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2007 DIGILAW 882 (ORI)

KASEL DAS v. STATE OF ORISSA

2007-11-21

P.K.TRIPATHY, SANJU PANDA

body2007
JUDGMENT : 1. This Jail Criminal Appeal has been filed by the Appellants who have been convicted under Sections 302/34 of the Indian Penal Code vide judgment dated 21st October, 1997 passed by learned Sessions Judge, Dhenkanal-Angul in Sessions Trial Case No. No. 16-D of 1994 and sentenced them to undergo imprisonment for life. 2. Facts, as alleged by the prosecution, are that on 08.07.1993 there was a quarrel between the sons of the accused Dheda (Appellant No. 2) and Fakir, the deceased. On the complaint of his son, accused Dheda came to the house of the deceased and assaulted the son of the deceased and also assaulted the wife of the deceased, who wanted to intervene in the matter. Then the deceased was not present in his house. On 10.07.1993, in the morning at about 7 a.m. accused Dheda was questioned for the aforesaid overt acts and assault. Accused persons retaliated to that questioning, made altercations with the deceased and assaulted the deceased by means of stick (lathi). On sustaining such blow, deceased fell down with bleeding injuries, villagers intervened and the accused persons fled away. According to that allegation, accused (Appellant No. 1) Kasei Das dealt one blow to the head of the deceased followed by two subsequent blows. When the deceased fell down in an injured condition was then taken to Matha Karagola Primary Health Center and therefrom to the Sub-Divisional Hospital at Kamakhyanagar and from that place, on the medical advice, they took the deceased to Cuttack Hospital. On the way the deceased succumbed. Initially on the information of P.W. 2, the Officer-in-Charge, Kamakhyanagar registered a case u/s 307/34 IPC and subsequent to the death of the deceased, the case was converted to Section 302/34 IPC. 3. The defines plea is one of complete denial and false implication and in their statement u/s 313 Code of Criminal Procedure both the accused persons have taken a further plea that on the date and time of occurrence the deceased came out with a Kati to assault them for which both of them to protect themselves waved the lathis and due to such waving of lathis, deceased fell down on a stone sustaining head injuries. 4. To prove the case, prosecution examined as many as seven witnesses. The accused persons examined one witness in their defence. 5. P.Ws. 4. To prove the case, prosecution examined as many as seven witnesses. The accused persons examined one witness in their defence. 5. P.Ws. 1 and 2 are sons of the deceased and P.W.2 is also the informant and they claim to be the eye witnesses. P.W.5 is one of the co-villager and is a witness to the occurrence. P.W. 3 is the doctor who conducted post-mortem on the dead body of the deceased. P.W.4 is Anr. Medical Officer who examined the deceased in injured condition and also recorded his dying declaration prior to being referred the injured to the Sub-Divisional Hospital, Kamakhyanagar. P.W.7 is the Officer-in-Charge. P.W.3, the Doctor, who conducted the post-mortem and found the following external injuries. 1. Abrasion 3/4" X 1/4" situated over the front of left writ joint, 2. Bruise 6" X 1/4" obliquely placed over left scapular region, 3. Swelling of 4" diameter situated over left parietal region of scalp. 4. Lacerated wound 2" X 1/4" X 1/4" longitudinally situated over injury No. 3. On dissection, he found a big subcutaneous haematoma beneath injury No. 3 and internal injuries. He opined that all the injuries are ante mortem in nature and cause of death was injury to the vital organ like brain and the same was found to be sufficient in ordinary course of nature to cause death. 6. The evidence of P.Ws. 1 and 2 virtually corroborated each other on the fact that prior to the date of occurrence there was a quarrel between him (P.W. 1) and son of accused Dheda for which Dheda came out from his house and assaulted him and his mother during absence of the deceased. On the date of occurrence there was an altercation between the accused persons and the deceased on the said issue and at that point of time both the accused Kasai and Dheda at the instigation of Nanda (father of accused) dealt lathi blows to the deceased and due to intervention of some of the villagers, the accused persons fled away from the spot. The deceased sustained bleeding injuries on his head and he was shifted to the hospital and died on the way to Cuttack. P.W.5 was also corroborated the fact of quarrel between the deceased and the accused persons and has stated that the accused Kansei dealt lathi blows to the head and neck of the deceased and he was declared hostile. The deceased sustained bleeding injuries on his head and he was shifted to the hospital and died on the way to Cuttack. P.W.5 was also corroborated the fact of quarrel between the deceased and the accused persons and has stated that the accused Kansei dealt lathi blows to the head and neck of the deceased and he was declared hostile. 7. The learned trial Court accepting the direct evidence of P.Ws. 1, 2 and 5 coupled with the testimonies of P.Ws. 3, 4 and 7 held that the death was homicidal and Appellants are author of the injuries. Accordingly, he convicted the accused persons under Sections 302/34 IPC and sentenced each of them to undergo imprisonment for life. 8. Learned Counsel appearing for the Appellants submits that, from the evidence of the witnesses it reveals, there had been a quarrel between the deceased and the accused persons and at the spur of the moment, Appellants suddenly dealt lathi blows on the deceased. They have no premeditation and being incensed assaulted the deceased which landed on the head of the deceased. Trial Court should have convicted the accused persons u/s 304 Part-1/34 IPC and not u/s 302/34 IPC. 9. In the case of Keshaba Naik and Anr. v. state of Orissa (2007) 37 OCR 676), the order of conviction and sentence passed against the Appellants u/s 302 IPC was set aside and in lieu thereof, the Appellants were convicted u/s 304 Part I IPC because there had been a sudden quarrel and in course of which the accused gave blows to the deceased without pre-meditation or previous meeting of minds of the Appellants to kill the deceased. Similar view has also been taken by a Division Bench of this Court in the case of Kora Das v. State of Orissa (2007) 37 OCR 464 wherein the conviction of the Appellant u/s 302 IPC was converted to one u/s 304 Part I IPC. 10. From the evidence on record and considering the facts and scrutinizing the statement of P.Ws. 1, 2, and 5 who corroborated each other on the fact of sudden quarrel and provocation, it is found that accused persons had no intention to kill the deceased or they assaulted with the knowledge or intention that the injury would cause death of the deceased. Rather the assault was an outcome of altercation and at the spur of moment. 11. Rather the assault was an outcome of altercation and at the spur of moment. 11. We find that the facts situated in this case have a strong resemblance with the facts in the above noted citations. The Appellants in this case might not have intended to kill the deceased, but definitely intended to dissuade him from the quarrel by inflicting injuries. This Court held that the injuries inflicted by two of them may be circumstance to be taken into account in furtherance of proof of common intention. But having regard to the fact situation involved, it is held that only the offence punishable u/s 304 Part I/34 IPC is made out. We are accordingly of the view that the offence committed by the Appellants is not murder but culpable homicide not amounting to murder. 12. For the reasons indicated above, the order of conviction u/s 302/34, I.P.C. and the sentence imposed thereon is set aside. On the other hand, Appellants are found guilty for the offence u/s 304, Part-I, I.P.C. and they are accordingly sentenced each to undergo rigorous imprisonment for ten years. We find on record that Appellants were in jail custody since 21.10.1997. Therefore, if they have completed the period of detention as sentenced above, they may be set at liberty forthwith, provided their detention is not required in connection with any other case. The Jail Criminal Appeal is accordingly disposed of.