Orissa High Court
Hingu Khilla vs State Of Odisha on 6 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA NO.16 OF 2020
From the judgment of conviction and order of sentence dated 13.01.2020
and 14.01.2020 respectively passed by the learned Sessions Judge,
Malkangiri in Criminal Trial Case No.47 of 2018 arising out of G.R. Case
No.96 of 2018 corresponding to Orkel P.S. Case No.21 of 2018 of the
Court of learned Sub-Divisional Judicial Magistrate, Malkangiri.
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Hingu Khilla ..... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
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For Appellant - Mr. Chittaranjan Sahu, Advocate,
For Respondent - Mr. Sitikant Mishra,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING :20.03.2023 : DATE OF JUDGMENT: 06.04.2023
D.Dash, J. The Appellant from inside the jail has assailed the judgment of
conviction and order of sentence dated 13.01.2020 and 14.01.2020
respectively passed by the learned Sessions Judge, Malkangiri in Criminal
Trial Case No.47 of 2018 arising out of G.R. Case No.96 of 2018
corresponding to Orkel P.S. Case No.21 of 2018 of the Court of learned
Sub-Divisional Judicial Magistrate, Malkangiri.
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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, has been sentenced to undergo
imprisonment for life with payment of fine of Rs.10,000/- in default to
undergo simple imprisonment for a period of one year.
2. The prosecution case is on 21.02.2018 night around 8.30 pm,
accused Hingu Khilla quarreled with his wife Watchi Khilla (deceased),
when they were in the house. In course of quarrel, the accused got angry
and then severely assaulted his wife with a wooden lathi. Seeing this, the
daughter of accused namely, Basanti Khilla (P.W.17), who was then aged
about 10 years raised cry and went to the house of Sansai Khilla
(Informant) and described the incident. Then having gone to the house,
found her mother (deceased) lying with bleeding injuries. Thereafter, she
with other villagers took deceased to Kudumuluguma and admitted her in
the hospital. The Doctor then advised them to shift the injured to District
Headquarter Hospital, Malkangiri. While proceeding to the Hospital at
Malkangiri it was around 12.00 noon Watchi Khilla died on the way. A
written report being lodged by the Informant (P.W.2) with the Inspector -
In-Charge (IIC) of Orkel Police Station, case was registered and
investigation was taken up by the Sub-Inspector of Police attached to the
said Police Station (P.W.15) as directed by the IIC.
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3. In course of investigation, the Investigating Officer (I.O.-P.W.15)
examined the Informant (P.W.2) and the witnesses. He visited the spot
and held inquest over the dead body of the deceased-Watchi Khilla and
prepared the report to that effect, Ext.3. Requisition was issued by the I.O.
for postmortem examination. The incriminating articles were then seized
and the seizure list was prepared by the Investigating Officer(I.O.).
On completion of investigation, final form was submitted, placing
the accused to face the trial for commission of offence under section-498-
A/302 of the IPC.
4. Learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Malkangiri
having received the final form as above, took cognizance of the said
offences and after observing the formalities, committed the case to the
Court of Sessions. That is how the trial commenced by framing the charge
against the accused for the said offences.
The plea of defence is denial and false implication.
5. In course of trial, the prosecution examined in total seventeen (17)
witnesses. As already stated, P.W.2 is the Informant and the accused is his
nephew being the son of his elder brother-Biswanath. P.Ws.12, 13 and 14
are the three brothers of the deceased when the scribe of the F.I.R., (Ext.2)
has been examined as P.W.16; P.Ws. 3, 4, 5 and 7 to 11 are the
independent witnesses. The Doctor, who had conducted autopsy over the
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dead body of the deceased, has been examined as P.W.1. The daughter of
the accused has come to the witness box as P.W.17.
The prosecution besides leading evidence by examining the above
witnesses has also proved several documents which have been admitted in
evidence and marked Exts.1 to 17. Out of those important are:- the F.I.R.
(Ext.2) where as the inquest report and postmortem report are Ext.1 and
Ext.3 respectively.
The Accused being given the opportunity to pilot evidence in
support of the defence has remained satisfied by not availing the said
opportunity.
6. Taking into account the evidence of the Doctor, P.W.1 and his
report which he has proved, Ext.1 which reveals that he had seen the
deceased to have sustained several injuries on her body, which are bruises
and abrasions all over and depressed communicated fracture on the right
parietal bone of the scalp resulting laceration of bone parenchyma with
defused hemorrhage of the brain; all of which are ante-mortem in nature
and when it has been said by P.W.1 that the head injury is the cause of the
death which have all unchallenged, the Trial Court has held the nature of
death of Watchi Khilla to be homicidal. In fact this aspect was not
challenged before the Trial Court and that is also the situation before us.
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The evidence of P.W.1 reveals that he had seen several abrasions,
bruises over the body of Watchi and on dissection, he had noticed one
depressed communicated fracture on the right temporal bone of the scalp
and laceration of brain parenchyma with defused bleeding. His evidence
is that the head injury is fatal and with its complications, caused the death.
According to him, the injuries are possible by hard and blunt weapon and
not the result of any blow by any sharp cutting weapon.
The Investigating Officer, P.W.15 having reached the spot had
inspected the dead body, held inquest over the same and he too had
noticed all these injuries on the body of the deceased and accordingly, he
had noted so in his inquest report, Ext.3. With such evidence on record,
we are in wholly in agreement with the finding of the Trial Court that the
nature of death of Watchi Khilla was homicidal.
7. Learned Counsel for the Appellant at the beginning instead of
questioning the finding of the Trial Court as regards the act done by the
accused in assaulting his wife, confined his submission on the score that
even accepting the prosecution as it emerges from the evidence, the
accused for the said act cannot be held guilty for committing the offence
under section-302 of the IPC and at best, it would be one under section-
304 Part-II of the IPC. In this connection, he has invited our attention to
the depositions of the witnesses who have simply stated to have seen the
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accused assaulting the deceased in course of quarrel which continued for
quite a long time between the accused and his wife (deceased). He further
submitted that it is not the case of the prosecution that accused assaulted
by any sharp cutting weapon and the injuries are said to be by hard and
blunt weapon. He further submitted that as per the evidence of P.W.1,
only the injury on the head of the deceased has led to her death, when all
other injuries are mere abrasions and lacerations which most have taken
place in course of continuous quarrel between two. He also submitted that
the prosecution witnesses are silent as to who and at what point of time
the quarrel triggered and why in course of quarrel, the accused started
assaulting the deceased and what was the reason to immediately do so,
being so provoked or not. In view of all these above, he contended that it
is a case where the accused, at best, is liable for commission of offence
under section-304 Part-II of the IPC but not under section-302 of the IPC.
8. Learned Counsel for the State submitted that the evidence being on
record that it is the accused that who had assaulted the deceased
continuously and the injury caused by him on the head of the deceased by
means of hard and blunt weapon, if has resulted the death of deceased,
Watchi Khilla. He thus contended that the conviction has to be recorded
under section-302 of the IPC, which the Trial Court has rightly held.
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9. Keeping in view the submissions made; we have carefully gone
through the judgment passed by the Trial Court and we have also
extensively travelled through the depositions of the prosecution witnesses
i.e. P.Ws. 1 to 17 and have perused the documents which have been
admitted in evidence and marked as Exts. 1 to 17.
10. Since the order of conviction as such is not challenged before us
and the grievance is only with regard to the offence for which he with the
obtained evidence would be liable to be convicted; it would be suffice to
refer to the evidence which are relevant.
The Doctor, in course of postmortem examination has found four
bruises and three abrasions on the different parts of the body of the
deceased. The bruise noticed on the right temporal region of head
corresponds to the internal injury found on dissection, which is the
depressed communicated fracture on the left temporal bone of the scalp.
While stating the nature of injuries to be ante-mortem and to have been
caused by hard and heavy blunt weapon, the evidence of P.W.1 is that the
death was due to the head injury and its complications.
It is the evidence of P.W.2 that the husband and wife had quarreled
in the Wednesday night and their daughter (P.W.17) namely, Basanti
arrived and called him by telling that her father was being assaulting her
mother, and when she went hearing in the same, he found the deceased to
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have already been assaulted and was then lying alive and then P.W.17 had
showed him that lathi used by her father in assaulting the deceased, who
was then in an drunken state.
P.W.3 has also stated that in the night, there was gandagol in the
family and in the morning, the deceased had been to have been assaulted.
It has been stated by P.W.5 that when he went to the house of the accused,
the villagers and neighours told that it is the accused who had assaulted
the deceased. It has been stated by P.W.1 that in his presence, the accused
stated that he as well as the deceased has consumed liquor. Although
P.W.17 who is the daughter of the accused, she during trial has not
supported the case of the prosecution. We however find the available
evidence to be acceptable to arrive at a finding that the accused has caused
the injuries on the person as noted by the Doctor and that is thus found to
have been established by the prosecution beyond reasonable doubt. It is
not the evidence that the accused and the deceased were not pulling well
and had no cordial relationship. It is not the evidence that they were
frequently quarreling for any such silly reason(s). Both were then
intoxicated. The accused is said to have used the lathi in causing the
injuries and it is not the evidence that he was carrying the lathi with him
from the time, the quarrel began. It is also not forthcoming in evidence
that it is the accused, who initiated the quarrel or that he was at fault for
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which the deceased told anything to her. The solitary blow on the head
and the complications arising therefrom have led to the death.
Cumulatively viewing all these circumstances appearing in the
entire evidence as above discussed, we are of the view that the offence
could be properly categorized as one punishable under section-304 Part-II
of the IPC and thus the accused is liable for commission of offence
punishable under section-304 Part-II of the IPC. Accordingly, he is to be
visited with the sentence which commensurate with the act done by him.
11. In the result, the Appeal stands allowed in part. The conviction
recorded against the accused under section-302 of the IPC is modified to
one under section-304 Part-II of the IPC and consequentially, we are of
the considered opinion that the sentence to undergo rigorous
imprisonment for a period of six years with fine of Rs.2,000/- in default to
undergo rigorous imprisonment for two months would be just and proper
and meet the ends of justice.
12. With the above modification as to the judgment of conviction and
order of sentence, the Appeal stands disposed of.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi),
Judge.
Narayan
JCRLA NO. 16 OF 2020
