Dwarika Paharia vs State of Orissa

B.P. Das, J.—This appeal is directed against an order dated 13.4.1994 in S.C, No. 46 of 1992 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawainpatna convicting the Appellant u/s 302 I.P.C. and sentencing him to undergo R.I. for life.

The prosecution case, in brief, is that on 30.6.1992 at about 9 P.M. the accused and the deceased and his son were going on the village road and both the accused and the deceased who were under the influence of liquor were also carrying a bottle of liquor. On the way deceased Randhia gave proposal to the accused to enjoy his step-mother for which there was altercation and exchange of hot words and in front of the house of Hatiarin Bai in the same village, the accused assaulted the deceased by means of a lathi locally called Sihana thenga, as a result of which the deceased fell down sustaining bleeding injury. The accused also dealt another blow on the head of the deceased resulting in his death The aforesaid occurrence was witnessed by P.W. 5 Hatiarin Bai and P.W. 7 Machin Bai, who were taking dinner on their respective varendahs. Seeing the occurrence P.W. 5 called her husband Phulsing Paharia, who came out and saw the deceased lying on the. ground but the accused fled a way from the spot. In the same night, the accused surrendered before the Dharambandha Out-Post at about 9.30 P.M. with the Sihana thenga and told that he assaulted Randhia Paharia by means of the,aid Sihana thenga in front of the house of Anchar Sai but could not tell if Randhia Paharia was alive or dead. P.W. 10, A.S.I. of Police seized the lathi (M.O.I) under the seizure list Ext. 3 is presence of witnesses, made station diary entry, detained the accused at the Out-Post, proceeded. to the spot and examined the witnesses and after investigation submitted charge-sheet against the accused u/s 302 I.P.C.

The defence plea was one of dentil.

prosecution examined as many as eleven witnesses. None was examined by the defence. Several documents were exhibited. Weapon of offence was seized and marked as M.O.I.

The learned Sessions Judge after evaluating the evidence on record came to a conclusion that the accused was the author of the crime as he dealt the fatal blows on the head of the deceased and ultimately took away the life of the deceased. Accordingly, he sentenced the accused to undergo R.I. for life.

P.W. 5 is one of the eye witnesses to the occurrence. In his statement she has stated that while she was taking meal near the outer varendah of her house, the accused and the deceased went ''coming with a bottle of country liquor with the son of the deceased. The Dibiri was burning where she was taking meal. Just in front of her house she saw the accused assaulting the deceased by means of a lathi over his left side head. She called her husband who was sleeping by then. Her husband came and searched for the accused but he could not find him. P.W. 8 is another witness who reached the spot immediately after the occurrence. While he was rushing towards the spot at a distance he saw the accused assaulting the deceased and by the time he arrived at the spot, the accused fled away. P.W. 9 is the son of the deceased who all along accompanied the accused and the deceased and was very much present at the place of occurrence. He has sated categorically that in front of the house of P.W. 5 accused assaulted his father by means of a lathi on the left side of his neck. In his cross-examination he has stated that the has seen the accused assaulting his father.

Learned Counsel for the Appellant submits that P.W. 5 is a lady of 55 years and the occurrence took place in the night. So it is improbable on her part or on the part of P.W. 8 who is a man of60 years, to see the occurrence. The leaned counsel for the Appellant further submits that the veracity of the testimony of a child witness is quite doubtful because of the reason that he is one of the most interested witnesses and he has stated in his deposition that one Mahangu told him to depose in the Court. We are not inclined to buy the plea so taken by the Learned Counsel for the Appellant. The reason being, P.Ws. 5 and 8 are belonging to the same village and familiar with the deceased and the accused and that too a lamp (Dibiri) was burning. Adding to this the evidence of P.W. 9, minor son of the deceased, discloses that the accused assaulted his father by means of a lathi. Though a stray statement made by him in course of cross-examination that one Mahangu told him to depose in the Court is not enough to discard the evidence of P.W. 7, who is certainly an eye witness to the occurrence. That apart, the post-occurrence conduct of the accused should not be overlooked. As per the F.I.R. so drawn by one A.S.I. of police discloses that the accused appeared in the same night along with the weapon of offence and narrated the fact of injuring the deceased. The said report reveals that the deceased told the accused to enjoy his step-mother for which there was altercation and exchange of hot words. The ocular evidence of P.Ws. 5,7 and 9, who are eye witnesses and had seen the accused giving thenga blow on the head of the deceased, coupled with the evidence and opinion of P.W. 6 (the Doctor) leaves no doubt in our mind that the cause of the death was due to the injuries on the vital organ like brain. As per the medical evidence the Doctor opined that the injuries detected on the deadbody of the deceased are possible by M.O.I. and were sufficient to cause death.

P.W. 10 is the A.S.I. of Police. In his evidence he has stated that on 30.6.1992 at about 9.30 P.M. the accused appeared before him at the Out-Post along with a wooden lathi and narrated the incident which was reduced into writing. He detained the accused at the Out-Post and visited the spot and examined the witnesses. He held inquest over the deadbody of the deceased. He drew up the plain paper F.I.R. which was marked as Ext. 7.

P.Ws 1 and 2 were also seizure witnesses of M.O.I. and even though their signatures were found in the seizure list, the said witnesses turned hostile and were cross-examined by the prosecution. They stated neither to have seen the seizure ofM.a.1 nor have they any knowledge regarding the occurrence. P.W. 4 has stated that on hearing the shout of his wife when he cam(: out and called the village people and searched for the accused, he could not find him. He found the deadbody of the deceased lying in front of his house.

The occular evidence as well as the medical evidence and the conduct of the Appellant who appeared before the police along with the weapon of offence leaves no doubt that the death of the deceased was homicidal in nature and the Appellant was the author of the crime. But the Learned Counsel for the Appellant argues that the learned Sessions Judge has not considered the fact that the deceased wanted to enjoy the step-mother of the accused. On perusal of the sentence part of the judgment, we find that the learned trial Judge held the following:

(i) Since I have convicted the accused u/s 302 I.P.C. only two courses are open for me, either death sentence or sentence of imprisonment for life.

(ii) The accused a young man of 25 years in the fatal night at the spur of the moment as it reveals from the plain paper F.I.R. drawn up by the A.S.I. of Police that the deceased told the accused to enjoy his step-mother, there was altercation of hat words and the accused could not tolerate it. Therefore, he dealt the fatal blows on the head of the deceased and ultimately took away the life of the deceased. Hence in the interest of justice I sentence the accused to undergo imprisonment for life.

The evidence of P.W. 5 also corroborated the story of the F.I.R. that both the accused as well as the deceased were in a drunken state and they were going with a bottle of liquor. Both the Appellant and the deceased were illiterate and it is also clear that the deceased had expressed his ill-motive before the accused. No doubt, the provocation was grave indeed. To every son, mother or step-mother is sacred. The ill desire of the deceased and the expression before a son would be intolerable. That apart, the accused and the deceased being under the influence of liquor, it is lot unusual to commit the offence of murder when the deceased expressed before the accused to enjoy his step-mother.

In this regard we may refer to a decision of the Apex Court reported in Surinder Kumar Vs. Union Territory, Chandigarh, wherein it was held that in a sudden quarrel if a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he is entitled to the benefit of Exception 4 of Section 100 l.P.C. provided that he has not acted cruelly. It has also been held that the number of injuries is not material. In the case at hand, we have carefully scrutinised that the Appellant acted not in a cruel manner. In fact, from the evidence it transpires that both the accused and the deceased were returning in a drunken state and there was sudden quarrel between them as the deceased wanted to enjoy the step-mother of the accused. In view of the above, we hold that the conviction u/s 302 is not sustainable. It is a fit case for conviction u/s 304 Part-I, I.P.C. Accordingly, the conviction u/s 302 I.P.C. is set aside and the Appellant is convicted u/s 304 Part-I, I.P.C. Consequently, the sentence of life imprisonment is converted to imprisonment of nine years.

The Jail Criminal Appeal is allowed in part.