ORISSA HIGH COURT,CUTTACK JCRLA NO. 35 OF 2002 From the judgment dated 25.9.2002 passed by Sri M.C.Ray, Sessions Judge, Phulbani in Sessions Trial No.86 of 1999. ---------- Kandara Majhi … Appellant -versus- The State … Respondent For appellant - Smt. Prativa Mishra and P.K.Mishra For respondent - Sri Anupam Rath, Additional Standing Counsel PRESENT: THE HONOURABLE JUSTICE SRI PRADIP KUMAR MOHANTY AND THE HONOURABLE JUSTICE SRI B.K.PATEL ----------------------------------------------------------------------------------- Date of hearing- 23.6.2011 :: Date of judgment- 6.7.2011 ---------------------------------------------------------------------------------- B.K.Patel,J By the impugned judgment and order passed by the learned Sessions Judge, Phulbani, appellant has been convicted under section 302 of the I.P.C. and sentenced to undergo imprisonment for life. 2. Appellant is deceased Kali Majhi’s younger brother. Deceased was Sarpanch of Durgapanga Grama Panchayat during the period of occurrence. Occurrence took place during summer on 20.5.1999 at about 9 P.M. in front of deceased’s house. Case of the prosecution is that the deceased was sitting on a cot and gossiping with his nephews and the appellant was also sitting on a cot in front of his house situated nearby. Deceased requested the appellant to give some liquor which he had prepared. Appellant told that he would not give any liquor to the deceased; abused him in obscene language and threatened to kill him. Deceased said how he could abuse and threatened to kill his elder brother. Appellant, who was in a drunken state, said that he would kill the deceased, brought a knife from inside his house, caught hold of the deceased’s neck, pressed him on the cot and dealt repeated knife blows on the deceased’s chest and abdomen. When deceased’s wife informant-P.W.1 tried to intervene, appellant attempted to stab her. Due to stab injuries there was a profuse bleeding from deceased’s abdomen and he died on the spot. Occurrence was witnessed by P.W.2, P.W.7 and others who were present in front of their houses situated nearby. On the basis of P.W.1’s oral narration, P.W.9 A.S.I. of Police attached to Kotgarh Police Station prepared First Information Report Ext.12, registered the case and took up investigation. He commanded police constable P.W.6 to guard the spot. Thereafter, P.W.9 visited the spot and held inquest over the dead body of the deceased. He also effected seizure of incriminating articles including M.O.I the knife under seizure list Ext.1 from inside the house of appellant which was found locked. On being sent by P.W.9 Dr.P.K.Padhi P.W.8 subjected the dead body of the deceased to Post Mortem Examination and prepared Post Mortem Examination Report Ext.10. On 22.4.1999 O.I.C. of Kotgarh 2 P.S. P.W.10 took up charge of investigation from P.W.9. P.W.10 arrested the appellant. While in custody appellant led to the recovery of bloodstained lungi M.O.II, which the appellant was wearing during the occurrence, from the house of appellant’s elder brother. Witnesses were examined in course of investigation. Seized articles were sent for chemical examination and, on completion of investigation, charge sheet was submitted against the appellant for commission of offence under section 302 of the Indian Penal Code. 3. In his statement recorded under section 313 Cr.P.C.,appellant took the plea of complete denial and false implication. However, in course of cross-examination of informant P.W.1 it was suggested that in course of physical tussle with the appellant deceased sustained fatal injuries. That apart, appellant appears to have taken plea of alibi by examining D.W.1 who deposed that appellant had gone outside to work as labourer on the date of occurrence. 3. In order to substantiate the charge, prosecution examined as many as 10 witnesses out of whom P.Ws. 1,2,6,7,8,9 and 10 have already been introduced. P.Ws.3,4 and 5 are witnesses to seizure. Prosecution also relied upon documents marked Exts. 1 to 23 and material exhibits M.O.s I and II. Three witnesses, D.Ws. 1,2 and 3, were examined on behalf of the defence. 3 The trial court on the basis of the deposition of eye-witnesses to the occurrence coupled with the medical evidence found the appellant guilty of the charge. 4. Undisputedly death of the deceased was homicidal in nature. P.W.8 while conducting autopsy found penetrating wounds on the left and right side of chest, and right side of abdomen of the deceased. Evidence of P.W.8 remains unassailed. That apart, not only specific suggestion was put to P.W.1 in course of his cross-examination that deceased died due to injuries sustained in course of physical tussle with the appellant but also D.W.3 testified in cross-examination that appellant stabbed the deceased by means of knife. 5. Informant P.W.1 testified that the occurrence took place when deceased was sitting on a cot and she was sitting on the front verandah of their house. Appellant was also sitting on the front verandah of his house situated at a little distance from their house. Deceased asked the appellant to give some liquor. Appellant replied that he would set him right on the same day upon which deceased challenged him as to how he would set him right as he was appellant’s elder brother. On this, appellant went inside his house, procured a knife, pressed deceased’s neck with left hand as a result of which deceased fell down on the cot, and repeatedly stabbed the deceased on chest and abdomen. Deceased sustained bleeding injuries, his intestine protruded and he died on the spot. Appellant ran away holding the knife. It is in 4 the evidence of P.W.1 that P.Ws.2 ,7 and others witnessed the occurrence. Evidence of P.W.1 gets square corroboration from not only the contents of F.I.R. Ext.1 and the evidence of eye-witnesses P.Ws. 2 and 7 but also evidence of D.W.3 examined on behalf of the appellant. D.W.3 is a neighbour of appellant and deceased. In his cross- examination he categorically stated that appellant became angry when deceased asked him to give some liquor, procured a knife from his house and stabbed the deceased. In view of nature of evidence of P.Ws. 1,2,7 and D.W.3 implicating the appellant, learned counsel for the appellant fairly submitted that there is no scope to interfere with the finding that death of the deceased occurred due to stab injuries inflicted by means of knife by the appellant. 6. However, it was argued by the learned counsel for the appellant that under the facts and circumstances of the case, learned trial court ought to have held that the appellant is guilty of culpable homicide not amounting to murder under section 304, Part-I of the I.P.C. It was contended that conduct of the appellant comes within the Exceptions 1 and 4 of section 300 of the I.P.C. for which conviction under section 302 of the I.P.C. is not sustainable in law. 7. Learned counsel for the State, in reply, submitted that materials on record do not indicate that either deceased gave provocation or there was physical tussle or fight between the deceased and the appellant. Rather it was the conduct of the appellant which 5 provoked the deceased. Appellant abused and threatened the deceased by using obscene language. He procured a knife from his house and dealt blows on the deceased in a cold blooded manner. 8. There is no material on record to suggest or indicate that the deceased in any manner provoked the appellant. Exception 1 of section 300 of the I.P.C. provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. It is evident that appellant himself abused and threatened the deceased using obscene language when the deceased requested him to give some liquor. There is nothing unusual for a brother to ask for liquor. There was no reason for the appellant to get annoyed on such request. Materials on record also disclose that there was no hostile relationship between the two brothers. On the other hand, deceased appears to have maintained calm on appellant’s use of obscene language and told the appellant that how could he threaten to kill his elder brother. No doubt, there has been verbal altercation between appellant and deceased prior to the occurrence. However, deceased does not appear to have used any expression which could provoke and induce the appellant to kill the deceased. Also there was no physical tussle between the appellant and the deceased. Exception 4 of Section 300 of the I.P.C. comes into play when a sudden fight precedes the occurrence. It 6 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the present case, there is no scope to hold that appellant had any intention other than to kill the deceased while stabbing him by means of knife. It is in the evidence of P.W.8 that deep penetrating wounds on the left side of chest and abdomen had resulted in fracture of left side fifth rib and sternum. Pleura was penetrated. Left lung, pericardium, peritoneum as well as intestines were ruptured. It is well established that appellant dealt successive fatal blows by means of knife on the deceased. Therefore, we find no infirmity in the impugned judgment convicting the appellant under section 302 of the I.P.C. 8. Therefore, appeal is dismissed. Impugned judgment and order is confirmed. …………………… B.K.Patel Pradip Kumar Mohanty,J. I agree. ……………………………… Pradip Kumar Mohanty 7 Orissa High Court, Cottack, Dated 6th July,2011/Palai 8