L.MOHAPATRA, J & B.K.PATEL, J. JCRLA. NO.47 0F 2002 (Decided on .07.12.2011) RAJU @ RAJENDRA KUMAR SAHU …….Appellant. .Vrs. STATE OF ORISSA …….Respondent. PENAL CODE, 1860 (ACT NO. 45 OF 1860) – S.302, 304-I. For Appellant - M/s. Gopal Krishna Nayak & S.Patra. For Respondent - Sangram Das, Addl. Standing Counsel. L.MOHAPATRA, J. This appeal is directed against the judgment and order of the learned Addl. Sessions Judge, Bhanjanagar-Aska, Bhanjanagar dated 12.8.2002 in S.C No.12/2001 (38/2001 GDC) convicting the appellant for commission of offence under Section 302 of I.P.C and sentencing him to imprisonment for life. 2. P.W.1, Gopal Krushna Mohanty lodged an F.I.R alleging therein that on 16.8.2000 at about 9.00 P.M the appellant stabbed the deceased in front of Santosh Bhawan Hotel and the incident was witnessed by several persons. On the basis of such information given by P.W.1, the F.I.R was registered for commission of offence under Section 302 of I.P.C. and on completion of investigation, charge sheet was submitted for commission of the said offence against the appellant. 3. The prosecution in order to prove the charge examined seven witnesses. Out of whom P.W.1 is the brother of the deceased and is a post occurrence witness. He is also the informant. P.W.2 is a post occurrence witness and came out of the Hotel immediately after the occurrence and heard the deceased shouting that the appellant had stabbed him. P.W.3 only heard about the incident and P.W.4 is the sole eyewitness to the occurrence. P.W.5 is the wife of the deceased, who came to the spot after the occurrence and P.W.6 is the Doctor, who conducted the postmortem examination. P.W.7 is the Investigating Officer. The plea of the defence was complete denial of the prosecution case and accordingly no witness was examined on behalf of the defence. 4. The trial court accepted the evidence of sole eyewitness-P.W.4, which was corroborated by P.W.6, the Doctor who conducted the postmortem examination. The trial court also relied on recovery of the knife at the instance of the appellant and the chemical examination report to record a finding of conviction and sentence. 5. Mr. Nayak, learned counsel appearing for the appellant did not seriously challenge the findings of the trial court holding that the appellant had killed the deceased by means of knife. It was contended by learned counsel for the appellant that the evidence of P.W.4 shows that there was a provocation from the side of the deceased, as a result of which the appellant stabbed the deceased by means of a knife. Therefore, the appellant may be liable for commission of offence under Section 304, Part-I of I.P.C and he could not have been convicted under Section 302 of I.P.C. 6. Sri Das, learned Addl. Standing Counsel appearing for the State submitted that the manner in which the deceased was stabbed by the appellant, as is evident from the evidence of P.Ws.4 and 6, the only conclusion that can be drawn is that the appellant committed offence under Section 302 of I.P.C. 7. Seven witnesses were examined on behalf of the prosecution to prove the charge. The most material witness for the purpose of the prosecution is P.W.4. P.W.4 in his deposition stated that on 16.8.2000 the appellant and the deceased were quarreling with each other as the appellant insisted that the deceased should remove his cabin, which had been placed in front of the cabin of the appellant. The deceased declined to remove the cabin saying that N.A.C was the proper authority to remove the same. Both the appellant and the deceased were physically engaged in the morning and also in the afternoon in relation to the above issue and this witness had interfered on both the occasions. At about 5.00 P.M when the appellant and the deceased again started quarreling over the same issue, this witness advised the deceased to go home. It is alleged by this witness that the appellant was saying that he would kill the deceased and bring out guts from his abdomen. Again at about 9.00 P.M this witness saw the deceased proceeding towards Belaguntha Chhak from the Bus Stand side abusing at random the appellant, who was standing near the Tiffin Hotel of Khadal Polei. The appellant ran towards the deceased holding a knife in his hand and stabbed him on the abdomen. When the deceased turned, the appellant again stabbed on his back twice. He also stabbed on the right thigh of the deceased. The incident was immediately informed to the family members of the deceased, who came to the spot and shifted the deceased to the Hospital but the deceased was declared dead by the time he reached the Hospital. The evidence of this witness gets corroboration from the evidence of P.W.6, who conducted the postmortem examination. 7.1. P.W.6 in course of postmortem examination found four ante mortem injuries. One is a penetrating stab injury on almost right postero auxiliary line from the tip of the right shoulder joint, another injury one inch above upper left border of scapula on midline, penetrating stab wound on left side of the abdomen and a punctured wound on the right back of the thigh. P.W.6 was of the opinion that the death was homicidal and the injuries can cause death in ordinary course of nature. He also opined that the injuries could be caused by knife. Therefore, from the evidence of P.Ws.4 and 6, it is clear that the deceased died a homicidal death and it is the appellant who stabbed the deceased in the night of occurrence. The evidence of P.W.4 also gets corroboration from other circumstances. 7.2. P.W.2 is the owner of the Hotel called Santosh Bhawan. He in his deposition stated that he heard the deceased shouting that he had been stabbed by the appellant and was seeking for help. When he came out of the Hotel, he found the deceased lying on the road with his abdomen ripped and he was also crying stating that “Raju has stabbed him”. The other two witnesses are P.Ws.1 and 5, who are the brother and mother of the deceased respectively. They had come to the spot immediately after 2 getting information about the incident and had found the deceased lying with stab injuries. They shifted the deceased to the Hospital but by the time the deceased reached the Hospital, the deceased had succumbed to the injuries. 8. On analysis of the evidence of all these witnesses, we agree with the trial court that it is the appellant, who stabbed the deceased causing his death. Coming to the submission of learned counsel for the appellant as to whether the offence should be under Section 302 of I.P.C or 304, Part-I of the said Code reference is required to be made to the evidence of P.W.4. P.W.4 stated that there was a quarrel between the appellant and the deceased in the morning and again in the afternoon at about 5.00 P.M. Though it was stated by P.W.4 that the appellant had declared to kill the deceased the said part of the statement of P.W.4 has been contradicted by the Investigating Officer-P.W.7. From the evidence of P.W.4, it further appears that after having two rounds of quarrel, one in the morning and one about 5.00 P.M., again at 9.00 P.M the deceased while proceeding towards Belaguntha from the Bus Stand started abusing at random. The appellant was standing near a Hotel. Immediately thereafter the appellant ran towards the deceased with a knife and stabbed him. It is evident from the above evidence of P.W.4 that the provocation was from the side of the deceased, who at about 9.00 P.M came to the place of occurrence and started abusing at random for which the appellant lost the power of self control and stabbed the deceased. 9. We are therefore, of the view that this is a case where Exception-1 of Section 300 of I.P.C should apply and the appellant should have been convicted for commission of offence under Section 304, Part-I of I.P.C. For the reasons stated above, we allow the appeal in part and set aside the impugned judgment and order of conviction dated 12.8.2002 passed by the learned Addl. Sessions Judge, Bhanjanagar-Aska, Bhanjanagar in S.C No.12/2001 (38/2001 GDC) convicting the appellant – Raju @ Rajendra Kumar Sahu for commission of offence under Section 302 of I.P.C. and find the appellant guilty for commission of offence under Section 304, Part-I of I.P.C and sentence him to undergo imprisonment for a period of ten years. 10. It is stated by learned counsel for the appellant that the appellant is in custody till date and has served more than 11 years of imprisonment. If that be so, the appellant be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed in part. 3