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2007 DIGILAW 36 (ORI)

Sagi Chitti Raju v. State of Orissa

2007-01-10

PRADIP MOHANTY

body2007
JUDGMENT PRADIP MOHANTY, J. : This criminal appeal is directed against the judgment and order dated 27.5.1989 passed by the learned Sessions Judge, Ganjam, Berhampur in S.C. No.155 of 1988 convicting the appellant under Section 304 Part-I IPC and sen¬tencing him to undergo R.I. for seven years. 2. The case of the prosecution is that the father of the accused-appellant and P.W.2 the elder brother of the appellant’s father, who happens to be the informant of this case, were not pulling on well for long over division of their ancestral land of about 26 acres lying spread within the limits of village Gudiap¬alli, and had been litigating over a mango tope of that village. On 17.4.1988 the deceased, who is the son of P.W.2, and his brother (P.W.1) had entered into the tope along with P.W.3 and a labour named Jogi Jani. While they were gathering the fallen mangoes inside the tope, at about 6 a.m., accused-appellant S. Chitti Raju and his brother S. Appala Raju (co-accused) appeared at the tope along with their servant, Mochia Jena and restrained them from gathering mangoes. The deceased, S. Krishnamurty Raju with¬out paying any heed to their words of restraint proceeded with his work of gathering and on slighting him doing that, accused Appala Raju and Chitti Raju pushed him away to his fall and pressed him to the ground. P.W.3 intervened and making the two accused persons to depart from the scene for their village, fol¬lowed them along with Jogi Jani with a view to hire a cart for shifting the mangoes. P.W.3 remained at the road junction of village Gudiapalli. After some time P.W.1 came there from the tope along with his brother and joined P.W.3 in talk on the eastern side of the road in front of the hotel of one Bansi Beh¬era, leaving his brother S. Krishnamurty Raju, the deceased with their bicycle on the other side of the road to the west. While he was so taking with P.W.3, accused Sanyasi Raju came out of his house along with his son Appalla Raju and both of them position¬ing themselves in front of Krishnamurty Raju immobilised him by laying their grip upon both of his arms. While he was so taking with P.W.3, accused Sanyasi Raju came out of his house along with his son Appalla Raju and both of them position¬ing themselves in front of Krishnamurty Raju immobilised him by laying their grip upon both of his arms. Accused Chitti Raju appeared at the scene following their foot steps with the knife (M.O.I.) in his hand, stabbed Krishnamurty Raju on the lower part of the right side of his chest, and rushed back to his house together with his father and brother by leaving the knife embed¬ded inside the chest cavity of the deceased. P.W.1 rushed down from a distance of about 10 cubits to the scene, pulled out the knife (M.O.I.) from the chest of his brother, Krishnamurty Raju and thereafter the three accused persons for their apprehension with that knife in his hand, but finding them going inside their house rushed back to the spot to rescue his brother. P.Ws.6 and 7 who were nearby also rushed to the aid of S. Krishnamurty Raju and rendering first aid by tying a towel around the body to check the flow of blood despatched the injured to Polasara hospital by a taxi, wherefrom the injured was shifted to the Medical College Hospital at Berhampur for intensive treatment. F.I.R. was lodged by P.W.2 the father of the deceased, upon which a case was regis¬tered and P.W.8 and A.S.I. of Police investigated into the mat¬ter, later on, P.W.9 the O.I.C., took over the charge of investi¬gation and came to learn of the death of the injured at the M.K.C.G., Medical College Hospital as a result of the wound sustained on 17.4.1988. P.W.9 came to the Hospital, recorded the statements of P.Ws.1 and 3, hold inquest over the deadbody, prepared the inquest report and sent the deadbody for post mortem examination. On completion of investigation, final form was submitted against the appellant-Sagi Chitti Raju, his father S. Sanayasi Raju and brother S. Appala Raju. 3. The plea of the accused persons is complete denial of the allegations. 4. In order to prove its case, the prosecution examined as many as 9 witnesses including the doctor and the I.O. and proved 20 documents. Defence examined none, but proved 8 exhibits. 5. The learned Sessions Judge, who tried the case, framed charge under Sections 302/34 IPC against the appellant and the two co-accused persons. 4. In order to prove its case, the prosecution examined as many as 9 witnesses including the doctor and the I.O. and proved 20 documents. Defence examined none, but proved 8 exhibits. 5. The learned Sessions Judge, who tried the case, framed charge under Sections 302/34 IPC against the appellant and the two co-accused persons. Ultimately, after evaluating the evidence on record, he acquitted the two other co-accused persons, but convicted the appellant under Section 304, Part-I I.P.C. with the finding that since the appellant stabbed his cousin under sudden provocation, that would attract the first Exception of Section 300 of I.P.C. and sentenced him to undergo R.I. for 7 years. 6. Learned counsel for the appellant submits that all the witnesses are interested and partisan. They have not presented the correct picture of the occurrence while deposing in Court and admittedly civil disputes were going on between the two groups. The learned Sessions Judge should not have accepted the evidence of P.Ws.1, 3, 6 and 7. P.W.2 has not himself seen the occurrence. Moreover, there are major contradictions in the evidence of the prosecution witnesses. That apart, prosecution has not examined material witnesses like the hotel owner, near whose hotel the occurrence took place. Non-examination of material witnesses is fatal to the prosecution. Lastly, learned counsel for the appel¬lant submits that at the time of occurrence the age of the appel¬lant was 22 years. Therefore, in case he is found guilty by this Court, he may be awarded a lesser punishment. 7. Mr. Mishra, learned Standing Counsel vehemently con¬tends that P.Ws. 1, 3, 6 and 7 are the eye witnesses and they have given a vivid picture of the occurrence. Even though, they have been cross-examined at length, nothing has been elicited from them to discredit their version. They are trustworthy wit¬nesses. The prosecution has been able to prove the case against the appellant beyond all reasonable doubt and the learned Ses¬sions Judge has rightly convicted and sentenced the appellant. This Court may not interfere with the impugned judgment since there is no illegality, irregularity or perversity in the same. 8. Perused the judgment and the exhibits. P.W. 1 has specifically stated about the assault to the accused. While he was talking with P.W.3, accused-Sanayasi along which Appala Raju came there and caught hold of the deceased. This Court may not interfere with the impugned judgment since there is no illegality, irregularity or perversity in the same. 8. Perused the judgment and the exhibits. P.W. 1 has specifically stated about the assault to the accused. While he was talking with P.W.3, accused-Sanayasi along which Appala Raju came there and caught hold of the deceased. By that time, the accused-appellant came running with a knife and gave a blow to the deceased by means of that knife. He pulled out the knife and shifted the injured to the Polsara Hospital. There is no dispute that P.W.1 is the brother of the deceased and nothing has been elicited from his cross-examination. There is no reason to disbelieve the evidence of P.W.1. P.W.3 is an occurrence wit¬nesses. He was standing 10 cubit away from the spot. He specifi¬cally stated that while the deceased was exchanging words with Appala Raju, accused Chitti Raju appeared at the scene all of a sudden after running out of his house and suddenly stabbed Krish¬namurty upon the right side of his chest by means of a knife which he had been holding. Thereafter the present appellant along with the two others ran away from the spot. Nothing has been elicited from this witness in cross-examination. There is no reason to disbelieve the evidence of P.W.3 and there is no mate¬rial to come to a conclusion that he is an interested witness. The law is well settled that on the ground of interestedness alone, evidence of witnesses cannot be thrown out if otherwise they are reliable and trustworthy. P.Ws.6 and 7, who are also eye witnesses, have corroborated the statements of P.Ws.1 and 3. Though there are minor contradictions and discrepancies here and there in the evidence of the prosecution witnesses, it is the bounden duty of the Court to the grain from the chaff, accept what appears to be true and reject the rest. 9. For the aforesaid reasons, this Court is not in a position to accept the contentions made by the counsel for the appellant and there is no scope for this Court to interfere with the impugned judgment. The learned Sessions Judge has right¬ly convicted the appellant under Section 304, Part-I IPC. As regards sentence,it is seen that at the time of occurrence the age of the appellant was 22 years and he was prosecuting his study in the college. The learned Sessions Judge has right¬ly convicted the appellant under Section 304, Part-I IPC. As regards sentence,it is seen that at the time of occurrence the age of the appellant was 22 years and he was prosecuting his study in the college. The occurrence took place due to sudden provocation. Taking these factors into consideration, this Court modifies the sentence to the period of imprisonment already undergone along with a fine of Rs.10,000/-, (ten thousand), in default to undergo R.I. for one year. The Criminal Appeal is disposed of accordingly. Appeal disposed of.