HIGH COURT OF ORISSA : CUTTACK CRIMINAL APPEAL No.44 of 2001 From the judgment and order dated 04.12.2000 passed by Shri Md. Abdul Majid, Additional Sessions Judge, Sonepur in Sessions Case No.20/18 of 1999. Ramesh Naik ………. Appellant Versus. State of Orissa ……….. Respondent For Appellant - M/s. Kalyan Patnaik, Sahadev Panda, S. Pattanaik & Ranjit Samal For Respondent - Government Advocate. PRESENT THE HON’BLE SHRI JUSTICE A.S. NAIDU A N D THE HON’BLE SHRI JUSTICE B.K.NAYAK -------------------------------------------------------------------------------------- Date of hearing :08.10.2009 : Date of judgment: 08.10.2009 B.K.NAYAK, J. The judgement and order passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No.20/18 of 1999 convicting the appellant under Section 302, I.P.C. and sentencing him to undergo imprisonment for life has been assailed in this appeal. 2. The short prosecution case, as set out in the F.I.R. lodged by one Jasoda Ranabansia (P.W.3) is that the son of the informant, namely, Chabila Ranabansia had caught a parrot from a mango tree and had kept in his house. On 10.07.1998, at about 6.00 A.M. while, the informant and her husband, Rabi Ranabansia were tending cattle near the village, the accused-appellant, Umesh Naik came there and abused the husband of the informant in filthy language stating that his son had caught and kept the parrot belonging to him. The informant’s husband having protested and refused to give back the parrot, the appellant picked up a Merha (wooden lathi) from the spot and dealt a blow on his head, as a result of which, he fell down sustaining bleeding injury and became unconscious. The appellant then dealt another blow by Merha on the right shoulder of the informant’s husband and then left the place by throwing the Merha on the spot. On arrival of witnesses, the injured was taken to the U.G.P.H.C., Birmaharajpur and the informant lodged F.I.R. at Birmaharajpur Police Station, on the basis of which, P.S.Case No.50 of 1998 was registered under Sections 294/307 of the I.P.C. The injured was subsequently taken to VSS Medical College, Burla, but he succumbed to the injuries on the way whereupon the case turned to one under Section 302, I.P.C. 3. The plea of the accused is one of the complete denial of the occurrence. 4. In order to bring home the charge the prosecution examined altogether nine witnesses, whereas the defence examined one solitary witness, namely, Bhagaban Behera. Relying on the evidence of eyewitness, P.Ws.1, 2, 3 and 6, the trial court found the accused-appellant guilty under Section 302, I.P.C. and accordingly passed the impugned order of conviction and sentence. 2 5. In assailing the impugned judgment, the learned counsel for the appellant has contended that the evidence of the eye-witnesses cannot be relied upon because they were not present on the spot at the time of occurrence and secondly for the reason that they are all interested witnesses being related to the deceased. It is further contended by him that even if the evidence of the witness are accepted to be true, the appellant could not be convicted under Section 302, I.P.C., as he never intended to cause the death of the deceased and only dealt two blows by lathi which was picked up from the spot because of the quarrel and provocation given by the deceased and his refusal to return the parrot of the appellant. 6. The learned State Counsel, on the other hand, contended that the presence of the eyewitnesses on the spot cannot be doubted as they were the most natural witnesses, inasmuch as, their house was just near the place of occurrence. He also submits that the evidence of the eyewitnesses, who are related to the deceased, deserves more credence as they were not likely to implicate an innocent man to the exclusion of the real culprit. 7. We heard the learned counsel for parties in extenso and carefully perused the evidence on record. It transpires from the evidence of the doctor (P.W.5), who conducted autopsy over the body of the deceased and the post mortem report (Ext.2) that there was one lacerated wound of size 1” x ½” x ½” over the right shoulder joint and 3 another lacerated wound of size 3 ½” x ¾” x ½”, over the right parietal region of the scalp. The head injury has caused fracture of right parietal bone leading to haematoma. The cause of death of the deceased was intracranial haemorrhage due to fracture of skull. It is, therefore, clear that the single injury caused to the head of the deceased proved fatal and caused the death. There can, therefore, be no doubt that the deceased met with homicidal death. 8. Evidence of P.Ws. 1 and 2, who are eyewitnesses to the occurrence reveals that hearing the shout of the wife of the deceased (P.W.3) they rushed to the spot and saw the appellant dealing one blow on the head of the deceased by a thenga and a second blow on the shoulder of the deceased, as a result of which, the deceased sustained bleeding injury on the head and fell down. Evidence of P.Ws. 1 and 2 is consistent with the evidence of P.W.3, who was all along present in person with the deceased on the spot. P.Ws. 1 and 2 are the mother and daughter respectively and their house is situated only about 15 qubits away from the place of occurrence. Admittedly, the deceased was the cousin of P.W.1 being the husband of her sister-in- law (Nananda). But then such relationship could not be a ground to disbelieve the clear and cogent testimony of P.Ws. 1 and 2, who have no animosity with the appellant. Law is well settled that evidence of interested witnesses, who are related to the victim is not to be thrown away on the ground of such relationship, but it is to be scrutinised 4 carefully. It is also trite law that related witnesses would not implicate an innocent man against whom they have no axe to grind to the exclusion of real culprit. In the instant case, the evidence of P.Ws.1, 2 and 3 which suffer from no infirmity deserves full credence as they have no reason to falsely implicate the appellant in the offence in question. 9. Now it is to be determined whether the appellant can be convicted for the offence under Section 302 of the I.P.C. Argument had been advanced before the trial court that the offence if any committed by the appellant could be one under Section 304 Part-II of the I.P.C. and not under Section 302, I.P.C., but the trial court has observed that due to prior enmity between the deceased and the appellant over the issue of ownership of the parrot, the appellant had threatened the deceased to finish him and, therefore, he assaulted the deceased with the intention to cause his death. The observation of the trial court is wholly misconceived as there is no such acceptable evidence on record. The evidence of P.W.3 reveals that while she and the deceased were taking the cattle for tending, the appellant met them near the village temple and asked the deceased to return back the parrot, whereupon the deceased replied that he was not going to return it since it was caught by his son from a mango tree. This reply of the deceased enraged the appellant, who immediately picked up a Merha (thenga) from the spot and assaulted the deceased by the same. Similar is the evidence of P.Ws.1 and 2, the other two eye 5 witnesses. The evidence thus reveals that the appellant met the deceased at the end of the village and claimed return of his pet parrot which was refused by the deceased. The appellant was present on the spot totally unarmed and the refusal of the deceased to return the parrot provoked him and, therefore, being deprived the power of self control he picked up the Merha and dealt a blow on the head of the deceased which proved to be fatal. There was no plan or premeditation on the part of the appellant to cause the death of the deceased and at best only knowledge can be imputed to him that the Merha blow which was dealt by him was likely to cause death. 10. For the foregoing reasons, the offence would be one under Section 304, Part-II of the I.P.C. not amounting to murder which comes within provision under Section 304 Part-II of the I.P.C. This conclusion finds support from the principles laid down in the decisions reported in 1987 (II) OLR 307, Sankarsan Naik v. State; AIR 1979 SC 1532, Shankar v. State of Madhya Pradesh; AIR 1983 SC 463, Jagtar Singh v. State of Punjab and 1986 (II) OLR 313, Narasingha Bisoi v. State. 11. The appeal is thus allowed in part. The order of conviction and sentence passed against the appellant under Section 302 of the I.P.C. is set aside and in lieu thereof, the appellant is convicted under Section 304 Part-II of the I.P.C. It is said that the appellant has already suffered imprisonment for eleven years and is still 6 languishing in jail. We therefore, sentence the appellant for his conviction under Section 304, Part-II of the I.P.C. to imprisonment for the maximum period prescribed by law which he has already undergone. The appellant be set at liberty forthwith unless his detention is required in any other case. ………………………. B.K.Nayak,J. A.S.Naidu, J. I agree. ……………………….. A.S.Naidu, J. Orissa High Court, Cuttack The 8th. October,2009/G.Samal 7