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2002 DIGILAW 548 (ORI)

BABAJI BISWAL v. STATE OF ORISSA

2002-08-27

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - This appeal is directed against the order dated 15.07.1997 passed by the learned Sessions Judge, Bolangir, in Sessions Case No. 6 of 1997 convicting the Appellant u/s 302 of the Indian Penal Code (for short, "IPC") and sentencing him to undergo imprisonment for life. 2. The brief facts of the prosecution case, as narrated in the trial Court's judgment, are as follows: On 19.08.1996, at 12.00 noon, while the deceased Rama Krushna Sahu of village Kutasingha was irrigating his land, locally known as "Khaliabahali", from the nearby canal, the Appellant is said to have questioned the deceased as to why he was obstructing the flow of water and not permitting to take the same to his land. Thereafter a quarrel ensure between them, in course of which, the Appellant in quick succession picked up the spade he was holding and hit on the head of the deceased Rama Krushna as a result of which, the latter fell down with bleeding injuries on one Madhu Meher's land. P.W.1 Muralidhar Sahu, the brother of the deceased. P.W.2 Samaru Biswal, Goura Sahu and Sudam Sahu, who were present nearby, rushed to the-spot. On seeing them, the Appellant escaped from the spot throwing away the spade (M.O.I) at a little distance from the place of occurrence. P.W.1 and Ors. including Gobardhan Sahu (P.W.7) removed Rama Krushna. who was then unconscious to Salebhata Out Post, where P.W.1 submitted a written report scribed by P.W.7 to the A.S.I, of the said Out Post at 3.30 P.M. The report was diarised by the A.S.I. (P.W.9) vide S.O. No. 318, whereafter it was sent to Luisinga Police-Station for registration of a case. P.W.9 immediately recorded the statement of P.W.1 and sent the injured to Luisinga P.H.C. for examination and submission of injury report. He also visited the spot at 5.00 P.M. on the same day. P.W.10. the Medical Officer of Luisinga P.H.C. having found the condition of the injured deteriorating, sent him to the District Headquarters Hospital, Dr. Saroj Kumar Behera (P.W.5) examined the injured and prepared injury report, whereafter the injured was referred to the Surgical Ward. In course of treatment, Rama Krushna succumbed to the injuries on 20.03.1996. After the demise of Rama Krushna, P.W.13 Narayan Naik, the S.I. of Police, took over investigation from P.W.9. Saroj Kumar Behera (P.W.5) examined the injured and prepared injury report, whereafter the injured was referred to the Surgical Ward. In course of treatment, Rama Krushna succumbed to the injuries on 20.03.1996. After the demise of Rama Krushna, P.W.13 Narayan Naik, the S.I. of Police, took over investigation from P.W.9. He visited the spot, prepared the spot map and seized the spade (M.O.I) which was lying submerged under water in the paddy field of one Madhu Meher. The Appellant could not be nabbed immediately as he was absconding in order to avoid arrest. However, he was apprehended later on and forwarded to the Court. The witnesses who claimed to have noticed the incident were examined. On completion of investigation, chargesheet was placed against the Appellant. 3. The Appellant took the plea of denial and his false implication. 4. In order to Substantiate the charge against the Appellant, the prosecution examined as many as thirteen witnesses, of whom P.Ws.1 and 2 are said to be the eye-witnesses to the occurrence, P.W.3 is the son-in-law of the deceased who accompanied him to the Out Post as well as the Hospital, P.W.4 is a seizure witnesses, P.Ws. 5. 6 10 and 11 are the doctors who were associated with the treatment of the deceased and post mortem examination over the dead body, P.Ws. 8 9, 12 and 13 are the police officers, and P.W.7 is the scribe of the F.I.R. who claimed to be a post-occurrence witness. 5. From the medical evidence as discussed in the trial Court's judgment, it has appeared that the deceased had sustained a lacerated wound situated over the left temporal region above the root of the pinna of a left ear and a bruise below the lacerated wound site. The margin of the lacerated wound was irregular and congested. On dissection, it was found that the temporalis muscle and fascia were lacerated and congested with effusion of blood. Temporalis muscle and fascia below the bruise were also bruised. There was depressed comminuted compound fracture of the skull bone with effusion of blood from the fracture site. The membrane underneath were torn and congested with rupture of middle meningeal artery and effusion of blood in the extradural and subdural spaces. Temporalis muscle and fascia below the bruise were also bruised. There was depressed comminuted compound fracture of the skull bone with effusion of blood from the fracture site. The membrane underneath were torn and congested with rupture of middle meningeal artery and effusion of blood in the extradural and subdural spaces. The tempora lobe of the brain was bruised and there were blood clots in the extradural and subdural spaces and over the surface of the brain on the temporal lobe. All the injuries were ante mortem in nature. Cause of death was due to coma resulting from intracranial haemorrhage. The external injuries on the temporal region coupled with the resultant internal injuries were sufficient in ordinary course of nature to cause death. The injuries could be caused by a single blow by the blunt side of a spade like M.O.I, with force. Thus, it is clear that the deceased met a homicidal death. It has also appeared that the defence had not. 6. From the evidence of P.W.1 who was none other than the brother of the deceased, it is seen that at the time of incident, he was present at a little distance from the spot. Deceased Rama Krushna was then engaged in irrigating his own land. At that time, the Appellant came with a spade and questioned the deceased as to why he was not permitting him to take water to his land, which followed by a wordy brawl between the Appellant and the deceased. All on a sudden, the Appellant dealt a blow by the spade he was holding on the head of Rama Krushna, as a result of which, the later fell down. He along with Ors. rushed to the spot. Seeing them, the Appellant fled away from the spot, and on his way fie threw away the spade. P.W.2 has corroborated the statement of P.W.1 in all material particulars. Though these witnesses were cross-examined at length, nothing has been brought out from them to discredit their version. 7. A combined reading of the evidence of the eye-witnesses and the medical evidence leaves no room for doubt that it was the Appellant who caused the murder of the deceased. P.W.2 has corroborated the statement of P.W.1 in all material particulars. Though these witnesses were cross-examined at length, nothing has been brought out from them to discredit their version. 7. A combined reading of the evidence of the eye-witnesses and the medical evidence leaves no room for doubt that it was the Appellant who caused the murder of the deceased. However, from the facts and circumstances narrated above, it is seen that on the spur of the moment being incensed by anger, the Appellant took out the spade he was holding and hit a single blow on the head of the deceased without any premeditation or intention. Such blow was given on account of sudden impulse following a quarrel. It is true that the deceased was unarmed. But, one should not lose sight of the fact that almost all the farmers during agricultural operation carry a spade with them, which is scarcely used as a weapon of offence. Nowhere the prosecution has proved that the action of the Appellant was actuated with premeditation or intention to do away with the life of Rama Krushna. 8. A point was canvassed before the learned Sessions Judge that it was a fit case where the accused should be convicted u/s 304, Part-I. IPC But-such submission did not persuade him. We are at a loss to understand how such an argument did not convince the learned trial Judge when there are plenty of evidence to show that the Appellant did not have any intention to cause the death of Rama Krushna. It is further noticed that after receiving the blow, Rama Krushna was first admitted In the Luislnga P.H.C. and later on shifted to the District Headquarters Hospital, Bolangir. From the evidence, it has transpired that only a single blow was given by the Appellant without any premeditation or intention. But, since the blow was to the vital organ like head, it can be inferred that he knew that such injury was likely to cause death. 9. From the analysis of evidence, it is abundantly clear that the Appellant was driven to the crime which was not premeditated. An occasion had sprung up at the moment gradually leading to the point when the Appellant lost his self-control due to grave and sudden provocation and inflicted a single blow on the head of the deceased within seconds. 9. From the analysis of evidence, it is abundantly clear that the Appellant was driven to the crime which was not premeditated. An occasion had sprung up at the moment gradually leading to the point when the Appellant lost his self-control due to grave and sudden provocation and inflicted a single blow on the head of the deceased within seconds. We are, therefore, of the considered opinion that the offence made out against the Appellant falls u/s 302, Part-I, IPC. 10. For the reason stated above, we set aside the order of the learned Sessions Judge convicting the Appellant u/s 302, IPC and sentencing him to undergo imprisonment for life. Instead, we convict him u/s 304, Part-I. IPC and sentence him to undergo rigorous imprisonment for seven years. 11. In the result, the appeal is allowed in part to the extent indicated above. P.K. Misra. J. 12. I agree.