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2002 DIGILAW 45 (ORI)

JOGENDRA SABARA v. STATE OF ORISSA

2002-01-23

B.PANIGRAHI, M.PAPANNA

body2002
JUDGMENT : B. Panigrahi, J. - In this appeal the Appellant has assailed the order of conviction and sentence passed by the learned Sessions Judge. Sambalpur u/s 302, IPC in S.T. No. 74 of 1994 directing the Appellant to undergo rigorous imprisonment for life for committing the murder of the deceased Kuber Sabar. 2. The prosecution story as unravelled during trial is as follows: One Pitabasa Sabar. (brother of the deceased) lodged an information before the O.I.C. Kundheigola P.S. on 21.11.93 at 6.00 p.m. by stating that the Appellant-accused and his brother (deceased) had exchange of hot words in front of the house of accused-Appellant, the Appellant became infuriated and brought out an arrow from his house and pierced the same into the chest of the deceased as a result of which he sustained bleeding injury and cried in anguishing pain. The arrow was sticking to the wound and the deceased died instantaneously at the spot. The dead-body of the deceased was lying in front of the house of Baruna Sabar. Anr. brother of the deceased. It has been alleged further that Susama Sabar, Sita Sabar, Balabati Sabara and many Ors. whose houses are situated close to the place of occurrence have also witnessed the commission of offence by the Appellant. Susama Sabar (P.W.4) raised shrieks which engaged the attention of Ors. and on hearing, such hue and cry they reached the place of occurrence where deceased Kuber was lying in a pool of blood. P.W.2, the informant had requested other villagers to guard the dead body so that he would be able to proceed to Khairapali Outpost. Accordingly when Ors. watched the dead body, P.W.2 proceeded to Khairapali Outpost and submitted a written report. The report was sent to Kundheigola Police Station and accordingly a case u/s 302, IPC was registered whereupon investigation started. The O.I.C. of Kundheigola Police Station rushed to the place of occurrence, seized the dead body for post mortem examination. The accused was taken into custody after he surrendered in Court and after completion of investigation charge-sheet was placed in the Court against the Appellant. 3. In order to prove the culpability against the Appellant, prosecution had examined as many as 7 witnesses of whom.P.W.1 was the Doctor, P.W.7 is the I.O. P.Ws. 5 and 6 were seizure witnesses and P.W.s 2 to 4 were eye-witnesses to the occurrence. 4. 3. In order to prove the culpability against the Appellant, prosecution had examined as many as 7 witnesses of whom.P.W.1 was the Doctor, P.W.7 is the I.O. P.Ws. 5 and 6 were seizure witnesses and P.W.s 2 to 4 were eye-witnesses to the occurrence. 4. The plea of the accused in the trial Court was one of complete denial, and ultimately it was pleaded that since the offence was committed in a fit of anger he should be convicted u/s 304, either Part I or Part II IPC. The learned Sessions Judge after resume of the entire evidence on record was inclined to record a conviction u/s 302, IPC and sentenced him to undergo R.I. for life. 5. Learned Counsel appearing for the Appellant has strenuously contended that in the instant case the prosecution was not able to prove the case and since the learned Sessions Judge did not repose confidence on the evidence of the eye witnesses, it should not have relied on the other evidence for conviction of the Appellant. It was further contended that since the Appellant has committed the offence at the spur of the moment and inflicted the arrow at the chest of the deceased, he should have been convicted only u/s 304, Part I or Part II of the Indian Penal Code. 6 While examining the contention of the learned Advocate for the Appellant we have referred to the evidence of P.W.1 we found that the deceased Kuber met with a homicidal death due to shock resulting from the punctured wound by an arrow on the left lungs and both the ventricles of the heart were empty leading to massive haemorrhage. 7. It is next to be seen that P.W.2, who is undisputedly the brother of the deceased is an eye witness to the occurrence. From his evidence it appears that the Appellant was present in his house and when the deceased (his brother) was returning to his house after cutting paddy, the deceased challenged the accused as to why he was assaulting everybody. Then all on a sudden being infuriated by such provocative words, the accused went inside the house, brought an arrow and pierced into the chest of the deceased Kuber. On receiving such injury he was found yelling out of agonising pain and fell down on the ground, and succumbed to the injuries. Then all on a sudden being infuriated by such provocative words, the accused went inside the house, brought an arrow and pierced into the chest of the deceased Kuber. On receiving such injury he was found yelling out of agonising pain and fell down on the ground, and succumbed to the injuries. From the evidence of P.W.2 we gathered that the Appellant has committed the unfortunate incident out of anger due to exchange of hot words with the deceased. Learned Counsel for the Appellant submitted that from his evidence during investigation u/s 162 of the Code of Criminal Procedure it does not appear that he was present at the time of occurrence. But we do not find that such question was being asked to P.W.2 during cross examination. In the absence of any material, we are unable to differ from the findings of the trial Court inasmuch as, there was no suggestion put to P.W.2 that he was not present at the time of occurrence. 8. P.Ws. 3 and 4 also substantially corroborated the evidence of P.W.2 as regards the details of the occurrence and also the involvement of the Appellant. Their evidence was characterised as natural, unimpeachable and trustworthy. The ocular evidence fully and substantially -supports the medical evidence. Thus in the above situation we do not find that the learned Sessions Judge has committed any illegality or irregularity in arriving at the conclusion that the Appellant committed homicidal death. 9. From the medical evidence it has further transpired that the thorasic cavity was filled with massive dark red blood and, therefore, the deceased met with homicidal death due to severe haemorrhage. Considering the cumulative effect of the oral and documentary evidence alongwith the post mortem report we have no manner of doubt that the offence was committed by the Appellant in committing the murder of Kuber. Next it is to be found whether the Appellant was provoked by the abrasive language hurled at him by the deceased. It is true that the deceased was unarmed, but at the same time it may not be lost sight of the fact that due to exchange of hot words between the Appellant and the deceased, the Appellant must have lost his mental equilibrium and being incensed with anger had committed the said grisly murder. It is true that the deceased was unarmed, but at the same time it may not be lost sight of the fact that due to exchange of hot words between the Appellant and the deceased, the Appellant must have lost his mental equilibrium and being incensed with anger had committed the said grisly murder. It is true that in a criminal case intention is not of that consequence and such intention cannot develop at the spur of the moment. The intention cannot be known to any person other than the killer. But from the facts-situation we found that such an act was committed by the accused only after the provocative words hurled by the deceased. From the evidence it has further transpired that the deceased had gone near the house of the Appellant in a challenging mood which followed by a heated discussion. Therefore, in such situation the Appellant had committed the offence without any pre-meditation and at the spur of the moment. 10. Accordingly we hold that it is a fit case where the Appellant should be punished u/s 304, Part I of the Indian Penal Code. We therefore, direct the Appellant to undergo R.I. for 10 years. In the result, the appeal is partly allowed. The Appellant is convicted u/s 304. Part I of the Indian Penal Code and sentenced to undergo R.I. for 10 years. M. Papanna, J. 11. I agree.