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2011 DIGILAW 481 (ORI)

Suru alias Krupanidhi Bhoi v. State of Orissa

2011-09-12

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT 1. In this appeal, the appellant assails his conviction under Section 302 of the Indian Penal Code, 1860, hereinafter referred to as the "I.P.C." for brevity, in Sessions Case No.34/45 of 2001 of the Court of Addl. Sessions Judge, Sonepur. 2. Case of the prosecution, in brief, is that on 27.08.2000 at about 6.30 A.M., the accused murdered deceased Pabitra Adbank in front of his house. F.I.R. has been lodged by the appellant himself at Dungripali Police Station. It appears from the record that on 26.08.2000 night, Duryodhan Adbank, son of the deceased had entered into the house of Biranchi Bhoi, the elder brother of the accused with a view to ravish his daughter Kumudini. Kumuduni shouted seeing the son of the deceased in her room. Thereafter, Duryodhan ran away from her house and was chased by the accused, his elder brother and others. He was caught and at the intervention of the villagers, the matter was subsided and son of the deceased was set free. On 26.08.2000, the deceased came to his house and heard about the incident. Next morning on 27.08.2000, the deceased went to the house of the accused and picked up a quarrel with his elder brother alleging that the elder brother of the appellant was falsely blaming his son to have entered into his house with a motive to ravish her daughter Kumudini. There was a quarrel and scuffle between Biranchi and the deceased. The deceased abused and threatened to Kill Biranchi and throttled his neck. At that point of time, the appellant brought out a sword from his house and with that sword, gave blow on the head of the deceased, as a result of the assault, the deceased died. Thereafter, the appellant went to the Dunguripali Police Station and lodged an F.I.R. before the Officer-in-Charge and law was set into motion and after completion of investigation, police submitted charge-sheet against the appellant under Section 302 of the I.P.C. The defence took the plea of denial in this case. 3. Prosecution in order to prove its case examined fourteen witnesses and the defence has examined one. After taking into consideration the evidence of the eye-witnesses like P.Ws.3, 4, 5 and 8 and production of the blood-stained sword, the learned Addl. 3. Prosecution in order to prove its case examined fourteen witnesses and the defence has examined one. After taking into consideration the evidence of the eye-witnesses like P.Ws.3, 4, 5 and 8 and production of the blood-stained sword, the learned Addl. Sessions Judge came to the conclusion that the prosecution has proved its case beyond all reasonable doubt and, therefore, proceeded to convict the appellant for the offence under Section 302 of the I.P.C. Such conviction and sentence of life imprisonment have been assailed in this appeal. 4. In course of hearing, the learned counsel for the appellant submitted that evidence of P.W.8 reveals that P.Ws.3, 4 and 5 were not present at the spot, therefore, they cannot be relied upon as witnesses to the occurrence. It is further argued alternatively that there being grave and sudden provocation to the appellant, in the sense that the deceased himself went to the house of the appellant and started abusing the elder brother of the appellant and throttled his neck, the appellant assaulted the deceased by means of the sword. Hence, it is argued that it is at best a case under Section 304, Part-II of the I.P.C. Learned Addl. Government Advocate, on the other hand, supported the findings recorded by the learned trial Judge and prayed that the appeal be dismissed. 5. There is no dispute that the death of the deceased was homicidal in nature. Evidence of P. W.13, Dr. Rabinarayan Mishra reveals that on postmortem examination, he found that the deceased had sustained incised wounds of size 20 cm length and 4 cm deep on left parietal, temporal and occipital area through which the brain matter had come out. There were incised wounds on the forehead of the deceased of size 5 cm and depth of 1/2 cm. and on the left forearm ulnar boarder of size 5 cm. x 2 cm. The doctor has opined that the cause of death was due to fracture of left parietal, temporal and occipital bone of skull, which caused lacertain of dura and brain matter leading to cerebral damage and death. The injury found was caused by hard and sharp object. He had also reexamined the weapon of offence i.e. Iron sword and opined that the injuries found on the deceased can be caused by such weapon. 6. The injury found was caused by hard and sharp object. He had also reexamined the weapon of offence i.e. Iron sword and opined that the injuries found on the deceased can be caused by such weapon. 6. Coming to the evidence of P.W.8 it is seen that he has stated on oath that the said incident took place one year four months back from his deposition in the Court. There was quarrel in between the families of the accused and the deceased. After the quarrel, he brought Duryodhan and his mother and kept them in his house. Deceased Pabitra was not present in the village. After three days of the Wednesday night incident, he came to his village on a Saturday. That night the deceased went to the house of the accused and picked up quarrel with him on the next morning i.e. on Sunday at about 6 a.m. The witness has further stated that while he was irrigating his land situated near the house of the accused, at that time the deceased came in front of the house of the accused and shouted at random with threat to assault the appellant. Hearing the threat and abuse of the deceased, Biranchi, the brother of the accused, came out of the house and there was, quarrel between the deceased and Biranchi. Seeing such quarrel, the witness tried to separate Pabitra and the deceased, the deceased gave a push to the witness as a result, he fell on the ground. At that time the appellant came running towards the deceased holding a sword and dealt a blow with the sword on the head of the deceased. With the impact of the sword blow, the deceased fell on the ground sustaining bleeding injury on his head. In cross-examination this witness has stated that he has not seen the deceased pressing the neck of Biranchi, but it has been brought out as contradiction in his evidence by the defence to the effect that he has stated before the Investigating Officer that the deceased pressed the neck of Biranchi by pressing his body against the wall. 7. Similar is the evidence of P.Ws.3, 4 and 5. P.W.3 has stated in the examination-in-chief that Biranchi and the deceased scuffled with each other. 7. Similar is the evidence of P.Ws.3, 4 and 5. P.W.3 has stated in the examination-in-chief that Biranchi and the deceased scuffled with each other. Seeing the scuffle between his elder brother and the deceased, the appellant ran inside his house and came with a sword and with that sword, he dealt a blow on the head of the deceased. In the cross-examination, this witness has stated that he first heard the deceased abusing the elder brother of the accused from his house and he then came towards the place where deceased was abusing the elder brother of the accused and saw the incident of assault of the accused by means of a sword to the head of the deceased. He has further stated that the deceased during tussle had caught hold of the neck of Biranchi. Biranchi had also caught hold of the neck of the deceased. In cross-examination, he had further stated that Biranchi shouted when his neck was being throttled by the deceased. 8. P. W. 4 has similarly stated about the assault by the appellant on the deceased while there was scuffle between the deceased and the elder brother of the appellant. P. W.5 has stated in cross-examination that the deceased during scuffle had caught hold of the neck of Biranchi. Biranchi shouted while his neck was being throttled by the deceased. Thus, it is evident that on the date of occurrence, the deceased went to the house of the accused and started abusing the appellant and his elder brother and there was scuffle between the deceased and Biranchi and the deceased caught hold of the neck of Biranchi and started pressing it by pressing his body against the wall. At that time, the appellant came and gave blows by means of a sword on the head of the deceased, a result of which he died. 9. It further transpires from the evidence of P.W.9 - Duryodhan Adbanga that he stated before the police that he was in love with the daughter of Biranchi, elder brother of the accused and had stated that on Wednesday night he was attempting to talk with the daughter of Biranchi. He further denied the suggestion that when daughter of Biranchi raised halla he was caught red handed by the accused and his brother while, fleeing. He further denied the suggestion that when daughter of Biranchi raised halla he was caught red handed by the accused and his brother while, fleeing. Thus, from the totality of the evidence on record the picture that emerges is that P.W.9 on the previous night had gone to the house of the appellant with an ulterior motive of sexually harassing the daughter of Biranchi. In fact, it is the consistent case of the petitioner that on the night when the son of the deceased had been to the house of the appellant, the deceased was not present in the village. Later on, he came and learnt about the same and started quarrelling by abusing the appellant and his brother-Biranchi. Thereafter, he started tussle with Biranchi and tried to throttle his neck. At that point of time, the appellant assaulted the deceased by means of an iron sword. 10. Keeping in view of the aforesaid circumstances, we are of the opinion that the deceased was the aggressor and he gave grave and sudden provocation to the appellant, as a result of which, the appellant being enraged assaulted the deceased by means of a sword, M.O.I. There is absolutely no evidence that the offence was committed with any premeditation. Rather, it appears to have been committed in a spur of moment in a sudden quarrel. So this is a case of homicide not amounting to murder punishable under Section 304, Part II of the I.P.C. 11. Accordingly, we allow the appeal in part, set aside the order of conviction under Section 302 of the I.P.C. and convert the same to conviction for the offence punishable under Section 304, Part-II of the I.P.C, and sentence the appellant to undergo rigorous imprisonment for 7 (seven) years. It is submitted at the Bar that the appellant is in custody since the date of the incident i.e. 27.08.2000. Since the appellant is in custody for more than ten years, the period already undergone be set off and he be set at liberty forthwith if his detention is not required in connection with any other case. Appeal allowed in part.