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2009 DIGILAW 11 (ORI)

ARAKHITA SAHOO v. STATE OF ORISSA

2009-01-06

P.K.TRIPATHY, SANJU PANDA

body2009
JUDGMENT : P.K. Tripathy, J. - A trifle dispute between Meghanada Sahu, the deceased and the accused, a co-villager of Barabhaya village under Narasinghpur P.S. resulted in homicidal death of the deceased and conviction of the accused-Appellant u/s 302 IPC followed with sentence of imprisonment for life as per the impugned judgment of learned 2nd Addl. Sessions Judge, Cuttack in Sessions Trial No. 211 of 1997 (46 of 1997) arising out of G.R. Case No. 14 of 1994 of the Court of J.M.F.C., Narasinghpur. 2. According to the case of the prosecution, the deceased was running a grocery shop in his residential house. About two years before the date of occurrence, i.e., 12.2.1997 accused had borrowed a sum of Rs. 2507/- from the deceased but did not repay the same and therefore, there was misunderstanding and quarrel between the two. A few days before the occurrence accused suspected that the deceased had applied witchcraft on him for non-payment of the loan amount and therefore, he picked up quarrel with the deceased. At about 7 P.M. on 12.2.1997 the accused came upto the front of the house of the deceased scolding him in filthy language. The deceased sitting in his shop protested and then the accused challenged him to come out from the premises. The deceased responded, came forward and protested the scolding and abusive language used by the accused. There was scuffle between the two and in course of that accused brought out a knife concealed by him underneath the chadar put by him as a cover on his body and inflicted injuries. There was a struggle for possession of the knife and in that process the deceased sustained some injuries on his palm, finger and also elbow but the accused could successfully snatch away the knife and dealt a stab blow to the chest and because of that the deceased succumbed at the spot but after moving a few steps. 3. Accused denied to the aforesaid charge and claimed for trial. 4. Prosecution examined ten witnesses to substantiate the charge. Amongst them, P.Ws.1 and 4, the daughter and the widow of the deceased besides P.W.9, a co-villager deposed as eye-witnesses to the occurrence. P.W.2 supported the prosecution in relation to recovery of the weapon of offence, i.e., the knife M.O.I under seizure list Ext.1 and P.W.8 Dr. 4. Prosecution examined ten witnesses to substantiate the charge. Amongst them, P.Ws.1 and 4, the daughter and the widow of the deceased besides P.W.9, a co-villager deposed as eye-witnesses to the occurrence. P.W.2 supported the prosecution in relation to recovery of the weapon of offence, i.e., the knife M.O.I under seizure list Ext.1 and P.W.8 Dr. P.K. Sahu proved the post-mortem report Ext.11 relating to the homicidal death of the deceased due to ante-mortem injuries. P.W.6 is the scribe of the F.I.R. and P.W.10 is the I.O.. Ext.5 is the F.I.R. and Ext.6/1 is the inquest report. Besides that Ext.13 the spot map, Ext.14 is the statement of the accused and Ext.15 is the report from the S.F.S.L. Accused did not adduce any defence evidence. 5. Learned 2nd Addl. Sessions Judge, on perusal of the evidence, relied on the evidence of P.Ws.1 and 4 and Ext.11 which has gone unchallenged to record the finding of homicidal death of the deceased. He relied on the evidence of P.Ws.1 and 4 as truthful evidence of the eye-witnesses to the occurrence and the corroborations coming from Ext.1 to Ext.6 and aforesaid witnesses including P.W.9. Accordingly, he recorded the finding that accused is the author of the injuries which resulted in homicidal death of the deceased. He thus convicted the Appellant u/s 302 IPC and sentenced him to imprisonment for life. 6. Learned Counsel for the Appellant in course of his argument did not dispute about the homicidal death of the deceased. That aspect has also been dealt with, as narrated above, by the trial Court. On perusal of the evidence of P.W.8 and Ext.11, we do not feel it necessary to discuss that aspect any further inasmuch as the finding of the trial Court on homicidal death has been correctly recorded. 7. So far as culpability of the Appellant is concerned, learned Counsel for the Appellant vehemently argues not to rely on the evidence of P.Ws.1, 4 and 9 as eye-witnesses to the occurrence. We find some force in his submission so as not to accept P.W.9 as an eye-witness to the occurrence but to accept him as post-occurrence witness. But P.W.1 The daughter of the deceased and P.W.4 the widow of the deceased appear to be natural witnesses present at the spot by the time of occurrence and therefore, their presence at the spot as eyewitnesses to the occurrence cannot be doubted. But P.W.1 The daughter of the deceased and P.W.4 the widow of the deceased appear to be natural witnesses present at the spot by the time of occurrence and therefore, their presence at the spot as eyewitnesses to the occurrence cannot be doubted. 8. Learned Counsel for the Appellant argues that there is contradiction in the evidence of P.Ws.1 and 4 relating to the sequence in which the accused appeared and the deceased left the house and also relating to the detail particulars of the scuffle and dealing stab blow by the accused. He also argues that since the occurrence took place in the night and both witnesses have contradicted themselves as to whether it was in bright fortnight or dark fortnight, their evidence should be rejected. 9. We must bear in mind that P.Ws.1 and 4 were rustic village dwellers in a forest area of Narasinghpur Sub-Division. Their acquaintance with almanac may be next to nothing and therefore no serious exception can be taken when they contradicted about the Tithi, that is to say, whether it was in the dark fortnight or bright fortnight. When both witnesses have stated that they witnessed the occurrence from a very close proximity of four to six cubits, darkness at 7 P.M. in the month of February would not have resulted in mistaken identity. When they heard the shouting of the accused in course of scolding, they also heard the exchange of words between the accused and the deceased and those circumstances amply indicate that they were certain about the identity of the assailant, i.e., the accused. Thus on that score the accused is not entitled to any advantage nor is the prosecution to suffer. 10. On perusal of the evidence of P.Ws.1 and 4, we find that they are consistent and have corroborated each other in all material particulars relating to the commencement of the occurrence and the manner in which it concluded and such evidence leads to record the finding that accused dealt stab blow on the chest which resulted in homicidal death of the deceased. 11. 11. Learned Counsel for the Appellant alternatively argues that if his contention on clear-cut acquittal or grant of benefit of doubt (as argued above) is not accepted then keeping in view the statement of the accused Ext.14 and the other attending circumstances emerging on record, at best it be a case of culpable homicide not amounting to murder. In that respect he draws our attention to the spot map Ext.13 and the statement of the accused Ext.14. Learned Addl. Government Advocate wanted to wriggle out from Ext.14 by stating that such statement of the accused is self-serving and cannot be utilized. That argument of the learned Addl. Government Advocate is devoid of merit inasmuch as it is the prosecution which has relied on that document and that is how it got exhibited. It emerges from the evidence of P.Ws.1 and 4 so also P.W.9 and Ext.14 that the occurrence took place at a considerable distance beyond 100 feet from the residential house of the deceased. That tallies with the explanation given by the accused in Ext.14 and it appears from Ext.14 that in course of quarrel between the accused and the deceased, a co-villager Jugal Pradhan intervened and separated them and thereafter when the accused started returning to his house, the deceased followed him and threatened him with the ultimatum to harass him by implicating in false case and in retaliation to that provocation, the accused dealt stab blow on the chest. Because of that circumstance and the evidence of P.W.8 and the post-mortem report Ext.11, we find sufficient force in the alternative argument of the learned Counsel for the Appellant for conviction of the Appellant u/s 304 First Part IPC. 12. Therefore, we find it to be culpable homicide punishable u/s 304 First Part IPC. Accordingly, we set aside the order of conviction u/s 302 IPC and the sentence of imprisonment for life and in its place, accused is found guilty of the offence of culpable homicide not amounting to murder punishable u/s 304 First Part IPC and he is sentenced to undergo rigorous imprisonment for 10 years (ten years). 13. It is stated at the Bar that in this case accused was taken into police custody on 21.2.1997 and he was released on bail as per the order of this Court passed on 29.2.2008 and that during the intervening period Appellant was in jail custody. 13. It is stated at the Bar that in this case accused was taken into police custody on 21.2.1997 and he was released on bail as per the order of this Court passed on 29.2.2008 and that during the intervening period Appellant was in jail custody. Therefore, if that period is set off in accordance with the provision u/s 428 Code of Criminal Procedure then he is no more required to serve any part of the sentence. Thus the bail bonds executed by him be discharged. The jail criminal appeal is accordingly allowed in part.