MOTAKA ALIAS DAMAN MAJHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant having been convicted for commission of offence under Section 302 of the Indian Penal Code (in short 'I.P.C.') and sentenced to undergo R.I. for life passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No. 5/22 of 1999 has preferred this appeal.

(2.) THE case of the prosecution as revealed from the F.I.R. is that the wife of the elder brother of the informant and his children were staying along with Masa Majhi, Matka @ Daman Majhi, Badu Majhi, Surei Majhi, Bhakta Majhi and Nunaram Majhi at village Burutala Sahi. The mother of the informant, Raimat Majhi and sister Chudamani Murmu were staying in his house. Raimat Majhi had got some lands on partition from her father and had kept Rs. 8000/ - at Bijatala Bank in her name and in the name of Chudamani Murmu. On 22.10.1998 at about 6.30 P.M., the appellant came to the court -yard of the informant and demanded a share in the cash kept by Raimath Majhi. The deceased Chudamani Majhi objected saying that so long as Raimat Majhi is alive, the appellant has no right to take the share of the cash. Hearing this, appellant abused the deceased and started dealing kick and fist blows on different parts of the body of the deceased, as a result of which, the deceased fell down and ultimately died. On these allegations, F.I.R. having been lodged, investigation was taken up and charge sheet was submitted for commission of offence under Section 302 I.P.C.

(3.) THIS being the only submission of the learned Counsel for the appellant, we have examined the evidence of eye -witnesses to the occurrence. P.W.1 is the brother, of the deceased and uncle of the appellant. On the date of occurrence, he was present in the house. He has stated in his deposition that on the date of occurrence, the appellant came to the house and demanded a share in cash kept by Raimat Majhi. The deceased protested saying that so long as Raimat Majhi is alive, the appellant cannot claim any share in the cash kept by Raimat Majhi. Hearing this, appellant got enraged and abused and, thereafter assaulted her by means of kick and fist blows. The deceased receiving the kick and fist blows went to a distant place and fell down and, thereafter died. Nothing has been brought out in the cross -examination to disbelieve this witness. P.W.2 is also an eye -witness and has corroborated the evidence of P.W.1. P.W.3 has stated in his deposition that hearing hulla, he came from his house and found the deceased saying 'Maruchhi', 'Maruchhi' and also found P.W.1 catching hold the appellant. He also heard from P.W.1 that the appellant dealt fist blows on the chest and right ear of the deceased. P.W.7 in his deposition has stated that hearing hulla about the murder of the deceased, he came to the spot and found that the appellant was caught hold by Nundun and on being asked, the appellant admitted before him to have killed the deceased. This being the version of the eye -witness to the occurrence, there cannot be any doubt in mind that the appellant had assaulted the deceased by means of kick and fist blows on different parts of the body of the deceased. P.W.8 is the doctor, who conducted post mortem examination and found old lacerated injury 1 cm x 2 cm over the left anklet joint, old lacerated wousnd 1 cm x 1 cm over the right midleg interior and fracture of the left 10th rib on the left side. He also found that the spleen was ruptured and the abdominal cavity was full of blood. He was of the opinion that these injuries were sufficient to cause death of the deceased in the ordinary course of nature. It thus appears that the external Injuries found on the body of the deceased were not so serious in nature but resulted in severe internal injuries which caused death of the deceased. Undisputedly, the appellant had gone to the house of P.W.1 for the purpose of demanding share in the cash kept by Raimat Majhi. In the house of P.W.1, there was cross words between the appellant and the deceased and the appellant suddenly started dealing kick and fist blows on the deceased, which ultimately/unfortunately caused the death of the deceased. From the circumstances, it is clear that the appellant had no intention to kill the deceased and pursuant to exchange of words, he assaulted the deceased by means of kick and fist blows. We are therefore of the view that though the appellant had knowledge that such injuries can cause death, he had no intention to cause death of the deceased. We are of the view that the appellant should have been convicted for commission of offence under Section 304, Part II I.P.C.