Partly allowed

Ramesh Naik v. State

Orissa HC18 Jul 2019JCRLA/38/2010

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal in part. The court recognized that the matricide was committed in the heat of passion without premeditation due to non-availability of food. It recharacterized the offense from murder to culpable homicide not amounting to murder and sentenced the appellant to ten years' Rigors without imposing a fine.

What did the court decide?

Appeal allowed in part. Conviction under Section 302 IPC set aside; appellant convicted under Section 304 IPC Part-1 and sentenced to ten years' imprisonment without fine.

Ramesh Naik Vs State — Murder and Culpable Homicide | Orissa HC (2019)

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HIGH COURT OF ORISSA ; CUTTACK

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JCRLA NO.38 0F 2010

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From an order dated 12.1.2010 passed by the learned Adhoc Addl. Sessions Judge(Fast Track), Champua in S.T. Case No.43/216 of 2009.

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----------Ramesh Naik … Appellant Versus State of Orissa … Respondent ----------For Appellant : M/s.C.R. Sahu, Advocate For Respondent : Addl. Government Advocate. ------------ P R E S E N T :

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THE HONOURABLE MR. JUSTICE S.K.MISHRA AND THE HONOURABLE DR. JUSTICE A.K.MISHRA

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Date of judgment: 18.7.2019

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S.K.Mishra,J . This is a case of matricide. The appellant has preferred this appeal assailing the judgment of conviction and order of sentence dated 12.1.2010 passed by learned Adhoc Addl. Sessions Judge, (Fast Track) Champua in S.T. Case No.43/216 of 2009 convicting the appellant under Section 302 of the Indian Penal Code 1860 (hereinafter referred to as “I.P.C.” for brevity) and sentencing him to undergo imprisonment

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for life and pay a fine of Rs.5,000/- (rupees five thousand) in default to undergo R.I. for six months.

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Shorn of unnecessary details, the case of the prosecution is that the son-in-law of the deceased Kapura Naik got telephonic information in the dawn hour of 4.5.2009 that his brother-in-law Ramesh Naik, who happens the to be the son of the deceased, has committed murder of Kapura Naik by inflicting blows. The informant came and saw the dead body of his mother-in-law was lying with multiple injuries and the dead body was lying in the room of the deceased. The son of the deceased Kapura Naik said to have assaulted his mother Kapura having been enraged as his mother had not prepared curry for him. Son of the deceased had assaulted his mother by means of one wooden lathi and one iron rod. The assault was inflicted on the head and others parts of the body of the deceased Kapura and she succumbed to the injuries after some time. The informant Parameswar Dehury lodged written report before the Inspector-in-charge Joda Police Station who in turn registered Joda P.S. Case No.79 dated 4.5.2009 under Section 302 of the I.P.C. by arraying Ramesh Naik son of the deceased as accused in this case. The Police on receipt of the said information took up investigation of the case and after completion of investigation filed charge sheet against the convictappellant under Section 302 of the I.P.C.

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The plea of the convict-appellant is that of complete denial.

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The prosecution in order to bring home its case has examined as many as thirteen witnesses. Out of

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them, P.W.5-Lalu Mahakud being a child is the sole eye witness to the occurrence. P.W.12- Dr. Aswini Kumar Das who performed autopsy on the dead body of the deceased and P.W.13 is the Investigating Officer who investigated into the case and submitted charge sheet against the accused. All other witnesses being the witnesses to the inquest, seizure etc. In addition to examine of this witness, the prosecution has relied upon eleven documents, which are marked as Exts.1 to 11. The convict-appellant, on the other hand, did not examine any witness on his behalf.

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In a case of murder, the duty of the court is to determine as to whether the death of the deceased was homicidal in nature or not. In order to establish its case, the prosecution has examined P.W.12, Dr.Aswini Kumar Das, who had conducted post mortem examination and found wounds on the dead body of the deceased which is as follows:-

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(i) Lacerated would on back side of the head of size 2 1/2” x 1” x bone depth;

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(ii)Lacerated wound behind the left ear of size 1” x ¼” x bone depth;

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(iii)Bruise on right outer aspect of the arm of size 2” x 1”; (iv) Lacerated wound on right wrist joint outer aspect of size 1” x ½” x skin depth;

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(v)Bruise on left hand of size 2” x 1”;

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(vi) Bruise on left thigh outer aspect 3” x 1”;

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(vii)Bruise on back of the left chest just below the scapula of size 3” x ½”.

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Doctor opined that the case of death is hemorrhage and shock. Time since death is about 12 to 24 hours at the time of post mortem examination. All

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the injuries are ante mortem in nature and might have been cause by due to blunt and heavy object. He proved the post mortem examination report as Ext.6 and Ext.6/1 is his signature therein. Doctor also deposed that he answered the query made by the police on producing the weapons of offence and post mortem report and the answers given by him thereon are:-

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(i) The injuries noted in the post mortem examination report of the deceased can be possible by the weapons of offence produced;

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(ii) The injuries can cause death of a person in ordinary course of time.”

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Thus, from the evidence of the doctor, it is quite clear that the death of the deceased was homicide in nature. Now it is to be seen whether the homicide of the deceased amounts to murder or does not amount to murder. In this connection the evidence of P.W.5 is most important. It is appropriate to examine the evidence of P.W.5.

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P.W.5-Lalu Mahakud was 12 years old at the time of examination in Court. The Court after being satisfied have come to the conclusion that he is quite competent to depose in the court and hence recorded his evidence. In the examination in chief he has stated that the informant Parameswr Dehury is his uncle(Mousa). The accused is his maternal uncle. The deceased Kapura Naik is his maternal grand mother. He has further stated that the occurrence took place on a Sunday night. He was present in the house of his maternal grand mother. On the date of occurrence, in the house

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of his maternal grand mother, the deceased and the accused were also present. In the night at about 8.00 P.M. the accused quarreled with this maternal grand mother as his maternal grand mother had not prepared curry. The accused got himself enraged and started assault the deceased by means of one splinted wood on her back and thereafter he again dealt blows by means of an iron rod on the head of the deceased as a result of which she sustained bleeding injuries on her head and back. P.W.5 further stated that his maternal grand mother on sustaining bleeding injuries survived for some hours but in the dawn hour of the night at about 4 A.M. she succumbed to the injuries sustained by her in the same house where she was assaulted by the accused. The accused absconded seeing the death of the deceased. In the cross-examination, this witness has stated that he cannot say that who is Parameswar Dehury though he has stated that is a fact that the house of the accused and the village of Joda Basti is a stony surfaced area. He has stated that his grand mother, deceased, is inhabit of consuming liquor. He has further stated that has his grand mother was in an inebriated condition, she could not cook curry for dinner of the accused. The accused prepared curry after assault his grand mother.

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Thus, from this it is apparent that there is no premeditation on the part of the accused appellant to commit murder of his mother rather in a spur of moment because of being enraged as food was not prepared for him by his mother as she was drunk, the occurrence took place. Exception-4 of Section 300 of the I.P.C. provides that culpable homicide is not murder if it

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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. It is apparent that the appellant is a rustic villager. There is also no material to show that there is premeditation to commit the offence, rather it occurred because of a heat of passion as food was not ready for him. He has not taken undue advantage and has not acted in a cruel or unusual manner. So we are of the opinion that conviction under Section 302 of the I.P.C. is not justified rather we are of the opinion that this is a case of culpable homicide not amounting to murder and it is punishable under Section 304 Part-1 of the I.P.C.

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Accordingly, we allow the appeal in part, set aside the conviction under Section 302 of the I.P.C. recorded by the learned Adhoc Addl. Sessions Judge (F.T.), Champua and convert the same to conviction under Section 304 Part-1 of the I.P.C. and sentenced the accused to undergo R.I. for a period of ten years. Since the accused is a poor man, who is unable to engaged counsel to argue his appeal, we are not inclined to impose any fine on him. In the result, the JCRLA is allowed in part to the extent as mentioned above.

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….….….………..…..

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S.K.Mishra, J

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….….………………….. Dr. A.K.Mishra, J Orissa High Court, Cuttack Dated 18th^h July, 2019 / A.K.Behera .

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Ramesh Naik v. State

Case brief

What is this about?

What did the court decide?

Ramesh Naik v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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