Laxman Murmu vs State of Orissa

Pradip Mohanty, J.—This Jail Criminal Appeal is against the order of conviction of the appellant under Sections 449, 302 and 506, Part-II, IPC as per the impugned Judgment dated 9.1.1996 of the Learned Sessions Judge, Mayurbhanj,, Baripada, camp at Karanjia.

Deceased Pana Murmu is the step-mother of the accused-appellant. In support of the allegation of matricide, prosecution stated that the accused stayed with his elder father (father''s elder brother) and succeeded to his estate, but he was still greedy about a share from the landed property of his father Madan Murmu (P.W. 2) and in that respect he was in the habit of picking up quarrel with deceased and P.W. No. 2. On the date of occurrence, i.e., on 25.10.1993 at about evening time he was rebuked by the deceased for catching fish by draining water from the paddy land of P.W. 2. The occurrence of matricide however took place around 8 p.m. in the night. Accused came and caused a incised wound by an arrow on the right side chest and while he was in the process of pressing it deeper by pressing deceased against the door of the house, on hearing her shout for help, a neighbour named Jitaram Marandi (P.W. 1) arrived at the spot, separated the accused from the deceased and in that process the arrow in the hands of the accused also came out from the chest. P.W. 1 pushed the accused outside the house, for which the later fell down. Then Bada Arjuna Marandi (P.W. 3), another neighbour reached at the spot and wanted to detain the accused. There was a scuffle between him and the accused, and the accused could succeed to escape and flee from the spot of occurrence. At the time of such decamping he also threatened P.Ws. 1 and 3 with dire consequences for their intervention in the above manner. The deceased after being relieved from the clutches of the accused, came out from the room; some water was administered to her, but she succumbed to the injury. The local police was intimated and that followed with a routine investigation. On completion of investigation, charge-sheet was submitted.

Charge was framed u/s 449, IPC against the appellant, for the offence of house trespass within intention to commit murder of Pana Murmu (deceased), u/s 302, IPC for committing that murder and u/s 506, IPC for criminal intimidation against P.Ws. 1 and 3.

To substantiate the accusation, prosecution examined seven witnesses (particulars of P.Ws. 1 to 3 is already noted above). P.W. 5 is the doctor, who conducted autopsy on the dead body of the deceased, P.Ws. 6 and 7 are two police officers participating in the investigation and P.W. 4 is a witness to the seizure of incriminating articles including blood stained earth, wearing apparels, etc. Exts. 1 to 13 are the documents relied on by the prosecution. Out of that, Ext. 1 is the FIR, Ext. 2 the Inquest Report, Ext. 10 the Postmortem Report, Ext. 10/3 the Opinion Report of P.W. 5 on the weapon of offence and Exts. 11 and 12 the reports of the Chemical Examiner and the Serologist, The weapon of offence, the bow and arrow and the wearing apparels of the accused and the deceased were marked M.Os. I to VIII.

Accused took the defence plea-admitting his presence at the scene of occurrence, admitting the injury to the chest of the deceased due to piercing the arrow and admitting her death on that account. In that connection his explanation was that when he had gone to demand a share, P.W. 2 wanted to shot an arrow at him; so he went and engaged in a tussle to remove the bow and arrow from the hands of P.W. 2, and then the deceased came and dealt blow on his head and in the whole process the arrow left the bow and pierced into the chest of the deceased accidentally. In support of the defence plea, he has examined one witness, i.e., D.W. 1 -Dr. Bhagaban Dixit, who granted an injury certificate relating to the abrasion on his eye-lid.

On assessment of evidence on record, both oral and documentary, Learned Sessions Judge found that prosecution has proved its case of homicidal death through the evidence of P.W. 5 because of the incised wound on the right chest-wall above the right breast 1" away from the sternum at 4th rib level with the width of 1 1/2" up to the full thickness of the chest-wall piercing the muscle and sternocostal joint into the cavity of the thorax. The doctor also opined that the injury was directed from above to the downward. According to the doctor, that injury with the corresponding internal injury was sufficient to cause the death of the deceased in ordinary course of nature. As noted above, the Trial Court, relying on that evidence recorded the finding that the deceased suffered a homicidal death. Learned Counsel for the appellant argues about the improbability of such an injury in the manner in which the blow was alleged to have been dealt by the appellant. However, he does not dispute the homicidal death of the deceased.

On being satisfied about the homicidal death of the deceased, the Trial Court found that the evidence of P.Ws. 1, 2 and 3 are sufficient to prove that appellant is the author of the injury and in that respect the defence evidence of right of private defence was not at all proved by him. The Trial Court also recorded the finding that injury found on the eye-lid of the accused being minor and superficial one, prosecution cannot be held to be guilty of suppression of material evidence and that injury, as explained by P.Ws. 1 and 3 was caused when P.W. 1 pushed him and P.W. 3 tussled with him to over-power and detain him. The Trial Court also found that the plea of right of private defence or the other defence pleas taken by the accused remained not proved and, therefore, accused is not entitled to any benefit on the basis of such plea.

On the basis of such evidence, Trial Court found that the offences charged are provided and accordingly he found the accused guilty of all the three offences. After hearing the accused on the question of sentence, he imposed the sentence of imprisonment for life for both the offences under Sections 449 and 302, IPC and imprisonment for one year u/s 506, Part-II, IPC and directed to run all such sentences concurrently.

Learned Counsel for the appellant argues that evidence of P.W. 2 that accused pierced the arrow was never the case of the prosecution and P.W. 2 also did not make any such statement before the I.O. The evidence of P.W. 2, who is a highly interested witness being the husband of the deceased, should be excluded. He also argues that evidence of P.W. 1 that the accused pierced the arrow is not probable, because an arrow could not have been pierced with the application of normal human force to such a depth and, therefore, that evidence being improbable is to be eliminated. He further argues that, on elimination of the evidence of the aforesaid two witnesses the evidence of P.W. 3 is not sufficient to lay out the circumstances under which the concurrence took place and the deceased was injured and, therefore, the plea of the accused should not have been rejected as not proved. He argues that if a fresh and proper look is adopted in that manner, then benefit of doubt is available to the accused and the same accordingly be granted to him.

The aforesaid argument is attractive but devoid of merit in view of clear-cut evidence available on record. The evidence of P.W. 2 is clear enough to show that accused was present besides himself when the deceased sustained injury due to the piercing of the arrow. That fact has not been disputed by the accused in his defence plea. Nonetheless, prosecution is required to prove beyond all reasonable doubts that the arrow was pierced into the chest of the deceased by the accused. The evidence of P.W. 1 is sufficient to prove such a fact situation. Under such circumstance, the omission on the part of P.W. 2 to state that the arrow was shot from the bow is not a vital omission so as to discard the prosecution case in toto. P.W. 2 is the husband of the deceased and at the same time he is also the father of the accused. Therefore, in absence of proof of motive to make a false accusation against the accused, his evidence is not to be discarded only on the ground that he is a close relative of the deceased. Apart from that, evidence of P.W. 1 relating to the manner of participation of the accused in the occurrence has been sufficiently corroborated by P.W. 2 and the post-occurrence witness, P.W. 3.

When the accused took the plea of the accidental injury to the chest of the deceased and at the spot of occurrence at the relevant time there was none except himself and P.W. 2, he should have proved that fact by adducing acceptable evidence. Accused has not done so. The evidence of D.W. 1, as rightly commented by the Trial Court, is hardly relevant for that purpose when the injury has been explained through the evidence of P.Ws. 1 and 3. Therefore, in this case, we find that when the prosecution has proved the case of homicidal death of the deceased because of the overt act committed by the accused, the latter has failed to make out a case in support of the defence plea taken by him or even relating to the case of right of private defence or a case of culpable homicide not amounting to murder, Under such circumstance. We also do not find any reason to accept the alternative argument of the appellant for his conviction u/s 304, IPC.

For the reasons indicated above, we confirm the order of conviction and sentence and dismiss the appeal.

P.K. Tripathy, J.

I agree.