Birabara Kandi vs State of Orissa

B.R. Sarangi, J.—On the request of the learned counsel for the appellant, this Court by order dated 31.7.2013 adjourned the matter to 21.8.2013, on which date, none appeared for the appellant. Since the appeal is of the year 2006, this Court engaged Mrs. M. Panda as Amicus Curiae to argue the matter and accordingly, the matter was adjourned to today. This appeal is directed against the judgment and order dated 30.3.2006 passed by the learned Addl. Sessions Judge, Fast Track Court-2, Cuttack in S.T. Case No. 476 of 2005 convicting the appellant for commission of offence u/s 302, IPC and sentencing him to undergo imprisonment for life.

The prosecution case in brief is that on 10.8.2004 at about 4.30 P.M., Bikram Kandi @ Babuli, the deceased, came to the informant Bijay Kandi (P.W. 1) and asked for betel. While the informant was preparing betel for the deceased, the accused, Birabar Kandi, father of the deceased standing on the road asked the informant for betel and proceeded towards his cabin and suddenly the accused-appellant, Birabar Kandi brought out a katari and gave one forceful katari blow on the back side neck of the deceased, who was waiting to take betel from the informant (P.W. 1). Immediately after giving such katari blow, the accused, father of the deceased escaped by means of a bicycle. Due to such katari blow, the deceased fell down on the ground sustaining severe injuries on his neck and immediately succumbed to the injuries.

The informant, P.W. 1 reported the matter to the police and accordingly, the accused-appellant faced trial for the offence u/s 302, IPC and ultimately convicted and sentenced to undergo imprisonment for life.

The plea of the defence is of complete denial.

To establish the case, the prosecution examined as many as 13 witnesses whereas none was examined on behalf of the defence. The prosecution has relied upon documents marked as Exts. 1 to 14 whereas the defence has not relied on any documents.

Out of the 13 witnesses, P.W. 1 is the informant and eye witness to the occurrence, P.W. 2 is another eye witness to the occurrence, who claims that he was present near the betel shop at the time of occurrence, P.Ws. 3 and 4 are the witness to the inquest and seizure respectively, whereas P.W. 5 is another seizure witness to the nail clippings of the accused and also a witness to the seizure of wearing apparels of the deceased obtained from the doctor after the post mortem examination, P.W. 6 is the wife of the deceased, who immediately heard about the occurrence and rushed to the spot, P.W. 7 is the local sarpanch, who heard about the incident immediately after the occurrence and also a witness to the inquest, P.Ws. 8 and 9 are the witnesses to the inquest and witness to the seizure of sample earth blood stained earth, blood stained slipper, blood stained gauge, sample gauge seized vide seizure list Ext. 5, P.W. 10 is the doctor, who conducted post-mortem examination, P.W. 11 is a witness to the seizure of Katari, who does not support the prosecution case, for which he was declared hostile by the prosecution, P.W. 12 is the scientific officer, who visited the spot and collected the incriminating materials on the requisition of the I.O., and P.W. 13 is the I.O., who after completion of investigation submitted charge-sheet against the accused-appellant. P.W. 13 who is the O.I.C. of Salipur Police Station on receiving telephonic intimation about the incident on 10.8.2004 at about 5 P.M. came to the spot at 5.30 P.M. where P.W. 1 presented the F.I.R. Ext. 1 before him. On the basis of the above mentioned facts and circumstances, learned Addl. Sessions Judge, formulated two points for determination which reads as follows:

(i) Whether the accused had inflicted Katari blow on the neck of the deceased.

(ii) Whether the deceased succumbed to the injuries caused by the accused.

Both the points being interlinked, learned Addl. Sessions Judge had taken up together for consideration and ultimately relying upon the statement of P.W. 1, the informant, an independent eye witness to the occurrence and P.W. 2, held the accused-appellant guilty of the offence u/s 302, IPC and convicted and sentenced him thereunder as stated above.

The appellant has been in custody since 11.8.2004 and after submission of charge-sheet he faced trial. From the materials available on record, it appears that the conviction is based on the evidence of the eye witnesses, P.W. 1 and P.W. 2, P.W. 1 being the informant and P.W. 2, who was sitting near the spot at the time of occurrence and P.W. 6, the wife of the deceased, who immediately after the occurrence heard about the incident and rushed to the spot. Therefore, the entire prosecution case is based on the statements of two eye witnesses, P.Ws. 1, 2 and 6, who is a post occurrence witness and heard about the same. As per the statement of P.W. 6, the wife of the deceased, four days prior to the occurrence, she along with her husband-deceased remained separately from the accused and the accused blamed her that she had instructed the deceased to remain separately from the accused. For the said reason, prior to one day of the occurrence, the accused assaulted her and when her husband could know about such fact, he (deceased) also assaulted the accused. Thereafter, she along with her deceased husband remained in another house, which is 2-3 houses apart from the original house. It is further stated by P.W. 6 that the matter was to be decided by the village Panch, but before any amicable settlement was arrived at, she heard that the accused had killed her husband. During cross-examination, nothing has been brought out to rebut the fact of ill-feeling between the accused and the deceased. But fact remains that the deceased and P.W. 6 were remaining separate from the accused because they were not pulling on well with him.

So far as the evidence of P.W. 1, the eye witness to the occurrence, is concerned, it is stated that while he was preparing betel for the deceased, he could see the accused standing on the road and asked him to prepare betel for him. More specifically, he stated that he saw the accused giving Katari blow on the neck of the deceased, who succumbed to the injuries. During cross-examination, it was brought out from him that the occurrence was so sudden that none could decide what to do and for that reason, he could not shout. Except a few suggestions such as the informant has got land dispute with the accused and was taking Ganja with group of boys, nothing has been brought on record to rebut the evidence of P.W. 1. Therefore, on the basis of the materials available on record and relying upon the statements made by P.W. 1, who is an eye witness to the occurrence, it cannot be said that the accused had not committed the crime, rather the evidence of P.W. 1 gets corroborated by the evidence of P.W. 2, who is also another eye witness, who was sitting near the shop of P.W. 1 at the time of occurrence to take betel. P.W. 2 had corroborated the evidence of P.W. 1 stating that while the deceased was standing in front of the shop of P.W. 1 to take betel, the accused came to that cabin to take betel and immediately gave a Katari blow on the neck of the deceased and escaped in a bicycle and the deceased succumbed to the injuries.

So far as the evidence of P.Ws. 7, 8 and 9 are concerned, immediately after the occurrence, they went to the spot and saw the deceased lying with bleeding injuries on his neck and they also heard that the accused had escaped after killing his son and so far as the medical evidence is concerned, P.W. 10 has opined that the death was caused to the deceased due to the injuries caused by sharp cutting weapon like M.O.I. the Katari.

From the above evidence, it can be elucidated that there was family dispute between the deceased and his father, the accused-appellant, which has culminated into anger because as per the statement of P.W. 6, the deceased assaulted the accused just one day before the occurrence. Apart from the same, the deceased having remained separate from the accused, aggravated his anger towards the deceased and more so, he is a Ganja addict. On consideration of the facts narrated above, there is nothing to suggest that there was any premeditation in the mind of the appellant to cause death of the deceased, rather the entire act has been done out of anger, may be with the influence of Ganja. The appellant, who is the father of the deceased, was not in a position to tolerate the behavior of his son as he was remaining separate from him. Therefore, unmindful of the consequences, though not in a cruel manner, the appellant inflicted the single blow by Katari, which unfortunately caused the damage of the vital organ resulting in the death of the deceased.

In support of her contention, Mrs. Panda has relied upon the judgments of the apex Court as well as this Court in Alil Mollah and Another Vs. State of West Bengal, , Gopal Singh and Others Vs. State of M.P., , Gangadhar Bariha and Lingaraj Bariha v. State of Orissa (2012) 1 OLR, 279, Gunanidhi Parida v. State of Orissa (2012) 53 OCR 1051, Pita @ Pitabasa Gouda v. State of Orissa, (2012) 53 OCR 574, and Sudhakar Vs. State of Maharashtra,

Learned counsel for the appellant states that no reliance can be placed on the evidence of P.W. 2, as eye witness who immediately disappeared from the place after seeing the occurrence on unacceptable plea that on seeing blood, he became afraid of and rushed to his home. For this purpose, she has relied upon Ali Mollah (supra) and Gopal Singh (supra). She further contended that conviction u/s 302, IPC is only attracted if the assault is caused with the intention of causing death. Considering the factual background of the case in hand, it appears that the entire incident took place in a fit of anger and at the spur of the moment because of the family quarrel as revealed from the statement of P.W. 6, the wife of the deceased. For that learned counsel has relied upon Gangadhar Bariha (supra). She further contended that even if evidence of P.Ws. 1 and 2 are believed, the same has to be considered with reference to the evidence of P.W. 6, who has stated that one day prior to the occurrence, the appellant assaulted her on the ground that she insisted the deceased to remain separately. The deceased also assaulted the appellant as she assaulted P.W. 6. On the next day, the appellant assaulted the deceased on the back side of the neck by means of a Katari. Therefore, though the appellant had knowledge that the act is likely to cause death, but he had no intention to cause death. In this background, the only question that arises for consideration is as to whether there was mitigating circumstances in order to hold that the offence would fall under any of the exceptions to Section 300, IPC to state that it is a case of culpable homicide not amounting to murder. Reliance has been placed on Gunanidhi Parida (supra) and Pita @ Pitabasa Gouda (supra) as stated above. In view of the aforesaid facts and circumstances, we are of the considered opinion that being unmindful of the consequences though not in a cruel manner, the appellant inflicted the single blow, which ultimately caused severe damage to the vital organ resulting in death of the deceased, thereby the offence alleged and as found proved against the appellant, can be brought under the First Part of Section 304, IPC as held in Sudhakar (supra) relied upon by the learned counsel for the appellant. Therefore, while affirming the conviction of the appellant, we alter the same to one u/s 304 Part I of IPC in place of Section 302, IPC and sentence the appellant to undergo rigorous imprisonment for ten years. Accordingly, the appeal stands partly allowed with the above modification of the charge and the sentence imposed on the appellant.