State of Orissa vs Duga Munda

P.K. Tripathy, J.—Heard both the parties and the judgment are as follows:

Order of acquittal in Sessions Trial No. 38 of 1992 of the Court of Sessions Judge, Sundargarh, Camp at Bonai is under challenge. Respondent was charged for the offence under Sections 302 and 506, Indian Penal Code on the ground of committing murder of his brother and causing Criminal intimidation to P.W. No. 5, i.e., the wife (widow) of the deceased. Accused denied to the charge and claimed trial.

The admitted case of the parties is that Mania Munda the deceased is the younger brother of accused Duga Munda. Sumi Munda (P.W. No. 5) is the wife of the deceased. Dasru Munda (P.W. No. 4) is the paternal uncle of the accused and deceased. P.W. No. 5 lodged the FIR inter alia alleging that the instigation other mother-in-law, accused came being armed with a knife and scolded the deceased for misbehaving the mother. That quarrel lead to a scuffle between the two brothers and in that process accused dealt a knife blow, as a result of which, the deceased died at the spot. In the process of that quarrel when she wanted to intervene the accused threatened her. Because of that she went and sought for the help of Dasru Munda (P.W. No. 4). When P. Ws. 4 and 5 arrived at the spot, they found the deceased lying dead. On receipt of such an FIR the Officer-in-charge of K. Bolang P.S. took up the investigation and after completion of the same submitted charge-sheet against the accused Respondent. As noted above, the Respondent denied to the charge and claimed trial.

In course of the trial, prosecution examined seven witnesses. So far as the present appeal is concerned, besides the evidence of P. Ws. 4 and 5, the evidence of Doctor S.K. Satapathy (P.W. No. 3) who conducted the post-mortem examination is relevant for consideration. Prosecution also exhibited documents Exts. 1 to 17. Out of that Ext. 1 is the injury report of the accused and Ext. No. 2 is the opinion report of the Medical Officer that such injury is possible by the knife (M.O.I.) Ext. 7 is the FIR Ext. 4 is the post-mortem report. Ext. 5 is the opinion report of the Doctor (P.W. No. 3) that the injury was sufficient in ordinary course of nature to cause the death of the deceased and Ext. 6 is the opinion that the injuries in the post-mortem report are possible by M.O.I. The other documentary evidence is of no relevance for the present.

P.W. No. 5 being the solitary eye-witness to the occurrence that carried the total importance to guide the fate of the case. In her examination-in-chief, P.W. No. 5 stated about a scuffle between the brothers and in that process accused inflicted the injuries on the body of the deceased by means of M.O.I. but in cross-examination in clear tone she stated that the injuries were caused both on the accused and the deceased in the process of scuffle and when each of them attempted to hit the other by means of a knife. She further stated that the injury which occurred in the body of the deceased were in the process of scuffle. Notwithstanding the clear evidence of P.W. No. 3 and the reports Exts. 4 to 6, proving homicidal death of the deceased, Learned Sessions Judge passed order of acquittal in favor of the accused because of the evidence of P.W. No. 5. Learned Sessions Judge also recorded that according to the evidence of P.W. No. 5, the mother of the accused (also of the deceased) being a person present at the spot, her evidence was not brought on record and that goes against the prosecution. On making analysis of the facts and evidence in that matter, the Trial Court passed of the acquittal.

Learned Standing Counsel without disputing the aforesaid fact situation available from the Lower Court record argued that if the whole act is strictly visualized, then that makes out a case u/s 304, Part-II, Indian Penal Code against the accused and when charge has been framed u/s 302, Indian Penal Code, therefore, Learned Sessions Judge should have convicted him for the aforesaid offence. Learned Counsel for the accused-respondent on the other hand argued that when the injuries inflicted on the body of the deceased were in course of a scuffle and that is made clear in the cross-examination of P.W. No. 5, that during the scuffle the knife struck in the chest of the deceased, therefore, no case is made out against the accused for any of the offences. He also argues that when the plea of right of private defense of the person of the accused is apparent from the aforesaid evidence on record that is to be extended in his favor even if the accused being defended by a State Defense Counsel in the Trial Court has not taken such a plea.

On due consideration of the aforesaid contention of the parties, we do not accede to the argument of the Learned Standing Counsel for the reasons that the evidence of P.W. No. 5, totally defeats the prospect of sustaining a charge u/s 304, Part-II, Indian Penal Code, inasmuch as according to P.W. No. 5, the injury occurred in the body of the deceased in the process of scuffle where each of the brothers were respectively defending their own persons. Therefore, it leads to an accidental injury. The presence of four injuries in that respect, does not change the fact scenario that such injuries were caused in course of scuffle. Under such circumstance, we do not interfere with the order of acquittal and accordingly dismissed the Government Appeal.

Learned Counsel for the Respondent, states that though the Respondent was allowed to go on bail u/s 390, Code of Criminal Procedure. but because of his poverty, he could not furnish the surety and therefore, he is detained in jail custody. If that be so, he may immediately be set at liberty.

A.K. Samantray, J.

I agree.

Appeal dismissed.