Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 12 (ORI)

SAMA KIRSANI v. STATE OF ORISSA

2010-01-06

B.K.PATEL, PRADIP MOHANTY

body2010
JUDGMENT : Pradip Mohanty, J. - The Appellant has assailed the judgment and order dated 19.07.1999 passed by the learned Additional Sessions Judge, Malkangiri in S.C. No. 16 of 1999 (S.C. No. 278 of 1996 of the Sessions Judge, Koraput-Jeypore) convicting him u/s 302 I.P.C. and sentencing him to undergo rigorous imprisonment for life. 2. The case of the prosecution is that on 25.05.1996 at about 10.00 A.M. deceased Mangala Kirsani and the accused-Appellant quarreled with each other over the doors of their house. The deceased told to the present Appellant that he has share in the doors and saying so he took the outer door of their house. When he came back to take the other door, the accused-Appellant wanted to kill him by arrow. At that juncture, Lachhmi Chalan P.W.5 arrived and took the bow and arrow from the accused-Appellant. But accused-Appellant stabbed the deceased on his chest by a knife and P.W.5 out of fear left the place. Thereafter, Soma Sisa P.W.4 came and requested the Appellant not to assault the deceased. As the deceased fell down on the ground, the Appellant by means of an 'Aunla' wood assaulted on the face of the deceased, as a result of which the deceased succumbed to the injury. The Appellant after killing the deceased left the village. P.W.2, the informant, returned home from forest at about 7.00 PM, heard from P.W.4 about the occurrence, went to the spot and found the deceased lying dead. As it was night, P.W.2 could not go to the police station. However, on the next day, i.e., on 26.05.1996 at about 8.00 A.M. he went to Mudulipada Police Station and orally reported the matter before the A.S.I, of police who reduced the same to writing, drew up formal FIR and registered the case. On completion of investigation charge-sheet was laid down against the Appellant u/s 302, IPC. 3. Plea ofthe accused-Appellant is complete denial. His further plea is that he has exercised the right of private defence to his person. 4. In order to prove the case, prosecution examined as many as eight witnesses including the medical officer, who conducted autopsy over the dead body of the deceased, and the Investigating Officer. The defence examined none. 5. 3. Plea ofthe accused-Appellant is complete denial. His further plea is that he has exercised the right of private defence to his person. 4. In order to prove the case, prosecution examined as many as eight witnesses including the medical officer, who conducted autopsy over the dead body of the deceased, and the Investigating Officer. The defence examined none. 5. The trial Court after conclusion of the trial found the Appellant guilty u/s 302, IPC, convicted him thereunder and sentenced him to undergo imprisonment for life with the finding that the Appellant cannot get the benefit of Section 96 of the IPC and that the prosecution has successfully brought home the charge u/s 302, IPC to the Appellant. 6. Mr. Zafarulla, learned Counsel for the Appellant submits that there is no cogent, convincing and reliable material on record to convict the Appellant u/s 302, IPC. P.W.4 cannot he said to be a witness to the occurrence, as in cross-examination he has admitted that at the time of occurrence he was inside his house and that after separating the Appellant and the deceased he went away and had not seen the assault, There are major contradictions in the evidence of P.W.5 and as such his evidence is wholly unreliable. Admission of P.W.5 in cross-examination, that the Appellant and the deceased were fighting with each other and that the deceased was raising knife to kill the Appellant, rather supports the Appellant's plea of private defence to his person. His alternative submission is that even if it is assumed that the Appellant is responsible for the death of the deceased, in the facts and circumstances of the case the act committed by him may come under the ambit of Section 304 Part-I, IPC but not u/s 302, IPC. 7. Mr. Miahra, learned Additional Government Advocate, on the other hand, contends that no illegality has been committed by the trial Court by convicting the Appellant u/s 302 I.P.C. The evidence of the eye witnesses, namely, P.Ws.4 and 5 is very clear, consistent and free from doubts. There is no material on record to disbelieve the evidence of P.Ws.4 and 5. 8. Perused the LCR P.W.2 is the informant. He stated in his examination-in-chief that after hearing the incident from Soma Sisa P.W.4, he went to the spot and saw the deceased lying dead. There is no material on record to disbelieve the evidence of P.Ws.4 and 5. 8. Perused the LCR P.W.2 is the informant. He stated in his examination-in-chief that after hearing the incident from Soma Sisa P.W.4, he went to the spot and saw the deceased lying dead. On the next day, he reported the matter orally at the police station and the police reduced the same to writing and took his LTI. P.W.4 is said to be a witness to the occurrence. In his examination-in-chief he stated that the accused assaulted the deceased by a knife (Bonda Kath) on the chest, belly and also assaulted by an 'Aunla wood'. But in cross-examination he admitted, that at the time of occurrence he was inside his house, that there was a quarrel between the decreased and the Appellant, and that after separating the Appellant and the deceased he went away and did not see the actual assault. He further admitted that the deceased was holding a knife and threatening to kill the Appellant. P.W.5 is Anr. ocular witness. He stated that the Appellant assaulted the deceased by 'Bonda-kati' on is belly and chest. So, out of fear he went home. In cross-examination he admitted that the Appellant and the deceased were fighting with each other and the deceased was raising a knife to kill the Appellant. When the knife fell on the ground from the hand of the deceased, the accused-Appellant assaulted the deceased with the said knife. P.W.1, who conducted autopsy over the dead body of the deceased, found one internal injury and five external injuries on the person of the deceased. He opined that the death was due to haemorrhage and shock. P.W.3 is a witness to the seizure of earth and blood stained earth from the spot. P.W.6 is a witness to seizure of the door vide Ext.4. P.W.7 is the police constable in whose presence inquest was held. P.W.8 is the I.O., who conducted investigation, seized the wearing apparels of the deceased, earth and blood stained earth from the spot, knife-and one white blood stained cloth and sent the same for chemical examination. In cross-examination, P.W.8 admitted that the deceased went to the house of the present Appellant to bring the door and there was a quarrel between them. 9. From the above analysis of the evidence, it is found that P.W.5 is a witness to the occurrence. In cross-examination, P.W.8 admitted that the deceased went to the house of the present Appellant to bring the door and there was a quarrel between them. 9. From the above analysis of the evidence, it is found that P.W.5 is a witness to the occurrence. He has categorically stated that the Appellant assaulted the deceased by Bonda-Kati on his chest and belly. There is no such material contradiction in the evidence of P.W.5 to render his evidence incredible. Nothing substantial has been brought out through cross-examination to impeach his testimony. P.W.4 is a witness to the first part of the occurrence. He corroborates the evidence of P.W.5 with.regard to quarrel between the deceased and the Appellant. On appraisal of the evidence of P.Ws.4 and 5 as well as the doctor (P.W.1) and other material available on record, this Court comes to the conclusion that the prosecution has established beyond any shadow of doubt that the Appellant assaulted the deceased with the knife M.O.I, and on account of such assault, the deceased met his maker by sustaining injuries. 10. Now, it is to be seen whether by the act committed the Appellant is liable for the offence u/s 302, IPC or Section 304 Part-I thereof. P.W.4 in cross-examination has admitted that there was a quarrel between the deceased and the Appellant and that the deceased was holding a knife and threatening to kill the Appellant. P.W.5 in cross-examination has admitted that the Appellant and the deceased were fighting with each other and the deceased was raising a knife to kill the Appellant and that when the knife fell on the ground from the hand of the deceased, the Appellant assaulted the deceased with the said knife. The I.O. also admitted that the deceased went to the house of the present Appellant to bring the door and there was a quarrel between them. On face of such evidence, it can safely be concluded that there was a fight between the deceased and the Appellant in which the Appellant without any premeditation assaulted the deceased as a result of which the latter died, but the Appellant had no intention to kill the deceased. Taking an overall view of the fact situation and keeping in mind the principles laid down by the apex Court in Ram Karan and Others Vs. Taking an overall view of the fact situation and keeping in mind the principles laid down by the apex Court in Ram Karan and Others Vs. State of Uttar Pradesh this Court is satisfied that Exception 4 of Section 300 I.P.C. is attracted in this case and the Appellant is guilty of committing the offence u/s 304 Part-I, IPC. 11. In the result, the appeal is allowed in part, the conviction of the Appellant u/s 302, IPC is converted to Section 304 Part-I, IPC and he is sentenced to undergo rigorous imprisonment for ten years. It is stated by Mr. Zafarulla that the Appellant Sama Kirsani has remained in custody from the date of his arrest and by now has completed more than thirteen years. If that be so, the Appellant be set at liberty forthwith, unless his detention is required otherwise. B.K. Patel, J. 11. I agree.