Chauhan Samarath vs State of Orissa

Appellant was charge-sheeted and ultimately charge was framed against him u/s 302, I.P.C. on the accusation that on 14.06.1997 at about 4. A.M. in village Dhamandanga he intentionally committed murder by dealing a Tabli (Axe) blow to the neck of his wife Majeen Samarath, (hereinafter referred to as "the deceased"). After a full dressed trial, learned Addl. Sessions Judge found him responsible for the homicidal death of the deceased and accordingly, convicted him u/s 302, I.P.C. and sentenced him to imprisonment for life. The Appellant challenges that order of conviction.

According to the case of the prosecution, accused executed sale deed and transferred some of his landed properties in favour of Benudhar Meher (P.W.4). The deceased was protesting to such sale transacted by the accused and had left the matrimonial house in the past and about 3 days before the date of occurrence, accused brought her back to his house. According to the further case of the prosecution on 14.06.1997 at about 4 A.M., because of the quarrel between the spouses, accused dealt a Tabli blow cutting the neck on the right side and resulting in instantaneous death of the deceased. Accused leaving the deceased and the weapon of offence in his bed-room, ran away but later on police arrested him. Durlava Samarath (P.W.5) is the son of the accused and the deceased. He lodged the F.I.R., Ext.8 at Kantabanji Police Station. Police Officers of Kantabanji Police Station undertook the investigation and in course of that not only held inquest over the dead body and forwarded the same for postmortem examination but also seized incriminating materials during the spot visit and also arrested the accused at a later date and seized blood-stained wearing apparels. On completion of investigation, charge-sheet was submitted against the accused.

White denying to the charge as noted in the impugned judgment, accused admitted to the dispute between himself and his wife because of sale of land by him and the homicidal death of his wife by means of the Tabli.

It is admitted by the prosecution that there was no eye-wetness to the occurrence, therefore, prosecution proved the charge through circumstantial evidence. In furtherance thereof, prosecution examined eight witnesses. Out of them P.W.5, being the son of the accused and the deceased, stated that his parents were in one room and in the morning he saw his father running away while his mother was lying dead with bleeding injury on neck and the weapon of offence lying at the spot. Pitabasa Majhi (P.W.6) is the nephew (Bhanaja) of the accused and the deceased. He was examined to prove the conduct of the accused in running away and making extra-judicial confession to him. The other witness is Digambar Puta (P.W.7), who was examined to prove the extra-judicial confession of the accused. Pravakar Panika, P.W.2 is a witness to the inquest and Pranadananda Mohanty (P.W.3) is a witness to the inquest report, Ext.5 and seizure list, Ext.6, under which blood-stained and sample earth etc. were seized from the spot of occurrence. Benudhar Mahar (P.W.4) is a witness to the seizure of the wearing apparels of the accused, marked M.O. II to IV and seized under the seizure list, Ext.7. Dr. Sevak Meher (P.W.1) is the doctor who conducted autopsy on the dead body of the deceased and proved the postmortem report, Ext.4 besides his opinion report, Ext.3 on examining the Axe, M.O.I. He also examined the injuries of the accused on police requisition and proved the injury certificate, Ext.1 and the report relating to collection of nail clipping of the accused under Ext.2.

In his evidence, P.W.1 stated that on examining the dead body he found one incised wound (with clean cut edges and gaping in the middle) transversely over the lateral side of the right side neck and on dissection he found that there was cut of the jugular veins and both external and internal carotid vessels of right side found divided along with division of the palttysma and sterno cleido mastoid muscles of right side with blood clots attached to it. P.W.1 opined that the injury was ante mortem and sufficient in ordinary course of nature to cause the death of the deceased and the death was due to shock and haemorrhage produced from the aforesaid injuries. As noted earlier, in the trial Court, the accused did not dispute to the homicidal death of the deceased. Here also, learned Counsel for the Appellant does not dispute that the deceased suffered homicidal death. On perusal of evidence of P.W.1 we find that prosecution has proved beyond all reasonable doubt that the deceased suffered homicidal death.

P.W.5 being the son and P.W.6 being the nephew of the accused and P.W.7 being a co-villager, they did not support the prosecution in respect of the extra-judicial confession made by the accused. Nonetheless, each of them supported the prosecution by stating that they saw the accused running away and the deceased was lying dead with cut injury in her neck. Taking such evidence into consideration, learned Addl. Sessions Judge found it sufficient to hold the Appellant guilty of the offence of murder and accordingly convicted him u/s 302, I.P.C. and sentenced to imprisonment for life.

Learned Counsel for the Appellant argues that in the absence of eye-witnesses to the occurrence, the aforesaid evidence of P.Ws.5, 6 and 7 are not sufficient to prove that the accused is the author of the injuries which resulted in homicidal death of the deceased and it is more so when the prosecution has failed to prove the factum of extra-judicial confession and under such circumstance, the accused is entitled to benefit of doubt if not a clean-cut acquittal.

Disagreeing with the aforesaid argument, learned Standing Counsel argues that when the accused and the deceased were occupying the same room and in the early morning hour, the accused was seen running away and at that moment, there was no presence of any outsider except P.W.5, who saw the deceased lying dead and the accused running away, no better proof can be made available to substantially prove that accused is the author of that injury. In that respect, if accused did not commit the murder at least he had known who committed that murder if somebody else had done that. Since no explanation has been offered by the accused in that respect, the circumstances proved on record are sufficient to prove that accused is the author of the injuries. He further argues that the motive behind the crime is about the dispute on sale of land by accused to P.W.4. That part has also been proved by P.W.4 in course of his evidence and under such circumstance, prosecution has proved its case beyond all reasonable doubt.

On careful perusal of the evidence on record, we subscribe to the argument advanced by learned Standing Counsel because the evidence on record leaves no hypothesis for elimination of the accused as the culprit or to prove his innocence. Under such circumstance, we agree with the finding recorded by the trial Court that the accused is the author of the injury which resulted in homicidal death of the deceased.

Leaned counsel for the Appellant alternatively argues that if at all the Appellant is held to be the author of the injury, then the Court should take note of the circumstance leading to the occurrence, inasmuch as, the deceased was quarrelling with the accused always and the accused had consumed liquor in the night preceding and under such circumstance, the single blow dealt by him may be sufficient in ordinary course of nature to cause death, but the Appellant be found guilty of culpable homicide not amounting to murder. Learned Standing Counsel resists that argument with the only point at his command that the blow is sufficient in ordinary course of nature to cause death of the deceased and therefore, conviction u/s 302, I.P.C. is justifiable.

It is the trite law that there is thin margin of differences between a homicide amounting to murder and culpable homicide not amounting to murder. The difference is readable on conjoint reading of Sections 299 and 300, I.P.C. A detail deliberation on that is not necessary for the present purpose. We consider provocation factor. Abusing act and scolding conduct of the deceased aggravated the conduct of the accused to loose his balance and to deal a Tabli blow. The extent of annoyance and mental agony of a person of accused''s background has also to be considered.

Regard being had to the aforesaid facts and submission and the fact that the single blow was dealt by the accused when he had lost control over himself because of the provocation from the deceased, we agree to the argument of the learned Counsel for the Appellant and accordingly modify the order of conviction from murder to culpable homicide not amounting to murder punishable u/s 304, first part, I.P.C. Accordingly we also modify the sentence by setting aside the sentence of life imprisonment and impose the sentence of rigorous imprisonment for 10 (ten) years. Accordingly, the conviction u/s 302, I.P.C. is set aside and the Appellant is found guilty u/s 304, first part, I.P.C. and sentenced to imprisonment for rigorous imprisonment for 10 (ten) years. In the result, the Jail Criminal Appeal is allowed in part.

It is stated at the Bar and also we see on record that the accused after arrest was produced before the learned J.M.F.C., Kantabanji on 20.06.1997. He remained in jail custody till date, inasmuch as, no order for bail was passed in his favour. Thus, it appears that he has already remained inside the jail custody for over ten years. Under such circumstance, he be set at liberty forthwith if his detention in jail custody is not required in connection with any other criminal case.