Orissa High Court
Gada Munda vs State Of Orissa on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.74 of 2019
In the matter of an Appeal under Section 383 of the Code of Criminal
Procedure, 1973 and from the judgment of conviction and order of
sentence dated 6th September, 2019 passed by the learned Additional
Sessions Judge, Champua, in S.T. Case No.40 of 2018.
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Gada Munda .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Sudipto Panda
(Advocate)
For Respondent - Mr.Sitikant Mishra,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 01.05.2023 : Date of Judgment:05.05.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in question
the judgment of conviction and the order of sentence 6th September,
2019 passed by the learned Additional Sessions Judge, Champua, in S.T.
Case No.40 of 2018 arising out of G.R. Case No.191 of 2018
corresponding to Bamebari P.S. Case No.36 of 2018 in the Court of the
learned Judicial Magistrate First Class (J.M.F.C.), Barbil.
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
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undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five
Thousand) in default to undergo rigorous imprisonment for six (6)
months for the said offence.
2. Prosecution Case:-
The Appellant Gada Munda (accused) is the son of late Tandaka
Munda and the nephew of deceased, namely, Demka Munda (the
deceased). The deceased and the father of the accused are two brothers.
It is stated that on 20.03.2018, the accused could not find the long
tamarind pods in the tamarind tree near the house of the accused. So, he
asked the accused as to who had plucked those tamarind pods. In view
of this, there arose the trouble. It is said that the accused then was
annoyed with the deceased in view of their previous land dispute. So,
when Dama was returning to his house on the village footpath, the
accused, because of all these above reasons, assaulted severely on his
head by means of a thenga. It was around 7.00 p.m. the injury so caused
led to the death of Demka.
On 21.03.2018 around 1.15 p.m., the son of the deceased, namely,
Jenda Munda presented a written report before the Inspector-in-Charge
(I.I.C.) of Bamebari Police Station. The I.I.C., treating the same as
F.I.R., registered the case and directed the Sub-Inspector of Police (S.I.)
attached to that P.S. to take up the investigation.
3. In course of investigation, the Investigating Officer (I.O.-P.W.15)
examined the informant (P.W.1) and recorded his statement as well as
the statements of other witnesses under section 161 of the Code of
Criminal Procedure, 1973. It is said that the accused, while in police
custody, having stated to have kept that thenga in a place in the kitchen
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garden of Gopal Munda (P.W.3), led the police and other witnesses to
that place and gave recovery of the same, which was seized under the
seizure list. The accused was then forwarded in custody to Court and
requisition for holding the post mortem examination over the dead body
of the deceased, having earlier been sent, the report to that effect was
received. On completion of the investigation, the I.O. (P.W.15)
submitted the Final Form placing the accused person to face the Trial for
commission of offence under section 302 of the IPC.
4. Learned J.M.F.C., Barbil, on receipt of above Final Form, took
cognizance of the said offence and after 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 the deceased.
5. The prosecution, in support of its case, has examined in total
fifteen (15) witnesses. Out of them, P.W.1 is the informant, who is the
son of the deceased. Two witnesses, i.e., P.Ws.2 & 3 have been
examined by the prosecution projecting them as the eye witnesses. The
Doctor, who had conducted the post mortem examination over the dead
body of the deceased is P.W.14 whereas the I.O., at the end, has come to
the witness box as P.W.15.
Besides leading the evidence by examining the above witnesses,
the prosecution has also proved several documents, which have been
admitted in evidence and marked Exts.1 to 14. Out of those, the
importants are the FIR (Ext.1), the post mortem report (Ext.6), inquest
report (Ext.2) and the Chemical Examination Report (Ext.14). The
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seizure lists have been proved and marked Ext.3, Ext.5, Ext.10 &
Ext.11.
6. The plea of the defence is that of complete denial and false
implication. No evidence has been tendered by the accused in support of
his defence.
7. The Trial Court, keeping in view the evidence of the Doctor
(P.W.14), who had conducted the autopsy over the dead body of the
deceased as also other evidence, has arrived at the conclusion that the
death of the deceased was homicidal in nature. In fact, this aspect of the
case was not under challenge before the Trial court and this is also the
situation before us.
The Doctor (P.W.14) has deposed to have noticed crushed injuries
over the right of forehead involving fracture of frontal bone, parietal
bone and part of temporal bone with the absence of other part of the
temporal bone. He has also stated to have found the crushed injury over
the right eye ball. His evidence is that the cause of death was on account
of shock resulting from the crushed injuries over the right side of the
head. All these injuries have been said to be ante mortem in nature,
which have been reflected in detail in his report under Ext.6. The I.O.
(P.W.15), in his inquest report, has also noted the injuries received by
the deceased and that has also been stated by other witnesses, which
have remained unchallenged. In view of such overwhelming evidence
on record, we find absolutely no difficulty in recording our concurrence
with the finding of the Trial Court that the death of the deceased was
homicidal.
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8. Learned Counsel for the Appellant (accused), from the very
beginning, instead of impeaching the finding of the Trial Court as
regards the act and role of the accused in assaulting the deceased,
confined his submission that for such proven act and role of the accused,
the conviction ought to have been for the offence under section 304-I of
the IPC. He 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-I of the IPC and appropriate sentence
commensurate the same ought to have been imposed.
In support of the same, he has invited our attention to the
evidence of P.Ws.1, 2 & 3. He has submitted that the evidence of all
these witnesses, being read together, it would appear that they are
suppressing as to how the incident began and now the FIR story on that
background has been given a go-bye not only by these witnesses but
also by the informant (P.W.1) himself, who had lodged the FIR (Ext.1).
He further submitted that the evidence of the prosecution is not definite
that that more than one blow has been given by this accused and the
Doctor, who had conducted the post mortem examination, has stated that
the crushed injuries can be possible by hit of big flying stone inside
blasting area and he has also further deposed that if there would be three
to four blows, then there would have been lacerated injuries, which he
has not noticed in the case. So, he submitted that the incident, having
taken place all of a sudden and it being not said that the accused had
carried the thenga with him from the very beginning and as it has not
been proved that it is the accused, who suddenly went on assaulting the
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deceased on his head; the accused can at best be held liable for
commission of offence under section 304-I of the IPC.
9. Learned Additional Standing Counsel for the Respondent, while
refuting the submission, as above, contended that it being the evidence
of the prosecution witnesses that the accused dealt repeated blows on the
head of the deceased, the Trial Court has rightly convicted the accused
for commission of offence under section 302 of the IPC. He submitted
that the evidence of P.Ws.1 to 3, being consistent with regard to the
number of blows given by the accused on the head of the deceased; in
view of the evidence of the Doctor, who had seen the crushed injuries on
the head of the deceased, which can result from the successive blows
merely as no lacerated injuries were noticed; it cannot be legitimately
held that the accused had given a solitary blow on the head of the
deceased.
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 15 and have perused the documents admitted
in evidence marked as Exts.1 to 14.
11. The informant (P.W.1), in his FIR (Ext.1), has said that for a long
period, there was dispute between his father on one hand and the
accused on the other and it was in relation to the landed properties. It
has been stated in the FIR (Ext.1) that on 20.03.2018, the deceased,
having not found the long pods of tamarind on the tree near the house of
the accused had gone to ask the accused about the same, when there
ensued a quarrel between them. It has also been indicated that when his
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father was going on footpath, the accused severely assaulted on his
head. He is, however, not indicating here as to whether he had seen the
incident in which the accused assaulted his father. The FIR (Ext.1)
version is that the accused has done do, but no where it has been hinted
by that P.W.1 that it was before his own eyes. When he has deposed in
Court that he for the first time, has stated to have seen the accused
assaulting his father by means of a stick on his. His evidence is that the
accused gave several blows by that stick but interestingly he is not
stating as to at that time where his father was and what he was doing. He
is also silent as to where he himself was at that relevant point of time
and saw the incident from that place. He too is not stating anything
about his response in seeing the incident of assault on his father by this
accused. During cross-examination, he has stated that when his father
was returning to village, accused assaulted him on the way. He has
further stated that they were then talking with each other. It has been the
evidence of this witness that at the relevant time, he had been to attend
the call of nature and could see the role played by the accused in
assaulting the deceased. It is his evidence that the accused after
assaulting his father, fled from the spot towards the village and on his
way, he threw the stick inside the garden.
The evidence of P.W.2 is to the effect that the accused assaulted
the deceased by means of a stick on his head. He is not stating anything
as to whether the accused had given successive blows on the head of the
deceased. He has, however, stated that there was land dispute between
them. It is also the evidence of P.W.3 that the deceased was assaulted by
the accused by means of stick. He too is silent as to whether the accused
repeatedly assaulted the deceased stretching over some time. His
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evidence, if read in a plain and simple manner, would show as if the
accused had given the blow on the head of the deceased once. In
addition to this, when we go to the evidence of the Doctor (P.W.14), we
find that he has stated that if three to four blows would be given on the
head repeatedly, then lacerated injuries would be seen. Fact remains that
this P.W.14 has not noticed any lacerated injuries and has not so
reflected in his report (Ext.6). Thus, it appears that the prosecution
witnesses, i.e, P.Ws.1, 2 & 3 are not truthful in so far as their version as
to how actually the incident started and who triggered the same when we
also mark the tendency on the part of the son of the deceased (P.W.1) is
there to suppress that part of the incident and even there emanates the
suppression as to what he had written in the FIR (Ext.1). Be that as it
may, all say that the deceased and the accused were not pulling on well
and it was on account of their landed property dispute.
12. 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-I of the IPC. We are thus of the
considered opinion that for the act and role played by the accused, he
would be liable for conviction under section 304-I of the IPC.
13. In that view of the matter, the conviction is altered to one under
section 304-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.5,000/- (Rupees Five Thousand) in default to
undergo rigorous imprisonment for six (6) months.
14. With the above modification as to the judgment of conviction and
order of sentence dated 6th September, 2019 passed by the learned
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Additional Sessions Judge, Champua, in S.T. Case No.40 of 2018, the
Appeal stands disposed of.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K. Panigrahi),
Judge.
Digitally
BASUD signed by
BASUDEV
EV NAYAK
Date:
NAYAK 2023.05.05
Basu
17:17:46
+05'30'
JCRLA No.74 of 2019
