ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No. 235 of 2000 From the judgment of conviction and order of sentence dated 24.06.2000 passed by the learned Addl. Sessions Judge, Malkanagiri in S.C. No. 15 of 1997. ---------- Bira Muduli … Appellant Versus State of Orissa … Respondent For Appellant : Mr. G.B. Jena & Smt. Sujata Jena. For Respondent : Additional Government Advocate PRESENT : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH ----------------------------------------------------------------------------------------------------------- Date of hearing and Judgment : 15.09.2010 ----------------------------------------------------------------------------------------------------------- This appeal is directed against the judgment and order of the learned Additional Sessions Judge, Malikanagiri in Sessions Case No. 42 of 1999 (S.C. 15 of 1997) convicting the appellant for commission of offence under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life. 2. The case of the prosecution is that P.W.4, the wife of the deceased presented the written report dated 18.10.1996 before the Kudumulugumma Out Post alleging therein that on 17.10.1996 at about 6.00 P.M., the deceased and the appellant were sitting on her verandah. The deceased and the appellant are brothers. While sitting on the verandah they quarreled with each other and thereafter the appellant went to his house and came out with a bow and arrow by jumping the fence and shot the arrow at the deceased as a result of which the arrow pierced at the right side back of the deceased. Receiving the injury the deceased fell down and died at the spot. The iron portion of the arrow got stuck in the body of the deceased, whereas the stick portion was broken. Thereafter again the appellant by jumping fence went to his house. The informant (P.W.4) thereafter informed about the incident to others and they went to the house of the appellant. The appellant confessed before them that he has murdered his brother by shooting the arrow. As there was a panchayat in the village relating to the incident there was some delay in lodging the F.I.R. On these allegations the F.I.R. having been registered for commission of offence under Section 302 of the Indian Penal Code, investigation was taken up and charge-sheet was filed for commission of offence under Section 302 of the Indian Penal Code. 3. In order to prove the charge, the prosecution examined eight witnesses out of 19 charge-sheeted witnesses. Out of the eight witnesses examined, P.Ws. 4 and 5 are eye witnesses to the occurrence, P.W.1 is a seizure witness, P.W.2 is a witness to the inquest, P.W.3 is the constable, who had taken the dead body of the deceased to the hospital for post-mortem examination, P.Ws. 6 and 7 are two Investigating Officers and P.W.8 is the doctor, who conducted the post-mortem examination. The plea of the defence is complete denial to the case of prosecution. The trial court on the basis of evidence of P.Ws. 4 and 5 read with the evidence of P.W.8, the doctor, who conducted post-mortem examination found the appellant guilty of the charge and convicted the appellant. 4. Mr. Jena, learned counsel appearing for the appellant assails the impugned judgment on the ground that the F.I.R. reveals that there was a quarrel between the deceased and the appellant immediately prior to the occurrence and the appellant went to his house, came out with a bow and arrow and shot at the deceased. The incident having taken place immediately after the quarrel the appellant is covered by exception-(iv) to Section 300 of the Indian Penal Code and he should have been convicted for commission of offence under Section 304, Part-I of the Indian Penal Code instead of Section 302 of the said Code. Learned counsel for the State though concede that in the F.I.R. there is allegation of a quarrel immediately prior to the assault, there is no such 2 evidence and F.I.R. not being substantive evidence, the trial court rightly proceeded to convict the appellant under Section 302 of the Indian Penal Code on the basis of evidence adduced in Court. 5. Undisputedly, P.W.4 is the wife of the deceased and the deceased and the appellant are brothers. P.W.4, who is also the informant and eye witness to the occurrence has stated in her evidence that on the date of occurrence at about 5.00 P.M., the appellant came and shot an arrow to the deceased as a result of which the said arrow pierced into the right side back of the deceased. The sharp portion of the arrow got stuck inside the body of the deceased but the stick was broken. After shooting the arrow, the appellant left the place. Thereafter she (P.W.4) informed the other villagers about the incident and a Panchayat was held. She has also stated about presence of P.W.5 at the time of occurrence. The F.I.R. was scribed by one Nilima Kamidi and the same was presented before P.W.6 by this witness. An attempt was made in cross- examination to get a statement from this witness as to whether there was a quarrel immediately prior to the incident or not, but this witness stoutly denied the said suggestion and specifically stated that on the date of occurrence there was no quarrel between the appellant and the deceased. Similar is the evidence of P.W.5, another eye witness to the occurrence. Though in cross-examination she has stated that there was a land dispute between the appellant and the deceased and they were quarreling with each other always, there was no quarrel prior to the occurrence. On examination of the evidence of these two witnesses it is found that on the date of occurrence, the appellant shot an arrow at the deceased which pierced into right side back of the deceased. Receiving the injury the deceased fell down and died. Both the witnesses are also consistent in their statements that there was no quarrel prior to the occurrence. In this connection, learned counsel for the appellant drew our attention to the evidence of P.W.6, who is one of the Investigating Officers. This witness in course of investigation had examined P.W.4. In cross-examination P.W.6 has stated that during investigation P.W.4 had stated before him that prior to the occurrence both the brothers were quarreling with each other. The aforesaid statement of P.W.6 in cross-examination though corroborates the allegations made in the 3 F.I.R., but the same cannot take away the effect of evidence of P.Ws. 4 and 5, who specifically stated that there was no quarrel between the appellant and the deceased prior to the occurrence. The evidence of P.Ws. 4 and 5 also get corroboration from the evidence of P.W.8, who conducted the post-mortem examination. From the evidence of P.W.8, it appears that there was a penetrating wound of size 21/2’’ length x 1” breadth x 6” depth at the right side back of the body of the deceased and the injury had extended to about 8 cm inside the right lung at lower part thereby causing haemorrahage. The evidence of P.Ws. 4 and 5 being corroborated by the evidence of P.W.8, we do not find any justification to upset the impugned judgment. For the reason stated above, we find no merit in the appeal and accordingly it is dismissed. …………………… L. Mohapara, J. …………………… C.R. Dash, J. Orissa High Court, Cuttack. The 15th day of September, 2010. /Jagabandhu. 4