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2013 DIGILAW 239 (ORI)

Krushna Chandra Samal v. State of Orissa

2013-07-25

B.R.SARANGI, SANJU PANDA

body2013
JUDGMENT Sanju Panda, J. 1. This appeal has been filed by the Appellant challenging the Judgment dtd. 07.5.1991 passed by the Learned Addl. Sessions Judge- cum-Special Judge, Bhubaneswar in S.T Case No. 6/186 of 1990 convicting the Appellant under Section 302 of I.P.C. & sentencing him to undergo imprisonment for life. The case of the prosecution is that on 17.3.1990 one Purna Chandra Samal told something to the elder brother of the Appellant, for which there was ill feeling between the Appellant & Purna. On 18.3.1990 at about 6.00 P.M. the Appellant came with a knife & challenged Purna regarding the earlier incident & tried to kill him. At that time Purna was holding a baby & left the place to leave the baby in the house of one Bibhuti & came back. Thereafter, the Appellant chased Purna & Purna caught hold of the hairs of the Appellant. The Appellant stabbed on the chest of Purna & thereafter to his stomach by means of a knife, as a result of which Purna fell down sustaining bleeding injuries. Thereafter, Purna was shifted to Barang Hospital for treatment on a Scooter, where the Doctor declared him dead. After the occurrence, the Appellant threw the knife on the spot & ran away. On the basis of the F.I.R, lodged by the informant-P.W. 10, the brother of the deceased, Saheed Nagar PS Case No. 182 of 1990 was registered & investigation was taken up. After completion of the investigation, charge sheet was submitted for commission of offence under Section 302 of I.P.C. against the Appellant. 2. The prosecution in order to establish the charges examined as many as eighteen witnesses & exhibited several documents which were marked as Exts. 1 to 13. The weapon of offence was marked as M.O. I & wearing apparels were marked as M.O. II to M.O. VI. Out of the witnesses examined by the prosecution P.Ws. 1, 2, 9, 12, 13, 14, 16 & 17 were the eyewitnesses to the occurrence. P.Ws. 3, 4 & 5 were the witnesses to the seizure. P.Ws. 6 & 7 were the Scientific Officers of State F.S.L., Rasulgarh. P.W. 8 was the Constable, who produced the wearing apparels of the deceased for chemical examination & post mortem. P.Ws. 10 & 11 were the post occurrence witnesses. P.Ws. 3, 4 & 5 were the witnesses to the seizure. P.Ws. 6 & 7 were the Scientific Officers of State F.S.L., Rasulgarh. P.W. 8 was the Constable, who produced the wearing apparels of the deceased for chemical examination & post mortem. P.Ws. 10 & 11 were the post occurrence witnesses. P.W. 15 was the Doctor, who conducted post mortem examination on the dead body of the deceased & P.W. 18 was the Investigating Officer. The plea of the Appellant was complete denial of the prosecution case. The Appellant neither has examined any witness nor has he exhibited any document. 3. The Trial Court relying on the evidence of P.Ws. 1, 2, 9, 12, 13, 14, 16 & 17 who are eyewitnesses to the occurrence & the evidence of P.W. 15, the Doctor who conducted the post mortem examination found the Appellant guilty under Section 302 of I.P.C. & convicted him thereunder. 4. Learned Counsel appearing for the Appellant submits that though the Appellant came to the spot with a knife, immediately he did not assault the deceased rather he had the intention to give a threatening to the deceased only, for which the Appellant allowed the deceased to leave the baby & came back. He further submits that as the deceased caught hold the hairs of the Appellant, the deceased provoked the Appellant & on such provocation the Appellant gave stab blows on the chest & stomach of the deceased, therefore, the impugned Judgment is not sustainable in law & need to be set aside. 5. Learned Addl. Standing Counsel while supporting the impugned Judgment passed by the Trial Court submits that the Appellant had prior intention to kill the deceased, therefore, he came with a knife with an intention to kill the deceased. He further submits that as the Appellant stabbed successively on the chest & stomach of the deceased with an intention to kill him, the Trial Court rightly convicted him under Section 302 of I.P.C., therefore, the impugned Judgment may not be interfered with. 6. Considering the rival submissions of the parties & after going through the materials available on record, it appears that the occurrence took place on 18.3.1990 at about 6.00 P.M. & at that time P.Ws. 1, 2, 9, 12, 13, 14, 16 & 17 were present at the spot & nearby places, which is visible to them clearly. 6. Considering the rival submissions of the parties & after going through the materials available on record, it appears that the occurrence took place on 18.3.1990 at about 6.00 P.M. & at that time P.Ws. 1, 2, 9, 12, 13, 14, 16 & 17 were present at the spot & nearby places, which is visible to them clearly. They saw the entire incident & nothing has been brought out from those witnesses in cross-examination to disbelieve their testimony. The Doctor-P.W. 15, who conducted the post mortem examination found the following external injuries: i) Stab wound vertically placed on the left side of chest of size 2 cm. x 1 cm. The upper end was little more wider than the lower end. It is placed 3 cm above & 2 cms. towards the middle line of the left nipple. On gently probing, the depth of the wound is 4 cm., but on manipulation, the depth is 11 cms. On opening the wound, there was a haematoma of size 8 cm. x 6 cms. x 5 cms. Underneath the skin & involving the inter costal muscles, portions of third & 4th ribs on the left side have been cut at a distance of 1 cm from the xiphisternum to the left side. On opening the rib cage, both the lungs were in tact & collapsed & pale. The pericardium is cut below the side of the injury of size 1 cm. x 5 cm & pericardial cavity contains 1 1/2 liters of partially clotted blood. On clearing the blood, the left ventricle was found to be cut vertically of the size 1 cm. x 5 cm. involving the entire length of the musculature of the left ventricle at 6 cm. above the base of the heart. All the chambers of the heart were empty. ii) Incised wound 3 cm. x 1 cm x 1 1/2 cm. on the abdominal wall 13 cms. towards the left & 5 cms. above the level of umbilicus. The injury was extending downwards & towards the mid line. On opening, there was a haematoma of size 4 cms. x 3 cms. x 1/2 cm present under the skin. On further opening neither the peritoneum nor intra abdominal organs were injured. P.W. 15 further stated that both the injuries were ante mortem in nature. above the level of umbilicus. The injury was extending downwards & towards the mid line. On opening, there was a haematoma of size 4 cms. x 3 cms. x 1/2 cm present under the skin. On further opening neither the peritoneum nor intra abdominal organs were injured. P.W. 15 further stated that both the injuries were ante mortem in nature. The cause of death was due to shock & hemorrhage consequent upon the injury sustained on the chest wall affecting the heart. In all natural circumstances, the injuries may cause immediate death in ordinary course of nature. Injury No. (i) is possible by M.O. I. Taking into consideration the nature of injuries, it is crystal clear that the stab blows were given with force. P.Ws. 1, 2, 9, 12, 13, 14, 16 & 17, who were eyewitnesses to the occurrence also corroborated regarding the successive blows made by the Appellant, However, the Appellant came with a knife to give threatening to the deceased at first instance & allowed him to come back after leaving the baby. The deceased when came back there was exchange of hot words between them & due to such altercation of words the Appellant stabbed the deceased by giving successive blows. This Court by order dtd. 17.7.2013 directed Learned Add I. Government Advocate to obtain criminal antecedents of the Appellant. The letter dated 21.7.2013 of the Inspector-in-Charge of Saheed Nagar Police Station produced before this Court by the Learned Addl. Government Advocate shows that there is no criminal antecedent against the Appellant & on being released on bail the Appellant is maintaining his livelihood peacefully. Therefore, considering the totality of the evidence of the witnesses this Court feels that the offence committed by the Appellant is coming under Section 304, Part-1 of I.P.C. & not under Section 302 of I.P.C. Accordingly, this Court sets aside the conviction of the Appellant under Section 302 of I.P.C. & convict him for commission of offence under Section 304, Part-I of I.P.C. & sentence him to undergo imprisonment for a period of ten years. Since the Appellant is on bail in pursuance of the order dtd. 26.11.1996 passed by this Court in Misc. Case No. 552 of 1996, the Trial Court is directed to take immediate steps to apprehend him to serve the rest of the sentence. Since the Appellant is on bail in pursuance of the order dtd. 26.11.1996 passed by this Court in Misc. Case No. 552 of 1996, the Trial Court is directed to take immediate steps to apprehend him to serve the rest of the sentence. It is needless to say that the period of sentence already undergone by the Appellant be set off. The bail bonds of the Appellant stand cancelled. Appeal Partly Allowed.