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2008 DIGILAW 41 (ORI)

LAXMAN DAS v. STATE OF ORISSA

2008-01-15

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 Second Additional Sessions Judge, Berhampur in Sessions Case No. 42 of 1996 (S.C. No. 251/1996 GDC), has preferred this appeal against the order of conviction and sentence. 2. The accusations against the Appellant are that on 6.3.1996 on the day of 'Holi' there was Thakurani Jatra in village Khajipalli and at about 3 P.M. while Gantei Das (P.W.2) was sitting and gossiping on his verandah with his sister, brother-in-law (Siba Das) (P.W.6), the accused-Appellant came and called P.W.2 to play 'Holi'. The Appellant insisted repeatedly for playing 'Holi' and when P.W.2 refused, the Appellant dealt a kick blow on P.W.2 and also a kick blow to the child of P.W.6. P.W.2 got enraged and dealt two fist blows on the face of the Appellant. Thereafter, the Appellant went inside his house and came out with a knife, entered into the house of the deceased Balaram in search of P.W.2. The informant (P.W.1) who is the wife of the deceased, protested and at that point of time deceased came to the house and asked the Appellant as to why he was quarrelling. He held the left arm of the Appellant and pulled him saying that the matter shall be decided later. But the Appellant raised his knife and stabbed the deceased on his belly whereafter he threw the knife and went away from the spot. After receiving the injury, the deceased moved a little distance on the village road and fell down. Immediately thereafter the deceased was carried to the hospital by his brother where he was declared dead Banchha Das, the elder brother of the deceased and Brundaban proceed to the police station to lodge the F.I.R and on the way near the village tank, they found the police coming to the village and on arrival of the police, on instruction of the informant, F.I.R. was lodged. 3. Investigation was taken up and on completion of the same, charge-sheet was filed for commission of offence u/s 302 Indian Penal Code. 4. Prosecution examined nine witnesses to prove the charge; but none was examined on behalf of the Appellant. 5. 3. Investigation was taken up and on completion of the same, charge-sheet was filed for commission of offence u/s 302 Indian Penal Code. 4. Prosecution examined nine witnesses to prove the charge; but none was examined on behalf of the Appellant. 5. The plea of the Appellant is that on the day of 'Holi', villagers were in a drunken state because of the Jatra and while dancing, his leg struck the daughter of P.W.6, whereafter P.W.2 dealt four blows on his face and he also abused P.W.2. Thereafter P.W.2, his brothers and deceased-Balaram came near his verandah and assaulted him, as a result of which he fell down and when he was trying to get up, P.W.2 attempted to stab him by means of a knife. When he moved a little, the said knife struck the belly of the deceased standing behind him which has caused the death of the deceased. 6. Mr. Pani submitted that even accepting the prosecution case, considering the circumstances under which the occurrence took place and the fact that the Appellant had dealt only one blow, he could have only been convicted for commission of offence u/s 304, Part-II, Indian Penal Code and not u/s 302 of the said Code. The Learned Counsel for the State submitted that all the three eye-witnesses to the occurrence, are consistent in their statement that the deceased was stabbed by the Appellant by means of a knife which caused his death and the motive is clearly established because of the incident just prior to the assault on the deceased and, therefore, the Appellant has been rightly convicted for commission of offence u/s 302 Indian Penal Code. 7. P. Ws.1, 2 and 6 are the eye-witnesses to the occurrence. P.W.1 is the informant and the wife of the deceased. She, in her deposition, has stated to have seen the Appellant assaulting the deceased by means of a knife. Nothing has been brought out in cross-examination to disbelieve the statement of this witness that the Appellant had stabbed the deceased by means of a knife. P. Ws.2 & 6 have also corroborated the testimony of P.W.1 in this regard. P.W.2 is the younger brother of the deceased and P.W.6 is the brother-in-law of the deceased. Nothing has been brought out in cross-examination to disbelieve the statement of this witness that the Appellant had stabbed the deceased by means of a knife. P. Ws.2 & 6 have also corroborated the testimony of P.W.1 in this regard. P.W.2 is the younger brother of the deceased and P.W.6 is the brother-in-law of the deceased. On examination of the evidence of these three witnesses, we find nothing to disbelieve their testimony to the effect that on the date of occurrence, the Appellant came out of the house with a knife in his hand, entered into the house of the deceased and stabbed the deceased. However, it further appears from the evidence of these three witnesses that just prior to the assault on the deceased, there was a scuffle between the Appellant and P.W.2 and the Appellant was also assaulted by P.W.2 by means of fist blows. It further appears that immediately after such incident, the Appellant entered into his house, brought out a knife and thereafter entered into the house of the deceased in search of P.W.2. Deceased who is the brother of P.W.2 was present in the house and tried to prevent the Appellant from doing any act saying that the matter would be decided later on. At this, the Appellant stabbed the deceased by means of a knife. From medical evidence i.e. the evidence of P.W.8 it appears that there was one cut injury of about 2'' X 2'' over the abdomen and other injury which is an abrasion has found to be post-mortem in nature. It is, therefore, evident from the evidence that the Appellant only stabbed once on the belly of the deceased. The evidence adduced before the Trial Court and as discussed earlier, clearly establishes that there was a quarrel between the deceased and P.W.2 and it developed into a fight. Thereafter the Appellant went to his house and came out with a knife, entered into the house of the deceased in search of P.W.2. He had no intention of assaulting the deceased but when the deceased caught hold of his hand and pulled him, he got enraged and stabbed the deceased on his belly. Thereafter the Appellant went to his house and came out with a knife, entered into the house of the deceased in search of P.W.2. He had no intention of assaulting the deceased but when the deceased caught hold of his hand and pulled him, he got enraged and stabbed the deceased on his belly. From such conduct of the Appellant, one can safely hold that the Appellant had no intention to kill the deceased but had knowledge that the blow given by him by means of a knife on the abdomen of the deceased, could cause death. 8. We are, therefore, of the view that the Appellant is liable for conviction u/s 304, Part-II, Indian Penal Code. We accordingly set aside the order of conviction and sentence passed by the Learned Second Additional Sessions Judge, Berhampur in Sessions Case No. 42 of 1996 (S.C. No. 251/1996 GDC) (corresponding to G.R. Case No. 24 of 1996 on the file of JMFC, Purusottampur arising out of Purusottampur P.S. Case No. 24 of 1996) u/s 302 Indian Penal Code against the Appellant sentencing him to undergo imprisonment for life and convict the Appellant u/s 304, Part II Indian Penal Code and sentence him to undergo rigorous imprisonment for eight years. 9. It is stated that the Appellant (Laxman Das) is in custody since last eleven years and is still in custody. Therefore, we direct that if the Appellant has already served the sentence for eight years, he be released forthwith unless his detention is required in connection with any other case. The appeal is allowed in part. B.P. Ray, J. 10. I agree. Final Result : Allowed