NAIKU MAJHI Vs. STATE OF ODISHA

JUDGEMENT

(1.) This is an appeal by the convict (hereinafter referred to as the appellant) from the Judgment and Order of conviction and sentence dtd. 20/6/2014 delivered in C.T. 46 of 2011 by the Sessions Judge, Rayagada. By the said Judgment, the Sessions Judge convicted the appellant for committing the offence punishable under Ss. 302 and 323 of the IPC and sentenced him to suffer rigorous imprisonment for life [without imposing fine] and one year rigorous imprisonment for committing offence under Sec. 323 of the IPC. It has been also observed that the appellant is entitled to setoff under Sec. 428 of the Cr.P.C. While returning the finding of conviction, it has been observed by the Sessions Judge that the act of the appellant in dealing blows on the deceased cannot be termed to be only an act of preventing him from taking P.W.2 away. Had that been the case, the appellant could have pushed away the deceased, who was much older than him or, in the worst case, could have dealt a single blow to deter him for interfering in taking his wife away. The accused did not stop at a single blow. He dealt successive blows which certainly cannot be understood as preventive. In addition, it is also to be seen that the force with which the blows were dealt and the impact that caused, caused the death by doing an act with knowledge that he was likely by such act to cause death. Having noted thus, the Sessions Judge has held that it cannot be said that the act of the appellant was impulsive and outcome of his volatile temper. Thus, the appellant committed culpable homicide. The act with which the death is caused is done with intention of causing such bodily injury to the deceased, namely Bijaya Kumar Majhi and such bodily injury was sufficient in the ordinary course of nature to cause death. Hence, it has been observed that the clause, thirdly of Sec. 300 IPC read with illustration (c) takes within its fold the facts and the attendant circumstances of the case. Thus, the defence plea of culpable homicide not amounting to murder was discarded. It may not be out of context to note that the appellant dealt blow also on the wife of the deceased (P.W.4) by the same Musala (the weapon of offence), she sustained injuries on her head and fell down. P.W.15 found lacerated wound on the back of her head but she was not examined by P.W.21, as she was hospitalized till 16/1/2011. Such evidence has not been disputed, in any manner. From the above, it is clear that by the act of the accused she sustained pain. So the culpable act of hurt is proved against the appellant. The appellant by assault by Musala caused bodily pain to P.W.4 with intention to cause hurt to her. Hence, the conviction based on those findings is under challenge, by means of this appeal.

(2.) It appears that this appeal has been structured fundamentally on two grounds viz. (1) due to sudden provocation, the occurrence took place and hence, the conviction under Sec. 302 of the IPC is unsustainable and (2) there had been no meditation or preparedness but on the spur of a moment, when the deceased prevented the appellant being enraged hit the deceased and his wife with Musala. Therefore, there is no evidence of intention to kill as is essentially required to form the charge under Sec. 302 of the IPC. For the purpose of appreciating the appeal, the facts as are considered relevant, may briefly be introduced at the outset.

(3.) The wife of the appellant namely, Narangi Majhi, is the daughter of the deceased, namely, Bijaya Kumar Majhi. There had been matrimonial discord and his daughter came to his house. On 8/11/2011 at about 06.00 P.M., the appellant and his brother, Agin, Sister-in-law, Subarna, came to the deceased's house to take back Narangi. It was agreed that Narangi would leave for her matrimonial home. The deceased entreated the appellant and others to stay at night and to take his daughter on the following morning. During the discussion, the appellant tried to forcibly drag Narangi, but the deceased objected and prevented him. The appellant got enraged, being obstructed, and dealt two blows on Bijaya's head by means of a hand wood (Musala) lying nearby, resulting in bleeding injuries. The appellant also assaulted Laxmi Dei, Bijay's wife when she rushed to his rescue. Neighbours intervened, but the appellant fled from the scene. The injured were removed to Kashipur Hospital and thereafter to the District Headquarters Hospital at Rayagada. Their nephew, one Phaguna Majhi, P.W.1, lodged a written report at Kashipur Police Station on the following morning at 7 A.M. and the investigation commenced. On completion of the investigation. The charge sheet under Ss. 302 and 323 of the IPC was submitted. Following the procedure, the case was committed to the Court of Sessions, and the trial commenced on the charge, as framed. The charge was framed under Ss. 302 and 323 of the IPC, which was squarely denied by the appellant. After recording the evidence, the Trial Judge formulated three points for convenience of decision. Before that, the appellant was examined under Sec. 313 of the CrPC points those were formulated are: