PRADIP MOHANTY, J & S.K.MISHRA, J. JCRLA. NO.39 OF 2001 (Decided on 04.08.2010) MADAN MOHANTA ………..Appellant. .Vrs. STATE OF ORISSA ………..Respondent. PENAL CODE, 1860 (ACT NO 45 OF 1860) – SECS. 302, 304 PART-I. For Appellant - Smt. Usharani Padhi For Respondent - Mr. S.K.Nayak, Addl. Government Advocate PRADIP MOHANTY, J. This Jail Criminal Appeal is directed against the judgment and order dated 31.03.2001 passed by the Additional Sessions Judge, Talcher in Sessions Trial Case No.122-A/26 of 1998/2000 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that both the accused-appellant and the deceased were two brothers. They belonged to village Tavapal and lived in separate houses situated at both the ends of the village. On 01.06.1998 morning, the accused and his wife Bhajani detected their two missing chicken in the house of the deceased and requested him to return the same. The deceased refused to part with and claimed the same to be his own. There was exchange of hot words. The accused in a fit of anger suddenly dealt a blow on the neck of the deceased by means of an axe. The deceased tried to flee away from the spot. But, the accused chased him and dealt a second blow on his head by means of the said axe. The deceased fell down on the ground and succumbed to the injury. F.I.R. was lodged by the Grama Rakhi at the Pallahara Police Station on the basis of which the case was registered, investigation taken up and on its completion charge sheet under Section 302, I.P.C. was submitted against the accused-appellant. 3. Plea of the accused is one of complete denial of the allegation. 4. In order to prove the charge under Section 302, IPC, the prosecution examined as many as 13 witnesses including the doctor and the I.O. and exhibited 11 documents. Defence examined none. 5. The learned Addl. Sessions Judge, who tried the case, convicted the appellant under Section 302, IPC and sentenced him to undergo imprisonment for life basing upon the ocular evidence of P.Ws.2 and 7 coupled with the evidence of the doctor P.W.1 with a specific finding that the successive blows on the vital part like neck and skull amply demonstrate the intention of the accused to cause the death. 6. Smt. Padhi, learned counsel appearing for the appellant assails the judgment of conviction on the following grounds: (i) P.Ws 2 and 7 are not trust worthy witnesses and the conviction can not be based upon their evidence. (ii) The prosecution has failed to establish that the accused had intention to kill the deceased. (iii) Her alternative submission is that even if it is assumed that the appellant is responsible for the death of the deceased, in the facts and circumstances of the case the act committed by him may come under the ambit of Section 304 Part-I, IPC but not under Section 302, IPC. 7. Mr. Nayak, learned Addl. Government Advocate, on the other hand, supports the impugned judgment and vehemently contends that evidence of P.Ws.2 and 7 is very clear, cogent and convincing that the appellant assaulted the deceased. There is no material to discard their evidence. Rather their evidence gets corroboration from other prosecution witnesses. The successive blows dealt by the appellant makes it clear that he had the intention to kill the deceased. Therefore, there is no illegality committed by the trial court in convicting the appellant under section 302, IPC. 8. P.W.2, who is an ocular witness, specifically deposed that the house of the deceased situates in front of his house. At the time of occurrence, he was sitting on a wooden bench lying under the jack fruit tree standing in front of the house of the deceased. At that time, the accused and his wife came to the house of the deceased and accused him of committing theft of their chicken to which the deceased denied. The wife of the accused entered into the house of the deceased and brought out the chicken. When the deceased protested, a quarrel ensued between the deceased and the accused. All on a sudden, the accused gave a blow on the blunt side of the Tangia on the neck of the deceased. In order to save his life the deceased escaped from the spot. But, accidentally at a distance he fell down and when he was trying to get up and go away, the accused dealt a Tangia blow on the head of the deceased, as a result of which the latter fell down and succumbed to the injury. Nothing has been elicited in cross-examination to discredit his testimony. P.W.7 has corroborated the evidence of P.W.2. He admitted that the accused and deceased were two brothers. He specifically deposed that at the time of occurrence, hearing the quarrel between the deceased and the accused, he came out of the house and found that the accused, who was chasing the deceased holding an axe in his hand, dealt a blow on the deceased by means of that axe. Seeing that, he entered inside the house out of fear. However, in cross-examination, he has specifically stated that he saw the occurrence by standing in his outer verandah. Nothing has been elicited in the cross- examination to discard his evidence. P.W.10 is the father-in-law of the deceased. He stated that on the date of occurrence after returning from Jungle he went to the house of his daughter. Wife of the accused told him about the incident. He proceeded to the house of his daughter Mukta and saw the deceased lying dead near the front door of his house with bleeding 2 injury on his neck. Thereafter, he went to the village Choukidar and reported the matter. The village Choukidar (P.W.11) on being informed first came to the spot and from there went to the police station and lodged the F.I.R. P.W.1 is the doctor, who conducted post-mortem examination over the dead body of the deceased. He found a cut injury of seize 5 cm. X 0.5 x 1 cm on the left side of the neck and external laceration of the occipital brain. He opined that the death was due to extensive laceration of the occipital brain. The injuries found on the person of the deceased were sufficient to cause death. He further opined that the injuries were possible by an axe and also proved his opinion Ext.2. P.W.3 is the police constable, who took the dead body of the deceased to the postmortem hall of Pallahara hospital, received the wearing apparels of the deceased and produced the same before the I.O. along with command certificate. He proved the command certificate Ext.3. P.Ws.4 and 5 are witnesses to the seizure of the axe, lungi, blood stained earth and sample earth made vide seizure list Ext.4. Both of them have proved the said seizure list and their signatures which have been marked as Exts.4/1 and 4/2. P.Ws.6 and 8 are witnesses to the inquest and seizure of blood stained earth from the spot. They proved the inquest report (Ext.5) and the seizure list (Ext.6). P.W.9 is also a witness to the inquest. P.W.13 is the Officer-in-Charge of Pallahara Police Station who investigated into the case, seized the incriminating articles as well as the material objects, sent the same for chemical examination, prepared the sketch map and ultimately filed the charge- sheet. Nothing has been brought out in the cross- examination to suit the defence plea. 9. The analysis of evidence made above goes to show that P.Ws.2 and 7 are witnesses to the occurrence. Both of them have seen the appellant dealing blows by means of an axe on the deceased. Despite searching cross-examination, their evidence has remained unshaken. Their evidence does not suffer from any infirmity. There is also nothing on record to disbelieve their evidence. The evidence of the Medical Officer P.W.1, that he found a cut on the left side of the neck and depressed fracture of the occipital skull supports the ocular testimony that accused dealt two blows by an axe first by its blunt side and the second by its sharp side. Therefore, on consideration of the ocular testimony of P.Ws.2 and 7 as well as the evidence of the doctor (P.W.1) and other materials available on record, this Court comes to the conclusion that the prosecution has established beyond any shadow of doubt that the appellant assaulted the deceased with the axe (M.O.I) and on account of such assault the deceased died. 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.2 deposed that there was a quarrel between the deceased and the appellant over theft of chicken, for which the appellant suddenly dealt blows on the deceased by means of a Tangia, as a result of which the deceased fell down and succumbed to the injuries. From this, it can be safely concluded that the act was committed in the heat of passion upon a sudden quarrel with the deceased at the spur of the moment without any premeditation. Furthermore, the fact that the appellant dealt first blow by the blunt side of the axe 3 presupposes that he had no intention to kill the deceased. Taking an overall view of the fact situation and keeping in mind the principles laid down by the apex Court in Ram Karan and others v. State of Utter Pradesh, AIR 1982 SC 1185, this Court is satisfied that Exception 4 of Section 300 I.P.C. is attracted in this case and, therefore, the act of the appellant comes within the ambit of Section 304 Part-I, IPC. 11. For the reasons stated above, the conviction of the appellant under Section 302, I.P.C. is converted to one under Section 304 Part-I, I.P.C. and the appellant is sentenced to undergo rigorous imprisonment for 10 years. It is stated by the learned counsel for the appellant that the appellant has remained in custody from the date of his arrest and by now has completed more than twelve years. If that be so the appellant Madan Mohanta be set at liberty forthwith, unless his detention is required otherwise. 12. Apeal allowed. In The Jail Criminal Appeal is allowed in part to the extent indicated above. Appeal allowed in part. 4