HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.74 of 1996 From the judgment dated 05.02.1996 passed by Shri S.N. Nanda, Sessions Judge, Sundargarh in S.T. No. 183 of 1993 . Chhote Kishan ……… Appellant Versus. State of Orissa ……… Respondent For Appellant : Mr. Sk. Zafarulla For Respondent : Mr. J.P. Pattnaik, Addl. Govt. Advocate. PRESENT: THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.K.PATEL -------------------------------------------------------------------------------------- Date of hearing & judgment : 14.01.2010 PRADIP MOHANTY,J. The appellant having been convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life by the learned Sessions Judge, Sundargarh in S.T. No.183 of 1993 has preferred this appeal from jail. 2. The case of the prosecution is that on 21.07.1993 the appellant dealt a Falsia blow on the chest of the deceased Mana Kishan causing injury to his vital organs like heart, liver and other parts of the body, as a result of which the died at the spot. The incident took place in presence of the deceased’s wife (P.W.1), Sitaram Kishan (P.W.7) and others. On being reported by the deceased’s wife Rohini Kishan, the police took up investigation and after its completion submitted charge-sheet against the appellant under Section 302, IPC. 3. The plea of the appellant is one of complete denial. His specific plea is that on the date of occurrence he had gone to work and returned home at 4.30 PM. On his return, he found somebody had thrown the dead body of the deceased Mana Kishan in front of his house. As per advice of the villagers, he went to the police station to report the matter and there he was detained by the police and falsely implicated in the case due to enmity over land dispute. 4. In order to prove its case, prosecution examined as many as sixteen witnesses including the I.O. and the doctor and exhibited nine documents. Accused examined himself as a defence witness. 5. The trial court after conclusion of the trial convicted the appellant under section 302 I.P.C. and sentenced him to undergo rigorous imprisonment for life basing upon the evidence of P.Ws.1 and 15 coupled with the evidence of P.W.3 as well as the opinion of the doctor P.W.5 that the injuries found on the deceased can be caused with the Falsia (M.O.I). 6. Mr. Zafarulla, learned counsel for the appellant assails the judgment on the following grounds: (i) P.Ws.1, 7 and 15 being respectively the wife, brother and sister-in-law of the deceased are interested witnesses and their evidence is full of contradictions. (ii) The prosecution has not proved the motive on the part of the appellant to kill the deceased. 2 (iii) The extrajudicial confession is a very weak piece of evidence. The confession said to have been made to P.W.3 is not corroborated by surrounding circumstances and other reliable evidence and therefore it can not be relied upon by the Court to convict the appellant. (iv) There is absolutely no material on record to connect the appellant with the murder of the deceased. (v) His alternative submission is that even if it is assumed that the appellant is responsible for the death of the deceased, the act committed by him may come under the ambit of Section 304 Part-I, IPC but not under Section 302, IPC, since it is alleged that the deceased died as a result of a single blow dealt by the appellant due to sudden provocation. 7. Mr. Pattnaik, learned Additional Government Advocate vehemently contends that there is no illegality committed by the trial court convicting the appellant under section 302 I.P.C. Moreover, the evidence of P.Ws.1 and 15 is very clear, convincing and cogent and they are the eye witnesses. Their evidence gets corroboration from the doctor (P.W.5) and P.W.3 before whom the extrajudicial confession was made. In this case, motive has been proved by P.W.1 inasmuch she stated that the incident took place due to a quarrel between the wife of the appellant and P.W.15, the sister-in-law of the deceased and that there was a meeting in their village to decide about the illicit relationship between P.W.2 and the brother of the 3 accused. In view of all these, according to Mr. Pattnaik the trial court has rightly convicted the appellant under section 302 IPC. 8. Perused the LCR. P.W.1 is the deceased’s wife who lodged FIR. She stated in her evidence that the occurrence took place on a Wednesday in the month of Shraban. On the preceding Sunday Pratima P.W.2 and Mungi, wife of the appellant, had been to the field of Suban to uproot paddy seedlings. Pratima P.W.2 went to the house of Suban to take Mudhi. The brother of the appellant, namely, Lengeda was in that house. The son of Pratima P.W.2 suspected something and called a meeting on the following Tuesday. The husband of Pratima P.W.2 said that he did not find any fault with Pratima and accepted her as his wife. The husband of Pratima agreed to give a feast to the caste men and to remain in the caste. He gave 10 Kgs of rice and a goat for the feast. Malati P.W.15, sister-in-law of the deceased, and Mungi, wife of the accused, quarreled with each other on Wednesday (the date of occurrence) over the incident of Sunday. P.W.9, the husband of Pratima called the deceased to the house of the appellant to pacify the quarrel. P.W.1 accompanied the deceased to the house of the appellant. The deceased told the wife of the appellant not to quarrel. At this, the appellant assaulted on the chest of the deceased by means of Falsia (axe) and the deceased died at the spot. Nothing has been elicited through cross-examination to discard the evidence of P.W.1. P.W.2 Pratima is the wife of deceased’s elder brother P.W.9 and the mother of P.W.6. She stated that her son suspected her conduct and informed to his deceased uncle. A meeting was convened. No proof was available against her conduct but still the caste people demanded for a feast. P.W.3 is a co-villager before whom 4 the appellant confessed his guilt. He is also a witness to the seizure of sample earth and blood stained earth vide Ext.1 as well as the Falsia (M.O.I) vide Ext.2. Nothing has been elicited to discard the evidence of P.W.3. P.W.4 is a witness to the inquest and seizure of the proceeding of the Panchayat vide Ext.4. P.W.5 is the doctor who conducted autopsy over the dead body of the deceased. He opined that the injury was ante mortem and probably homicidal in nature. The death was due to hemorrhage and shock from the injury to vital organs like heart and liver. His evidence has remained unshaken despite thorough cross-examination. P.W.6 is the son of P.W.2 and P.W.9. In examination-in-chief, he specifically stated that a meeting was held, since he suspected the conduct of his mother, but no proof was available in the said meeting regarding suspicious conduct of his mother (P.W.2). But the caste people demanded a feast. P.W.7 is the brother of the deceased and an eye witness. He stated that there was a quarrel between his wife Malati (P.W.15) and wife of the accused. So, he along with his deceased brother and his wife went to the house of the appellant to pacify the quarrel. The deceased requested the wife of the accused not to pick up quarrel with his (P.W.7’s) wife. All on a sudden, the accused came with M.O.I and gave a blow on the chest of the deceased, as a result of which his intestine came out. After assault, the accused fled away from the spot. There are some material contradictions brought out by the defence through cross-examination from the mouth of P.W.7. P.W.8 is a witness to the seizure of a check lungi and nail cuttings vide Ext.7. P.W.9 is the husband of P.W.2 and brother of the deceased. He specifically stated that suspecting the character of his wife a caste meeting was convened wherein he had agreed 5 to give a bag of rice and a goat to the caste people. P.W.15 Malati is the wife of P.W.7. She is a witness to the occurrence. She stated that she along with her husband P.W.7, the deceased and his wife P.W.1 went to the house of the appellant. The deceased advised everybody not to pick up quarrel with any body. But immediately the appellant brought out an axe (Falsia) from his house and gave a blow on the chest of the deceased. The deceased sustained bleeding injury on his chest, his intestine came out and he died at the spot. Nothing has been elicited through cross-examination to disbelieve her testimony. 9. From the analysis of the evidence made above, this Court comes to hold that there are material contradictions in the evidence of P.W.7 and the trial court is justified in not placing any reliance on his evidence. However, there is no reason to disbelieve the evidence of P.Ws.1 and 15 who are witnesses to the occurrence. Just because P.Ws.1 and 15 are related to the deceased is no ground to discard their testimonies since their testimonies inspire confidence. P.W.3 has no axe to grind against the appellant. In this case, extrajudicial confession made to P.W.3 is bound to be accepted since it is corroborated by surrounding circumstances and other related evidence. The doctor P.W.5 has categorically opined that the injuries found on the deceased could be caused by the Falsia (M.O.I.). Taking into account the evidence of P.Ws.1 and 15 coupled with the evidence of the doctor P.W.5 and P.W.3 before whom the accused had confessed his guilt, it can be safely concluded that the deceased died due to the assault made by the appellant. 6 10. Now, it is to be seen whether by the act committed the appellant is liable for the offence under Section 302, IPC or Section 304 Part- I thereof. P.W.1 in her cross-examination has specifically admitted that her deceased husband gave a push to the wife of the appellant and thereafter the appellant brought an axe (Falsia) and gave one blow only on the chest of her deceased husband. P.W.16, the investigating officer, in cross- examination has admitted that according to his investigation the occurrence took place out of sudden provocation due to quarrel. In view of this evidence, it is established that the appellant assaulted the deceased as the deceased provoked him by giving a push to his wife. Taking an overall view of the fact situation, this Court is satisfied that the appellant is guilty of committing an offence under Section 304 Part-I, IPC. 11. In the result, the appeal is allowed in part, the conviction of the appellant under Section 302, IPC is converted to one under Section 304 Part-I, IPC and he is sentenced to undergo rigorous imprisonment for ten years. It is stated by Mr. Zafarulla that the appellant has remained in custody from the date of his arrest and by now has completed more than thirteen years. If that be so, the appellant Chhote Kishan be set at liberty forthwith, unless his detention is required otherwise. …………………………. Pradip Mohanty,J. B.K.Patel, J. I agree. ……………………….. B.K.Patel, J. Orissa High Court, Cuttack Dated 14th. Jan.,2010/Routray 7