Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 19 (ORI)

LACHHNA SABAR v. STATE OF ORISSA

2008-01-07

B.P.RAY, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - The Appellant having been convicted for commission of offence u/s 302 Indian Penal Code and sentenced to undergo imprisonment for life by the Learned Additional Sessions Judge, Gajapati, Paralakhemundi in Sessions Case No. 16/1996 (Sessions Case No. 205/96 GDC) has preferred this appeal against the order of conviction and sentence. 2. The prosecution case as revealed from the F.I.R. is that the son of the informant (P.W.3) was ailing for a considerable length of time and a decision was taken to have a 'Puja' in the house. On 25.12.1995 evening the informant along with all family members started performing 'Puja' in their house. The Appellant who is the father-in-law of the informant, came to the house along with his wife and objected to the performance of such 'Puja'. There was a quarrel between the father of the informant and the Appellant. The Appellant brought out a Kati kept for cutting date palm and stabbed the father of the informant (Viku-the deceased) who died at the spot due to profuse bleeding. On these allegations, the First Information Report having been lodged and the case having been registered for commission of offence u/s 302 Indian Penal Code, investigation was undertaken. After completion of investigation, charge sheet was filed for commission of offence u/s 302 Indian Penal Code. 3. In course of trial, prosecution examined eleven witnesses to prove the charge; but none was examined on behalf of the Appellant. 4. The plea of the Appellant was complete denial of the prosecution allegation and it was contended on behalf of the Appellant that Viku fell down from a date palm tree and sustained injuries which caused his death. The Trial Court relying on the version of the witnesses to the occurrence, found the Appellant guilty of the charge and convicted him thereunder. 5. The Learned Counsel for the Appellant assails the impugned judgment solely on the ground that as is evident from the evidence of P.W.3 there was a quarrel between Viku and the Appellant which gave rise to a grave and sudden provocation for which the Appellant stabbed Viku by means of a Kati and, therefore, the Appellant should have been convicted for commission of offence u/s 304, Part-I Indian Penal Code. The Learned Counsel for the State referring to the evidence adduced, submitted that there was no occasion to get provoked and, therefore, the Appellant has been rightly convicted for commission of offence u/s 302 Indian Penal Code. 6. P.W.1 is the wife of the deceased. She is an eyewitness to the occurrence and has stated in her deposition that while 'Puja' was going on in the house of the informant, the Appellant came with his wife in a drunken state and stabbed on the belly and leg of the deceased. She again stated in examination-in-chief that the Appellant stabbed on the chest of the deceased just above the belly on the left side by means of chisel. Due to such stabbing there was profuse bleeding and the deceased died instaneously. There is nothing cross-examination to disbelieve this witness. P.W.2 is the daughter of the Appellant and daughter-in-law of the deceased. She has also stated that the Appellant after coming to their house, stabbed on the chest of the deceased. Nothing is also available in cross-examination to disbelieve this witness. P.W.3 is the informant who appears to have stated the incident in detail. In his deposition he has stated that on the date of occurrence, he along with his other family members were having a 'Puja' in his house due to illness of his son. The Appellant who happens to be the father-in-law, came to his house and asked the deceased not to perform any 'Puja'. The deceased protested by saying; "MO GHORRE ICHHA HELA PUJA KHALI THU THE KAHINKI". Hearing such protest, the Appellant stabbed the deceased by means of a chisel on the chest resulting in his death. There is nothing in crossexamination also to disbelieve this witness. P.W.6 is a witness to the seizure of the weapon of offence. P.W.9 is the doctor who conducted postmortem examination found three stab injuries and all the injuries were ante-mortem in nature and were sufficient in ordinary course of nature to cause death. In view of such nature of offence available on record, there can not be any doubt that the Appellant caused death of the deceased by assaulting him by means of a chisel. The contention of the Learned Counsel for the Appellant is that there was a grave and sudden provocation for which the Appellant assaulted the deceased by means of a Kati. The contention of the Learned Counsel for the Appellant is that there was a grave and sudden provocation for which the Appellant assaulted the deceased by means of a Kati. There appears to be some force in the contention of the Learned Counsel considering the evidence of P.W.3 as well as the conduct of the Appellant. P.W.3 who is the son-in-law of the Appellant and the informant in this case, has specifically stated in his deposition that on the date of occurrence, when the 'Puja' was being performed, Appellant came to their house and objected to such 'Puja'. The deceased protested, as a result of which the Appellant suddenly grabbed the Kati which had been kept for cutting the date palm and stabbed the deceased. It is clear from the conduct of the Appellant that he had not come with any intention of causing any harm to anyone to the house of the deceased. One may bear in mind that the parties are Tribes belonging to remote place of Gajapati district and are ordinarily found to be short-tempered. Since the Appellant had not come prepared for committing the alleged offence and due to the altercation between him and the deceased, he suddenly got enraged, picked up the Kati and assaulted the deceased, we are of the view that there was grave and sudden provocation resulting in such incident. We, therefore, set aside the order of conviction and sentence of the Appellant u/s 302 Indian Penal Code and convict him for commission of offence u/s 304, Part I of the said Code. We, therefore, modify the sentence and direct that the Appellant shall serve ten years rigorous imprisonment. If the Appellant has served more than eleven years of imprisonment, as submitted by the Learned Counsel for the Appellant, he be set at liberty forthwith unless his detention is required in any other case.