Madhu @ Ranjit Khadia vs State Of Orissa
2023 Latest Caselaw 2904 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.83 of 2018
  In the matter of an Appeal under Section 374(2) of the Code of Criminal
  Procedure, 1973 and from the judgment of conviction and order of
  sentence dated 3rd November, 2017 passed by the learned Sessions
  Judge, Sambalpur, in S.T. No.92 of 2011.

                                 ----

      Madhu @ Ranjit Khadia                      ....          Appellant

                                 -versus-

      State of Orissa                            ....          Respondent
              Appeared in this case by Hybrid Arrangement
                       (Virtual/Physical Mode):
               For Appellant     -          Mr.B.K. Ragada
                                            Mr. L.N. Patel
                                            (Advocates)

               For Respondent    -          Mr.Sitikant Mishra,
                                            Additional Standing Counsel
  CORAM:
  MR. JUSTICE D.DASH
  DR. JUSTICE S.K. PANIGRAHI
  Date of Hearing : 31.03.2023          :     Date of Judgment:06.04.2023
D.Dash,J.      The Appellant, by filing this Appeal, has challenged the

judgment of conviction and order of sentence dated 3rd November, 2017 passed by the learned Sessions Judge, Sambalpur, in S.T. No.92 of 2011 arising out of G.R. Case No.277 of 2011 corresponding to Burla P.S. Case No.27 of 2011 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sambalpur.

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The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, 'the IPC') and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year for the said offence.

2. Prosecution Case:-

On 15.01.2011, the accused Madhu @ Ranjit Khadia had come to the house of his father-in-law, namely, Mangulu Khadia (Informant- P.W.8). On 16.02.2011 evening around 6.00 p.m., while Sabitri, the daughter of Mangulu, who happens to be wife of the accused, was cooking food in the house, there arose a quarrel between the husband and wife (accused and Sabitri). In course of said quarrel, accused brought out a burning firewood from the hearth and assaulted on the head of Sabitri repeatedly without paying any heed to her protest. As a result of said injury, she sustained bleeding injury on her head and died at the spot. Mangulu Khadia, who happens to be father of Sabitri, having raised alarm, some youngsters of the village came and as the accused was running away, he being chased, could not be nabbed. That day, Mangulu (Informant-P.W.8) lodged a written report with the Inspector- in-Charge (IIC) (I.O-P.W.9) of Burla Police Station, registered the case and took up investigation. It be stated here that it was around 10.30 p.m., this I.O. (P.W.9), having received a telephonic message from a person that one person has murdered his wife, had entered the said information in the Station Diary maintained at the P.S. and had proceeded to the spot and there only, he received the written report from Mangulu (P.W.8).

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3. In course of investigation, the (I.O.-P.W.9) examined the informant (P.W.8) and recorded his statement as well as the statements of other witnesses under section 161 of the Code of Criminal Procedure, 1973. The I.O. (P.W.9) then visited the spot and prepared the spot map (Ext.8), held inquest over the dead body of the deceased and prepared the report under Ext.6. He sent the dead body for post mortem examination. He also seized the incriminating materials including the piece of half burnt wood under seizure lists (Ext.2, Ext.11 and Ext.12). The incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.8) submitted the Final Form placing the accused person to face the trial for commission of offence under section 302 IPC.

4. Learned S.D.J.M., Sambalpur, having taken cognizance of the offence, 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 offence against this accused in causing the murder of his wife (Sabitri).

5. The prosecution, in support of its case, has examined in total nine (9) witnesses. Out of whom, the Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.4 and the star witness for the prosecution is the father of the deceased, who is also the father-in-law of the accused, i.e., P.W.7. and P.W.8, who was then present with the deceased. The other witnesses examined from the side of the prosecution have not directly deposed regarding the incident. The I.O, at the end, has come to the witness box as P.W.9.

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Besides leading the evidence by examining the above witnesses, the prosecution has also proved the documents admitted in evidence and marked Exts.1 to 13. Out of those, the importants are the FIR (Ext.7/4) and the post mortem report (Ext.4). The seizure lists have been proved and marked Ext.2, Ext.11 & Ext.12. The spot map prepared by P.W.8 has been admitted in evidence and marked Ext.8.

During trial, the wearing apparels of the accused and deceased were also produced and those have been marked as material objects, i.e., M.O.I to M.O.VI.

6. The plea of the defence is that of complete denial and false implication. Despite opportunity, no such evidence either oral or documentary have been tendered by this accused.

7. The Trial Court, having examined the evidence of the Doctor (P.W.4) and other witnesses including P.W.9, who had held inquest over the dead body of the deceased and prepared the report, has arrived at a conclusion that the nature of death of Sabitri was homicidal. In fact, this aspect of case was not under challenge before the Trial Court and that is also the situation before us.

Having gone through the evidence of the Doctor (P.W.4), who has noticed external injuries on the person of the deceased and on dissection, has also found that the under surface of the scalp over left frontal was contused and both frontal poles and inferior surface of left temporal lobe were contused and lacerated with a thin layer of subdural haemorrhage over left cerebral hemisphere. He has stated that all such injuries are anti mortem in nature and have caused by hard and blunt trauma. With such

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evidence on record, we find ourselves wholly in agreement with the finding of the Trial Court that the death of Sabitri was homicidal.

8. Learned Counsel for the Appellant (accused), from the very beginning, instead of questioning the finding of the Trial Court as regards the act of the accused in assaulting the deceased, has submitted that the circumstances prior to the incident and thereafter, as have emanated from the evidence, being cumulatively viewed, the Trial Court ought not to have convicted the accused under section 302 IPC and the conviction, at best could have been for the offence under section 304-II IPC and appropriate sentence commensurate the same ought to have been imposed. In that case, he has placed the entire evidence of P.W.8, who is the sole eye witness to the occurrence and the father of the deceased as well as father-in-law of the accused, i.e., P.W.7. He further submitted that there being a quarrel between the accused husband and the deceased wife, when the wife was cooking food, P.W.7 states that the deceased suddenly, brought out a piece of half burnt fire wood from the hearth and assaulted the deceased on her head. He submitted that although P.W.7 is stating that the accused assaulted on the head of the deceased, she is not stating that repeated blows were given and it is also not stated by the Doctor (P.W.4) that those two injuries, which according to him, are fatal cannot be the result of a solitary blow, but it has resulted from more than one blow. He further submitted that as per the evidence of P.W.7, the quarrel was also for very silly reason. According to him, all these circumstances being cumulatively viewed, the accused is liable to be convicted for commission of offence under section 304-II IPC.

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9. Learned Additional Standing Counsel for the Respondent, while refuting the submission, as above, contended that the accused, having assaulted the deceased on her head and when two head injuries have been found to be fatal, it cannot be said that the accused had assaulted on the head. He also submitted that the size of the injury being seen the force used for causing such injury, can be inferred. He, therefore, supported the finding of the Trial Court in convicting the accused under section 302 IPC.

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 9 and have perused the documents admitted in evidence marked as Exts.1 to 13.

11. It be stated that although P.Ws.2 & 8 had been projected as the eye witnesses to the occurrence, they have not supported the case of the prosecution. Most interestingly among them, P.W.8 is the father of the deceased and father-in-law of the accused. He has stated to have heard the incident from her elder sister Sulochana, who has not been examined as a witness. Now, the evidence of P.W.7 is that she had gone with the deceased to work and on their return, the deceased started cooking and she was then grinding spices to help her. It is her evidence that the accused came there with skins of chicken and asked the deceased to grill the same. The deceased told the accused to wait as she was cooking rice. It is her further evidence that the accused, having then rigorously persuaded the deceased to grill the chicken skin, she refused for which the accused, got annoyed and all of a sudden, pulled out a piece of half

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burnt fire wood from the hearth and assaulted the deceased on her head. This witness is not stating that by means of that half burnt fire wood repeatedly the blows were given by the accused. The reason, giving rise to the incident appears to be too silly and the accused is said to have assaulted the deceased being annoyed for her refusal to grill the chicken skin, which he was asking to be done.

In view of the above evidence, it is clear that there was no prior planning or pre-meditation. The Doctor, who has been examined as P.W.4 although has stated that the death was due to comma arising out of the injuries to the brain corresponding to the lacerated wounds on the scalp and the internal injuries which is the result of those injuries, is not, however, stating that those two external injuries are not the result of one blow but has resulted from blows more than one. The prosecution has not further elicited anything from this witness in that regard.

12. P.W.8, the father of the deceased and father-in-law of the accused is also stating that on account of the family dispute, his daughter and her husband (accused) had shifted to his house with their three children. He is not stating that the relationship between the accused and the deceased was not going on well or that the accused was in the habit of picking up quarrel with the deceased and that on any prior occasion, such a quarrel had taken place between them having its origin to the previous dissention. Taking a cumulative view of all these above circumstances, this Court is of the view that the offence could be properly categorized as one punishable under section-304 Part-I of the IPC. We are thus of the considered opinion that for the role played by the accused, he would be liable for conviction under section-304 Part-I of the IPC.

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13. In that view of the matter, the conviction is altered to one under section 304 Part-I of the IPC and consequently, the Appellant (accused) is sentenced to undergo rigorous imprisonment for a period of ten (10) years and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year.

14. With the above modification as to the judgment of conviction and order of sentence dated 3rd November, 2017 passed by the learned Sessions Judge, Sambalpur, in S.T. No.92 of 2011, the Appeal stands disposed of.

(D. Dash), Judge.

             Dr.S.K. Panigrahi, J.      I Agree.




                                                      (Dr.S.K. Panigrahi),
                                                          Judge.




Basu





       CRLA No.83 of 2018