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2008 DIGILAW 99 (ORI)

ARKHITA BEHERA v. STATE OF ORISSA

2008-02-01

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the judgment and order of conviction and sentence passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in S.T. No. 175 of 1993 convicting the Appellant for commission of offence u/s 302 of the Indian Penal Code (in short 'I.P.C.') and sentencing him to undergo R.I. for life. 2. The case of the prosecution is that Appellant is the father-in-law of the deceased Hadibandhu Balia. The deceased had married the eldest daughter of the Appellant. The other daughter, P.W.7, was married P.W.6 in the same village and the house of the deceased and his second son-in-law are adjacent. The Appellant after death of his wife was depending for his food on both the daughters having divided his landed properties into two shares and distributed the same between both the daughters. The Appellant and deceased were not pulling on well and on 25.7.1993 at about 5 P.M. in the evening, an altercation ensued near the tank in front of the house of the deceased. In course of altercation, the deceased dealt a blow by means of a stick on the head of the Appellant and the Appellant immediately thereafter proceeded to his house, came armed with a tangi and dealt successive blows to the head and neck of the deceased resulting in serious injuries. P.W.5, who is the son of the deceased, called P.Ws. 6 and 7 and they came and saw the incident and caught hold the Appellant and tied him with a rope. P.W.4 at the request of P.W.6 went to the police station and lodged the F.I.R. and a case was registered for commission of offence u/s 307 I.P.C. The deceased having died on the following day, the case turned to an offence u/s 302 I.P.C. and ultimately investigation was taken up. On completion of investigation, charge-sheet was submitted for the said offence. 3. The prosecution examined eight witnesses to prove the charge but none was examined on behalf of the defence. The plea of defence is complete denial of the prosecution allegation. The learned Sessions Judge relying on the evidence of eye-witnesses namely, P.Ws. 5, 6 and 7 as well as the post mortem report found the Appellant guilty of the charge and convicted him thereunder. 4. Mrs. The plea of defence is complete denial of the prosecution allegation. The learned Sessions Judge relying on the evidence of eye-witnesses namely, P.Ws. 5, 6 and 7 as well as the post mortem report found the Appellant guilty of the charge and convicted him thereunder. 4. Mrs. Panda, the learned Counsel appearing for the Appellant challenges the legality of the judgment of the trial Court on the ground that the deceased was the aggressor and he first assaulted the Appellant by means of a stick on his head and, thereafter, the Appellant out of anger assaulted the deceased, which resulted in the unfortunate incident. According to the learned Counsel, there being grave and sudden provocation at the instance of the deceased, the Appellant caused death of the deceased. Accordingly, the learned Counsel further submits that the Appellant should have been convicted for commission of offence u/s 304-I, I.P.C. The learned Counsel for the State referring to the evidence adduced before the trial Court submitted that the Appellant has been rightly convicted for commission of offence u/s 302 I.P.C. having assaulted the deceased by means of an axe as is evident from the deposition of the eye witnesses to the occurrence as well as the post mortem report. 5. P.W.5 is the son of deceased and grandson of the Appellant. He in his deposition has clearly stated the manner in which the occurrence took place. He has stated in his evidence that on the date of occurrence, the deceased his father first dealt a stick blow on the head of the Appellant whereafter the Appellant went to his house and came back armed with an axe and assaulted the deceased. Having witnessed the assault by the Appellant, he shouted and called P.Ws. 6 and 7 and immediately thereafter P.Ws. 6 and 7 came to the spot and also found the Appellant assaulting the deceased by means of the said axe. Nothing has been brought out in cross-examination to disbelieve this witness even though he is a child witnesses. P.W.6 is the second son-in-law of the Appellant and P.W.7 is the second daughter of the deceased. Both of them corroborate the evidence of P.W. 5, so far as assault by the Appellant on the deceased is concerned. The question that comes for consideration is as to whether there was a grave and sudden provocation for assaulting the deceased. P.W.6 is the second son-in-law of the Appellant and P.W.7 is the second daughter of the deceased. Both of them corroborate the evidence of P.W. 5, so far as assault by the Appellant on the deceased is concerned. The question that comes for consideration is as to whether there was a grave and sudden provocation for assaulting the deceased. As is evident from evidence of P.W.5, the deceased first assaulted the Appellant by means of a stick. P.W.6 has stated in his deposition that the Appellant and deceased were not pulling on well and they used to quarrel. The Appellant was examined by P.W.1 and on examination P.W.1 found one lacerated injury and a bruise over the left side of middle of vault of skull and left cheek. It appears that the evidence of P.W.5 to the effect that the deceased first assaulted the Appellant on his head by means of a stick is corroborated by medical evidence. The evidence of P.W.5 further shows that immediately after receipt the injury at the hands of the deceased, the Appellant rushed to his house and brought out an axe and assaulted the deceased. The conduct of the deceased as well as the Appellant at the time of occurrence clearly indicates that since both the deceased and Appellant were not pulling on well, the deceased first assaulted the Appellant on his head by mean of a stick and the same gave rise to a grave and sudden provocation, as a result of which, the Appellant rushed to his house and came back with an axe and assaulted the deceased causing his death. We are, therefore of the view that there is some force in the contention of the learned Counsel for the Appellant that the Appellant should have been convicted not for commission of offence u/s 302 I.P.C. but for commission of offence u/s 304, Part-I, I.P.C. 6. In view of the discussions made above, we set aside the judgment and order of conviction and sentence passed against the Appellant-Arkhita Behera for commission of offence u/s 302 I.P.C. and convict him for committing the offence u/s 304, Part-I, I.P.C. and sentence him to undergo R.I. for ten years. The judgment and order of the trial Court is modified to the above extent. It is stated that the Appellant is in custody till today and has already served thirteen years. The judgment and order of the trial Court is modified to the above extent. It is stated that the Appellant is in custody till today and has already served thirteen years. If that be so, the Appellant be set at liberty forthwith, unless his detention is required in any other case. The appeal is allowed in part.