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2009 DIGILAW 339 (ORI)

Bipin Bihari Nag v. State of Orissa

2009-04-17

L.MOHAPATRA, PRADIP MOHANTY

body2009
Judgment PRADIP MOHANTY, J. :- Aggrieved by the judgment and order dated 8-8-1997 passed by the learned Addl. Sessions Judge. Titilagarh convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life in S. C. No. 94/24 of 1996 the appellant has preferred this appeal. 2. The prosecution case is that on 21-3-1996 at about 6.30 a. m. in village Deng near Adivasi Colony, the accused seeing the deceased plucking of Mahua from his tree, protested against the same. There was exchange of hot words between them in course of which the accused by means of an axe assaulted the deceased who succumbed to the injuries. The accused surrendered at Sainthala P.S. by giving information about commission of the offence. The Officer-incharge, Sainthala P.S. rushed to the spot, drew up plain paper FIR ad took up investigation. Ultimately, final form was submitted by the C. I. of Police, Titilagarh P.S. under Section 302, IPC. 3. The plea of the defence was complete denial of the allegation. 4. In order to prove its case, prosecution examined as many as 14 witnesses including the I. Os. wife of the deceased and the doctor and exhibited 20 documents. The defence examined none. 5. The learned Addl. Sessions Judge, Titilagarh who tried the case, by his judgment dated 8-8-1997 convicted the appellant under Section 302, IPC and sentenced him to undergo imprisonment for life basing upon the evidence of the informant (P.W.1) and P. Ws. 6, 8 and 13. 6. Learned counsel for the appellant assails the impugned judgment of conviction and sentence on the following grounds:- (i) There is no material against the appellant to convict him under Section 302, IPC. (ii) P. W. 13, the ocular witness, is not a believable witness as he was examined two months after the occurrence. (iii) P. W. 6 is a stranger to the accused and it is highly improbable that the accused would repose confidence upon him to make confessional statement. 7. Mr. Mohapatra, learned counsel appearing for the State, supports the trial Court judgment and contends that the evidence of P. W. 13 coupled with the evidence of P. Ws. 1, 6 and 8 is sufficient to convict the appellant under Section 302, IPC. 8. 7. Mr. Mohapatra, learned counsel appearing for the State, supports the trial Court judgment and contends that the evidence of P. W. 13 coupled with the evidence of P. Ws. 1, 6 and 8 is sufficient to convict the appellant under Section 302, IPC. 8. Perused the L. C. R. P. W. 1 is the then O. I. C., Saintala P. S., who upon hearing the confession of the accused, entered the fact in the station diary vide entry No. 433, visited the spot, verified the information, noticed oozing of blood from the nose of the deceased, injury on his chest and throttling mark on the neck of the deceased. He also noticed bleeding injuries on the right side of the forehead and left knee of the deceased. He found that the weapon of offence was lying at the spot. Thereafter, he drew up plain paper FIR and registered the case. After examination of the witnesses he prepared the spot map. He sent the deceased for medical examination. He in his cross-examination admitted that till investigation was transferred from him, he had not examined any eye-witness and there was no disclosure of the name of the eye-witnesses during his investigation. He specifically stated that his investigation did not disclose that there was an eye-witness to the occurrence. He also admitted that two big Mahua trees were at the spot. The land on which those trees were standing was in possession of the accused and his father. P. W. 2 is the A. S. I. of Police who registered the F. I. R. sent by P. W. 1. He stated that he did not have any knowledge about the despatch of the FIR to the Court. P. W. 3 is the doctor who examined the accused and found the following injuries : (i) Abrasion with swelling of size 2 cm x 1.5 cm on right temporal region of the scalp. (ii) Abrasion 3 cm x 2 cm on the antero medial aspect infrapatellar region of left knee. He opined that both the injuries were simple in nature and might have been caused by hard and blunt object. P. W. 4 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries : (i) One lacerated wound of 1 1/2 x 1/2 x 1/4 longitudinally on the chin 1" right to the mid-. line. P. W. 4 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries : (i) One lacerated wound of 1 1/2 x 1/2 x 1/4 longitudinally on the chin 1" right to the mid-. line. (ii) One contusion of 1 1/2 x l" over the right mandible of face. (iii) One contusion of 1" x l" on the chest over the sternal and end of right clavicle. . (iv) One contusion of 31/2" x 1 1/2" on the ventral side of neck. horizontally 1" below thyroid cartilage and 1" away from mid-line to the left side of neck. (v) One contusion 3" x 1/2" on the right arm over right deltoid muscle. (vi) One contusion 3" x 1/2" on the right arm. (vii) One contusion 1" x l" on the front of the chest below the right clavicle. He opined that all the injuries were ante-mortem in nature and might have been caused by hard and blunt weapon and the cause of death was due to asphyxia and shock. He also opined that the injuries were possible by M. O. II. the axe. P.W.5 is another Police Officer who was attached to Saintala P. S. at the relevant time. He has corroborated the statement of P.W. 1 about the surrendering of the accused before the police station and the information given by the accused. P. W. 6 is a witness to extra judicial confession. He specifically stated that when he and his wife were going to Baintala Railway Station, on the way he saw the appellant coming running. On query the appellant disclosed that he had committed the murder of the deceased and was going to the police station. Nothing has been elicited from him through cross-examination to disbelieve his evidence. P. W. 7 is a co-villager of the deceased. She stated that on the previous day, she had gone to collect Mahua flowers from the Mahua trees standing on the case land. The accused while warning her not to again come over his land also stated that he would break the hands and legs of the deceased. She returned home and passed on the message to the deceased. She admitted in her cross-examination that no one else was present when the accused told her not to collect Mahua flowers and gave the threatening message to the deceased. She returned home and passed on the message to the deceased. She admitted in her cross-examination that no one else was present when the accused told her not to collect Mahua flowers and gave the threatening message to the deceased. P. W. 8 is the wife of the deceased. She also corroborated the statement of P.W.7. She specifically stated that P.W. 7 informed them (P. W. 8 and her husband) that while she had been to collect Mahua flowers from the land. she was restrained by the accused from doing so. The accused also gave the threatening message for the deceased through her nothing has been elicited by way of cross-examination to discredit her testimony. She admitted in her cross-examination that she had no knowledge about the extent of land owned by her husband. P. W. 9 is a witness to the seizure of Gamuncha (M. O. II) and check Lungi (M.O. III). P. W. 10 is also a seizure witness. P.W. 11 is a witness to the inquest and seizure of the axe (M. O. I). blood-stained earth cycle. etc. P. W. 12 is also a witness to the inquest and seizure of Chadi (M. O. VI), Lungi (M. O. IV) and check shirt (M. O. V) of the deceased. P. W. 13 is an ocular witness. He stated in his evidence that on the date of occurrence, while he had been to a nursery close to their colony to ease himself he found some ladies raising cry going away from there. That time. hearing shout of the deceased “A Marigali" he rushed to the Mahua tree of the deceased and found the accused pressing his neck with an axe. Since the accused threatened him with dire consequence. he fled away from the spot. He in his cross-examination admitted that two months after the occurrence he Was examined by the police. P.W. 14 is the C.I. of police who completed the investigation and filed charge-sheet. He also admitted in his cross-examination that till 28-5-1996 his investigation did not disclose about any eye witness to the occurrence. He also admitted in his cross-examination that Nruparaj the brother of the deceased informed that one Shyamsundar Rana was the eye-witness. He also supplied the names of some persons who were the eye-witnesses, but on examination by him. none of them was found to be an eye-witness. He also admitted in his cross-examination that Nruparaj the brother of the deceased informed that one Shyamsundar Rana was the eye-witness. He also supplied the names of some persons who were the eye-witnesses, but on examination by him. none of them was found to be an eye-witness. He admitted in his cross-examination that his investigation revealed that Nruparaja had provided names of false eye-witnesses. 9. On scanning the entire evidence. it is found that P. W. 13 is not an eye-witness. He is rather a got-up witness. Till 28-5-1996. he was not examined by the I.O. His name was also not disclosed by anybody. Therefore, no reliance can be placed on the testimony of this witness. However, taking into consideration the evidence of P. W. 6. before whom the accused had made confession, coupled with the evidence of P. Ws. 1 and 2. the FIR story and seizure of bloodstained Lungi from the accused, there is no dispute that the appellant is the author of the crime. 10. The evidence of P. Ws. 7 and 8 is very clear and cogent to the effect that there was previous enmity and the accused had threatened the deceased with dire consequence and also prevented P.W.7 from collecting Mahua flowers. Furthermore. there were admittedly some injuries on the person of the accused and no plausible explanation has been given by the prosecution as to how those injuries were sustained. There is also evidence with regard to exchange of hot words between the appellant and the deceased immediately before the occurrence. There is no dispute that the appellant went on a cycle with some stones in a bag to the place of occurrence which have been seized by the I. O. (P.W.1) from the spot. There is no evidence to the effect that the deceased was in possession of Mahua trees in question. Rather, the evidence on record shows that the appellant was in possession of the Mahua trees. Therefore, this Court comes to the conclusion that in the due exercise of private defence of person and property and as a result of the exchange of hot words, the accused got excited and assaulted the deceased. Therefore, the act committed by the accused does not attract the provisions of Section 302, IPC, but.it comes under the purview of Section 304, Part-I, IPC. 11. In the result the appeal is allowed in part. Therefore, the act committed by the accused does not attract the provisions of Section 302, IPC, but.it comes under the purview of Section 304, Part-I, IPC. 11. In the result the appeal is allowed in part. The -judgment and order dated 8-81997 passed by the learned Add!. Sessions Judge, Titilagarh in Sessions Case No. 94/ 24 of 1996 convicting the appellant under Section 302, IPC and sentencing him to imprisonment for life is set aside. Instead, the appellant is' convicted under Section 304 Part-I, IPC. As regards sentence, it is stated at the Bar that the appellant is already in custody for more than thirteen years by now. Therefore, he is sentenced to the period of imprisonment already undergone. He be set at liberty forthwith, unless his detention is required in any other case. L. MOHAPATRA, J. :- 12. I agree. Order accordingly.