D.Dash, J
1. The Appellant, by filing this Appeal, from inside the jail, has challenged the judgment of conviction and order of sentence dated 26th February, 2016
passed by the learned 2nd Additional Sessions Judge, Balasore in Sessions Trial No.19/110 of 2014, corresponding to Nilgiri P.S. Case No.296 of 2013
of the Court of the learned Sub Divisional Judicial Magistrate, Nilgiri.
The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short,
‘IPC’) and sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- (Rupees Five Thousand) in default to undergo Rigorous
Imprisonment for period of two months.
2. Prosecution case is that the accused namely Katia @ Harekrushna Behera, his wife Anita Behera (deceased) were staying in their house in village
Ayodhya with their children. It is stated that though the marriage between the two had taken place sometime in the year 2001, the accused being in
the habit of consuming liquor used to assault his wife (deceased).
On 04.10.2013 around 5 pm, the accused asked his wife to part with some money for taking liquor. The request being turned down; it is stated that the
accused assaulted her by means of a crow bar on his head and other parts of the body and then fled away from the spot. The deceased with the help
of the local people being carried to the local hospital at Ayodhya, she was declared dead.
The matter being reported to the father of the deceased (P.W.2). He with his wife (P.W.3) arrived at the hospital and found their daughter lying dead.
On enquiry their granddaughter (P.W.11) disclosed that the accused on that day in the morning hour, around 7 am, assaulted her mother by a crow bar
when her mother (deceased) refused to pay any money to her father (accused).
The father of the deceased Anita who is the father-in-law of the accused then lodged a written report to the above effect with the Inspector-in-
Charge (IIC) of Nilgiri Police Station (Ext.3). The written report being received by the I.I.C., he treated the same as FIR (Ext.3) and registering the
case, took up investigation.
3. In course of investigation, the I.O (P.W.10) examined the informant (P.W.2) and his wife (P.W.3) and other witnesses. He visited the spot and
prepared the spot map (Ext.7) and then, proceeding to the hospital at Ayodhya, held inquest over the dead body of Anita and prepared the inquest
report (Ext.4). He then sent the dead body for post mortem examination. Further continuing with the investigation, he seized the incriminating articles
such as crowbar, one plastic mat stained with blood, blood stained and sample earth from the spot under seizure list. The accused was arrested and his
wearing apparels were also seized. The important witnesses for the prosecution, who is the daughter of the accused and the deceased then aged
about 8 years was examined and step was taken for recording her statement by the learned Judicial Magistrate under section 164 of the Cr.P.C.
which was so done.
Finally, on completion of investigation, the I.O (P.W.10) submitted the Final Form placing the accused to face the Trial for commission of offence
under section 302 of the IPC.
4. Learned SDJM, Nilgiri on receipt of the Final Form, took cognizance of the offence under section 302 of the IPC and after observing the
formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the
accused.
5. In the Trial, the prosecution in total has examined eleven (11) witnesses. As already stated, P.W.2 is the father-in-law of the accuse and he is the
informant, who had lodged the FIR (Ext.3). The mother of the deceased and mother-in-law of the accused, who had accompanied P.W.2 to the
hospital after hearing the news of death of their daughter, has come to the witness box as P.W.3. The other important witness for the prosecution is
P.W.11, who happens to be the elder daughter of the accused and the deceased and the sole eye witness to the occurrence. Rest are post occurrence
witnesses, whereas the doctor who had conducted post mortem over the dead body of the deceased is P.W.6 and the Investigating Officer has come
to the witness box as P.W.10.
6. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in
evidence and marked as Ext.1 to Ext.13/1. Out of those, the important are the FIR, Ext.3, inquest report, Ext.4, Post Mortem Report, Ext.6, spot map,
Ext.7. The chemical examination report obtained after examination of the incriminating articles sent through Court at the instance of P.W.10 (I.O) is
Ext.12.
7. The accused has tendered no evidence in support of his plea of denial and false implication.
8. Learned Counsel for the Appellant (accused) from the beginning instead of questioning the finding of guilt as has been returned by the Trial Court in
holding him to be the author of the injury which was received by the deceased, who happens to be his wife on her head submitted that when the entire
circumstances surrounding the incident not only those which had taken place before but also the subsequent events, the relationship, the number of
blow that was given after some altercation and further keeping in view the fact the parties hail from rural background whose tamper usually run high
and behavior at times for silly reasons becomes abnormal and unexpected; the Trial Court ought not to have convicted the accused for commission of
offence under section 302 of the IPC. He, thus confined his submission for altercation of conviction for commission of offence under section 302 of
the IPC to offence under section 304-I of the IPC and accordingly, he urged for appropriate reduction of the sentence.
9. Learned Counsel for the Respondent-State submitted all in favour of the finding of the Trial Court that the accused is liable for committing the
offence under section 302 of the IPC. He submitted that the blow having been given on the head of the deceased by a crowbar which is heavy, the
Trial Court did commit no mistake in holding the accused guilty of commission of offence under section 302 of the IPC notwithstanding the fact that it
is a case of solitary blow being given by the accused.
10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through
the depositions of the witnesses (P.W.1 to P.W.11) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.13/1.
11. In order to address the rival submission concerning the categorization of the offence for which the accused would be held liable for the act done
by him, let us have a glance at the evidence of P.W.11, who is the star witness for the prosecution and is stated to be the sole eye witness.
12. This P.W.11 is the daughter of the accused and the deceased. She was then aged about 8 years when the incident took place. She has not stated
anything about the fact that the accused was often quarreling with the deceased. She has stated that in the morning hour, the accused demanded some
money from her mother for taking liquor and when her mother refused, the accused assaulted her by means of a crowbar on her head for which she
sustained bleeding injury. It is also the prosecution evidence that said injury on the head of the deceased caused her death. The Doctor has found that
head injury during post mortem examination. It is not stated by the Doctor (P.W.6) that the injury on the head was not the result of solitary blow.
P.W.11 when says as her mother refused to pay, the accused (father) assaulted. The prosecution has not further brought out from her lips as to what
actually her mother stated while denying to pay the money when asked by the accused. Rather, it has been elicited during cross-examination that prior
to the assault, quarrel took place between her father and her mother and her father had pushed her mother resulting her fall. The parties hail from
rural background where normally temper of the persons run high and judicial notice of the fact can be taken that for silly reasons at times they use to
show abnormal and totally unexpected behaviour. There is no evidence forthcoming as to prior planning being made by the accused for the incident.
The crowbar said to have been used was not held by the accused from the beginning when he asked for the money and that is not stated by P.W. 11.
It is also not stated that the accused being denied to be paid with the money, went somewhere nearby and then by bringing the crowbar assaulted the
deceased. The evidence as led rather show as if the crowbar was somewhere lying within a close range. It is also not the version of P.W.11 that after
the deceased fell on the ground, the accused had made any attempt to further assault and that was somehow warded of or prevented. This P.W.11 is
also not stating that after giving the blow, the accused fled away. But it is stated that the accused having pushed the deceased fled away. This gives
rise to a doubt in mind as regards the actual user of the crowbar in causing the injury and the fall of the deceased being not by receiving the blow on
the head or being pushed by the accused is not totally ruled out.
13. Taking a cumulative view of all these above circumstances, this Court is of the view that the offence could be properly categorized as one
punishable under section 304 Part-I of the IPC. We are thus of the considered opinion that for the role played and act done by the accused, he would
be liable for conviction under section 304 Part-I of the IPC.
14. In that view of the matter, the conviction of the accused is altered to one under section 304 Part-I of the IPC and accordingly, he is sentenced to
undergo rigorous imprisonment for a period of ten (10) years and fine of Rs.5000/- (Rupees Five Thousand) in default to undergo rigorous
imprisonment for two (2) months.
15. With the above modification as to the judgment of conviction and order of sentence, the Appeal stands disposed of.
……………………………….
