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2006 DIGILAW 369 (ORI)

Madhaba Pollai v. State of Orissa

2006-05-10

A.K.SAMANTARAY, P.K.TRIPATHY

body2006
JUDGMENT P. K. TRIPATHY, J. : Appellant faced trial for the offence under Section 302, I.P.C. Learned Second Addl. Sessions Judge, Berhampur found him guilty and imposed punishment of imprisonment for life as per the impugned Judgment delivered on 16.8.1997, in Sessions Case No. 3 of 1996 (Sessions Case No.14 of 1996 GDC). 2. Prosecution case is that Brundaban Pollai (hereinafter mention as deceased) was running a tea stall in his village Alla¬pur under Hinjli P.S. in the district of Ganjam. On 10.4.1995, in the morning hours, accused/appellant came and asked for tea but deceased denied to supply the same on credit. There was quarrel between the two on account of that. P.W.4, a nephew of the deceased intervened and separated them. In the afternoon, after taking his food, when the deceased came to his tea stall he found the accused giving kick blows to the Cabin of the tea stall. He raised protest and that resulted in tussle between the two. In the process of that fight, as alleged by the prosecution, accused being in possession of a knife, dealt blows by the same to the chest of the deceased, causing severe bleeding injuries and that resulted in homicidal death of the deceased. P.W.4, was present at the scene of occurrence during such fight, and he failed to separate both of them or stop the accused causing the injuries. As an eyewitness to the occurrence he saw the accused dealing the knife blow to the chest of the deceased. The other eyewitness is P.W.5. Out of the rest witnesses examined by the prosecution, P.W.8 is the doctor who conducted autopsy and proved the post mortem report Exhibit-5 and P.W. No.10 is the doctor, who granted injury certificate in favour of the accused. M.O.1 is the knife, which was recovered at the instance of the accused under Section 27 of the Evidence Act. In the trial Court accused took the plea that in the process of quarrel, the deceased, who was in posses¬sion of the knife, got stabbed on his chest. In other words ac¬cording to the accused he did not give any knife blow and the injury sustained by the deceased was out of mutual fight. No evidence has been given in support of that plea except giving such suggestion to the witnesses. 3. On assessment of evidence learned Second Addl.Sessions Judge found that deceased suffered homicidal death. In other words ac¬cording to the accused he did not give any knife blow and the injury sustained by the deceased was out of mutual fight. No evidence has been given in support of that plea except giving such suggestion to the witnesses. 3. On assessment of evidence learned Second Addl.Sessions Judge found that deceased suffered homicidal death. He also recorded finding that post mortem report Ext.5, evidence of PW-8 coupled with the evidence of PWs 4 and 5 is clear enough to prove that accused is the author of the injury to the chest of the deceased in course of the quarrel between them and that injury proved fatal to cause death of the deceased. Accordingly, he found the accused guilty of the offence of murder. 4. Mr. Nanda, learned counsel for the accused appellant argues that plea of self-defence of the accused is readable from the narration of events by PWs.4 and 5, if their evidence read together with the statement of the accused recorded under Section 313 Cr.P.C. He therefore, urges to give the accused benefits of Self defence. Alternatively, he argues that accused had no inten¬tion to do away with the deceased and therefore the fatal blow on the chest of the deceased may at best amount to culpable homicide not amounting to murder and accordingly conviction of the accused be converted to one under Section 304 I.P.C. Learned Addl.Govern¬ment Advocate, on the other hand, supports the impugned judgment of the trial Court and argues that the accused appellant has neither made out a case of self-defence nor a case of culpable homicide not amounting to murder and therefore, the appeal is liable to be dismissed. 5. In view of the aforesaid contention, we peruse the evidence on record. Evidence of P.W.8 indicates that there were three incised wounds on the nostril of the right side nose, nasal septum and left nostril, one stab wound on the chest and three abrasions over top of right shoulder, middle part of the neck on front side and right knee joint. According to the opinion of the doctor, the incised and stab injuries can be caused by sharp cutting pointed weapon like M.O.1, the knife. He opined that injuries on chest were homicidal in nature and sufficient to cause death in ordinary course. That evidence of P.W. No.8 was neither challenged in the trial Court nor challenged before us. According to the opinion of the doctor, the incised and stab injuries can be caused by sharp cutting pointed weapon like M.O.1, the knife. He opined that injuries on chest were homicidal in nature and sufficient to cause death in ordinary course. That evidence of P.W. No.8 was neither challenged in the trial Court nor challenged before us. Such evidence proves that deceased suffered homicidal death. 6. According to P.Ws.4 and 5, there was quarrel between the accused and the deceased. The accused did not deny his par¬ticipation in the tussle/scuffle between him and the deceased. Therefore, his plea of private defence can be considered if he makes out a case in that respect. P.Ws. 4 and 5, in their exami¬nation in chief consistently stated that it was the accused who was in possession of the knife and he utilized the same to cause injury on the deceased. If further reveals from their evidence that it was the accused who was giving kicks to the Cabin of the deceased. Therefore, as rightly argued by learned Addl.Government Advocate, accused was the aggressor, he was in possession of the knife and in course of the scuffle between him and the deceased, he caused injuries to the deceased. This fact situation is clear¬ly made out from the evidence of P.Ws. 4 and 5. Thus learned Second Addl.Sessions Judge was right in his approach in rejecting the plea of self-defence as taken by the accused/appellant. In support of the plea of self-defence, Mr. Nanda relied on the case of Jharmal and others vrs. State of Orissa 1994(1) Crime 776. A perusal of the said citation it is seen that in that case prose¬cution party was the aggressor and therefore, taking that aspect into consideration, the plea of self-defence was found available in favour of the accused persons. But the fact situation is different in the present case. Here, the accused acted as the aggressor. Therefore, the plea of self-defence is not available to him. 7. The aforesaid citation is also relied on for the alter¬native argument, i.e., for conviction of the accused for offence of culpable homicide not amounting to murder. In this case, there is no direct or circumstantial evidence on record for a finding in favour of accused for the offence punishable under Section 304 I.P.C. Appellant has signally failed to make out such a case. In this case, there is no direct or circumstantial evidence on record for a finding in favour of accused for the offence punishable under Section 304 I.P.C. Appellant has signally failed to make out such a case. Under such circumstances, we do not disturb the order of convic¬tion under Section 302 I.P.C. 8. The jail criminal is found to be without any merit and accordingly the same is dismissed. JCA dismissed.