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2001 DIGILAW 449 (ORI)

Dobulu Dhangada Majhi v. State of Orissa

2001-10-10

B.PANIGRAHI, L.MOHAPATRA

body2001
JUDGMEMT B. PANIGRAHI, J. — The appellant having been convicted for commission of the offence under Sec. 302 of the Penal Code and sentenced to undergo imprisonment for life by the Additional Sessions Judge, Jeypore, camp Malkangiri, has preferred this appeal. 2. The case of the prosecution is that the informant P.W.1 was taking the cow of the appellant to the jungle for grazing. On one such day there was a fracture in the leg of the cow of the appellant and the appellant insisted for giving a new cow. The informant accordingly gaved him a good cow and also a goat. The appellant not being satisfied forcibly took away a white bullock from the house of the informant at about 6 p.m. on 3.10.1992. The elder brother of P.W.1 deceased Buda Dhengada Majhi, coming to know about the said incident asked the appellant near his house as to why he brought the bullock from the cow-shed of P.W.1 and on being questioned the appellant stabbed the deceased by means of a knife and fled away with the knife from the spot. The de¬ceased after sustaining bleeding injury on the abdomen due to the blow given by the appellant by means of the knife, shouted for help and hearing his voice P.Ws. 1,2 and 4 and some others came to the spot and found the deceased lying on the ground with bleeding injury on his abdomen. In presence of these witnesses the deceased stated that he had been assaulted by the appellant by means of a knife. Thereafter the deceased was carried by the said witnesses to his house. One or two hours thereafter the deceased succumbed to the injury. P.W.1 lodged the F.I.R. on the next day morning on the basis of which investigation was taken up and charge-sheet for commission of the offence under Sec. 302 of the Penal Code was submitted by the Investigating Officer. 3. Eight witnesses were examined on behalf of the prosecu¬tion, but the defence did not examine any witness. The plea of the appellant was one of denial of the prosecution case and in his examination under Sec. 313 of the Code of Criminal Procedure he stated that he has been falsely implicated in the case. 4. The learned Sessions Judge relying on the evidence of P.Ws. The plea of the appellant was one of denial of the prosecution case and in his examination under Sec. 313 of the Code of Criminal Procedure he stated that he has been falsely implicated in the case. 4. The learned Sessions Judge relying on the evidence of P.Ws. 1, 2, 3 and 4 with regard to the statement made by the de¬ceased before his death and immediately after the occurrence as well as recovery of the weapon of offence from the appellant, convicted the appellant for commission of offence under Sec. 302 of the Penal Code. 5. Learned counsel for appellant in course of her argument submitted that there is no eye-witness to the occurrence and P.Ws.1,2 3 and 4 are all post-occurrence witnesses. According to her, since the case is entirely dependent upon circumstantial evidence, in absence of complete chain of circumstances, the appellant could not have been convicted. 6. In the light of the argument advanced by the learned counsel for appellant, we proceed to examine the evidence of the witnesses. P.W.1 is the younger brother of the deceased and also is the informant. In his evidence he has stated that he was taking the cow of the appellant for the purpose of grazing. On one such day the leg of the cow of the appellant got fractured and the appellant insisted for giving him a good cow and did not take the lame cow. He had also threatened with dire consequences. Therefore, P.W.1 purchased a good cow from Mundiguda Hat and handed over the same to the appellant and kept the cow of the appellant with himself. Five days thereafter the appellant forci¬bly took away a white bullock from the cow-shed of P.W.1. When the deceased protested at the conduct of the appellant, he was stabbed by means of a knife. In cross-examination this witness has admitted that at the time of incident he was in his house and hearing the voice of his brother he came out of his house and saw the appellant running away with the knife. He further stated in his evidence that he and other witnesses came to the place where the deceased was lying with a bleeding injury, the deceased stated that he had been stabbed by the appellant by means of a knife. P.W.2 is a co-villager who went to the spot immediately after hearing the voice of the deceased. He further stated in his evidence that he and other witnesses came to the place where the deceased was lying with a bleeding injury, the deceased stated that he had been stabbed by the appellant by means of a knife. P.W.2 is a co-villager who went to the spot immediately after hearing the voice of the deceased. He had also stated in his evidence that after his arrival at the spot the deceased stated in presence of witnesses that he had been stabbed by the appellant. Similar is the evidence of P.W.3 and P.W.4. From the evidence of P.Ws.1 to 4 it is clear that there was ill-feeling between the appellant and P.W.1 because of the incident as nar¬rated by P.W.1 and on the date of occurrence the appellant forci¬bly took away a white bullock from the cow-shed of P.W.1. When the deceased protested to such conduct of the appellant, he was stabbed by the latter by means of a knife. From the evidence of P.W.5 who first took up investigation it appears that on 7.10.1992 the appellant appeared at the police station at about 5.30 p.m. with a knife which was stained with blood. Learned counsel for appellant submitted that this part of the evidence of P.W.5 cannot be believed since P.W.4 who is a witness to the seizure of the knife M.O.I in his evidence has stated that 2 to 3 days after the date of occurrence when the Police came to the village, the appellant produced the knife bringing the same from his house. The contradiction pointed out by the learned counsel for appellant may be material but the fact remains that the knife which was seized had been sent for chemical examination and the report of the Chemical Examiner shows that the knife contained human blood. There is no explanation from the side of the appel¬lant is to how human blood was found on the knife. 7. There is no explanation from the side of the appel¬lant is to how human blood was found on the knife. 7. Learned counsel for appellant further submitted that in view of the previous enmity between the parties and the fact that the date of occurrence there was some kind of altercation between the deceased and the appellant relating to forcibly taking away a bullock from the cow-shed of P.W.1 and taking into consideration the fact that only one blow was given by means of the knife on the abdomen of the deceased, the offence under Sec. 302 of the Penal Code is not made out. From the evidence of the doctor conducting post mortem examination, P.W.8 we find that there was only one injury over the upper epigastrium region of abdomen 1/2" lateral to mid-line towards left. The doctor also opined that the injury could be caused by the knife M.O.I. It was also con¬tended by the learned counsel for the State that the internal injury found by the doctor shows that blood was coming with sufficient force and therefore, it cannot be said that the appel¬lant had no intention to cause death. From the evidence it appears that there was ill-feeling between the appellant and the brother of the deceased relating to fracture of the leg of one of the cows belonging to the appellant and that on the date of occurrence, the appellant had forcibly taken away a white bullock from the cow-shed of P.W.1. It also appears from the evidence that the deceased who is the elder brother of P.W.1, protested to the conduct of the appellant near the house of the appellant and the latter stabbed him by means of a knife on the abdomen. From these factual materials available on record we are of the considered opinion that since one blow was given on the abdomen, the appel¬lant and no intention to cause death, though he had the knowledge that such injury might cause death. In this connection reference may be made to the decision of this Court reported in 1998 (II) OLR 32 : Kalia alias Duryodhan Naik v. State of Orissa. In the reported case the appellant and the deceased were running a joint business. On the date of occurrence the deceased had gone to the house of the appellant to ask for money. In the reported case the appellant and the deceased were running a joint business. On the date of occurrence the deceased had gone to the house of the appellant to ask for money. There was a sudden quar¬rel between both of them and the appellant gave some stab blows on the abdomen of the deceased. The stab blows were also given on the stomach at the upper part of the lesser carviture and there was also injury to left of liver. Under these circumstances this Court was of the view that the offence was one under Sec. 304, Part-II of the Penal Code. Considering the entire materials available on record we are also of the view that the appellant has committed offence punishable under Sec. 304, Part-II of the Penal Code. We, therefore, set aside the conviction of the appel¬lant under Sec. 302 of the Penal Code and convict him for commis¬sion of offence under Sec. 304, Part - II of the Code and sen¬tence him to undergo imprisonment for seven years. The appeal is partly allowed to the extent stated above. L. MOHAPATRA, J. I agree. Appeal allowed in part.