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2008 DIGILAW 346 (ORI)

Angada Khatua v. State of Orissa

2008-04-22

B.K.PATEL, L.MOHAPATRA

body2008
Judgement L. MOHAPATRA, J. :- This appeal is directed against judgment and order dated 13-7-2004 passed by the Ad hoc Addl. Sessions Judge, Kamakhyanagar in Criminal Trial (Sessions) No. 18/2003/Criminal Trial (Sessions) No. 135 of 2003 convicting the appellant for commission of offence under Section 302/436 of the I.P.C. and sentencing him imprisonment for life for commission of offence under Section 302, I.P.C. and also to undergo imprisonment for five years for commission of offence under Section 436 of the I.P.C. However, both the sentences are directed to run concurrently. 2. Case of the prosecution as revealed from the record is that the appellant is the cousin brother of the informant. On 18-9-2002 night at about 10 p.m. the appellant came to the house of the informant and started shuoting. When the informant and his father tried to pacify the appellant, he suddenly set fire to the cow-shed. The informant along with others extinguished the fire by pulling down palm leaves. When protest was raised from the informant side the appellant declared to kill one. At that time father of the informant came out from his house and protested by challenging the appellant as to why he set fire to the cow-shed which could have resulted in burning of other cow-sheds and dwelling houses. The appellant got annoyed, entered inside his house and brought a 'Langala Isha' (upper portion of a plough) and dealt a blow on the head of father of the informant, as a result of which he fell down on the ground sustaining bleeding injury on his head. The informant along with others took the deceased to Anlabereni hospital for treatment, but the doctor advised them to shift him to the District Headquarters Hospital, Dhenkanal. Thereafter they brought back the deceased to their house and arranged a vehicle to shift him to the District Headquarters Hospital, but the deceased succumbed to the injuries. On the next day the informant reported the matter to the police and a case was registered for commission of offences under Section 302/436 of the I.P.C. On completion of investigation, charge-sheet was filed for commission of the aforesaid offences. 3. Prosecution in order to prove the charges examined 12 witnesses, whereas 2 witnesses were examined on behalf of the defence. Plea of defence is complete denial of the prosecution allegation. 3. Prosecution in order to prove the charges examined 12 witnesses, whereas 2 witnesses were examined on behalf of the defence. Plea of defence is complete denial of the prosecution allegation. Trial Court on the basis of the evidence of the eye-witnesses coupled with the medical evidence found the appellant guilty of the charges and convicted him thereunder. 4. Learned counsel appearing for the appellant assails the impugned judgment solely on the ground that even accepting the version of the eye-witnesses to the occurrence, the appellant having assaulted the deceased pursuant to quarrel and having dealt one blow by means of wooden portion of a plough, he should have been convicted for commission of offence under Section 304, Part-II of the I.P.C. instead of Section 302 of the said Code. Learned counsel for the State submits that the appellant having initiated quarrel cannot take advantage of the same and pray for conviction for lesser offence. 5. We have carefully gone through the evidence of the prosecution witnesses examined in course of trial. P.W. 1 is an eyewitness to the occurrence and nephew of the deceased as well as cousin brother of the appellant. He in his deposition has stated that on the date of occurrence at about 9.30 p.m. the appellant was shouting loudly in his house and also created hullah outside his house. When he protested, he threatened to set fire and also set fire to the cowshed. He extinguished the fire by pulling down palm leaves. At that point of time the deceased came out and protested the conduct of the appellant. There was hot exchange of words between the deceased and the appellant, whereafter the appellant entered into his house, brought a 'Langala Isha' and dealt a blow causing injury on the head of the deceased and as a result of the aforesaid injury, the deceased fell down on the ground and ultimately succumbed to the injury in the same night. Nothing has been brought out in cross-examination to disbelieve this witness. P.W. 2 is a post occurrence witness and P.W. 3 is an eye-witness to the occurrence and is also the informant. P.W. 3 is the son of the deceased who has fully corroborated the evidence of P.W. 1. Similarly, P.W. 4 who is also related to the appellant is also an eye-witness to the occurrence and has fully corroborated the evidence of P.W. 1. P.W. 3 is the son of the deceased who has fully corroborated the evidence of P.W. 1. Similarly, P.W. 4 who is also related to the appellant is also an eye-witness to the occurrence and has fully corroborated the evidence of P.W. 1. We have carefully examined the evidence of these three witnesses and did not find anything in cross-examination to disbelieve their testimonies. P.W. 5 is the doctor who conducted post-mortem examination and found a lacerated wound of size 5" x ½ x skin deep over the forehead with fraucture of the frontal and left parietal bone beginning from the medial side of the right orbital part of frontal bone and extending obliquely upward to left parietal bone. P.W. 5 was of the opinion that the injury was ante-mortem in nature and sufficient to cause death. The weapon of offence was produced before the doctor and the doctor opined that the injury could be caused by M.O. 1, the weapon of offence. We, therefore, find that the evidence of eye-witnesses, such as P.Ws. 1, 3 and 4 is fully corroborated by P.W. 5 and therefore it can safely be held that the appellant assaulted the deceased by means of the wooden side of the plough. The sole question for consideration is as to whether the appellant should be convicted under Section 302 of I.P.C. or for any other offence. From the evidence of P.Ws. 1, 3 and 4, it is clearly established that on the date of occurrence the appellant was creating disturbance inside and outside his house, for which the informant (P.W. 3) had raised a protest. The deceased also raised protest against the conduct of the appellant in setting fire to the cow-shed. It also appears from the evidence of P.W. 1 that there was hot exchange of words between the appellant and the deceased, where after the appellant brought the weapon of offence from his house and assaulted once on the head of the deceased. It therefore appears that pursuant to such hot exchange of words, there was grave and sudden provocation resulting in such unfortunate incident. The appellant had also assaulted once on the head of the deceased, but such injury on the head caused death of the deceased within hours. It therefore appears that pursuant to such hot exchange of words, there was grave and sudden provocation resulting in such unfortunate incident. The appellant had also assaulted once on the head of the deceased, but such injury on the head caused death of the deceased within hours. We are, therefore, of the view that the appellant should have been convicted for commission of offence under Section 304, Part-I of I.P.C. instead of Section 302 of the said Code. 6. We, therefore, allow the appeal in part and set aside the order of conviction and sentence passed by the trial Court so far as offence under Section 302 of I.P.C. is concerned. We convict the appellant for commission of offence under Section 304, Part-I of I.P.C. and sentence him to imprisonment for a period of 8 (eight) years. So far as his conviction under Section 436 of I.P.C. is concerned, there being sufficient material to support such conviction, we confirm the conviction and the sentence imposed by the trial Court. The sentences are to run concurrently as directed by the trial Court. 7. B. K. PATEL, J. :- I agree. Order accordingly.