Budu Khura vs State of Orissa

B. Panigrahi, J.—This appeal assails the order of conviction and sentence u/s 302, I.P.C. in S.C. No. 102/93 (S.C. No. 119/93) passed by the learned Addl. Sessions Judge, Jeypore directing the appellant to undergo R.I. for life for having caused the death of deceased Pitchu Khura.

The prosecution case, in short, is as follows :

The appellant was staying in village Singha Mundi which was about two miles away from the village of the deceased. On 31.12.1992 at about 10 A.M. the deceased came to the house of the appellant and asked him to pay Rs. 100/- to meet the delivery expenses of his wife. The appellant refused to pay such money and abused the deceased in filthy language. The deceased had, thereafter, removed a paddy bag from the house of appellant. Immediately thereafter a quarrel ensued between them and the appellant being incensed by anger inflicted a blow by means of a bamboo lathi, as a result of which the deceased sustained bleeding injuries on his head and sometime thereafter collapsed on account of such injury. The appellant thereafter took the dead body on a cot lying at the outer verandah of his house. P.W. 1 described the incident before the village Headman Nilambar Kotadganda (P.W.5). P.W.5 went and saw the dead body lying on a cot at the outer verandah of the appellant''s house and there were bleeding injuries on his head. It was further noticed that the blood was oozing out from the nose of the deceased. On the following day at 12.45 P.M. P.W.5 submitted a written report vide Ext. 6 before the O.I.C., Muniguda P.S. on the basis of which a case was registered and investigation was carried on. On completion of investigation, the appellant was prosecuted u/s 302, I.P.C. and the Investigating Officer had also submitted charge sheet in this case.

The case was committed to the Court of Session. The plea of the appellant was one of denial of occurrence.

In order to substantiate the charge of murder, the prosecution had relied upon the evidence of two eye-witnesses P.Ws. l and 2, P.Ws.3 and 4 are the post-occurrence witnesses, of whom P.W. 3 is also a seizure witness. P.W. 5 was the informant. P.W.6 is the Doctor conducting autopsy over the dead body of the deceased Pitchu Khura, P.W.8 is the I.O.

From the evidence of the Doctor, it appears that deceased Pitchu Khura received the following injuries :

(i) Bruise 3"x 2''/2" over the left temporal region,

(ii) Laceration 1" x 1/4" x 1/2" over the scalp on the left side with profused bleeding.

(iii) Haematoma 4" x 3" over the left front parietal region of the brain.

The injuries were ante mortem in nature and could be possible by hard and blunt weapon, the death could have been caused in the ordinary course of nature due to such injury. The report of the Doctor was marked as Ext.8 In this background, it has to be found out how far the prosecution was able to bring home the charge against the appellant. In this case death of the deceased was not in dispute. It is further admitted that he succumbed to the injuries. From the evidence of P. Ws. 1 and 2 it transpires that on the date of incident the deceased went to the house of the appellant and demanded Rs. 100/- for the delivery expenses of his wife but when the appellant denied a scuffle followed thereafter and the appellant in a fit of anger inflicted a blow on the temporal region of the deceased as a result of which he fell down immediately. From the act of the appellant, it cannot, therefore, be attributed that he had an intention to cause the death of deceased Pitchu Khura. The incident had taken place on account of sudden quarrel where after the appellant gave a single blow on the temporal region of the deceased as a result of which he collapsed. Therefore, in our view, as the appellant gave such blow out of sudden provocation he could have been convicted u/s 304, Part-II, I.P.C. but not u/s 302, I.P.C.

Accordingly, we hereby convert the conviction of the appellant from u/s 302, I.P.C. to u/s 304, Part-II. I.P.C. and reduce the sentence of imprisonment of the appellant to the period of imprisonment actually suffered by him in the meantime. Thus the sentence stands modified. The conviction u/s 302, I.P.C. is set aside. The Jail Criminal Appeal is allowed in part.

M. Papanna, J.

I agree.