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2002 DIGILAW 465 (ORI)

CHAITAN GABADA v. STATE OF ORISSA

2002-07-29

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - This appeal has assailed the order of conviction and sentence passed by the Additional Sessions Judge. Jeypore in S.C. No. 97 of 1994 u/s 302, IPC directing the Appellant to undergo imprisonment for life. 2. The prosecution story as unfolded in course of trial is as follows: The Appellant had married the daughter (P.W.2) of the deceased. He was staying with his wife in a house adjoining to the house of the deceased, but both the Appellant and his wife used to take their food in the house of the deceased. On 23rd July, 1994 at about 9.00 p.m. the Appellant asked his wife to bring 'biri' for him. As P.W.2 declined to fetch 'biri, the Appellant quarreled with her. Therefore, she came to the house of her father. One of annoyance the deceased, who was the father of P.W.2 asked the Appellant to go out of the house. At this the Appellant out of sudden impulse and in a fit of anger brought an axe from the house of the deceased and assaulted with that axe on the right side neck of the deceased, as a result of which he sustained bleeding injury and fell down in the front court-yard of the house of the daughter and died instantaneously. P.W.1, who was residing nearby, the brother of P.W.2, immediately rushed to the spot and noticed that his father was lying dead in a pool of blood. At that time P.W.1's mother also informed that the accused was assaulting her husband with an axe and after killing him fled away with the axe immediately thereafter. P.W.1 on the advice of the local Sarpanch went to Jeypore Sadar Police Station in the night itself and verbally reported about the incident. The O.J.C. reduced the report into writing and treated it as FIR (Ext.7). On the basis of such FIR, he proceeded to the scene of occurrence, held inquest over the dead-body, examined witnesses, despatched the dead body for post mortem examination, seized blood-stained earth and sample earth and after completion of investigation, submitted the charge-sheet. Immediately after the occurrence it has appeared that the Appellant himself surrendered alongwith the axe (M.O.I) in the Police Station pursuant to which he was arrested. 3. P.W.2 who is the wife of the Appellant, has claimed herself to be an eye witness. Immediately after the occurrence it has appeared that the Appellant himself surrendered alongwith the axe (M.O.I) in the Police Station pursuant to which he was arrested. 3. P.W.2 who is the wife of the Appellant, has claimed herself to be an eye witness. She presented a graphic picture about the incident in a manner so as to leave no doubt that the Appellant had caused the murder of his father-in-law in the house of the deceased. From her statement it has transpired that on the date of incident, the Appellant asked her to bring 'biri' which she declined to oblige, as a result of which the Appellant attempted to assault her. She rushed towards the house of the deceased and narrated the incident to her father. When the deceased protested such action of the Appellant, he out of anger inflicted two blows on the neck as a result of which the deceased fell down with bleeding injuries on the ground and died instantaneously. So far as the death of Oambaru Gadaba is concerned, there could be no dispute. It is evident from the post mortem report prepared by P.W.8 that the deceased received two injuries on the neck which were sufficient in ordinary course of nature to cause death. Medical evidence stands corroborated with the ocular evidence of P.W.2. Therefore, in such view of the case, there could be no manner of doubt with regard to the participation of the Appellant in the crime. 4. Miss Mohapatra, the learned Counsel appearing for the Appellant, has submitted that although in the trial Court a plea was taken on behalf of the Appellant to convict him u/s 302, Part II, IPC but it was unreasonably rejected. Since the incident had taken place on the spur of the moment and out of a sudden impulse and there was no pre-meditation to cause murder of his own father-in-law, therefore, the learned Addl. Sessions Judge should have considered the case u/s 304, Part II, IPC but not u/s 302. IPC. We found that submission of Miss Mohapatra gains sufficient force. Nowhere the prosecution has proved that the Appellant had got any intention for committing the murder. 5. Mr. Mohanty, learned Addl. Sessions Judge should have considered the case u/s 304, Part II, IPC but not u/s 302. IPC. We found that submission of Miss Mohapatra gains sufficient force. Nowhere the prosecution has proved that the Appellant had got any intention for committing the murder. 5. Mr. Mohanty, learned Addl. Government Advocate, has submitted that here in this case from the injuries inflicted on the neck, sufficient knowledge can be attributed against the Appellant, as a result whereof, he could have been convicted u/s 304. Part I, IPC. 6. After going through the evidence of P.W.8. we found, that the Appellant infected two fatal blows on the neck of the deceased from which it can be well inferred that he had sufficient knowledge that such injury could cause death of the deceased. Therefore, the Appellant should have been convicted u/s 304, Part I, IPC instead of Section 302. IPC. 7. In the result, we alter the conviction from Section 302, IPC to one u/s 304, Part I, IPC and direct the Appellant to undergo rigorous imprisonment which he already suffered. 8. We, therefore, sentence the Appellant to undergo rigorous imprisonment for the period already under gone. Accordingly, the appeal is partly allowed. P.K. Misra, J. 9. I agree.