Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 105 (ORI)

Kora Das v. State of Orissa

2007-02-14

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT This appeal is directed against the judgment and order dated 31.3.1997 passed by the Second Addl. Sessions Judge, Berhampur in S.C. No.5 of 1996 convicting the accused-appellant under Section 302 of I.P.C. and sentencing him thereunder to undergo imprisonment for life. 2. Prosecution case in short is that on 5.6.1995 at about 10.00 P.M. while the deceased Rajendra Das @ Raju, along with his family members was asleep in his house, accused Baritalia @ Balaji Das came to house and called him by name. As he came out, accused Balaji Das challenged him as to why he declared to kill his son, Kora Das (accused-appellant) and when he denied to have said so, accused Balaji told that he heard it from Arjun Das (P.W.2). So both the deceased and Balaji Das went to the house of P.W.2 to confront it. Sometime, thereafter both were seen coming towards the house of the deceased exchanging hot words. During that time accused-appellant and co-accused Kalia emerged out of their respective houses and accused Kalia pushed the deceased and when he fell down accused-appellant pierced a GIDISA on his chest while accused Balaji and Kalia assaulted him. Hearing hullah raised by P.W.6, mother of the deceased, Bhagaban Das, Mangulu Das (P.W.5), Panu Das, Udhab Das and Arjun Das rushed to the spot and intervened, accused persons fled away. Immediately thereafter, while the deceased was being carried to the hospital, on the way, he succumbed to the injuries. In the same night at about 11.30 P.M. P.W.1, wife of the deceased orally reported the incident before the O.I.C. of Hinjili Police Station (P.W.7), who reduced the same into writing as per Ext.2, read over and ex¬plained the contents of it to the informant who after finding the same to be correct, put her L.T.I. thereon. As the allegation revealed a cognizable case, P.W.7 registered the case and took up investigation. As the allegation revealed a cognizable case, P.W.7 registered the case and took up investigation. In course of investigation he examined witnesses, visited the spot, seized a knife said to be the weapon of offence besides some other Material Objects, held inquest over the dead body, sent it to hospital for autopsy, arrested the accused persons, forwarded them to Court and after completion of investi¬gation, finding a prima facie case submitted charge sheet against all three accused persons for the offence under Section 302/34 I.P.C. After the case was committed to the Court of Sessions Judge, Berhampur, it was transferred to the Court of Second Addl. Sessions Judge for trial and accordingly all the accused persons faced trial for the offence under Section 302/34 I.P.C. 3. Plea of the accused persons was that of complete deni¬al. 4. In order to prop up its case prosecution examined eight witnesses in all, as against none by the defence. After assessment of the evidence on record, the trial Court, while convicting the accused-appellant under Section 302 of I.P.C., acquitted the other two co-accused of the charge under Section 302/34 I.P.C., albeit convicted them under Section 323 of I.P.C. accused-appellant was sentenced to undergo imprisonment for life under Section 302 of I.P.C. and the other accused persons were sentenced to undergo R.I. for four months each under Section 323 of I.P.C. That judgment and order of conviction of Kora Das under Section 302 I.P.C. is challenged in this appeal. 5. Learned counsel for the appellant submits that the trial Court convicted the accused-appellant, mainly basing on the evidence of P.Ws.1,5 and 6. Admittedly P.W.1 is the wife, P.W.5 is the maternal uncle and P.W. 6 is the mother of deceased. Except P.W.5 none of the witnesses named in the F.I.R. was exam¬ined by the prosecution. Since P.Ws. 1,5 and 6 are close rela¬tives of the deceased, naturally they would be eager to see that the accused-appellant along with the co-accused persons were convicted and sentenced to imprisonment. So, learned counsel for the accused-appellant submitted that the trial Court ought not have convicted the accused-appellant, basing on the evidence of P.Ws. 1,5 and 6, particularly when there were other independent witnesses to the occurrence as revealed from the F.I.R. 6. So, learned counsel for the accused-appellant submitted that the trial Court ought not have convicted the accused-appellant, basing on the evidence of P.Ws. 1,5 and 6, particularly when there were other independent witnesses to the occurrence as revealed from the F.I.R. 6. On perusal of the evidence on record including the F.I.R., it is found that except P.W.5 all other witnesses named in the F.I.R. were post-occurrence witnesses. Moreover, besides P.W.5, P.W.4 who figure in the F.I.R., as a witnesses has also been examined by the prosecution. Furthermore, as found from the evidence of P.W.5, he is the maternal uncle of both the deceased and the accused-appellant. It also transpires from the evidence of P.W.6 that accused Balaji is the husband of her elder sister. Accused-appellant being the son of Balaji is also a close rela¬tive of P.W.6. P.W.1 being the daughter-in-law of P.W.6, all the three main witnesses (P.Ws. 1,5 and 6) are close relatives of the accused-appellant. There is no dispute that deceased died a homicidal death. Naturally, being close relatives of the de¬ceased. P.Ws. 1,5 and 6 would like to see that the actual cul¬prits do not go scot-free. They would not prefer to rope an innocent person, that too a close relative in a heinous crime like murder. F.I.R. contains name of eight witnesses, out of whom only one witness (P.W.5) is said to have seen the occurrence and all others are post-occurrence witnesses. Besides P.W.5, another F.I.R. witness (P.W.4) has also been examined. Prosecution is not required to examine all the witnesses named in the F.I.R. Convic¬tion can lie even on the basis of evidence of the relatives of a victim of assault provided such evidence is reliable. So the submission of learned counsel for the accused-appellant that the trial Court ought not to have convicted the accused-appellant basing on the evidence of P.Ws. 1,5 and 6 is not acceptable. 7. Learned counsel for the accused-appellant, next submits that the occurrence took place at about 10.30 P.M. and as such it appears quite improbable that during night time P.Ws.1,5 and 6 could correctly identify the accused-appellant. The occurrence took place in a remote village of Ganjam district. Generally the eyesight of the villagers where electricity is not there gets conditioned and become accustomed to see per¬sons in night, particularly when they are their close relatives. The occurrence took place in a remote village of Ganjam district. Generally the eyesight of the villagers where electricity is not there gets conditioned and become accustomed to see per¬sons in night, particularly when they are their close relatives. In the present case all the three main witnesses being close relatives of the accused-appellant and they themselves and the accused-appellant being co-villagers, their evidence that they could identify the accused-appellant correctly in the night can not be brushed aside, particularly when they saw the incident from close proximity as borne out from the evidence on record. 8. Learned counsel for the accused-appellant further submits that as per the evidence of P.Ws.1,5 and 6, the accused-appellant pierced a GIDISA on the chest of the deceased, but a knife was seized by the I.O. from the place of occurrence, so the trial Court ought not have convicted the accused-appellant for the offence under Section 302 of I.P.C. It transpires from the evidence of P.W.1 that after the assault the accused-appellant fled away with the GIDISA. On perusal of the evidence of the I.O. (P.W.7), it is found that on 6.6.1995 at 2.00 A.M. he searched the house of the accused-appellant, but could not find any in¬criminating material. In the same night he visited the spot and found a knife with a handle lying on the spot and therefore he seized it. So it appears that with a view to misdirect the inves¬tigation accused-appellant concealed the GIDISA and he might have managed to drop a knife near the spot. When P.W.1 stated that the accused-appellant took to his heels with the GIDISA, it was the duty of the I.O. to search for it sincerely, but he has not done so. As found from the impugned order GIDISA is a “U” shaped iron instrument having two pointed edges. As per the evidence of the doctor (P.W.8) he found two stab wounds, one of which was of size 2 cm x 1 cm x, chest cavity deep and spindle in shape present in the left clavicle 3 cm apart from mid point and the other wound was of size 0.5 cm x 0.5 cm x muscle deep placed 1.5 cm medial to the fist injury. GIDISA being “U” shaped iron these injuries can be caused by it by a single blow. GIDISA being “U” shaped iron these injuries can be caused by it by a single blow. Only because the I.O. was not sincere in searching the actual weapon of offence used in the crime, when there are eye witnesses to the occurrence and the medical opinion does not conflict with their evidence, non-seizure of the GIDISA can not be regarded as fatal to the prose¬cution. So the trial Court rightly held that because of the lacuna of the I.O. the prosecution should not suffer. 9. As found from the evidence on record, accused-appellant and deceased were cousins, their mothers being two sisters. There is no evidence on record showing that the injuries found on the dead body of the deceased were sufficient in ordinary course of nature to cause death. As there was exchange of hot words between the father of the accused-appellant and the deceased, the ac¬cused-appellant emerged out of his house and without premedita¬tion, on sudden provocation inflicted only one GIDISA blow on his chest and fled away without taking undue advantage of the situa¬tion or acting in a cruel or unusual manner. So, the offence would be culpable homicide not amounting murder and would fall under exception 4 of Section 300 of I.P.C. and as such the ac¬cused-appellant would be liable for the offence under Section 304-1st part and not under Section 302 of I.P.C. 10. Keeping in view the facts and circumstances of the case and the accusation involved, we find the accused-appellant guilty for the offence under Section 304-1st part of I.P.C. The order of conviction under Section 302 of I.P.C. is modified to one under Section 304-1st part of I.P.C. and the accused-appellant is sentenced to undergo rigorous imprisonment for a period of ten years. On a bare arithmetical calculation it appears that the accused-appellant, Kora Das was arrested and forwarded to jail custody on 8.6.1995, was on parole for a period of only 15 days and rest of the period was in jail custody and that he had al¬ready been in jail for more than ten years. If that be so and his detention is not required in connection with any other case, then accused-appellant Kora Das be set at liberty forthwith. The Criminal Appeal is accordingly allowed in part. Crl. Appeal allowed in part.