Gunjuru Majhi vs State Of Orissa
2023 Latest Caselaw 8042 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            JCRLA No.13 of 2018
    In the matter of an Appeal under section 374(2) of the Code of Criminal
    Procedure and from the judgment of conviction and order of sentence
    dated 28.10.2017 passed by the learned Additional Sessions Judge,
    Nabarangpur in C.T. Case No.84 of 2012 (T).

                                   ----

         Gunjuru Majhi                         ....         Appellant

                                    -versus-

         State of Orissa                       ....         Respondent
                Appeared in this case by Hybrid Arrangement
                         (Virtual/Physical Mode):
                 For Appellant     -      Mr. P. Ramakrishna Patro,
                                          (Advocate)

                 For Respondent    -      Mr.S.K. Nayak,
                                          Addl. Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K. PANIGRAHI

    Date of Hearing :04.07.2023     ::    Date of Judgment: 24.07.2023

D.Dash,J. The Appellant, by filing this Appeal has assailed the judgment of conviction and order of sentence dated 28.10.2017 passed by the learned Additional Sessions Judge, Nabarangpur in C.T. No.84 of 2012(T) arising out of G.R. Case No.09 of 2012 corresponding to Raighar P.S. Case No.139 of 2011 of the Court of the learned Judicial Magistrate First Class, (J.M.F.C.), Umerkote.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code,

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1860 (for short, 'the IPC'). Accordingly, he has been sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for two months.

2. Prosecution case is that on 28.12.2011 around 10 p.m. one Digambar Sethi (deceased) who happens to be the elder brother of Sukram Sethi, the Informant and P.W.1 had been to the house of accused Gunjuru Majhi. There was hot exchange of hot words between them for some reasons. After sometime, Digambar (deceased) returned home. On the next morning it was around 9 a.m., the accused arrived in the house of the Informant (P.W.1) and he then abused the deceased Digambar in obscene language and threatened him to kill and then went away. The Informant (P.W.1) with his brothers, Digambar and another went to Gona market. At about 5 p.m. in the evening, Digambar returned alone to their house. Subsequently, the Informant (P.W.1) returned. He saw the accused quarrelling with Digambar. After a while when he was present in his house, he heard the cry of Digambar. So, he immediately came out and saw Digambar lying dead on the village road with bleeding injuries on his head. Then one Tulsi Majhi (P.W.4) disclosed before him that the accused dealt three to four blows by means of lathi on the head of Digambar which resulted his fall. It is further stated that the accused thereafter dragged Digambar up-to the road in front of his house.

The Informant (P.W.1) then having lodged a written report with the Inspector-in-Charge (I.I.C.), Raighar Police Station, the same was treated as F.I.R. and the I.I.C. directed one Sub-Inspector of Police (S.I.) attached to the Police Station to investigate into the case. The

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Investigating Officer (I.O.-P.W.21) examined the Informant (P.W.1) and other witnesses. On that day, he visited the spot and prepared the spot map (Ext.8). He seized the blood stained earth and sample earth from the spot in presence of the witnesses under seizure list (Ext.9). On that day, he seized the weapon, which is the wooden plank being stained with blood from the very spot under seizure list (Ext.3). He then held inquest over the dead body of the deceased in presence of the witnesses and prepared the report to that effect (Ext.2). The dead body was sent for Post Mortem Examination by issuing necessary requisition. The wearing apparels of the deceased were seized on production by the police personnel, who had carried the dead body for Post Mortem Examination.

On 01.01.2012 the accused was apprehended and his wearing apparels were seized under seizure list (Ext.6). The incriminating articles were sent for chemical examination through court. On completion of investigation, finally, this accused with his parents were placed for trial for commission of offence under sections 302 of the I.P.C.

3. Learned J.M.F.C., Umerkote having taken cognizance of the offence, 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 having committed the offence under section 302 IPC in causing the murder of Digambar (deceased).

4. In the trial, the prosecution has examined in total twenty one (21) witnesses. As already stated, P.W.1 is the brother of the deceased and the Informant, who had lodged the F.I.R. (Ext.1) whereas another brother of the deceased is P.W.2. P.W.4 has been examined as an

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independent witness when P.w.6 and P.W.7 are the sister-in-laws and P.W.13 is the nephew of the deceased who have been examined to place their account as eye-witnesses. The Doctor who had conducted the Post Mortem Examination over the dead body of the deceased is P.w.18 whereas the Investigating Officer (I.O.) is P.W.21.

The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to 13. Out of those, the important are F.I.R. (Ext.1), the inquest report (Ext.2), the Post Mortem Examination Report (Ext.7), spot map (Ext.8) and the forwarding report (Ext.13).

5. The plea of the defence is that of complete denial and false implication. The accused has, however, not tendered any evidence in support of his defence.

6. The Trial Court on examination of the evidence of the Doctor (P.W.18) and on going through his report (Ext.7) as also the evidence of the I.O. (P.W.21) who had held inquest over the dead body of the deceased and his report to that effect (Ext.2) has given the finding that the death of Digambar was homicidal in nature. In fact, this aspect of this case was not under challenge before the Trial Court and that is also the situation before us.

It has been stated by the Doctor (P.W.18) that during the post mortem examination, he had noticed two incised like lacerated wounds of the size 1" x ½" over left fore head and left parietal bone besides the grazed abrasion over right knee, left wrist, left and right elbows and back. According to his evidence, the cause of death was on account of

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head injuries. The I.O. in the inquest report (Ext.2) has in his language noted the injuries which he had seen over the dead body of Digambar. The other witnesses have also stated so. Above evidences standing unimpeached, we are wholly in agreement with the finding of the Trial Court that the death of Digambar was homicidal in nature

7. Learned counsel for the Appellant (accused) submitted that the Trial Court ought not to have relied upon the version of P.W.1, P.W.2,P.W.6, P.W.7 and P.W.13 who are the family members of the deceased and highly interested in the success of the prosecution. He further submitted that the evidence of all these witnesses are full of discrepancies and contradict one another on vital aspects of the case as to the role played by the accused and the nature of injuries as also the weapons used. He, therefore, submitted that the prosecution case as presented ought to have been doubted and the accused ought to have been held entitle to the benefit of doubt leading of his acquittal.

8. Learned counsel for the Respondent-State submitted all in favour of the finding returned by the Trial Court holding the accused to have intentionally caused the death of the deceased by dealing successive lathi blows on his head. He further submitted that the deceased being a physically handicapped person when was assaulted by the accused as it reveals from the evidence of the eye-witnesses in a merciless manner that too when he was totally unarmed, the accused has been rightly convicted for committing the offence under section 302 of the I.P.C.

9. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also travelled through the depositions of the witnesses (P.W.1 to P.W.21) and have perused the documents such as Ext.1 to Ext.13.

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10. In order to address the rival submission, we are now called upon to have a look at the evidence of the eye-witnesses.

P.W.4 has stated that on the relevant day during the evening hour in front of his house, he saw the accused assaulting the deceased Digambar with a wooden plank on the back side of his head and when he had protested to such action of the accused, there was threat from the side of the accused. He has further stated that Digambar receiving repeated assaults fell on the ground and died. His further evidence is that the accused all of a sudden came and assaulted the deceased without telling him anything. He states that Digambar was a Polio patient and was unable to walk properly. His evidence is that he had not seen Digambar falling on the ground and that he left the spot out of fear when accused was assaulting Digambar even if are taken in their proper prospective without being ignored, the evidence of this witness that the accused first assaulted Digambar with the wooden plank on the back side of his head cannot be discarded.

Then comes the evidence of P.W.6, who is the younger brother of the deceased Digambar. He has stated that accused assaulted Digambar with wooden lathi on his head in front of his house and when he protested the accused took Digambar towards the house of Tulsi and assaulted him in front of Tulsi. He was also stated that when Tulsi objected, he was also threatened by the accused and then he with the wife of Sukram went to the spot and saw Digambar was found lying dead. He has further stated that when Digambar was returning from market, the accused attacked him and dragged him towards the house of Tulsi. He has clarified that first the assault was given by accused in front of his house and then two other blows were given by the accused after Digambar was dragged to a distance of 100 cubits in front the house of Tulsi and thereafter, the

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accused fled from the spot. We find that the evidence of P.W.4 and P.W.6 as regards repeated assault being made by the accused by that wooden plank upon the deceased has not been demolished nor any material is forthcoming from the evidence either to doubt their presence at the relevant time or to have not been in a position to see the incident so as to say that they are falsely implicating the deceased to be the author of the injuries received by Digambar. P.W.7 and P.W.13 have also stated in the same vein. It has been deposed by P.W.7 that the accused assaulted Digambar with the wooden lathi in front of his house and then having dragged Digambar towards the house of Tulsi again assaulted him by that lathi. He has asserted during cross-examination to have seen the accused dealing five lathi blows. P.W.13, who is the nephew of the Digambar has also stated in the same light that accused all of a sudden attacked Digambar and assaulted him by that wooden plank.

The evidence of Doctor (P.W.18) provide full corroboration to the evidence of all these witnesses. We too find that there was no apparent reason for these witnesses to falsely implicate the accused. All these witnesses have deposed about the occurrence in a natural manner and they have successfully withstood the cross-examination. With such state of affair in the evidence, we find that the Trial Court did commit no mistake in relying upon the same, in fastening the guilt upon the accused for intentionally causing the death of the deceased who then was not only unarmed but also helpless in view of physical deformity.

On a conspectus of discussion of evidence as hereinabove, we are of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302 of the IPC is well in order and the accused has rightly been convicted and sentenced thereunder.

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11. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 28.10.2017 passed by the learned Additional Sessions Judge, Nabarangpur in C.T. Case No. 84 of 2012(T) are hereby confirmed.

(D. Dash) Judge.

                Dr. S.K. Panigrahi      I agree.




                                                             (Dr.S.K. Panigrahi)
                                                                    Judge.



          Himansu




Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 25-Jul-2023 17:34:05

                JCRLA No.13 of 2018