Bamhan @ Sadhan Xaxa vs State Of Odisha
2023 Latest Caselaw 9083 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.36 of 2016

  In the matter of an Appeal under Section 374 of the Code of
  Criminal Procedure, 1973 and from the judgment of conviction
  and order of sentence dated 17th October, 2015 passed by the
  learned Additional Sessions Judge, Sundergarh, in S.T. Case
  No.54/02 of 2013.
                               ----

      Bamhan @ Sadhan Xaxa            ....        Appellant

                              -versus-

      State of Odisha                    ....      Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

              For Appellant   -     Mr.R. Das
                                    (Advocate)

              For Respondent -      Mr.S. Mishra,
                                    Additional Standing Counsel
  CORAM:
  MR. JUSTICE D.DASH
  DR. JUSTICE S.K. PANIGRAHI

Date of Hearing : 20.07.2023 : Date of Judgment:11.08.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in

question the judgment of conviction and order of sentence dated

17th October, 2015 passed by the learned Additional Sessions

Judge, Sundergarh, in S.T. Case No.54/02 of 2013 arising out of

G.R. Case No.816 of 2012 corresponding to Kinjirkela P.S. Case

CRLA No.36 of 2016 {{ 2 }}

No.69 of 2012 of the Court of the learned Sub-Divisional Judicial

Magistrate (S.D.J.M.), Sundergarh.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302 of the Indian Penal

Code, 1860 (for short, 'the IPC'). 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 two (2) years for the offence under

section 302 of the IPC.

2. Prosecution Case:-

On 08.10.2012 during noon hour, the mother, aunt and wife

of Birsa Xaxa (informant-P.W.1) were harvesting paddy in the

field. During then, the father of Birsa (informant-P.W.1), namely,

Makunda Xaxa was grazing cattle on a nearby small hillock. The

accused, who happens to be his father's brother's son, went near

his father being armed with an axe and struck at the back side of

his head by the said axe. Receiving the blow, he fell on the

ground and then it is said that the accused went on assaulting

him by means of the said axe. The mother of the informant

(P.W.6), wife of the informant (P.W.4) and the aunt of the

informant came near him. The wife of the informant (P.W.6) told

everything about the incident to him. Thereafter, the informant

(P.W.1) went to the spot with his wife (P.W.6) and they brought

Makund lying injured on the hillock to their house. The matter,

CRLA No.36 of 2016 {{ 3 }}

being reported by the informant (P.W.1) with the Officer-in-

Charge (O.I.C.) of Kinjirkela P.S., he treated the same as FIR and

registering the case, directed one Sub-Inspector (S.I.) of Police of

that P.S. (P.W.8) to take up the investigation.

In course of investigation, the I.O. (P.W.8), examined the

informant (P.W.1) and the person, who had scribed the FIR

(Ext.1), namely, Sumanta Lakra (P.W.2). It is stated that the

accused voluntarily appeared before the I.O. (P.W.8) with a blood

stained axe and disclosed to have killed the deceased on account

of civil dispute. The blood stained axe was then seized under

seizure list (Ext.4). The I.O. (P.W.8) then proceeded to the spot

and prepared the spot map (Ext.11). The dead body of Makunda

being taken to the house, the I.O. (P.W.8) went there and held

inquest over the same and prepared the report (Ext.3). The dead

body was then sent for post mortem examination. The

incriminating articles were seized from the spot. The accused

thereafter, being arrested was forwarded in custody to the Court.

The incriminating articles were sent for chemical examination

through Court and on completion of the investigation, the I.O.

(P.W.8) submitted the Final Form placing the accused to face the

Trial for commission of offence under section 302 of the IPC.

3. Learned S.D.J.M., Sundergarh, on receipt of above Final

Form, took cognizance of the said offence and after observing the

formalities, committed the case to the Court of Sessions. That is

CRLA No.36 of 2016 {{ 4 }}

how the Trial commenced by framing the charge for the aforesaid

offence against the accused.

4. In the Trial, the prosecution, in support of its case, has

examined in total eight (8) witnesses. Out of them, as already

stated, P.W.1, who is the son of the deceased, is the informant.

P.W.2 is a post occurrence witness, he is also the scribe of the FIR

as well as one of the witnesses to the inquest. P.W.4 is the wife of

P.W.1 and P.W.6 is the mother of P.W.1, who is the wife of the

deceased. The Doctor, who had held autopsy over the dead body

of the deceased is P.W.7 whereas the I.O., at the end, has come to

the witness box as P.W.8.

Besides leading the evidence by examining the above

witnesses, the prosecution has proved several documents, which

have been admitted in evidence and marked Exts.1 to 12. Out of

those, the important are the FIR (Ext.1), the post mortem report

(Ext.8), inquest report (Ext.3), the spot map (Ext.4) and the seizure

list showing the seizure of the axe from the custody of the

accused, which has been admitted in evidence and marked as

Ext.4.

The accused, in support of his plea of denial and false

implication, has examined one witness, i.e., D.w.1, who has been

examined to say that it would not be possible for a person

standing at a place where P.Ws.4 & 6 were there at the relevant

CRLA No.36 of 2016 {{ 5 }}

time as they state, to witness the happenings on the side by the

hillock.

5. Learned Counsel for the Appellant (accused), from the very

beginning, instead of attacking the finding as to the authorship of

the injury upon the deceased attributed to the accused as has

been recorded by the Trial Court, confined his submission on the

score of altercation of conviction to one under section 304-I of the

I.P.C. He submitted that viewing the happenings in the incident

as also the subsequent events, the relationship etc. when are kept

in view with the fact that the parties belong to Scheduled Tribe

Community hailing from remote rural background whose tamper

usually run high and behaviour for silly reasons, often becomes

abnormal, the Trial Court ought not to have convicted the

accused for commission of offence under section 302 of the IPC.

He, therefore, urged for alteration of the conviction for

commission of offence under section 302 of the IPC to offence

under section 304-I of the IPC and accordingly, he contended that

the accused be visited with the sentence as would be appropriate

for the said offence.

6. Learned Additional Standing Counsel submitted all in

favour of the finding returned by the Trial Court that the accused

is liable for commission of the offence under section 302 of the

I.P.C. He further submitted that the blow being by an axe, which

CRLA No.36 of 2016 {{ 6 }}

is a heavy sharp cutting weapon, when has been given on the

back side of the head of the deceased, the Trial Court did commit

no mistake in holding the accused guilty for commission of the

offence under section 302 of the IPC.

7. 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 8 and have perused

the documents admitted in evidence marked as Exts.1 to 12.

8. The star witness for the prosecution is P.W.4. She has stated

that when she heard the sound and looked back, the accused had

already assaulted his father-in-law, who had fallen down. She

stated that the accused assaulted by axe on the right side neck of

her father-in-law and receiving that blow, he was lying on the

ground, she looked back. She next says that the she had seen the

accused dealing blow, he was lying on the ground, on the right

side neck of his father-in-law. It is not stated by her that the

accused either had given or even attempted to give any blow for

the second time. Here, even we disbelieve her version as to have

exactly seen the assault being made by the accused upon her

father-in-law, her evidence stand quite natural and acceptable

that she had seen only this accused with the axe near the

deceased who had fallen on the ground with bleeding injury, the

CRLA No.36 of 2016 {{ 7 }}

authorship of the injury is clearly established to be resting with

the accused. This witness is silen as to what had happened before

she looked back. This P.W.2 is also not stating that soon before

she heard the cry and Lachhu, the brother of the accused, who

was grazing cattle nearby with the deceased has neither been

examined nor any explanation has been provided for his non-

examination, although he would have been the best witness to

narrate the happenings right from the beginning till the end. This

P.W.4 thus states that said Lachhu being present there at the spot

where the occurrence took place had seen the occurrence. He had

been examined, it would have come to light as to what had

happened before the accused is said to have dealt the blow and

whether, the deceased had played any such role in igniting the

actual incident.

P.W.6, who is the wife of the deceased, has said that hearing

one strike when she looked back, she saw the accused assaulting

the deceased. But this is not he evidence of P.W.4. Although she

states that she had seen the accused dealing the blows whereafter

the deceased fell down, that part of her evidence is not

convincing in view of the evidence of P.W.4. Thus, it is seen from

the evidence of P.Ws.4 & 6 when they saw that the deceased had

fell down on the ground having received the blow on his head.

The Doctor (P.W.7) has noticed one incised wound of size

of 3"X 1" present over the occipital region of the head and one

CRLA No.36 of 2016 {{ 8 }}

laceration of the size 2" X 1" over the left side of the forehead. It is

not stated by him that such injuries are only possible by more

than one blow or that had not resulted from a single blow. He

when has also stated that such laceration is possible by a fall on a

rocky surface, admittedly the incident took place at a hillock. The

deceased, the accused and the above witnesses hail from remote

rural pocket of a Tribal district of the State, i.e., Sundergarh.

P.Ws.4 & 6 were not there close to the place where the incident

took place and they only looked back hearing the sound or cry, if

we may say so. Therefore, the prosecution, having not examined

Lachuu, is found to be suppressing the happenings before the

deceased received the blow and fell down on the ground.

Therefore, it is not possible to conclude that the accused appeared

there and suddenly dealt the blow upon the deceased and there

was no time gap between his arrival and dealing the blow.

The parties hail from rural background under a tribal

dominated district of the State and they too are the members of

the Scheduled Tribe Community. Judicial notice of the fact can be

taken that the tamper of the members of such community run

high and their behaviour many a times for a silly reason becomes

abnormal and unexpected.

9. Taking a cumulative view of all these above circumstances

appearing in the evidence, as discussed; we are of the view that

the offence could be properly categorized as one punishable

CRLA No.36 of 2016 {{ 9 }}

under section 304-I of the IPC. We are thus of the considered

opinion that for the act and role played by the accused in respect

of Makunda Xaxa (deceased), he would be liable for conviction

under section 304-I of the IPC.

10. In that view of the matter, this Court alters the conviction

under section 302 of the IPC to one under section 304-I of the IPC.

Consequently, the Appellant (accused) is sentenced to undergo

rigorous imprisonment for a period of ten (10) years.

11. With the above modification as to the judgment of

conviction and order of sentence dated 17th October, 2015 passed

by the learned Additional Sessions Judge, Sundergarh, in S.T.

Case No.54/02 of 2013, the Appeal stands disposed of.

(D. Dash), Judge.

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

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

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 11-Aug-2023 15:54:43

CRLA No.36 of 2016