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
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Date of hearing & judgment : 08.04.2010
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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
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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).
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(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
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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:
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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
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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.
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S.PANDA, J
Orissa High Court, Cuttack
April 08, 2010/Routray