PRADIP MOHANTY, J & B.K.NAYAK, J. JCRA. NO. 204 OF 2000 (Decided on 19.01.2011) TAPA HO @ LAGURI …. … .Appellant. .Vrs. STATE OF ORISSA …. ….Respondent. For Appellant - Mr. Rabindra Ku. Sahoo. For Respondent - Mr. Anupam Rath (Additional Standing Counsel) PRADIP MOHANTY, J. This Jail Criminal Appeal is directed against the judgment and order of conviction dated 31.01.2000 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.74 of 1997 by which the learned Sessions Judge convicted the present appellant (Tapa Ho @ Laguri) and sentenced him to undergo imprisonment for life for commission of offence under Section 302 I.P.C. and one year for commission of offence under Section 307 I.P.C and acquitted the co-accused (Budhuni Ho @ Laguri) of the charge under Section 307 I.P.C. 2. The case of the prosecution is that on 21.10.96, when the informant (P.W.1) did not find his missing cocks, he asked the appellant at about 7:00 PM of the very same day, suspecting that the appellant had eaten away his cocks. At this, the appellant came out from his house and assaulted him by means of a stick. Hearing hullah, his elder brother-Kalhei Ho @ Laguri (deceased) came and intervened. At that time, the appellant brought a Bhala from his house and assaulted the deceased with that Bhala. The deceased sustained bleeding injury and fell down at the spot and died. The accused assaulted the informant also. P.W.1 lodged the FIR (Ext.16) and on receipt of the same, police registered the case, investigated into the matter and on completion of the investigation, filed charge-sheet against both the accused persons. 3. The plea of the appellant is that on the date of occurrence at about 7:00 PM, the informant, being armed with Thenga and deceased being armed with Bhala, came to his house and said that he had eaten away his cocks. When he denied, they assaulted him. To save his life, the appellant snatched away the Bhala from the deceased and brandished the same and the same might have hit the deceased. He has further pleaded that whatever he had done, he had done the same in his self-defence. 4. In order to prove its case, the prosecution examined as many as 11 witnesses including the doctor & I.O. and exhibited 22 documents and the defence examined none. 5. Mr.Sahoo, learned counsel for the appellant assails the judgment and order of conviction on the following grounds: “(i). P.W.1 is the sole eye witness to the occurrence and also a partisan witness. Therefore, his evidence cannot be accepted in toto. He developed the story in Court; (ii). injuries were found on the person of both the accused and the prosecution has not explained the same. The informant (P.W.1) along with the deceased came with weapons of offence and assaulted the appellant; (iii). the present appellant snatched away the Bhala from the deceased and brandished the same. Therefore, the appellant sustained injuries and he had no intention to kill the deceased. The case is not coming under the purview of culpable homicide; and (iv). there are major contradictions in the evidence of the prosecution witnesses. Therefore, P.W.1 is not a believable witness. 6. Mr.Rath, learned Additional Standing Counsel contended that the injuries on the person of the appellant are superficial in nature and that has been explained by P.W.1. The evidence of P.W.1 is very clear and cogent that the appellant assaulted the deceased by means of a Bhalla. The injuries sustained by P.W.1 has been proved by the prosecution. The medical evidence corroborated the same and the appellant had an intention to kill the deceased. No provocation was there by the deceased or P.W.1. Therefore, the learned Sessions Judge has rightly convicted the present appellant. 7. Perused the LCR. P.W.1 is the informant and brother of the deceased. In his chief, he has stated that when he returned to his house in the evening, he found his cocks were missing. Since he could not trace them after thorough search, he had been to the house of the appellant and asked him about his missing cocks. At this, the appellant assaulted him by means of stick. Hearing hullah, his brother (deceased) came and protested against the assault. At this, the appellant got annoyed, ran to his house and came being armed with a Bhala and gave Blows to the head and legs of the deceased, who fell down on the spot with bleeding injuries. When he tried to save his brother, the appellant gave Bhala blows to different parts of his body. To save his life, the informant ran towards the hosue of Dama and requested him to give water. The informant also told the incident to Dama and on return to the spot, he found his brother lying dead. On the next day morning, the informant lodged a report before the Ghagarbeda Police Out Post. He also deposed that the accused person also sustained injuries on his person in course of the incident due to the scuffle between them. In his cross-examination, he has stated that he suspected that accused killed his chickens through medicines and could get the killed chickens near the house of the appellant. He did not bring the dead chickens. He has also stated that by the time of occurrence, the other people of the locality had already slept and he alone had been to the house of the appellant and asked him as to why he had killed his chickens. The appellant dealt four blows by M.O.I on his back as a result of which he fell down and sustained bleeding injuries. He tried to snatch away the Bhala from the appellant and in the process of push and pull between them, the Bhala held by the appellant stroke against him as a result of which he sustained injury on his head. He has further stated that the appellant had started a case against him and others for the alleged incident on the allegation that 2 he along with others assaulted him and his wife, which is registered as S.T. Case No.73 of 1997 and pending for trial. P.W.2 is the wife of the deceased and a post occurrence witness. She stated that the daughter of Dama informed her that her husband was killed. She came to the house of Dama where P.W.1 was found sleeping. She asked P.W.1 about the deceased to which he told that the deceased was lying at the spot in front of the house of the appellant but he could not say as to whether the deceased was alive or dead. Accordingly, she had been to the house of the appellant where she found her husband lying dead. P.W.1 told her that in the previous night, the appellant picked up quarrel with him and assaulted him by sticks when he asked him about his missing cocks. Hearing hullah, when the deceased came to the spot and intervened, the appellant caused cut injuries. Nothing has been elicited from his cross-examination. P.W.3 is an independent witness to leading to discovery of the seized Bhala u/s 27 of the Evidence Act. In his presence, police seized some blood soaked earth and sample earth and prepared the seizure list (Ext.1). He is also a witness to the inquest (Ext.2). He has specifically stated that after arrest, while the appellant was under police custody, he made a disclosure statement that he would give recovery of the weapon of offence (Bhala) by which he assaulted the deceased. From the Police Station, he accompanied the police and the appellant to his house where he concealed the Bhala inside a bush in the backside of his house. The police seized the said Bhala in his presence under Ext.3. Police also seized the bamboo stick lying inside the courtyard of the appellant in his presence and prepared the seizure list under Ext.4. Nothing has been elicited from his cross-examination to demolish the evidence of this witness. P.W.4 is a witness to the seizure under Exts.5 and 6. P.Ws.5, 6 and 7 turned hostile. P.W.8 is the doctor, who treated P.W.1 and both the accused and opined that all the injuries are simple in nature and might have been caused by blunt, hard and rough object. In his cross-examination, he had admitted that he did not notice any other injury on P.W.1. P.W.9 is the doctor, who had conducted the post-mortem examination over the dead body of the deceased and found as many as eight serious injuries. On dissection, he found the membrane covering the parieteal lobe on right side and frontal lobe on the left side are incised and injured corresponding to the external incised injury no.1 on the frontal eminence. The cause of death was due to haemorrhage and shock and injury arising out of popleteal vessel bleeding and injury to vital organ i.e. brain. All the injuries are ante-mortem in nature and might have been possible by heavy sharp cutting weapon with forceful impact. In his cross-examination, he has admitted that by one stroke through M.O.II (Bhala) on a vital part, one can die. Each external injury as per 3 the post-mortem report (Ext.14) is individually sufficient to cause death in ordinary course of nature. P.W.10 is the IO who investigated the case. He registered the case, seized the wearing apparels of the deceased, sent the dead body for post-mortem examination, recorded the statement of the witnesses and ultimately, filed charge-sheet against accused person u/s 302/307/34 IPC. In his cross examination, he has stated that P.W.1 admitted that for the same incident, a counter case has been started against him at the instance of the appellant on the allegation that P.W.1 along with his deceased brother assaulted him and his wife near his house. P.W.11 is the ASI, who received the FIR in the Out Post and sent the same for registration, visited the spot, collected the sample earth in presence of the witnesses. Subsequently, the OIC took over the charge of the investigation. In his cross- examination, he admitted that this case is the counter-blast of S.T. Case No.73/97. He sent both the accused persons for medical examination. 8. On scrutiny of the evidence, it is clear that P.W.1 suspected that the appellant had killed his cocks. So he went to his house and asked him about his missing cocks. At this, the appellant assaulted him by means of stick. Hearing hullah, his brother (deceased) came and protested against the assault. At this, the appellant got annoyed, ran to his house and came being armed with a Bhala and gave Blows to the head and legs of the deceased, who fell down on the spot with bleeding injuries. When he tried to save his brother, the appellant gave Bhala blows to different parts of his body. From the evidence of this witness, it is clear that he suspected the present appellant to have killed his cocks. Therefore, he went to his house and asked him which gave rise to the occasion. Thereafter, immediately occurrence started and at that time, his brother (deceased) intervened. From the evidence, it is clear that provocation was made by P.W.1 and the deceased and the appellant has assaulted. Counter assault was done by the prosecution party and thereby accused also sustained some injury. In view of the above, the case cannot said to be one of murder but one of culpable homicide not amounting to murder. Considering the number of injuries and weapon of offence, this Court comes to a conclusion that this case is covered under Section 304-I IPC. Therefore, this Court modifies the case to one under Section 304-I IPC and sentenced the appellant to undergo RI for a period of ten years in place of life imprisonment under Section 302 IPC. So far as the conviction and sentence u/s 307 IPC is concerned, there is no acceptable material against the appellant. P.W.1 specifically implicated the other accused person-Budhuni, who assaulted him. Therefore, this Court acquitted the appellant from the charge u/s 307 IPC and sets aside the order of conviction and sentence passed there under. The Jail Criminal Appeal is partly allowed. Appeal partly allowed. 4