PRADIP MOHANTY, J & B. K. NAYAK, J.
CRIMINAL REFERENCE NO.1 OF 2002 (Decided on 05.05.2010)
STATE OF ORISSA …………. Petitioner.
.Vrs.
KUNDA @ BHATUA LAKRA .............. Opp.Party.
CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) - SEC.318.
For Petitioner - Mr. J.P.Pattnaik,
Addl.Government Advocate.
For Opp.Party - Mr. D.P.Dhal & S.K.Sahoo.
PRADIP MOHANTY, J. The learned Sessions Judge, Sundargarh having convicted the accused-
opposite party under Section 302, IPC by judgment dated 12.11.2002 in Sessions Trial No. 201 of
1998 has made this reference under Section 318 Cr.P.C. for passing of necessary orders regarding
imposition of sentence by this Court being of the view that the accused is unable to understand the
proceedings.
2. The case of the prosecution as unfolded during trial is that the accused-opposite party, a deaf
and dumb, was residing with his father, mother, brother and sister-in-law at village Chandiposh. He
used to loiter in the village and was avoiding any work for which his father was often becoming
displeased with him. On the date of occurrence, i.e., 19.03.1998, a quarrel ensued between the
accused and his deceased father on a flimsy ground. Consequently, the accused picked up a
wooden plank (a piece of fire-wood) and mercilessly assaulted on the head, back, arms and body of
his father causing severe bleeding injuries, which resulted in his death. The further case of the
prosecution is that the accused was digging a grave near their house to bury his deceased father.
While doing so, the villagers arrived. Seeing them, the accused tried to escape but he was caught
hold of and tied. Then the villagers took him to the Rajgangpur Police Station along with the weapon of
offence. The informant orally reported the matter before the I.I.C. of the said Police Station, who
reduced his oral report to writing, registered the case and took up investigation. Upon completion of
investigation, the I.O. submitted charge-sheet against the accused-opposite party under Section 302,
IPC.
3. In course of trial, to bring home the charge, prosecution examined as many as eleven
witnesses including the doctor and exhibited 14 documents. Defence examined none. Being a deaf
and dumb, the accused-opposite party did not take any plea in course of his examination under
Section 313 Cr.P.C. and his examination could not be carried out by the court in spite of taking
assistance of an interpreter summoned from the School of Deaf and Dumb.
4. It is well settled that before making a reference under Section 318, Cr.P.C. it is obligatory on
the trial court to make necessary enquiries and endeavour to find out if the accused can be made to
understand the proceedings and come to a definite conclusion. The law is also well settled that in
case of accused, who is deaf and dumb and against whom a finding of conviction is returned by the
trial court, the High Court has to satisfy itself whether a fair trial was conducted against him. This
Court examined the records thoroughly. In the instant case, the accused-opposite party was properly
defended before the trial court by a State Defence Counsel. Proper cross-examination of the
witnesses was also carried out on behalf of the learned defence counsel. While recording the
statement of the accused under Section 313, Cr.P.C., a specialist teacher from the School for Deaf
and Dumb, Sundargarh was engaged by the trial court as an interpreter. Although he made sincere
attempts to translate the questions put by the court to the accused, the accused could not be made to
understand the questions put to him and his responses were not intelligible to the court or to the
interpreter. Therefore, this Court comes to a conclusion that the trial was conducted fairly by following
the due procedure and sufficient opportunity was also afforded to the accused to defend his case.
5. There is no quarrel that the High Court while examining the materials on record in a reference
made under Section 318, Cr.P.C. may pass such orders as it thinks fit. In such view of the matter,
this Court proceeded to examine the evidence against the accused-opposite party.
6. P.W.6 is the informant and a co-villager of both the deceased and the accused-opposite party.
He deposed that while he was ploughing his land, one Ram Bahadur intimated him about the
occurrence. He came to the house of the accused and saw the deceased lying inside the house near
the entrance. There were injuries on his head, backside and legs. His left hand was fractured. One
broken fire-wood stained with blood was found to have been kept by the side of the door frame. The
accused was digging a grave to bury the deceased. When he along with other villagers arrived there,
the accused tried to run away and was caught hold of by them. He along with the mother and younger
brother of the accused went to the police station. He orally reported about the occurrence before the
O.I.C., who reduced it to writing, read over and explained the same to him and finding the same to be
correct he put his signature. He corroborated the F.I.R. story. Nothing has been elicited in cross-
examination to discredit his evidence. He admitted that the accused is a deaf and dumb and the
villagers tease him saying mad. P.W.8, who is a neighbour of both the deceased and accused, is the
only witness to the occurrence. She at the time of occurrence was the Panchayat Samiti Member. She
stated that her house is situated near the house of the deceased and the accused. She saw the
accused climbing on a Kendu tree and his father asking him that he should tie the bullocks and only
then he would be given food. But, the accused indicated by gesture that he wanted food immediately.
At that time, he had already climbed down from the kendu tree. Then altercation arose between them.
The accused lost his temper, ran to the house, picked up a piece of fire wood and assaulted on both
the hands and face of the deceased, as a result of which the deceased fell down. He gave few more
blows on his back, backside of the neck and other places for which his father died. Immediately
thereafter the accused picked up a spade and started digging a hole on the ground. At that time P.W.7
and other villagers arrived there. Seeing them he tried to run away from the spot but was chased and
caught hold of by them. She stated that the accused was able to work and used to understand
gestures and communicate by gesturing. In cross-examination, she admitted that she had narrated the
incident to P.Ws.6 and 7. Medical evidence of P.W.11 also supports the version of P.W.8. P.W.11, who
conducted autopsy over the dead body of the deceased, stated that all the injuries were ante mortem
in nature. The cause of death was due to injuries to vital organs, haemorrhage and shock. The death
of the deceased was homicidal in nature. He proved the post-mortem examination report marked
Ext.14. P.W.11 answered to the query made by the I.O. that the injuries found on the body of the
deceased could be caused by M.O.I, the wooden plank, and were sufficient to cause the death.
Nothing has been elicited from him in cross-examination. P.W.4, who is the wife of the deceased and
mother of the accused, deposed that at the time of occurrence she had been to the jungle for
collecting green leaf. On return, she found her husband lying dead. She denied to have any
knowledge how her husband died. P.W.7 is a post-occurrence witness who supported the evidence of
P.W.8. Nothing has been elicited in cross-examination to disbelieve him as a reliable witness. P.W.1 is
a witness to the inquest and seizure of the weapon of offence (wooden plank). He proved the inquest
report (Ext.1), the seizure list (Ext.2) and his signature thereon. P.W.2 is a witness to the seizure of the
weapon of offence vide Ext.2 as well as the wearing apparels of the accused vide Ext.3. He proved
Exts.2 and 3 and his signature thereon. P.W.3 is also a witness to the seizure of the weapon of offence
vide Ext.2 and the sample earth, blood stained earth vide Ext.4. P.W.10 is the I.O, who investigated
into the case and ultimately filed the charge-sheet.
7. P.W.8 is the only witness to the assault on the deceased by the accused. Her house is situated
near the house of the accused and the deceased. On her way back home from forest after picking up
some wood, she had the occasion to witness the occurrence. She has given vivid description of the
occurrence in her evidence and the reason for the assault. Nothing has been elicited from cross-
examination to discredit her testimony. She has further stated that after assaulting the deceased, the
accused started to dig a hole to bury him. At this juncture P.Ws.4, 6 and 7 arrived at the spot and
seeing them the accused started to run and was apprehended by the aforesaid three witnesses along
with others. This part of the evidence of P.W.8 is corroborated by P.Ws.4, 6 and 7. P.W.8 being a
Panchayat Samiti Member commands respect in the area. It is not the case of the defence that she is
inimical to the accused. In our opinion, therefore, the evidence of P.W.8 inspires confidence. No doubt
defence has pointed out certain contradictions in her evidence. Contradictions are bound to occur
even in case of a truthful witness but if the same are not material contradictions and do not go into the
root of the prosecution case, the same are of no consequence and the defence cannot take aid of the
same. All these witnesses are independent witnesses and they have no axe to grind against the
accused. Evidence of P.W.8 receives corroboration from the evidence of P.W.9, who stated that
hearing cries of P.W.8 she immediately came out of the kitchen room and saw her father-in-law lying
dead inside the room with bleeding injuries all over his body. The I.O. also proved Ext.13, the report
of the Chemical Examiner which shows that the blood stained earth seized from the spot were stained
with human blood. Thus, from the materials available on record, it is evident that the accused-
opposite party is the assailant.
8. Now, the question is whether the act committed by the accused-opposite party comes within
the purview of Section 302, IPC or Section 304 Part-I, IPC. On scanning the evidence of P.W.8, it is
found that due to sudden altercation the accused-opposite party got provoked, lost control over him
and assaulted the deceased by means of a wooden plank, as a result of which the deceased died.
Furthermore, the accused-opposite party is a deaf and dumb. Therefore, this Court is of the opinion
that the accused-opposite party is liable to be convicted under Section 304 Part-I, I.P.C.
9. In the result, conviction of the accused-opposite party under Section 302, IPC, as made by the
learned Sessions Judge, Sundargarh, is converted to one under Section 304 Part-I, IPC and the
accused-opposite party is sentenced to undergo rigorous imprisonment for ten years.
It is stated at the Bar that the accused-opposite party has remained in custody from the date of
his remand and by now has completed more than ten years. If that be so, he accused opposite party
be set at liberty forthwith, unless his detention is required otherwise.
Crimanal Reference answered.
