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2008 DIGILAW 395 (ORI)

GANESWAR KISKU v. STATE OF ORISSA

2008-05-08

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT : 1. The Appellant having been convicted for commission of offence u/s 302 of the Indian Penal Code (in short 'I.P.C.') and sentenced to imprisonment for life by the learned Addl. Sessions Judge, Baripada in S.T. Case No. 1/58 of 2001/2000 has preferred this appeal against the order of conviction and sentence. 2. As it appears from the record, on 27.10.1999 the Appellant produced the head of the deceased kept in the career of his cycle and the blood stained axe before the Officer-in-charge of Betnoti Police Station and admitted to have killed the deceased Ghana Kisku. The said information was entered in the Station Diary and inquiry was conducted. In course of inquiry, it was revealed that the Appellant is the cousin brother of the deceased and both of them were residing in the village Sikarghati. There was a gourd in the gourd plant belonging to the deceased and on 27.10.1999 at about 7 A.M. the Appellant had taken away the gourd. When the deceased came to know about the same from his wife at about 9 A.M., he went to the house of the Appellant and there was some altercation of hot words between them. The deceased thereafter came back to his house and again went near the house of the Appellant at about 12 A.M. and quarrelled with him. At that time the wife of the deceased P.W.3 arrived there and took away the deceased. At about 4 P.M. on the said date when the deceased was going to the house of Gorachand Mohant to purchase rice, the Appellant dealt a blow by means of a Kuradhi on the back side of the head of the deceased as a result of which, the deceased fell down. Thereafter, the Appellant dealt successive blows by means of the said axe on the neck and other parts of the body as a result of which, the head of the deceased was severed from the trunk. The Appellant thereafter took the cut head of the deceased into his house and came out again with the cycle, kept the severed head on the career of the cycle and left the house. Thereafter he produced the severed head as well as the axe before the O.I.C. After all these matters were ascertained in course of inquiry, the O.I.C. drew up a plain paper F.I.R. and started investigation. Thereafter he produced the severed head as well as the axe before the O.I.C. After all these matters were ascertained in course of inquiry, the O.I.C. drew up a plain paper F.I.R. and started investigation. On completion of investigation, he submitted charge sheet u/s 302 IPC and the Appellant faced trial for commission of the said offence. 3. Prosecution in order to prove the charge, examined twelve witnesses, out of whom P.Ws. 4 and 6 are the eye witnesses to the occurrence. P.Ws. 1 and 2 had seen the Appellant keeping the cut head of the deceased on his cycle career as well as putting the blood stained axe in the cycle and leaving the spot. P.W.3 is the widow of the deceased who had seen the trunk of the deceased lying on the village road. P.Ws. 7 and 11 are the seizure witnesses and P.W.9 is the Medical Officer, who collected nail clipping of the Appellant. P.W. 10 is the doctor who, conducted post mortem examination of the deceased and P.W.12 is the I.O. The trial Court relying on the evidence of P.Ws. 1, 2, 4 and 6 as well as 10 and 12 found the Appellant guilty of the charge and convicted him thereunder. 4. The plea of the defence as it appears from the statement made by the Appellant u/s 313 Code of Criminal Procedure is complete denial of the prosecution case. 5. Assailing the impugned judgment it was contended on behalf of the Appellant that there was a quarrel in the morning and again at about 12 A.M. the deceased went to the house of the Appellant and quarreled with him as a result of which, the Appellant assaulted the deceased by means of an axe. It was contended by the learned Counsel for the Appellant that the incident having taken place out a quarrel between the Appellant and the deceased, there was grave and sudden provocation resulting in such incident and, therefore, the Appellant should have been convicted u/s 304, Part I I.P.C. instead of Section 302 of the said Code. It was contended by the learned Counsel for the Appellant that the incident having taken place out a quarrel between the Appellant and the deceased, there was grave and sudden provocation resulting in such incident and, therefore, the Appellant should have been convicted u/s 304, Part I I.P.C. instead of Section 302 of the said Code. The learned Counsel for the State relied upon the witnesses as aforesaid and submitted that the Appellant not only assaulted the deceased once but repeated assaults were given as a result of which the head of the deceased was completely severed from the trunk and the Appellant himself took the cut head of the deceased as well as weapon of offence to the police station and admitted to have killed the deceased. According to the learned Counsel for the State, considering the manner in which offence is committed, the conviction of the Appellant u/s 302 IPC is justified and correct. 6. The prosecution relied upon the evidence of P.Ws. 1, 2, 4, 6, 10 and 12 to prove its case. P.Ws. 4 and 6 are the eye-witnesses to the occurrence. P.W.4 in her deposition has stated that on the date of occurrence about 4 P.M. she and P.W.6 were taking rice on the verandah of her house and they heard noise "HANI DEBI HANI DEBI". Hearing the said noise, she went running to the road and when she reached the road, she found the deceased lying on the ground and the Appellant dealing cut blows by means of a Tangia on the neck of the deceased. Out of fear, she went running towards Dahi. In cross-examination nothing has been brought out to disbelieve the testimony of this witnesses. On the other hand, this witness in her cross-examination has confirmed her statement that immediately after she saw the Appellant dealing three blows, she went running towards Dahi. Similarly P.W.6 who is the other eye witness to the occurrence has stated that on the date of occurrence at about 4 P.M. when she and P.W.4 were taking rice, she heard the noise "HANIDEBI HANI DEBI". When she came out of the house, she saw the Appellant dealing cut blows to the neck of the deceased by means of a Tangia on the village road. When she came out of the house, she saw the Appellant dealing cut blows to the neck of the deceased by means of a Tangia on the village road. She has further stated that after severing the head of the deceased by dealing cut blows, the Appellant took the severed head of the deceased with him to his house and again came out of his house and loaded the said cut head on his cycle. On examination of evidence of this witness, we do not find anything to disbelieve her testimony P.Ws. 1 and 2 are other two witnesses on whom reliance was placed by the prosecution. P.W.1 has stated that at the time of occurrence she was frying fish in her house. At that time P.W.6 called her and she came out of the house and saw that the Appellant had kept the cut head of the deceased on the career of his cycle holding a Tangia and going towards Dahi. Similar is the evidence of P.W.2 who had seen the Appellant loading the severed head of the deceased on the career of his cycle and leaving the place of incident. There is nothing in the cross-examination of these two witnesses to disbelieve their testimonies. From the evidence of P.W.10 who conducted post mortem examination, it appears that the evidence of P.Ws. 4 and 6 has been corroborated. P.W.10 in course of post mortem examination found three lacerated injuries and four injuries on the right side and two injuries on the left side on the body around the neck. The head and the body of the deceased were separated from each other. It was contended by the learned Counsel for the Appellant that since the deceased was assaulted by means of an axe, lacerated injuries could not have been sustained by the deceased. P.W.10 in his deposition has stated that the head in question could have been separated Dy means of sharp side of the Tangia (M.O.I) and other injuries can also be caused by the said M.O.I. In his cross-examination he has also stated that the lacerated injury found on the entire body are also possible by M.O.I. We, therefore find that the evidence of P.Ws. 4 and 6 is corroborated by the evidence of P.W.10. 4 and 6 is corroborated by the evidence of P.W.10. We also find from the evidence of P.W.12, the I.O. that no question was put to him in his cross-examination so far as P.W.6 is concerned. Only in respect of P.W.4 the I.O. has stated that this witness had stated before him that after severing the head of the deceased, the Appellant entered into his house with the cut head. The statement made by I.O. in this regard is not a contradiction and therefore, it is of no help to the prosecution. On over all analysis of the evidence as discussed above, it appears that on the date of occurrence at about 4 P.M. while the deceased as going to purchase rice, he was assaulted by the Appellant on the village road by means of a Tangia and the said assault was witnessed by P.Ws. 4 and 6. After severing the head of the deceased from the trunk the Appellant also loaded it in the career of his cycle and left the place towards Dahi and this part of the prosecution case is corroborated by P.Ws. 1, 2, and 6. Apart from above, from the chemical examination report, it is found that the weapon of offence, the wearing apparels of the Appellant as well as the nail clippings were stained with human blood. The wearing apparels of the Appellant contained blood of 'A' group as that of the deceased. So far as contention of the learned Counsel for the Appellant that thee was grave and sudden provocation is concerned, we do not find any substance in such submission. The first quarrel took place at 9 A.M. and the second quarrel took place at noon. The Appellant having assaulted the deceased to death at 4 P.M., there was a gap of at least four hours and therefore at the time of assault there was no provocation and it appears to have been planned. 7. In view of the above evidence available against the Appellant, we hardly find any scope to interfere with the impugned order. Accordingly, we do not find any merit in the appeal and the same is dismissed. It appears from the record that the Appellant has been released on bail on 18.5.2007 by this Court. Steps be taken to apprehend the Appellant to serve rest part of the sentence. B.K. Patel, J. 8. I agree. Accordingly, we do not find any merit in the appeal and the same is dismissed. It appears from the record that the Appellant has been released on bail on 18.5.2007 by this Court. Steps be taken to apprehend the Appellant to serve rest part of the sentence. B.K. Patel, J. 8. I agree. Final Result : Dismissed