Ali alias Harihar Sabata vs State of Orissa

This appeal is directed against the judgment of the learned Second Addl. Sessions Judge, Berhampur convicting the Appellant u/s 302 I.P.C. and sentencing him to undergo imprisonment for life.

From the F.I.R. and the evidence on record the prosecution story emerges as follows:

Krushna Gauda (hereinafter referred to as "the deceased") raped the Appellant''s wife prior to the date of occurrence. On 29.10.1995 at about 10.25 a.m. the Appellant and the deceased came together from the side of Aska-Polosara road and near the Souchalaya in village Budhamba, they quarreled with each other suddenly the Appellant brought out a knife from his pocket and stabbed the deceased on his left chest. After sustaining the stab injury the deceased fell down but immediately got up and ran inside the nearby tyre resoling shop of P.W. 1 and later succumbed to the injury.

Plea of the Appellant was one of denial.

In order to prove its case the prosecution examined eight witnesses. P.Ws. 2 and 3 are eye witnesses to the occurrence. P.W. 7 is the doctor who conducted post-mortem examination over the dead-body of the deceased. P.W. 4 was examined to prove that the Appellant while in police custody gave recovery of the weapon of offence (knife). P.W. 1 was examined to prove that the Appellant made extra judicial confession before him. P.W. 8 is the I.O.

The Appellant examined one witness on his behalf to prove that the deceased committed rape on his wife.

P.W. 7, the doctor, found the following external injuries on the deadbody of the deceased.

One stab wound over the left side of the chest at 5th inter coastal space in mamary line 2"x1-2" size.

One abrasion over the left side of face from canthus of left eye towards trigar of left ear.

One abrasion over the middle of the chest on front side 2" long.

He opined that the death was due to cardio-respiratory failure and shock due to excess haemorrahage due to stab injury on chest, lung and heart.

It is not disputed before us that the deceased died a homicidal death. The short question that arises for consideration is whether the Appellant was the author of the crime and, if so, what offence did he commit.

P.W. 2 stated that on the date of occurrence at about 10.25 a.m. while he was sitting in the betel shop of his maternal uncle, the Appellant and the deceased came together from side of Aska-Polosara road and they quarrelled with each other near the Souchalaya. Suddenly the Appellant brought out a knife from his pocket and stabbed the deceased on his left chest. The deceased after getting the stab injury fell down but immediately got up and ran towards the shop of P.W. 1. When P.W. 1 came out of his shop and asked the Appellant as to what happened the latter disclosed that the deceased had committed rape on his wife for which he took revenge on him. P.W. 3 also stated in the same line as that of P.W. 2. Both the witnesses were cross-examined at length but nothing was brought out in their evidence to discredit their testimony. There is no reason as to why they would falsely implicate the Appellant in the commission of the offence. Their evidence is further strengthened by the evidence of P.W. 1 who stated that the deceased after receiving the injury ran towards his shop and the Appellant was found standing near the place of occurrence. When he asked him as to what happened he confessed that because the deceased had committed rape on his wife, he stabbed him with the knife. On perusal of the occular evidence, we have no hesitation to hold that it was the Appellant who gave stab injury on the chest of the deceased causing his death.

Learned Counsel for the Appellant contended that assuming that the entire evidence is accepted, the offence committed by the Appellant would be culpable homicide not amounting to murder.

It is in the evidence of the Investigating Officer (P.W. 8) that in course of investigation, he perused the records of the police station and found that the deceased was charge-sheeted u/s 376 I.P.C. for having committed rape on the wife of the Appellant on 14.9.1994 (vide Kabisuryanagar P.S. Case No. 58 dated 15.6.1994). Both P. Ws.2 and 3 have categorically deposed that on the date of occurrence both the Appellant and the deceased were coming together and were found quarrelling with each other near the Souchalaya and all on a sudden the Appellant brought out a knife from his pocket and stabbed the deceased with it. The fact that they were quarrelling with each other indicates that there were hot exchange of words between them and the deceased must have uttered some words giving rise to grave and sudden provocation in the mind of the Appellant and on account of this he brought out a knife and gave one blow with it to the deceased. This is, therefore, a case coming under Exception-I of Section 300 I.P.C. The mental background created by the previous act of the deceased in the mind of the Appellant cannot be lost sight of while ascertaining the subsequent act giving rise to grave and sudden provocation for commission of the offence. In the circumstances, we are inclined to hold that the Appellant has committed an offence punishable u/s 304 Part-II I.P.C.

In the result, we set aside the conviction and sentence of the Appellant u/s 302, IPC and convict him u/s 304 Part-II I.P.C. and sentence him to undergo rigorous imprisonment for seven years.

It is needless to state here that if the Appellant has already undergone the imprisonment imposed by us, he is to be set at liberty.

The appeal is accordingly allowed in part.

M. Papanna, J.

I agree.