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2007 DIGILAW 875 (ORI)

GOBINDA DADIA @ DHANA v. STATE OF ORISSA

2007-11-19

B.P.RAY, L.MOHAPATRA

body2007
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the judgment and order of conviction and sentence passed by the Learned Sessions Judge, Koraput, Jeypore in S.C. No. 294 of 1995 convicting the Appellant for commission of offence u/s 302 of the Indian Penal Code and sentencing him to undergo R I. for life. 2. The case of the prosecution is that on 12.6.1995, one Hari Khilla a resident of village Gumaguda died. On 13.6.1995, the informant Dasa Pangi, the deceased Ramdas and many other villagers went to Gumaguda and cremated the dead body at about 4 P.M. There is a custom in that community that in the event, a person dies, the other families of the village will collect rice to be contributed by each of the family and that will be given to be bereaved family. It is also alleged that the Appellant raised this matter before the other villagers after cremation of the dead body and, accordingly, the deceased asked the Appellant to collect the rice from each of the families. Over this incident there was an exchange of hot words between them and getting angry, the Appellant tore the shirt of the deceased. The deceased feeling insulted, removed the torn shirt and keeping it there, came away declaring to come on the next day and settle the matter in the Panchayat. When Das Pangi and the deceased were returning to their village at about 7.30 P.M, on their way hearing the foot-steps approaching from the back side, the informant turned around and found the accused coming running towards them and suddenly stabbed on the left chest of the deceased with a knife (paniki Chhuri) and removed the weapon and ran away. Receiving the injury, the deceased fell down and there was profuse bleeding from the injury. The informant shouted and other witnesses came to the spot and took the deceased to the hospital but on the way he succumbed to the said injury. On these allegations, an F.I.R. having been lodged by Dasa Pangi-P.W.5, investigation was taken up and charge sheet was submitted for commission of offence u/s 302 of the Indian Penal Code. 3. The informant shouted and other witnesses came to the spot and took the deceased to the hospital but on the way he succumbed to the said injury. On these allegations, an F.I.R. having been lodged by Dasa Pangi-P.W.5, investigation was taken up and charge sheet was submitted for commission of offence u/s 302 of the Indian Penal Code. 3. The defence plea is completely denial of the prosecution allegations and a specific plea has been taken by the Appellant that with effect from 13.6.1995 he had gone to Balada to the house of his uncle to thatch the roof and returned back the village on 18.6.1995 but no witness has been examined to prove the defence of alibi. The prosecution examined eight witnesses including official witnesses to bring home the charge. The Trial Court relying on the evidence of this witness (P.W.5), corroborated by medical evidence convicted the Appellant for commission of offence u/s 302 of the Indian Penal Code. P.W.5 is an eye-witness to the occurrence and is also the informant. In his deposition, he has stated that on the date of occurrence, they got information that Hari Khilla died in the house of Padlam Pangi in village Gumaguda and, accordingly, he accompanied by deceased went to the house of Padlam to attend the funeral procession. In the afternoon, the dead body was cremated and the deceased was then the Village Naik of Mendajola and the Appellant was the Challan of village Gumaguda. After cremation, they and other villagers gathered the village Gumaguda to give rice, etc. to the relatives of Hari Khilla as a mark of consolation as per the custom. The village Challan is to bring rice from different houses. The deceased asked the Appellant to collect the rice. Over this issue, there was a dispute and both of them slapped each other. The Appellant thereafter tore the wearing shirt of the deceased and accordingly the deceased took a decision to raise this matter before the Panchayat on the next day. When they were proceeding towards their village, this witness heard foot steps of some one coming from the backside and when he turned around, he found the Appellant coming. Thereafter, the Appellant suddenly caught hold of right shoulder of the deceased and stabbed with a small iron Paniki on the left side chest, as a result of which, the deceased fell down. Thereafter, the Appellant suddenly caught hold of right shoulder of the deceased and stabbed with a small iron Paniki on the left side chest, as a result of which, the deceased fell down. The Appellant, thereafter took away the weapons and ran way from the spot. This witness called the villagers by shouting and hearing hulla, P. Ws. 6 and 7 arrived at the spot with other villagers and shifted the deceased to Padwa Hospital where the doctor was found to be absent. Therefore, the deceased was shifted to Nandapur Hospital. When they were carrying the deceased from Padwa Hospital to Nandapur, he succumbed to the injuries on the way. In crossexamination, this witness stated that after cremation, all of them took liquor and the deceased had also taken a small quantity of liquor. This witness further stated that there was no quarrel between the Appellant and the deceased prior to the incident. Only on the date of incident, there was a scuffle over a petty matter. Apart from this, there is no other statement to disbelieve this witnesses so far as assault by the Appellant on the deceased is concerned. P. Ws. 6 and 7 are post occurrence witnesses, who had arrived at the spot hearing hulla of P.W.5 and seen the deceased lying with injury on his chest. P.W.4 is the doctor, who conducted the post mortem examination and found one stab wound on the left side supra clavicular foss of the size of 4x1x5 cMs. This witness is of the opinion that the injury was ante-mortem in nature and could have caused the death. The dhoti, which had been seized, was sent for chemical examination and human blood found on the said dhoti. There is no explanation as to how the dhoti, which the deceased was wearing, was stained with human blood. In view of such nature of evidence of the eyewitness (P.W.5), corroborated by the evidence P. Ws. 6 and 7 and the medical evidence as deposed by P.W.4, we have no doubt in mind that the Appellant had stabbed the deceased by means of a Paniki knife on the left side of the chest. In view of such nature of evidence of the eyewitness (P.W.5), corroborated by the evidence P. Ws. 6 and 7 and the medical evidence as deposed by P.W.4, we have no doubt in mind that the Appellant had stabbed the deceased by means of a Paniki knife on the left side of the chest. However, the evidence clearly shows that there was a quarrel immediately before the occurrence between the Appellant and the deceased and the deceased had told the Appellant that the matter shall be raised before the Panchayat on the next day and that all of them also took liquor after cremation and that the Appellant had given one blow on the chest of the deceased. Taking all,these factors in to consideration, we are of the view that the Appellant had no intention to kill but had knowledge that the said injury may cause death. 4. We, accordingly set aside the order of conviction passed against Appellant u/s 302 of the I.P.C. and convict him u/s 304-11 of the Indian Penal Code and sentence him to under go imprisonment for a period of ten years. As it appears from the ordersheet, the Appellant has already remained in custody since 1995. If the Appellant has served sentence of 10 years in the meantime, he be set at liberty forthwith, unless his detention is required in any other case.