Dismissed

Mathei Majhi v. State

Orissa HC26 Aug 2020CRA/278/1988

Case brief

AI extract

What is this about?

A culpable homicide conviction arising from an embankment dispute was upheld, and private defence was rejected. The court declined to limit punishment to custody already undergone but reduced rigorous imprisonment from seven years to five years. The appeal was dismissed with that modification.

What did the court decide?

Rigorous imprisonment reduced from seven years to five years; benefit of set-off under section 428 Cr.P.C. granted.

Mathei Majhi Vs State — Murder and Culpable Homicide | Orissa HC (2020)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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Criminal Appeal No. 278 Of 1988

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From the judgment and order dated 03.10.1988 passed by the Sessions Judge, Mayurbhanj, Baripada in Sessions Trial No. 133 of 1987.

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Gulia Majhi ……… Appellant -VersusState of Odisha ……… Respondent For Appellant: - Mr. Smruti Ranjan Mohapatra (Amicus Curiae) For State of Odisha: - Sk. Zafarulla, A.S.C. -----------------------------------

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing: 21.08.2020 Date of Judgment: 26.08.2020 -------------------------------------------------------------------------------

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S. K. SAHOO, J . The appellant Gulia Majhi along with his father

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Mathei Majhi and brother Salo Majhi faced trial in the Court of learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial No. 133 of 1987 for offence punishable under section 302 read with section 34 of the Indian Penal Code on the accusation of commission of murder of Kanda Majhi (hereafter ‘the deceased’)

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in village Kendua under Bisoi police station in the district of Mayurbhanj, Baripada in furtherance of their common intention.

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The learned trial Court vide impugned judgment and order dated 03.10.1988 found the appellant and the co-accused persons guilty under section 304 Part-II read with section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years each.

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The appellant and the co-accused Mathei Majhi and Salo Majhi preferred this appeal on 01.11.1988 and the appeal was admitted on 15.11.1988 and all of them were directed to be released on bail on that day. Basing on the report submitted by the learned Sessions Judge, Mayurbhanj, Baripada regarding death of Mathei Majhi, the appeal stood abetted against him on 22.02.2008. Similarly basing on the instruction received by the learned Addl. Standing Counsel for the State from officer in charge, Bisoi police station regarding death of Salo Majhi, the appeal also abetted against him on 06.08.2020

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During investigation, the appellant was taken into custody on 01.08.1987 and forwarded to Court on 02.08.1987 and he was released on bail on 21.10.1987. Again on his conviction, he was taken into custody on 03.10.1988 and he was released on bail by this Court on 15.11.1988.

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The prosecution case, as per the first information report (Ext.1/1) lodged by Ananta Majhi (P.W.1) of viilage Kendua before the officer in charge of Bisoi police station on 30.07.1987 is that his villagers had constructed an embankment in Kelua canal to accumulate water for bathing purpose and drinking of cattle. The appellant and the two co-accused who belonged to village Ambabeda cut a portion of the embankment in the morning hours on 30.07.1987. Hearing about this, P.W.1 along with some co-villagers came to the spot to confront the accused persons and for a settlement. At that time they found the accused persons and some female labourers were transplanting paddy seedlings in their land. When P.W.1 and other co-villagers called the accused persons, they challenged the villagers and also threatened them with dire consequences. The accused persons did not show any inclination for compromise. While P.W.1 and other co-villagers were talking amongst themselves, co-accused Mathei Majhi and Salo Majhi each being armed with an axe and the appellant being armed with a tangia came nearer them. The deceased challenged the accused persons as to how they cut the embankment for transplanting paddy seedlings which was constructed for accumulation of water for the purpose of cattle bathing. The

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accused persons assaulted the deceased on different parts of the body with the weapons which they were holding. The deceased sustained severe bleeding injuries and died at the spot and the villagers getting panicked left the spot.

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On the basis of such first information report, Bisoi P.S. Case No.38 of 1987 was registered under sections 302/34 of the Indian Penal Code on 30.07.1987 against the appellant and his father and brother. P.W.8, the officer in charge of Bisoi police station himself took up investigation. He sent Havildar P.Naik and another constable to the spot to guard the dead body. On the next day morning, he arrived at the spot where the dead body was lying and found the paddy seedlings were lying scattered and blood was found near the dead body. A check gamucha and a lungi were found near the dead body. The embankment was found cut of three feet wide. P.W.8 conducted inquest over the dead body in presence of the witnesses and prepared the inquest report vide Ext.10. The witnesses were examined and their statements were recorded. Blood stained earth, sample earth etc. were seized as per seizure list Ext.4. One green coloured printed lungi in a torn condition having stains of blood was seized under seizure list Ext.3 from near the spot. On production by accused Mathei Majhi, one tangia was

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seized under seizure list Ext.5 and one axe was seized under seizure list Ext.6. Some other seizures were made and seizure lists were prepared. The dead body was sent for post mortem examination. The accused persons were arrested on 01.08.1987 and forwarded to Court on 02.08.1987. The wearing apparels of the deceased were seized on being produced by the Havildar after post mortem examination under seizure list Ext.12. On requisition being made to the Tahasildar, Rairangpur by P.W.8, the land was measured and report was furnished as per Ext.14. P.W.8 handed over the charge of investigation to his successor Amiya Kumar Sahoo (P.W.9) on 24.08.1987 who in turn sent the material objects to S.F.L. through Court for chemical and serological examination on 04.09.1987 and on completion of investigation submitted under sections 302/34 of the Indian Penal Code on 20.10.1987.

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After commitment of the case to the Court of Session, charge was framed against the appellant and the two co-accused persons under sections 302/34 of the Indian Penal Code on 08.02.1988 by the learned trial Court to which they pleaded not guilty and claimed for trial and accordingly, the sessions trial procedure was resorted to establish their guilt.

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In order to prove its case, the prosecution examined nine witnesses.

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P.W.1 Ananta Majhi is the informant in the case and he is an eye witness to the occurrence.

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P.W.2 Daman Majhi came to the spot with P.W.1 and

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he is also an eye witness to the occurrence.

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P.W.3 Sugda Majhi stated to have informed the villagers regarding cutting of embankment and planting of paddy seedlings by some female labourers including the wife of accused Salo Majhi. He is also an eye witness to the occurrence.

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P.W.4 Singrai Majhi is a witness to the seizure of seizure lists Exts.2 to 6.

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P.W.5 Dr. Bijoy Kumar Sahu was the Asst. Surgeon in Rairangpur Hospital who conducted the post mortem examination over the dead body of the deceased and proved his report Ext.7.

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P.W.6 Purusottam Naik was the Havildar attached to

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Bisoi police station who escorted the dead body of the deceased to Rairangpur Hospital for post mortem examination. He also brought the wearing apparels of the deceased after the post mortem examination and produced before P.W.8.

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P.W.7 Dr. Santosh Kumar Pattnaik was the Medical

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Officer of Bijatala P.H.C. who examined the accused Mathei Majhi and Salo Majhi on 30.07.1987.

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P.W.8 Mardaraj Mishra was the officer in charge of Bisoi police station who is the investigating officer.

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P.W.9 Amiya Kumar Sahoo, the successor of P.W.8 took over charge of investigation from him and submitted charge sheet.

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The prosecution exhibited nineteen documents. Ext.1/1 is the F.I.R., Exts. 2 to 6, 11 and 12 are the seizure lists, Ext.7 is the post mortem report, Ext.8 is the dead body challan, Ext.9 is the command certificate, Ext.10 is the inquest report, Ext.13 is the office copy of requisition, Ext.14 is the office copy of letter of Tahasildar, Ext.15 is the office copy of forwarding letter of chemical examination, Ext.16 is the chemical examination report, Ext.17 is the serologist report, Ext.18 is the Internal Divisional Examination Report and Ext.19 is the entry in O.P.D. Register of Bijatala P.H.C..

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The prosecution also proved two materials objects. M.O.I is the tangia and M.O.II is the axe.

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The defence plea of the appellant and his father Mathei Majhi was one of denial. However, the co-accused Salo

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Majhi took a specific plea in the accused statement that when they were transplanting paddy seedling in their own land, the deceased and others came and surrounded them. Someone hit on his head and the deceased tried to throttle his neck and there was push and pull between them and he fled away from the spot becoming naked and his father Mathei Majhi whirled a Budia.

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The defence exhibited the Khatian of Mouza Kendua

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and trace map of plot no.212 as Exts. A and B respectively.

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The learned trial Court after assessing the evidence on record came to hold that the death of the deceased was homicidal in nature. It is further held that from the number and sites of the injuries, the question of the injuries being sustained accidentally due to whirling of an axe does not arise. The ocular evidence adduced by the prosecution is supported by the medical evidence. It is further held that it might be said that P.Ws.1 to 3 have tried to suppress the fact that the deceased put his hand on the neck of accused Salo but that is not of much consequence. It is further held that the accused persons had their land adjoining the area which was recorded as ‘Nala’. The injuries sustained by the two accused persons were too minor to attract the attention of the prosecution witnesses. The deceased being accompanied by some others came to the scene of occurrence where there

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was exchange of words and it cannot be said to be a case of premeditated action by the accused persons. The case of the accused that the deceased put his hand on the neck of accused Salo cannot be discarded. The deceased was previously been convicted in a case of murder. The accused persons had some provocation but that was not grave enough to retaliate in the manner they did. The accused persons are tribals and they use to have volatile temperament and the occurrence took place after some exchange of words and it might be said to be somewhat sudden. It is further held that the accused persons exceeded their limits and from the nature of injuries sustained by the deceased, there cannot be any doubt that they intended causing such injuries which were likely to cause death.

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Mr. Smruti Ranjan Mohapatra, learned Amicus Curiae contended that in the first information report, it is mentioned that accused Bucha Majhi along with accused Mathei Majhi and Salo Majhi committed the crime and even during trial, the eye witnesses have also implicated accused Bucha Majhi but there is no material that the appellant Gulia Majhi and accused Bucha Majhi are one and same person. P.W.1 is related to the deceased and an interested witness. He argued that there are discrepancies in the evidence of the eye witnesses with reference

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to their previous statements before police and though the eye witness (P.W.2) has stated that Bucha gave a number of cut blows around the neck of the deceased but there are no such injuries around the neck as per the post mortem report (Ext.7) and therefore, there are inconsistencies between the ocular evidence and medical evidence. He further contended that though the doctor (P.W.7), Medical Officer of Bijatala P.H.C. examining the co-accused Mathei Majhi and Salo Majhi on 30.07.1987 found injury on them but the prosecution has not offered any explanation in that respect which shows that the genesis of the case has been suppressed. It is further contended that the accused Salo Majhi has taken a specific plea of right of private defence and the deceased was convicted in a murder case and he caught hold of the neck of accused Salo Majhi first after initial confrontation between the parties and in such a situation, the finding of the learned trial Court that even though the accused persons had some provocation but they exceeded their limits is not justified. He placed reliance in the case of

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Ratnakar Mallik -Vrs.- State of Orissa reported in (2006)35 Orissa Criminal Reports 100 and contended that it is a fit case where benefit of doubt should be extended to the appellant. While concluding his argument, it was argued that the

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appellant is now more than sixty years and the occurrence has taken place more than thirty three years back and the appellant has remained in judicial custody for some months during investigation and after conviction and therefore, even if the conviction is upheld, the sentence may be reduced to the period already undergone.

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Sk. Zafarulla, learned A.S.C. on the other hand supported the impugned judgment and contended that the forwarding report of the accused persons clearly indicate that the appellant is also known as Bucha. He argued that except accused Salo Majhi in his accused statement, neither the appellant nor the other co-accused Mathei Majhi has taken any plea of right of private defence. Even the plea of right of private defence has not been suggested to the eye witnesses. He argued that only one superficial injury has been sustained by accused Mathei Majhi and Salo Majhi each and there was no requirement on the part of the prosecution to explain such injury. He further argued that none of the prosecution party members including the deceased were armed with any weapon and there was no reasonable apprehension of danger to the lives of any of the accused persons and therefore, the manner in which the deceased, an unarmed person was brutally assaulted by the accused persons

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with slight provocation clearly shows the act was done with the knowledge that bodily injuries were likely to cause death. He placed the evidence of the eye witnesses and the doctor (P.W.5) who conducted post mortem examination and contended that the evidence is consistent and minor discrepancies here and there cannot be ground to disbelieve the prosecution case. As per the order of this Court passed on 21.08.2020, he submitted a report of the officer in charge of Bisoi police station dated 22.08.2020 relating to the age, health condition and family status of the appellant.

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It is first to be seen how far the prosecution has proved the death of the deceased to be homicidal in nature.

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P.W.8 conducted the autopsy over the dead body of the deceased on 01.08.1987 and found the following external injuries:

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(i) Incised wound of 4½” x 3” x 2” with cutting of the underneath muscles over the middle portion of the exterior aspect of the right forearm;

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(ii) Incised wound of size 5” x 3” with fracture of the right side maxilla. The direction of the wound was towards the mandibular aspect;

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(iii) Incised wound of 4” x 3”x 2” over the right side of the face severing nerves, vessels and parotid gland in that region;

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(iv) Incised wound of size 5” x 3” over the temporal region extending to the occipital area with fracture of the temporal bone. The direction of the wound was towards the neck. The injuries nos.(ii), (iii) and (iv) were superimposed and might have been caused by heavy cutting weapon. The injuries contained dried up blood;

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(v) One stab wound of size 2½” x 1” x bone deep over middle portion of the forehead;

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(vi) One lacerated wound of size 2” x 1” over left index finger with fracture of the proximal phalanx and the finger was loosely hanging from the rest of the hand;

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(vii) Compound fracture of the squamous portion of the right temporal bone; (viii) Compound fracture of the occipital bone towards the right side with laceration of the meninges and there was intracerebral haematoma. This fracture corresponds to injury no.(iv); (ix) Fracture dislocation of the right side portion of the mandible.

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He opined that the fracture of the temporal bone

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corresponds to injuries nos.(iii) and (iv). Injury no.(i) could have been caused by a heavy cutting weapon and tangia and axe are heavy cutting weapons. The angular portion of a tangia or axe can cause the stab wound on the forehead. He further opined that either with M.O.I or M.O.II, stab wound could be caused. All

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the injuries were opined to be ante mortem in nature. He further opined that cause of death was due to shock and haemorrhage and time since death was within 48 to 72 hours of the time of examination. He further opined that injuries nos.(ii) to (iv) were individually sufficient to cause death in the ordinary course of nature. The post mortem report has been marked as Ext.7.

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The finding of the post mortem report has not been challenged by the learned Amicus Curiae. The learned trial Court has held that the death of the deceased was homicidal in nature. After perusing the evidence of the doctor (P.W.8), inquest report (Ext.10) and the post mortem examination report (Ext.7), I am of the humble view that the prosecution has successfully proved the death of the deceased to be homicidal in nature.

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It is not in dispute that in the first information report, it is mentioned that accused Bucha Majhi along with accused Mathei Majhi and Salo Majhi committed the crime and even during trial, the eye witnesses have also implicated accused Bucha Majhi but it cannot be lost sight of the fact that the forwarding report of the accused persons clearly indicate that the appellant is also known as Bucha. The defence has never raised any objection at any point of time that accused Bucha Majhi and the appellant are not one and same person. Therefore, the

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contention raised by the learned amicus curiae on this score is not acceptable.

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Coming to the evidence of the eye witnesses, P.W.1 has stated that when they asked the accused persons seeing them transplanting paddy seedlings, the accused Mathei Majhi claimed the land not to be a part of Nala. He further stated that none of the villagers were armed and the deceased was holding the hand of accused Salo and at that time accused Mathei Majhi brought an axe from under the creepers and hit the deceased on his hand, a little above the wrist. When the deceased left the hand of accused Salo, the later brought the axe from accused Mathei Majhi and hit the deceased on his back. The appellant then assaulted the deceased on different parts of his body with a tangia. The deceased fell down and there was profuse bleeding. P.W.1 identified the axe and tangia. In the cross examination, P.W.1 admitted that the deceased was his agnatic uncle and conviction of the deceased in a murder case and also about pendency of 107 Cr.P.C. proceeding between the parties. He stated that there was no quarrel and no tussle preceding the occurrence and the deceased did not catch hold of the neck of the deceased. It has been confronted to P.W.1 and proved through the I.O. (P.W.8) that he has not stated about accused

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Mathei bringing an axe from under the creepers. This contradiction is not of such a nature to disbelieve the evidence. Similarly, merely because P.W.1 is related to the deceased, his evidence cannot be discarded as it appears to be clear, clinching and trustworthy. Related witnesses are not necessarily false witnesses. Unless their evidence suffers from serious infirmity or raises considerable doubt in the mind of the Court, it would not be proper to discard their evidence straightaway. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefits from the result of litigation. Close relatives of the deceased are most reluctant to spare the real assailants and falsely mention the names of other persons. Therefore, close relationship of a witness to the deceased is no ground for not acting upon his testimony, if the evidence is otherwise found to be reliable after close scrutiny.

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P.W.2 has stated that when they asked the accused

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persons not to plant paddy seedling, they claimed the land and accused Salo took the deceased holding his hand to show their land. Accused Mathei Majhi hit the deceased on his hand with a hulia and accused Salo took it from Mathei and assaulted on the back of the appellant. The appellant gave a number of cut blows around the neck of the deceased with tangia. The deceased fell

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down receiving bleeding injuries and died at the spot. In the cross examination, he has stated that the accused persons were planting paddy seedlings inside the Nala and the water receded after the embankment was cut. It has been confronted to P.W.2 and proved through the I.O. that he has stated before him to have seen the accused persons transplanting in the field inside the Nala. He has not stated before the I.O. to have seen himself about the cutting of embankment. He has also not stated that the accused Solo asked the deceased to show the boundary of the land and took the deceased to show the boundary. He has stated before police that the deceased held the neck of the accused Salo and there was shouting. The doctor noticed incised wounds on the right side maxilla and right side of the face of the deceased and therefore, it cannot be said the statement of P.W.2 that the appellant gave a number of cut blows around the neck of the deceased with tangia is not corroborated by medical evidence. Therefore, the contradictions brought out in the cross examination are not sufficient to discard the evidence.

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P.W.3 stated that when he saw the embankment was

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cut, he informed the villagers and the villagers including P.Ws.1 and 2 and the deceased and he himself came to the spot and when they asked the accused persons not to plant paddy

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seedlings, they told that it was their land. Accused Salo and the deceased holding hands of each other went into the Nala as accused Salo asked him to show the boundary. Accused Mathei hit the deceased on his hand with Budia and then accused Salo took the same from Mathei and hit the deceased on his backside. The appellant then gave cut blows to the deceased with tangia on the neck and on face for which the deceased fell down inside the Nala and died at the spot. He identified the weapons used by the accused persons as Mos.I and II. In the cross examination, he has stated that accused Mathei was asked prior to the date of occurrence not to cultivate the land. He stated that he was told by the villagers to inform them in case the accused persons came to cultivate the land. It has been confronted to him and proved through the investigating officer that there was shouting and he saw the deceased holding the neck of accused Salo.

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Even though there are some discrepancies in the statements of the eye witnesses with reference to their previous statement before police but those are so minor in nature that it cannot harm the case of the prosecution. Minor discrepancies in the statements of witnesses as given in Court vis-à-vis their previous statements before police cannot be the reason to discard the case of the prosecution. Such discrepancies are

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natural as against parrot like version of the witnesses. It cannot be lost sight of the fact that the eye witnesses gave their evidence in Court almost a year after the statements were recorded by the Investigating Officer. Such discrepancies are bound to occur for variety of reasons, for instance, lack of education, social background, nature of witnesses, duration of their observation and lapse of time when the witnesses are called upon to give their evidence in Court after incident.

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After careful scrutiny of the evidence of the eye witnesses, I am of the humble view their evidence appears to be clear, clinching and trustworthy and therefore, the same can be safely acted upon.

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There is no dispute that P.W.7, the doctor examined co-accused Mathei Majhi and Salo Majhi on the date of occurrence itself and noticed one injury on the chin of accused Mathei Majhi of size ½” x ½” x ¼” which was opined to be simple in nature. Similarly he noticed one injury on the scalp of accused Salo which was also minor in nature.

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In the case of Lakshmi Singh -Vrs.- State of Bihar

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reported in A.I.R. 1976 Supreme Court 2263 , it is held that where the injury sustained by the accused are minor and superficial or where the evidence is so clear, cogent, so

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independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries, non-explanation of the injuries may not affect the prosecution case.

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Out of the three eye witnesses, P.W.1 was asked about the injuries on the accused persons and he has stated that none of the accused persons sustained any injury nor did any of the villagers inflict any injury on them. P.W. 2 and P.W.3 have not been asked about the injury sustained by the accused persons. In the case of Ramlagan Singh -Vrs-. State of Bihar reported in A.I.R. 1972 Supreme Court 2593 , it is held that when no questions have been put to any of the prosecution witnesses regarding to the injuries caused to the accused persons, there arose no occasion for the prosecution witnesses to explain the injuries on the person of the accused.

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Therefore, I am of the humble view that merely because accused Mathei Majhi and Salo Majhi received one injury each which are minor in nature, there was any necessity on the part of the prosecution to explain such injury particularly when two of the eye witnesses have not been asked regarding such injury and the evidence of the eye witnesses are clear and cogent. The decision relied upon by the learned amicus curie i.e.,

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the case of Ratnakar Mallik (supra) in its factual aspects is clearly distinguishable from this case as in that case, number of accused persons had sustained various injuries and few of them had sustained grievous injury on the vital part of the body which were not explained by the prosecution and therefore, this Court held that the prosecution suppressed the genesis of the case and true story and held the evidence of the witnesses to be not trustworthy.

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No plea of right of private defence has been taken by the accused Mathei Majhi or the appellant in their statements recorded under section 313 of Cr.P.C. No suggestion regarding plea of right of private defence has been given to any of the eye witnesses. Though accused Salo has taken a plea of right of private defence in his accused statement and stated that the deceased tried to throttle his neck and there was push and pull between them and his father Mathei Majhi whirled a budia but Mathei Majhi is completely silent in that respect.

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Law is well settled that question of self defence is one of both law and fact. The right of self defence is not a right to take revenge but it is purely preventive. A plea of right of private defence cannot be based on surmises and speculation. The accused is not required to prove the plea of right of private

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defence beyond all reasonable doubt but he has to raise a doubt in the mind of the Court to satisfy that his defence is probable one. Even if specific plea of self defence is not taken, it is not enough to denude the accused the right if the same is otherwise made out. To succeed in the plea of private defence, the accused has to prove that he exercised right of private defence in his favour and this right extended to the extent of causing death. Sections 96 to 106 of the Indian Penal Code deal with right of private defence and it also indicate as to how much right of private defence can be exercised and under what circumstances. It is of course true that such exercise of right of private defence cannot be weighed in golden scales in as much as person should not be expected to modulate his defence step by step.

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In the case in hand, the plea regarding self defence has been taken for the first time in the statement of only one accused recorded under section 313 of Cr.P.C. and no suggestions regarding such plea was put in the crossexamination of any of the eye witnesses. The plea put forth by accused Salo that accused Mathei Majhi whirled a budia is not acceptable particularly when accused Mathei Majhi has not taken any such plea. In other words, the defence plea is inconsistent. Therefore, I am of the humble view that the plea of right of

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private defence put forth by accused Salo Majhi is not acceptable.

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The learned trial Court has rightly held that it was not a pre-meditated action by the accused persons and when the deceased put his hand on the neck of accused Salo, the possibility of some kind of provocation to the accused persons who are tribals cannot be ruled out. However, it cannot be lost sight of the fact that there is no evidence that any of the prosecution party members including the deceased were armed with any weapon or there was any reasonable apprehension of grave danger to the lives of any of the accused persons. In such circumstances, after one blow each has been given by appellant Mathei Majhi and Salo Majhi, the manner in which the appellant assaulted the deceased by means of a tangia clearly indicates that he has exceeded the limits as rightly held by the learned trial Court. The deceased suffered at least injuries nos.(ii) and (iii) on account of such assault which were individually sufficient to cause death in the ordinary course of nature as opined by the doctor who conducted autopsy. Therefore, the learned trial Court has rightly convicted the appellant under section 304 Part-II of the Indian Penal Code.

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Now, the question remains to be considered is what sentence would be the appropriate to be imposed on the appellant. The total period the appellant seems to have remained in custody in connection with this case during investigation as well as after conviction till he was enlarged on bail was for a period of about four months. The officer in charge of Bisoi Police Station has indicated in the report dated 22.08.2020 that the appellant is now aged about sixty five years and he is not involved in any other case under the police station and his wife is residing with him and he is blessed with two sons and one of the son is aged about 36 years and the other son is aged about 22 years. The elder son is a cultivator who maintains the family and the younger son is serving as a Constable in the army. There is no dispute that more than thirty three years have already passed since the date of occurrence but in my humble view, looking at the nature and gravity of the accusation proved, the same cannot be the sole ground to reduce the sentence to period already undergone.

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In the case of Sumer Singh -Vrs.- Surajbhan Singh and Ors. reported in (2014) 7 Supreme Court Cases

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323 , it is held that it is the duty of the Court to impose adequate sentence, for one of the purposes of imposition of requisite

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sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the Court of law to curtail the evil. While imposing the sentence, it is the Court's accountability to remind itself about its role and the reverence for the rule of law. It must evince the rationalised judicial discretion and not an individual perception or a moral propensity. It was further held that if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. The law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. It was observed that the old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. The conception of mercy has its own space but it cannot occupy the whole accommodation. While dealing with grant of further compensation in lieu of sentence, the Court held as follows:

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“We do not think that increase in fine amount or grant of compensation under the Code would be

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a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society.”

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In the case of State of Punjab -Vrs.- Bawa Singh

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reported in (2015) 3 Supreme Court Cases 441 , the Hon’ble Supreme Court held that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. It has been further held that one should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. Emphasis was laid on the solemn duty of the Court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.

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Taking into account the age of the appellant at present, passage of thirty three years since the date of occurrence, the fact that the appellant has not indulged himself in any criminal activities during this period, the immense trauma, mental agony and anguish he might have suffered and particularly the socio-economic factors, I am of the humble view that imposition of sentence of rigorous imprisonment for five years would meet the end of justice.

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Accordingly, while upholding the conviction of the appellant under section 304 Part II of the Indian Penal Code, the sentence is reduced from rigorous imprisonment for seven years to rigorous imprisonment for five years. With the above modification of sentence, the criminal appeal stands dismissed.

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The bail bonds furnished by the appellant before the learned trial Court as per the order dated 15.11.1988 of this Court stand cancelled. The appellant shall surrender before the learned trial Court forthwith within a period of two weeks from today to serve the remainder of sentence failing which the learned trial Court shall take appropriate step for his arrest. The appellant shall be entitled to the benefit of set off under section 428 of Cr.P.C.

¶123

¶124

Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.

¶125

Before parting with the case, I would like to put on record my appreciation to the learned Amicus Curiae for rendering his valuable help and assistance in deciding this oldest pending appeal. The hearing fees is assessed to Rs.10,000/(rupees ten thousand) in toto which would be paid to the learned Amicus Curiae immediately.

¶126

S.K. Sahoo, J.

¶127

Orissa High Court, Cuttack The 26^th August 2020/Pravakar/Sisir/RKM

Mathei Majhi v. State

Case brief

What is this about?

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Mathei Majhi v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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