L.MOHAPATRA, J & C.R.DASH, J. JCRA NO.32 OF 2001 (Decided on 10.11.2010) BHIMASEN BHOI …………. Appellant. .Vrs. STATE OF ORISSA ………. Respondent. (A) PENAL CODE, 1860 (ACT NO.45 OF 1860) – SEC.302. (B) PENAL CODE, 1860 (ACT NO.45 OF 1860) – SEC.300. For Appellant - Niranjan Singh For Respondent - Addl. Government Advocate. This appeal is directed against the judgment and order dated 31.01.2001 of the Addl. Sessions Judge, Boudh in S.T. No. 24 of 2000 convicting the appellant for commission of offence under Section 302 I.P.C. and sentencing him to imprisonment for life. 2. The prosecution case is that on 09.08.1999 at about 5.00 P.M. the deceased was passing on the village Danda and the appellant was also passing on a path near maize field of (P.W.2). At that time, the deceased was abusing the appellant. Immediately thereafter, the appellant came through the maize Badi to the village Danda being armed with a Tangia and dealt a blow on left side neck of the deceased. He gave three repeated blows on the neck of the deceased as a result of which the head of the deceased was completely detached from the body. The appellant thereafter carried the head of the deceased and left the spot towards the village tank along with the weapon of offence (Tangia). The daughter of the deceased informed about the incident to P.W.1, who came to the spot, saw the trunk of the deceased lying on the ground and lodged the information. On the basis of such information, investigation was taken up and on completion of investigation charge-sheet was submitted against the appellant for commission of offence under Section 302 I.P.C. In course of trial, the prosecution examined ten witnesses, but none was examined on behalf of the appellant. 3. The plea of the appellant is complete denial of the prosecution allegations. 4. Out of ten witnesses examined in course of trial. P.W.2 is the eye witness to the occurrence and P.W.1 is the informant. P.Ws.3 and 4 are post occurrence witnesses. P.W.6 is the Medical Officer, who conducted the post-mortem examination. P.W.7 is a witness to inquest and P.W.5 is a constable, who kept watch over the dead body. P.W.8 is the Grama Rakhi, who accompanied the informant to the Out Post and then to Kantamal P.S. and P.Ws. 9 and 10 are two Investigating Officers. 5. The trial court accepting the evidence of the sole eye witness (P.W.2) coupled with the evidence of the doctor (P.W.6) and the conduct of the appellant in carrying the head of the deceased to the Police Station and handing over the same to the I.O., found the appellant guilty of charge under Section 302 I.P.C. and convicted him thereunder. 6. Learned counsel for the appellant assailing the impugned judgment submitted that immediately prior to the assault on the deceased the appellant was also assaulted by the deceased and therefore out of grave and sudden provocation the appellant having caused death of the deceased by dealing blows by means of a Tangia, he is liable for conviction under Section 304 Part-I of I.P.C. and not under Section 302 of said Code as held by the trial court. Learned counsel for the State referring the evidence of P.W.2 and the doctor (P.W.6), submitted that the evidence of P.W.2 does not indicate anywhere that the appellant had been assaulted by the deceased immediately prior to the incident or that there was grave and sudden provocation at the instance of the deceased. The evidence of P.W.2 having been corroborated by the medical evidence, the trial court was justified in finding the appellant guilty of the charge. 7. We carefully examined the evidence of the witnesses. P.W.1 is the informant. He in his deposition has stated that after being informed about the incident by the daughter of the deceased he went to the spot and found the trunk of the deceased lying at the spot and the head was missing. He was informed by P.W.2 Bipin Majhi that the appellant had assaulted the deceased and had taken away the head. Thereafter he along with the Grama Rakhi (P.W.8) went to the Out Post and lodge the information. P.W.2 is the sole eye witness to the occurrence. He in his deposition has stated that on the date of occurrence about 4.00 P.M. he was working in the maize Badi. He found the appellant passing on a path near his maize Badi being followed by the deceased who was abusing the appellant in the village Danda. The appellant thereafter came to the maize Badi through the village Danda being armed with a Tangia and dealt a blow on the neck of the deceased. The appellant gave three successive blows on the deceased as a result of which the head was completely severed from the trunk. The appellant thereafter left the spot along with the Tangia and the head of the deceased and proceeded towards the village tank. Later on the police brought the head of the deceased and conducted inquest over the dead body and he also signed on the inquest report. There is nothing in the cross-examination of this witness to disbelieve his statement. The evidence of P.W.2 is corroborated by the evidence of P.W.6, the doctor, who conducted the post-mortem examination. P.W.6 was of the view that the cause of death was due to de-captioned with haemorrhage and upon query of the I.O. he had opined that the injuries on the neck and body of the deceased could be possible by the Tangia place before him by the I.O. Apart from the fact that the evidence of P.W.2 is corroborated by the evidence of P.W.6, we also found from the evidence of P.W.10, the I.O. that on the date of occurrence the appellant appeared before him with a blood stained Tangia and the cut head of the deceased kept in a plastic bag and confessed his guilt. From the chemical examination report, we also found that the Tangia produced by the appellant contained human blood which tallies with the blood group of deceased. When such materials are available in support of the prosecution, learned counsel for the appellant in support of his contention that the offence was committed due to grave and sudden provocation relied on Ext.12, the injury report, so far as the appellant is concerned. From the injury report, we found that there are two bruises and two abrasions and all are simple injuries. P.W.2 is completely silent about any kind of assault at the instance of the deceased to the 2 appellant. Merely because the appellant had sustained some simple injuries it cannot be presumed that he had been assaulted by the deceased immediately prior to the incident. We are therefore, of the view that such simple injuries sustained by the appellant cannot give rise to a presumption that the deceased had assaulted the appellant immediately prior to the incident which gave rise to a grave and sudden provocation. For the reason stated, we find no infirmity in the impugned judgment and accordingly this appeal being devoid of merit is dismissed. Appeal dismissed. Appeal dismissed. 3