PRADIP MOHANTY, J & B.K.PATEL, J. JCRLA NO.57 OF 2002 (Decided on 9.8.2011) SRIKANTA PATTANAIK ……… Appellant. .Vrs. STATE ………Respondent. PENAL CODE, 1860 (ACT NO. 45 OF 1860 ) – Ss.304, PART-II. For Appellant - Mr. Gouri Shankar Pani For Respondent - Mr. Anupam Rath Addl. Standing Counsel B.K.PATEL,J. By the impugned judgment and order dated 30.11.2002 passed by the learned Additional Sessions Judge( F.T.C.), Bolangir in S.C.No.49-B/1 of 2002, appellant has been convicted and sentenced to imprisonment for life under Section 302 of the I.P.C. for having committed murder of deceased Basanti Singh @ Pattanaik. 2. Deceased was married to one Sambhu Singh. They had a son P.W.1 and a daughter P.W.2. However, said Sambhu Singh deserted the deceased since 8 to 9 years prior to the occurrence after which he was not heard of. Appellant kept the deceased as his wife. Both of them lived together in a hut in front of which they were running an egg shop. P.Ws. 1 and 2 used to take their food with the deceased but resided with deceased’s father informant P.W.4 and mother P.W.3. P.Ws. 5,6 and 7 are deceased’s brothers. 3. Prosecution case is that occurrence took place at about 7 P.M. on 4.11.2001. P.Ws. 1 and 2 along with deceased were sitting in the egg shop. Appellant came with a stick M.O.VI in a drunken state and quarreled with deceased. In course of quarrel he dealt blow by means of M.O.VI on deceased’s hand and dragged her inside their house. Out of fear P.Ws. 1 and 2 went to the house of their grand-mother P.W.3 and narrated the incident. P.W.3 came to the house of deceased and appellant, and found that deceased was lying with bleeding injury on her head. She was gasping and unable to talk. Appellant was lying nearby. P.W.3 narrated the incident to her husband P.W.4 on his arrival. P.W.4 also went to the spot. On the basis of First Information Report scribed by P.W.9 and handed over to I.I.C., Town P.S., Bolangir case was registered. P.W.16 Sub-Inspector of Police was directed to take up investigation. P.W.15 another Sub-Inspector of Police took appellant and deceased to hospital where deceased was declared dead whereas appellant was admitted for treatment. Witnesses were examined. Dead body of the deceased was subjected to post-mortem examination by P.W.17 a lady Assistant Surgeon at District Headquarters Hospital, Bolangir. Seizure of incriminating articles including M.O.VI was effected. On completion of investigation, charge sheet was submitted against the appellant. 4. Appellant took the plea of denial. 5. In order to substantiate the charge, prosecution examined 17 witnesses P.Ws. 1 to 17. P.Ws. 1 to 7, P.W.9, and P.Ws.15 to 17 have already been introduced. P.W.8 is a witness to inquest. P.W.13 is an eye-witness. P.W.10 is a police Havildar and P.W.11 is a police constable. P.W.12 is a witness to seizure of M.O.VI. P.W.14 happens to be a post-occurrence witness. Prosecution also relied upon documents marked Ext.1 to 15 and material exhibits M.Os. I and VI. No defence evidence was adduced. 6. Placing reliance mainly upon evidence of eye-witnesses P.Ws. 1,2 and 13 stated to have been corroborated by medical evidence and other incriminating circumstance learned trial court held the prosecution to have proved the charge against the appellant beyond reasonable doubt. 7. In assailing the impugned judgment and order, Shri G.S.Pani, learned counsel for the appellant contended that evidence of the so-called eye-witnesses P.Ws. 1,2 and 13 is not reliable. None of them deposed to have seen the appellant causing injury on deceased’s head. Admittedly, appellant was also lying unconscious at the place of occurrence. He had injuries which remained unexplained. In such circumstances, earned trial court was not correct in recording conviction against the appellant. Alternatively, it was argued that admittedly deceased had sustained only one injury on her head in course of the occurrence. Occurrence was preceded by quarrel between appellant and deceased. Appellant also sustained injury and became unconscious in course of occurrence which indicates that deceased also assaulted the appellant. In such circumstances, appellant should have been held to have committed offence under Section 304 Part-II of the I.P.C. 8. Mr. Anupam Rath, learned Additional Standing Counsel supported and defended the impugned judgment and order. It was contended that prosecution case is supported by evidence of not only deceased’s son P.W.1 and daughter P.W.2 who were being looked after by the appellant but also an independent witness P.W.13. Appellant quarreled with deceased and dragged her inside house. He assaulted the deceased with M.O.VI causing fatal injury with intention to cause her death. Medical evidence as well as circumstance of seizure of blood stained M.O.VI corroborates the ocular evidence. Therefore, appellant has rightly been convicted under Section 302 of the I.P.C. 9. Having scrutinized the materials on record upon reference to rival contentions, it is found that there is no basis to support appellant’s plea of innocence. It appears from the medical evidence of P.W.17 that in course of post-mortem examination she found lacerated injury over deceased’s right side vertex which was ante mortem in nature. On dissection linear fracture of right parietal bone over the vertex with contusion of underneath brain substance and subdural haematoma were found. Death of deceased was occurred due to injury to brain. P.W.17 appears to have examined lathi M.O. VI and opined that injury on the deceased could be caused by such lathi. Both P.Ws.1 and 2 deposed that appellant came in a drunken state holding something in his hand and quarreled with the deceased. Thereafter, appellant dragged the deceased inside the 2 house. P.W.1 stated to have seen the appellant dealing a blow on deceased’s hand. P.Ws. 1 and 2 rushed and informed P.W.3, their grand-mother regarding the occurrence. Evidence of P.Ws.1 and 2 has not been discriminated in any manner. Rather, P.W.2 acknowledged in her cross-examination that the appellant used to maintain and provide education to P.Ws.1 and 2. P.W.13 the other eye witness testified to have seen the occurrence while sitting at a distance of about 25 feet from the house of the appellant. He deposed that appellant came being drunk after which altercation took place between him and the deceased. Appellant catching hold of the neck of the deceased took her to their house. P.Ws.1 and 2 went away running to the house of P.W.4. Ten to fifteen minutes thereafter P.W.3 came and called him saying that deceased was being assaulted. P.W.13 accompanied P.W.3 to the house of the appellant and saw the deceased lying with bleeding head injury. Appellant was also lying near her. P.W.3 deposed that on being told by P.W.1 she went to the house of the appellant and found that deceased was lying with bleeding injury on her head. Appellant was also lying flat. She testified that her husband P.W.4 arrived at about 10.00 P.M. and thereafter went to the police station. Deceased’s father informant P.W.4 deposed to have been told that the deceased had been murdered when he returned from his egg shop. He found the deceased lying with blood coming out from her head. Her body and cloth were stained with blood. Appellant was lying nearby. He testified to have lodged the F.I.R. It appears from the evidence of P.W.5 that spot house is situated at a distance of about 35 feet from his shop. P.W.5 also testified that appellant and deceased were quarreling in front of their house and the appellant dragged the deceased catching her hair into her house. Evidence of P.W.16, investigating police officer regarding seizure of lathi M.O. VI from the spot finds support from the evidence of seizure witness P.W.12. Thus, it is established beyond reasonable doubt that the deceased sustained fatal injuries on her head and died due to assault with lathi M.O. VI by the appellant. 10. However, it is evident that assault on the deceased was preceded by quarrel between the appellant and deceased. P.W.13 categorically testified that there was altercation between them. Fatal blow on the deceased was dealt inside the house. Soon after the occurrence deceased as well as the appellant were found lying at the spot. P.W.15 who took the deceased and the appellant to the hospital testified that appellant was admitted into the hospital for treatment as he had injury on his right arm. Appellant was found lying unconscious with injury on his hand immediately after the occurrence. Therefore, physical tussle between the appellant and the deceased inside the house cannot be ruled out. There is no material to indicate that the appellant had prepared or planned to commit murder of the deceased. There is no material to indicate pre- mediation. Also, appellant does not appear to have dealt more than one blow on deceased’s head. Proved circumstances do not establish that appellant had required intention or knowledge in causing the fatal injury on deceased to constitute offence of murder as provided under Section 300 of the I.P.C. However, injury on the deceased’s head was inflicted by assaulting with lathi with the knowledge that it is likely to cause death. Therefore, the appellant is liable to be convicted under Section 304, Part II of the I.P.C. instead of Section 302 of the I.P.C. 3 11. Accordingly, the appeal is allowed in part. Impugned judgment and order are modified to the extent that appellant is convicted under Section 304, Part II of the I.P.C. and sentenced to undergo rigorous imprisonment for eight years. Appeal allowed in part. 4