PRADIP MOHANTY, J & S.K.MISHRA, J. JCRLA. NO.27 OF 2001 (Decided on 29.09.2010) SINU @ SUSHIL NAG ……….. Appellant. .Vrs. STATE OF ORISSA ……….. Respondent. PENAL CODE, 1860 (ACT NO.45 OF 1860 ) – 300, 304, PART-I. For Appellant - M/s. B.L.Tripathy(A), B.Tripathy & Nandini Tripathy. For Respondent - Mr. Soubhagya Ketan Nayak (Additional Government Advocate) PRADIP MOHANTY, J. The appellant, having been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life, has preferred this appeal from jail. 2. The case of the prosecution is that on 07.06.1997 evening, the wife of the appellant picked-up quarrel with one Sukarmani Singh. Deceased Amar Singh went near the house of the appellant and advised them to stop unnecessary quarrelling with others or else they would drive them out of the hutting. At this, the appellant got annoyed, went inside his house and came out holding a Dauli. He dealt a blow on the neck of the deceased by means of the said Dauli, as a result of which the deceased fell down with severe bleeding injury on his neck and succumbed to it. Thereafter, the appellant left the spot throwing the Dauli there. On the same day, informant Jyotilal Singh orally reported the matter to the OIC of Koida Police Station, who reduced the same to writing and treated it as F.I.R., proceeded with the investigation and ultimately filed charge-sheet against the appellant under Section 302, IPC. 3. The plea of the appellant is one of complete denial of the allegations. 4. In order to prove its case, the prosecution has examined as many as nine witnesses including the doctor and the I.O. and has exhibited thirteen documents. The defence has examined none. 5. Mrs.Tripathy, learned counsel for the appellant assails the judgment on the following grounds: (i) P.Ws.2, 3, 4 and 5, who are stated to be the eye witnesses, are relations of the deceased and all are interested witness; (ii) some injuries were found on the person of the accused and he was examined by the doctor, but no explanation has been given by the prosecution for which adverse inference can be drawn against the prosecution; and (iii) the assault took place due to sudden provocation which caused one injury and the subsequent conduct of the accused showed that he had no intention to kill the deceased and, therefore, the case is one coming under the purview of Section 304-II, IPC and not under Section 302, IPC. 6. Mr.Nayak, learned Additional Government Advocate, on the other hand, contended that there is no material to disbelieve the evidence of P.Ws.2, 3, 4 and 5. These witnesses have categorically stated that they were present near the place of occurrence and they saw the accused-appellant coming out of his house holding a Dauli and dealing a blow by means of the same on the neck of the deceased, as a result of which the deceased fell down and died. The evidence of the doctor (P.W.9) also corroborates the oral evidence. Merely because P.Ws.2, 3, 4 and 5 are relations of the deceased, their version cannot be thrown over board. P.Ws.3 and 5 have also disclosed that after the assault, the appellant fled away from the spot. P.W.7, who is a post occurrence witness, also corroborates the same. As per the report of the chemical examiner, blood stains were found on the full pant of the appellant. Therefore, it is a fit case for conviction under Section 302, IPC and there is no infirmity or illegality in the impugned judgment and order of conviction passed by the learned Sessions Judge. 7. On careful perusal of the evidence of the witnesses, it is seen that P.Ws.1 to 5 are witnesses to the occurrence. P.W.1, who is the informant, deposed that about a year back from the date of his examination on a Saturday at about 5.00 p.m. the incident took place near the hutting of the accused. On that day he had been to the house of his father-in-law Chhutu Nag, who was having his hutting at a distance of about 100 feet from the house of the accused. Hearing the hullah when he looked to the side of the house of the accused, he found the accused assaulting the deceased by means of a Dauli. He specifically deposed that he had seen only one blow being given by the accused on the neck of the deceased. Soon after the blow, the deceased fell down and the accused fled away. He also deposed that at the time of occurrence Kirsan Munda, Sadar Munda, Lakhin Munda (P.W.7) and Braja Munda were present. He proved the FIR (Ext.1). In cross-examination nothing material has been elicited except that the deceased was his uncle-in-law, Chamaru Singh (P.W.2) is the nephew of the deceased and Sukrumani (P.W.3) is the wife of Chamaru Singh. P.W.2, in his evidence, has specifically deposed that the wife of the accused quarrelled with his wife, for which his deceased-uncle went to the house of the accused and asked him calmly as to why he was creating trouble in the locality when he is new to the same. The accused went inside his house, came out with a Dauli and abruptly gave a blow on his neck, as a result of which his uncle fell down and succumbed to the injury whereafter the accused fled away from the spot. Nothing has been elicited in cross-examination to discard his evidence. P.W.3 deposed that the wife of the accused came to her house with a crow-bar and threatened to kill her over missing of her soap in the river. At that time, P.W.3’s husband was also there in her house. Few minutes later, the accused also arrived in her house and quarreled with them. At that time, Amar Singh (deceased) and Joytilal reached there and intervened. They asked the accused and his wife as to why they were creating problems in the colony. Thereafter, the accused went to his house, came back with a Douli and dealt a blow on the neck of the deceased. There was cut injury on the neck of the deceased. Nothing has been elicited in cross- examination to discard the evidence of this witness. Rather, in cross-examination, she has stated that she had stated before the police that the deceased had approached the 2 accused and told him that he must try to have a peaceful co-existence in the colony or else he would be driven out. She further admitted in the cross-examination that being questioned by the deceased, there was exchange of hot words between him and the accused. P.W.4, the other ocular witness, also corroborated the evidence of P.W.2 and specifically stated that she saw the accused giving a Dauli blow on the neck of the deceased and fleeing away from the spot. This witness was declared hostile and leading questions were put him by the learned Public Prosecutor. P.W.5 is another ocular witness who corroborated the evidence of P.Ws.2, 3 and 4 with regard to the assault given by the accused. P.W.6 is a witness to the inquest and he proved Ext.2, the inquest report. P.W.7 is a post occurrence witness, who specifically deposed that on the date of occurrence while he was returning from Hat along with Kisan Munda, Braja Munda and Sadhu Munda (since dead), they heard hullah at a little distance from his house as “DHAR DHAR” made by some women. At that time, they found the accused running with a Dauli and thereafter they chased him and having caught hold of him brought him near the place where the deceased was killed. Near the dead body of the deceased, they kept the accused under detention by roping. Nothing has been elicited in cross- examination. P.W.8 is the investigation officer, who registered the case, took up investigation and after its closure filed charge-sheet. P.W.9 is the doctor, who conducted autopsy over the dead body of the deceased, and found the following injuries. External injury “One incised wound on the left laterals side of the neck of size 6” X 2” X 2”.” Internal injury “Left external carotid artery, left internal carotid artery and left jugular vain are cut. Muscles of left side neck are incised. Rest of the organs are intact and pale.” He opined that the cause of death was due to haemorrhage and shock caused by a cut injury on the left side neck cutting external carotid artery, internal carotid artery and jugular vain. He further opined that the injuries were ante mortem in nature and were sufficient to cause death in ordinary course. P.W.9 further deposed that on 07.06.1997 on police requisition he examined the accused and found as many as four injuries. All the injuries were simple in nature and might have been caused by hard and blunt weapon. 8. On a careful scrutiny of the evidence of P.Ws.1 to 5, it is found that their evidence inspires confidence. Merely because they are related to the deceased, that by itself cannot be a ground to discard their evidence outright. It has been proved through the evidence of P.W.7 and the investigating officer (P.W.8) that after assaulting the deceased while the appellant was running away he was chased and in course of such chasing he fell down and received injuries. So, it cannot be said that the prosecution has failed to explain the injuries on the person of the appellant. That apart, the appellant having sustained simple injuries, as is evident from the evidence of the doctor (P.W.9), the onus is not on the prosecution to explain the same. Ext.12, the 3 chemical examination report, reveals that human blood of ‘B’ group was found in the sample blood stained earth and the full pant seized from the possession of the appellant. From the ocular testimony of P.Ws.1 to 5 coupled with the evidence of the doctor (P.W.9) and other materials available on record it is established beyond any shadow of doubt that the appellant assaulted the deceased with the Dauli (M.O.I) and on account of such assault the latter died. 9. Now, it is to be seen whether the act committed by the appellant falls within the purview of any of the exceptions provided under Section 300, IPC. P.W.3, in cross- examination, has admitted that the deceased went to the house of the accused and told him that earlier there was no quarrel in the colony, that he had come to the colony since last two months only and was quarrelling with others and that he must try to have a peaceful co-existence in the colony or else he would be driven out, which culminated in exchange of hot words between the deceased and the appellant, as a result of which the appellant got enraged, brought out a Dauli from his house and gave a blow on the neck of the deceased. From this, it can be safely concluded that the act was committed in the heat of passion upon sudden provocation at the spur of the moment without any premeditation. Taking an overall view of the facts 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. 10. 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 ten years. 11. The Jail Criminal Appeal is disposed of accordingly. Appeal partly allowed. 4