Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 295 (ORI)

Fighter Oram v. State Of Orissa

2019-04-09

A.K.MISHRA, S.K.MISHRA

body2019
JUDGMENT : S.K. Mishra, J. In this appeal the convict-appellant, assails the judgment dated 18.05.2007 passed by the learned Sessions Judge, Keonjhar in S.T. Case No.6 of 2007 convicting him u/s.302 of the Indian Penal Code, 1986 (hereinafter referred to as I.P.C. for the brevity) and sentencing him to undergo imprisonment for life. 2. The case of the prosecution in brief is that the occurrence took place on 13.09.2006. On that date, the informant and the deceased were sitting on the verandah. The accused with another came there and dragged the deceased to the village road and assaulted him with the handle of an axe, as a result of which, the deceased expired. Prior to this incident, the accused had quarreled with the wife of the deceased. This incident was reported to the police and, in due course, after completion of investigation charge-sheet was submitted and the accused was put to trial. 3. To prove its case prosecution has examined as many as seven witnesses including the wife of deceased, out of whom P.Ws.1, 2 and 3 are the eye witness of the occurrence. 4. No witness has been examined on behalf of the defence. 5. It is apparent from the statement of P.W. 6, that on 14.09.2006 he conducted post-mortem examination over the dead body of the deceased, Rahasa Ojha and noticed one lacerated injury over his right eye-brow, the right orbital and frontal bone were fractured and there was extensive haemorrhage into the right cerebral hemisphere and ecchymosis below the left eye. He opined that the death of the deceased was due to shock and excessive hemorrhage of the right cerebral hemisphere. The injuries were taken to be antimortem in nature and were found sufficient to cause death in the ordinary course of nature. 6. P.W.2 is the wife of the deceased, she has stated that on the date of occurrence the deceased, herself and other family members were sitting on the verandah. In the morning, while returning from the weekly market the accused dashed his motor cycle for which there was a quarrel between the witness and the accused. 6. P.W.2 is the wife of the deceased, she has stated that on the date of occurrence the deceased, herself and other family members were sitting on the verandah. In the morning, while returning from the weekly market the accused dashed his motor cycle for which there was a quarrel between the witness and the accused. At the evening the accused and Kanhu came to the house and dragged her husband under a jack fruit tree and the accused assaulted her husband with the handle of an axe, as a result of which, her husband sustained injury on his head and fell down and died at the spot. Though cross-examined, nothing substantial has been brought out from the mouth of this witness. P.W.1 is the informant and the son of the deceased of this case and P.W.3 who happens to be the daughter-in-law of the deceased have also supported the case of the prosecution as deposed by P.W.2. So from the evidence of P.Ws.1, 2, 3 and 6, we are of the opinion that the prosecution has brought home his case that the appellant has committed the homicide of the deceased. Now the question remains whether it is a homicide amounting to murder or homicide not amounting to murder. Apparently, there was quarrel between the accused and the wife of the deceased. It is also borne out from the F.I.R. that there was a quarrel between the deceased and the accused-appellant. Then the accused dragged the deceased from the verandah to the village road and under a jack fruit tree he again picked up quarrel with the deceased. At that time others started to disengage them from further quarrel, but the accused became aggressive and gave a blow by means of a wooden stick (KATHA BENTIARE) on the head, for which he fell down. From this aspect it is clear that the accused has no intention of committing murder of the deceased. All these incident took place in a spur of moment and only one blow that to by means of a wooden plank has been given by the appellant to the deceased. 7. So we are of the view that an offence under section 302 of IPC is not sustainable, rather an offence under section 304 (part-II) of the IPC is made out. 8. 7. So we are of the view that an offence under section 302 of IPC is not sustainable, rather an offence under section 304 (part-II) of the IPC is made out. 8. Accordingly we allow the appeal in part and convert the conviction of the appellant under section 302 of the IPC to conviction under section 304 (Part-II) of the IPC for committing the offence of culpable homicide not amounting to murder. 9. We reduce the sentence to five years R.I. Period undergone as UTP as well as the convict be set off. We do not impose any fine to the appellant-petitioner. The appeal is partly allowed. L.C.Rs. be returned immediately.