HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.294 of 2000 From the judgment dated 21.10.2000 passed by Sri N. Prusty, Addl. Sessions Judge, Parlakhemundi in S.C. No.16 of 1998/S.C. No.145 of 1998 (GDC). ---------- Ijak @ Kalia Mallik ………… Appellant versus State of Orissa .………… Respondent For Appellant : Mr. Niranjan Singh For Respondent : Mr. P.K. Pattnaik, Addl. Govt. Advocate P R E S E N T: THE HON’BLE MR. JUSTICE PRADIP MOHANTY & THE HON’BLE MR. JUSTICE B.P.RAY ----------------------------------------------------------------------- Date of hearing & judgment : 19.03.2010 ----------------------------------------------------------------------- PRADIP MOHANTY, J. This Jail Criminal Appeal is directed against the judgment and order dated 21.10.2000 passed by the learned Addl. Sessions Judge, Parlakhemundi in S.C. No.16 of 1998/S.C. No.145 of 1998 (GDC) convicting the appellant under Section 302/307, IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo R.I. for a further period of two years for the offence under Section 302, IPC. No separate sentence has been imposed for the offence under 2 Section 307, IPC, since the punishment imposed under Section 302, IPC will meet the ends of justice. 2. The case of the prosecution in a nutshell is that on 17.08.1997 at 2.00 P.M. the accused-appellant along with his wife and baby son Sanju and daughter Franchiska were sitting on the verandah of P.W.3-Sankia Naik of village Merama. At that time, the accused-appellant started quarrelling with his wife and all of a sudden stabbed his baby son on his chest/neck and also stabbed his daughter on her back. His baby son succumbed to the injuries at the spot, whereas the daughter sustained serious bleeding injury. One eye witness Dabid Bardhan reported the matter at Nalaghat Outpost at 9.00 P.M. and thereafter the report was sent to Adava Police Station. On the basis of the said report, the case was registered, investigation taken up and after its closure, charge sheet submitted against the accused-appellant under Sections 302/307, IPC. 3. Plea of the accused is one of complete denial of the allegation. 4. In order to prove the charge the prosecution examined as many as 10 witnesses including the I.O. and two doctors and exhibited 14 documents. Defence examined one witness, in support of its plea. 5. The learned Additional Sessions Judge after conclusion of the trial convicted and sentenced the appellant as already mentioned hereinbefore. 6. Mr. Singh, learned counsel for the appellant assails the impugned judgment on the following grounds: 3 (i) No intention has been ascribed to the appellant by the prosecution for commission of the crime; (ii) P.Ws.1 & 2 are interested witnesses; as P.W.1 is the mother of the deceased and P.W.2 had illicit relationship with P.W.1. (iii) There was a quarrel between the appellant and his wife(P.W.1) due to the illicit relationship between P.W.1 and P.W.2 and out of sudden provocation the appellant dealt a blow to the deceased as a result of which he died. In such circumstance, the act of the appellant may come within the ambit of Section 304 Part-I, I.P.C. 7. Mr. Pattanaik, learned Additional Government Advocate vehemently contends that the evidence of P.Ws.1 & 2, who are witnesses to the occurrence, is very clear and cogent that the appellant is the assailant of the deceased. P.W.1 is not only the mother of the deceased but also the wife of the appellant and, therefore, it cannot be presumed that she will screen the real offender and falsely implicate her husband. There is no material to disbelieve the evidence of the eye witnesses, namely, P.Ws.1 and 2 as well as P.Ws.3 to 6 who are post occurrence witnesses. Failure to prove motive is not fatal to the prosecution if eye witnesses account appears to be truthful. There is thus no illegality or infirmity in the impugned order warranting interference by this Court. 8. Perused the LCR. P.W.1 is the mother of the deceased and wife of the accused. She deposed that on the date of 4 occurrence, she along with her husband (accused) and children had been to the house of her brother Sankhia Naik (P.W.3). When they arrived there, P.W.3 and his wife were absent and their house was locked. They sat on the verandah of P.W.3. While they were sitting, the accused fought with her and stabbed her son (deceased) by means of a Kati on his right side chest. As a result, her son died on the spot sustaining bleeding injury. Thereafter, the accused assaulted her daughter on her back by means of the said Kati. In cross-examination, a suggestion was given to P.W.1 and she admitted that she had got illicit relationship with Dabida (P.W.2). Except this, nothing has been elicited to demolish her evidence with regard to the assault on the deceased and injured (daughter). P.W.2, the informant, is an ocular witness. He deposed that on the date of occurrence he was sitting near the house of Bacha Panda. He saw the accused along with his wife (P.W.1) and two children coming to the house of P.W.3. As his house was locked, they sat on the verandah. At about 2.00 PM the accused stabbed on the right side chest of his son Sanju by means of a knife, as a result of which he sustained injury and died there. Then, the accused again gave a stabbing blow on the back of his daughter, for which she sustained bleeding injury. He further deposed that he went to Nalaghat Outpost along with P.W.4 (Chian Majhi) & P.W.3 (Sankhia Naika) and orally reported before the Police. The A.S.I. of police scribed the report and read over and explained the contents to him and thereafter he put his signature on it. He proved the FIR marked Ext.1 and his signature thereon marked Ext.1/1. He is also a witness to the seizure of the weapon of offence (M.O.I). In cross-examination, he admitted that he had been to Mandimara for tending cattle and when he came back to 5 the village there was none. Nothing has been elicited in cross- examination to discredit his testimony. P.W.3 is the brother of P.W.1 and a post occurrence witness. He stated that at about 5 P.M. in the evening, he returned home and saw the injury on the chest of the deceased who was lying dead. He also saw bleeding injury on the back of Franchiska. P.W.1 narrated the occurrence to him. Then he called the Ward Member and went to Nalaghat Outpost along with Dabida (P.W.2) who orally reported before the Police. The police came to their village and made inquest over the dead body of the deceased. In cross-examination, he admitted that his sister (P.W.1) had married the accused against their will. He also admitted that they were not pulling on well with the accused. P.W.4 is the Ward Member of the village and a post-occurrence witness. He deposed that on the date of occurrence at about 12 noon, P.Ws.2 & 3 came to him and informed about the occurrence. Thereafter, he went to the spot and saw the injured as well as the deceased, who was lying dead. P.W.5 is also a post-occurrence witness. He stated that hearing the occurrence he went and saw the deceased lying with bleeding injury on his chest. He also saw the injured girl. He is a witness to the seizure of the knife (M.O.I) vide seizure list (Ext.2). He is also a witness to the seizure of materials indicated in Clause-10 of Ext.3. He proved Exts.2 and 3 and his signature thereon marked as Exts.2/1 and 3/1. He also identified the knife (M.O.I). Nothing has been elicited in cross-examination to disbelieve his testimony. 6 P.W.6 is another post-occurrence witness. She is the wife of P.W.3. She stated that on hearing the incident, she came from the maiza Field to her house and saw the deceased lying dead with injury on his chest. He also saw that Fransis had sustained injury on her back side. She further stated that P.W.1 told her that the accused had assaulted the deceased and Fransis. Nothing has been elicited from her in cross-examination. P.W.7 is the A.S.I. of police then attached to Nalaghat Outpost who reduced to writing the oral report, sent the same to Advava police station for registration of the case and took up investigation. He proved the F.I.R. marked Ext.1 and his signature thereon marked Ext.1/2. During the course of investigation, he seized the knife (M.O.I) vide seizure list (Ext.2), blood-stained earth, sample earth and bloodstained cloth vide seizure list (Ext.3), and wearing apparels of the accused, such as, a check shirt and a Dhoti vide seizure list (Ext.5). He sent the injured to Medical Officer, Birikot P.H.C. for medical examination under requisition (Ext.4). He also sent the dead body of the deceased for postmortem examination vide dead body chalan (Ext.7), forwarded the accused to the court and thereafter handed over the charge of investigation to the OIC, Adava Police Station. (P.W.9). Nothing has been elicited in cross-examination. P.W.8 is the Doctor who treated the injured (Franchiska Mallik) and found one lacerated wound on the back side of pectoral region of size 2” x 1 ¼”. He opined that the injury might have been caused by a sharp cutting weapon and that the nature of the injury was simple. In cross-examination, he admitted 7 that the injury is possible if one falls having his face upwards on hard, sharp and protruding object. P.W.9 is the then O.I.C. of Adava P.S. He took charge of the investigation from P.W.7 during course of which he sent the seized exhibits to R.F.S.L., Berhampur for chemical examination and after receipt of the chemical examination report (Ext.11) and closure of investigation submitted charge-sheet. In cross-examination he admitted that the occurrence took place due to infidelity of the wife of the accused and due to sudden provocation the accused assaulted the deceased and the injured. He denied to have any knowledge if the wife of the accused had any extramarital relationship with Dabida Bardhan (P.W.2). P.W.10 is the doctor, who conducted autopsy over the dead body of the deceased and found a stab wound with clean cut and irregular margin, the lower end of which is acute with entry wound measuring 1 cm. x 0.25 cm. x internal jugular vein deep situated little obliquely and vertical medial to sternal end of right clavity in the supra sternal notch. He opined that the injury described above was ante mortem in nature and could have been caused by such weapon sent for examination. The cause of death was due to haemorrhage and shock. The wound was fatal in ordinary course of nature. Nothing has been elicited in cross- examination. Defence has examined one Satyaban Bebarta as D.W.1, but he denied to have any knowledge about the occurrence. 9. On careful scrutiny of the entire evidence, this Court finds that P.W.2 is an ocular witness. He saw the assault by 8 the accused on the right side chest of the deceased (Sanju) and back of the injured (Franchiska) by means of a knife. He proved the FIR (Ext.1) lodged by him and identified the weapon of offence, i.e., knife (M.O.I) in Court. His evidence gets corroboration from the FIR. P.W.1, who is the wife of the accused and mother of the deceased (Sanju) and the injured (Franchiska), is also an eye witness. She supported the evidence of P.W.2 with regard to the assault on the deceased and the injured. There is nothing on record to disbelieve the evidence of P.Ws.1 and 2. P.W.3 is the brother of P.W.1 on whose ‘Danda’ (front-yard) the occurrence had taken place. At the time of occurrence, he was absent and returned home at 5.00 pm. He saw injuries on the chest of the deceased (Sanju) and on the back of the injured (Franchiska). His sister (P.W.1) and other villagers told him about the occurrence. P.W.6 is the wife of P.W.3. On hearing the occurrence, she came from the maize field to her house and saw the deceased (Sanju) lying dead with injury on his chest. The injured (Franchiska) had also sustained injury on her back. She corroborated the evidence of P.W.3. P.W.4 is the Ward Member of the village who stated that P.W.3 came and reported the matter to him. Thereafter, both of them went to the spot. He saw the deceased and the injured lying there. P.W.5 is another post-occurrence witness who went to the spot hearing the occurrence. He corroborated the evidence of P.W.4. He is also a witness to the seizure of the knife (M.O.I) vide Ext.2 as well as bloodstained earth and sample earth vide Ext.3. P.W.7 is the I.O. who registered the case, investigated into the matter, seized the knife (M.O.I) and the bloodstained earth, and also sent the injured to the PHC, Birikote. He proved seizure of the knife (M.O.I), bloodstained cloth (M.O.II), bloodstained earth 9 (M.O.III), sample earth (M.O.IV), check shirt (M.O.V) and white dhoti (M.O.VI). P.W.8, the Medical Officer who treated the inured (Franchiska), corroborated the evidence of P.Ws.1 to 6. P.W.10 is the doctor, who conducted autopsy over the dead body of the deceased and found one stab wound of size 1 cm x 0.25 cm x internal jugular vain deep situated vertically and little obliquely medial to sternal end of right clavicle in the supra-sternal notch. He categorically opined that the injury on the person of the deceased Sanju was ante mortem in nature and could have been caused by M.O.I. P.W.9, who took charge of the investigation from P.W.7, sent the seized articles to R.F.S.L., Berhampur for chemical examination and on completion of investigation submitted charge- sheet. He proved the chemical examination report (Ext.11). 10. There is no discrepancy in the evidence of the doctor and the eye witnesses with regard to the injuries on the person of the deceased and the injured. The evidence of P.Ws.1 and 2 is clear with regard to assault on the chest of the deceased which is corroborated by the postmortem doctor (P.W.9). The minor discrepancies appearing in the evidence of P.Ws.1 and 2 are bound to occur in case of truthful witnesses due to efflux of time. P.W.1 cannot be said to be an interested witness because she is not only the mother of the deceased and the injured but also the wife of the accused. It is the natural conduct of a wife not to implicate or rope her husband in any false allegation. That apart, evidence of P.W.1 is fully corroborated by P.W.2, who is an independent witness. Even if no motive is ascribed against the accused, the accused is not entitled to an acquittal on that ground alone. For the foregoing reasons, this Court is of the opinion that the appellant was the 10 assailant of the deceased (Sanju) and had caused injury to the injured (Franchiska). 11. Now, it is to be seen whether the act committed by the appellant comes within the ambit of Section 304 Part-I, IPC. The apex Court in K.M. Nanavati V. State of Maharashtra, AIR 1962 SC 605 has held as follows:- “…….The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self- control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.” This Court examined the matter in the light of the above ratio. It is true that P.W.1 admitted in her cross- examination that she had illicit relationship with P.W.2, but there is no evidence that P.W.1 provoked the accused or confessed before him with regard to the paternity of the deceased and the injured for which the accused had lost self-control and attacked the 11 deceased and the injured. It is for the accused to establish that the provocation was grave and sudden for which he had lost self- control and attacked the deceased and the injured. No suggestion has been given by the accused to that effect to any of the witnesses. Therefore, the case does not come under the purview of Section 304 Part-I, IPC. For the above reasons, this Court confirms the conviction of the appellant under Section 302, IPC. 12. So far as the conviction under Section 307, IPC is concerned, as per the evidence of P.W.7 the injury was simple in nature and not on the vital part of the body of the injured (Franchiska). Therefore, this Court converts the conviction of the appellant from Section 307, IPC to Section 324, IPC. 13. In the result, the appeal is dismissed. The conviction of the appellant under Section 302, IPC and the sentence thereof as imposed by the trial court is confirmed. However, his conviction under Section 307, IPC is converted to Section 324, IPC, but no separate sentence is imposed. ……………………………… PRADIP MOHANTY,J. B.P. Ray, J. I agree. ………………………… B.P. Ray,J. Orissa High Court, Cuttack The 19th March, 2010/Barik