Partly allowed

Kuma Majhi v. State

Orissa HC25 Jul 2019JCRLA/109/2004

Case brief

AI extract

What is this about?

High Court of Orissa allowed the appeal in part, holding that the prosecution did not prove murder under Section 302 IPC. The court converted the conviction to culpable homicide not amounting to murder (Section 304 Part-I IPC) due to the sudden nature of the fight and reduced the sentence.

What did the court decide?

Conviction under Section 302/34 IPC set aside; converted to Section 304 Part-I IPC with sentence of ten years' imprisonment.

Kuma Majhi Vs State — Murder and Culpable Homicide | Orissa HC (2019)

¶1

HIGH COURT OF ORISSA: CUTTACK.

¶2

Jail Criminal Appeal No.109 of 2004

¶3

An application under Section 374 of the Code of Criminal Procedure against the judgment of conviction dtd.22.7.2004 of learned Addl. Sessions Judge, Nuapada in Sessions Case No.81/12 of 2003.

¶4

¶5

Kuma Majhi & Ors. ….…… Appellants.

¶6

VersusState of Odisha …….… Respondent.

¶7

Counsel for Appellants : M/s. J. N. Panda and J. B. Sahu. Mr. Arunendra Mohanty.

¶8

Counsel for Respondent : Mr. B. P. Pradhan, Addl. Govt. Advocate. PRESENT:

¶9

THE HONOURABLE SRI JUSTICE S. K. MISHRA. & THE HONOURABLE DR. JUSTICE A. K. MISHRA.

¶10

Date of hearing and Judgment : 25.07.2019

¶11

¶12

S. K. Mishra, J. In this appeal, the appellants having been convicted for the offence U/s.302 / 34 of the Indian Penal Code, 1980 (hereinafter referred as the ‘I.P.C.’ for brevity) by the learned Addl. Sessions Judge, Nuapada in Sessions Case No.81/12 of 2003 as per the judgment dtd.22^nd July, 2004, assail their conviction and sentence of imprisonment for life.

¶13

Prosecution case, bereft of all unnecessary details can be

¶14

described as follows:-

¶15

¶16

One Dokar Paharia, on 07.02.2001 at about 7.30 P.M., presented a written report before P.W.8, the then A.S.I. of Police, Tarbed Out Post alleging that his brother-in-law (deceased Sunadhar Paharia) had been to village Getma on 5.2.2001 morning and on his way at Adar village, he learnt that, his brother-in-law (deceased) fell down and expired. On the said information, P.W.8 registered Tarbed Out Post, U.D. Case No.1 of 2001 and enquired into the matter. During inquiry P.W.8 visited the spot, held inquest over the dead body of the deceased vide Ext.4, sent the dead body for post mortem examination, received post mortem examination report, seized cycle of the deceased from the house of accused Kuma Majhi vide seizure list Ext.3/1, seized one green colour check lungi having blood stains under seizure list Ext.2, examined other witnesses and lodged written report before P.W.14 vide Ext.5 for registration of a case U/s.302/201/34 I.P.C.. P.W.14, after receipt of the written report from P.W.8 registered Komna P.S. Case No.18 dtd.08.03.2001 U/s.302/201/34 I.P.C. and took up investigation. During investigation P.W.14 examined witnesses including the informant, visited the spot, prepared spot map vide Ext.7, received the record in Tarbed Out Post U.D. Case No.1 of 2001 with the relevant documents, searched the house of the accused persons, seized one wooden lathi from the house of accused Maniram Majhi and another wooden lathi from the house of accused Parsu Majhi vide seizure list Ext.11, arrested the accused persons, forwarded them to the court,

¶17

¶18

seized three small vials containing blood samples of the accused persons vide seizure list Ext.8, sent the exhibits to R.F.S.L., Berhampur through court and after completion of investigation placed charge sheet against the accused persons showing accused Upasu Majhi as an absconder.

¶19

Defence took the plea of complete denial and during examination U/s.313 Cr.P.C. the accused persons have stated to have been falsely implicated in this case. Further the accused Kuma Majhi has denied regarding seizure of cycle of the deceased from his house and the other accused Maniram Majhi and Parsu Majhi have denied the seizure of wooden lathies (M.Os.III & IV) from their house. No defence witness has been examined by the accused persons.

¶20

Prosecution, in order to substantiate the charges, had examined 14 witnesses, out of whom P.W.8 is the informant, P.Ws.1 and 2 are occurrence witnesses, P.W.3 is a witness to inquest, P.W. 4 is the sister of the deceased and a post occurrence witness, P.W.5 is a witness to inquest and also accompanied the dead body to the Hospital for post mortem examination and a witness to the seizure of wearing apparels of the deceased, P.W.6 is a witness to the seizure of lungi and shirt of the deceased vide seizure list Ext.2, P.W.7 has not supported the prosecution case. P.Ws.9 and 10 are post occurrence witnesses, P.W.11 even if had been cross-examined by the prosecution, had stated about

¶21

¶22

the seizure of cycle from the house of accused Kuma Majhi vide seizure list Ext.3/1, P.W.12 is the doctor who had conducted post mortem examination over the dead body of the deceased vide P.M. report Ext.6, P.W.13 is the elder brother of the deceased who is a post occurrence witness and P.W.14 is the investigating officer.

¶23

In course of hearing of the appeal, learned counsel for the appellants does not assail the conclusion of learned Addl. Sessions Judge to the effect that the death of the deceased was homicidal in nature. In fact, we have perused the statement of doctor P.W.12 – Dr. Chandra Sekhar Pradhan and concur with the conclusion arrived at by learned Addl. Sessions Judge that the death of deceased was homicidal in nature.

¶24

Learned counsel for the appellants however, argues that the materials on record do not make out an offence U/s.302 I.P.C., rather or at best an offence U/s.304 Part-I is made out. Therefore, he urges the Court to convert the conviction from U/s.302/34 I.P.C. to one U/s.304 Part-I / 34 I.P.C.

¶25

Mr. B. P. Pradhan, learned Addl. Government Advocate, on the other hand, supports the findings recorded by the Trial Court and urges the Court to dismiss the appeal.

¶26

¶27

As noted earlier, P.Ws.1 and 2 are two witnesses of the occurrence. P.W.1 – Baghuram Paharia has stated that he knows the accused persons and the occurrence took place about three years prior to his deposition in the court. He along with Sukrasen Paharia had been to Saseng village for selling topa (basket). At about 7 P.M. they were returning after selling Kula and found the deceased in the house of accused Kuma Majhi. The deceased called them for taking liquor in the house of Kuma Majhi after mortgaging his cycle. The deceased Sunadhar Paharia mortgaged his cycle for Rs.40/- and took liquor. The accused persons Maniram, Upasu, Kuma and Parsu came armed with lathies and assaulted the deceased and the deceased succumbed to the injuries at the spot. He and Sukrasen ran away out of fear.

¶28

This witness has been cross-examined by the prosecution and he has stated that he had stated before the investigating officer that after taking liquor the deceased picked up quarrel with Kuma Majhi and Kuma Majhi had driven the deceased out from her house; and that they informed the matter to Mange Paharia.

¶29

In cross-examination by defence, this witness stated that the accused persons namely, Maniram, Parsu and Kuma belong to village Gotma which situates at a distance of 2 kilometers away from his village. He has further stated that after their return from village Susen,

¶30

they found the deceased in the house of accused Kuma Majhi. The

¶31

¶32

deceased made the whole payment for consuming liquor. At the time of taking luquor, the daughter-in-law of accused Kuma Majhi requested them to leave the house of accused Kuma. He has further stated that the absconding accused Upasu assaulted him by lathi and chased him up to the Kendu tree to a distance of about 30 to 40 cubits. Out of fear he left the spot.

¶33

P.W.2 – Sukrasen Paharia has stated in his examination-inchief that about two years of his examination in the court, he had accompanied P.W.1- to village Susen to sell Supa (Kula). They sold the Supa and in the afternoon they returned to their village. While returning they found deceased near the house of accused Kuma Majhi. The deceased called them to take liquor stating that he has mortgaged his bicycle for Rs.40/-. The deceased purchased two bottles of liquor and in the house of accused Kuma Majhi they took liquor. The family members of accused Kumar Majhi objected to the behavior of deceased and told them to leave the house of Kuma Majhi. After that accused Maniram, Parusu, Upasu and Kuma Majhi came armed with lathies and assaulted the deceased causing death of the deceased. Out of fear, this witness and P.W.1 left the spot and informed the matter to the sister of deceased.

¶34

Cross-examination of this witness reveals that they found

¶35

the deceased sitting in the house of accused Kuma Majhi. Being called

¶36

¶37

by the deceased they went to the house of Kuma Majhi and all of them took liquor. He has further stated that he and P.W.1 saw the accused persons assaulting the deceased by lathi and out of fear they left the spot. The accused persons assaulted the deceased on his head, leg and waist. But the witness further states that due to darkness he could not say whether the lathies were of bamboo or wooden lathies.

¶38

It is apparent from the record that P.W.12, the doctor found blebs on the left side of the body and thighs, abrasion over right side of the body, bruises over the right side of body 2cm X 0.25cm, bruise of size 1cm X 0.25cm over right side of the body, bruise over left side of the head over the ear 4cm X 3cm. On dissection he found facture over the tempero parietal bone of left side, intracranial haemorrhage (bleeding) on the interoparietal region of the brain on left side with sub-dural haematoma of size around 8cm X 4cm.

¶39

Thus, it is clear that the bruise over the left side over the head and corresponding internal fracture injuries and intracranial haemorrhage has caused the death of the deceased, which can be caused by a blunt weapon.

¶40

From the materials available on record it is apparent that when the deceased and two witnesses, i.e. P.Ws.1 and 2 were consuming liquor in the house of accused Kuma Majhi there was some disturbance and they requested the deceased to leave the place.

¶41

¶42

Thereafter the accused persons assaulted the deceased by means of lathies. It is apparent that only four bruises were found as external injuries. Only one injury on the left side of the head is the fatal injury.

¶43

We take recourse of exception 4 of section 300 of the I.P.C. which reads as follows:-

¶44

“Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

¶45

Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault.”

¶46

It is apparent that this offence was committed without any

¶47

premeditation and in a sudden fight because of a petty quarrel while the deceased was taking liquor inside the house of accused Kuma Majhi.

¶48

So, in our considered opinion, this is not a case of culpable homicide amounting to murder, punishable U/s.302 of I.P.C., rather it is an offence of culpable homicide not amounting to murder punishable U/s.304 Part-I of I.P.C.

¶49

Thus, on the above discussion, we allow the appeal in part, set aside the conviction of the appellants U/s.302/34 I.P.C. and also set aside the sentence of imprisonment for life.

¶50

We convert the conviction of the appellants to one U/s.304

¶51

Part-1 read with section 34 of I.P.C. and sentencing each of the

¶52

¶53

appellants to undergo imprisonment for 10 (ten) years. We are not inclined to impose any fine upon the appellants.

¶54

The substantive sentences should be set off with the period

¶55

already undergone.

¶56

The appeal is accordingly disposed of.

¶57

L.C.R. be returned forthwith.

¶58

…. ………………… S. K. Mishra, J.

¶59

Dr. A. K. Mishra, J. I agree .

¶60

…. ………………… Dr. A. K. Mishra, J.

¶61

Orissa High Court, Cuttack, Dated the 25^th July, 2019/MKP

Kuma Majhi v. State

Case brief

What is this about?

What did the court decide?

Kuma Majhi v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jayanti Devi Vs Ramdeo Shaw

Debaki Nayak Vs Pradeep Ku.Nayak

M/S.Sahu Namkins Vs State

Nirakar Patra Vs State

Bauribandhu Mohapatr Vs Collector,Puri

Ustakya Pradhan Vs Prahallad Pradhan