P.W.5 is a co-villager who stated to have scribed the FIR as per the instruction of the informant and read over and explained the contents thereof to him and put his signature marked Ext.1/2. P.W.6 is a police constable who carried the dead body of the deceased to the hospital. He proved the command certificate (Ext.6) and dead body challan (Ext.7). He is also a witness to the seizure of wearing apparels of the deceased vide Ext.8. P.W.7 is the I.O. who specifically deposed to have received the written report (Ext.1), registered the case and took up the investigation. He also sent the dead body for postmortem examination, arrested the accused, seized the wearing apparels of the accused as well as the deceased. After completion of the investigation, he submitted charge sheet against the accused. Nothing has been brought on record by the defence to dislodge the prosecution case . P.W.8 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries: 4 External injury The body was decomposed and swollen. Maggots all over the body. Post-mortem lividity all over the body. Mustres all over the body with retraction of skin. Rigor mortis absent. Internal injury (i) Fracture of left parietal bone 8 cm over the left ear and was ante mortem in nature. The facture was depressed in nature. (ii) Sub-dural haemorrhage with blood clots of size 3 x 4 cm and was ante-mortem in nature. He opined that the injuries were sufficient to cause death. The cause of death was due to shock as a result of sub-dural haemorrhage. To the query made by the I.O., he stated to have opined that the injuries can be caused by heavy fist blows and kicks of a strong man. He also admitted that the accused is a strong man. Nothing has been elicited in the cross-examination. 9. In view of the analysis of evidence made above, this Court finds that P.Ws.2 and 3 are witnesses to the occurrence. Both of them have categorically deposed that the appellant assaulted the deceased by fist blows and kicks holding her hair and threw her in the canal as a result of which she died. There is nothing on the record to disbelieve their evidence. P.W.8, the doctor, who conducted autopsy over the dead body of the deceased opined that the injuries inflicted on the deceased can be caused by heavy fist blows and kicks of a strong man. Taking into consideration the ocular evidence of P.Ws.2 and 3 coupled with the evidence of the doctor (P.W.8), this Court arrives at the conclusion that it is the appellant who committed murder of the deceased. 10. Now, it is to be seen whether the act committed by the appellant will come within the ambit of section 302, IPC or section 304 Part-II, IPC. In the FIR itself it has been mentioned that just before the occurrence, there was a quarrel between the accused and the deceased. Therefore, it can be well inferred that the accused got enraged due to sudden provocation and assaulted the deceased, that too by fists and kicks. On thorough scrutiny of the evidence available on record, this Court does not find 5 anything to indicate that the appellant had any intention to kill the deceased. This apart, no motive has also been ascribed by the prosecution behind the commission of the murder. Taking an over all view of the matter, this Court is of the opinion that the act committed by the appellant will fall within the ambit of section 304 Part-II, IPC. 11. In the result therefore, the Jail Criminal Appeal is allowed in part. The conviction of the appellant under Section 302, IPC is converted to Section 304 Part- II, IPC and he is sentenced to the period of imprisonment already undergone. ……………………………… PRADIP MOHANTY, J. S.PANDA, J I agree. ……………………………… S.PANDA, J Orissa High Court, Cuttack April 08, 2010/Routray 6