Hadi Kirsani vs State of Orissa

A.S. Naidu, J.—This Jail Criminal Appeal has been preferred by the Appellant who has been convicted u/s 302 Indian Penal Code and sentenced to imprisonment for life by the Addl. Sessions Judge, Jeypore in Sessions Case No. 35 of 1994.

On the basis of an F.I.R. lodged by Buda Mandra (P.W.1) at Mudulipada police station, G.R. Case No.3 of 1993 was initiated. After investigation, charge sheet was submitted against the Appellant for alleged commission of an offence u/s 302 Indian Penal Code having murdered one Soma Mandra and he faced the sessions trial.

The prosecution case in brief is that on 8.1.1993 at about 6 P.M. Soma Mandra, the deceased, went to Mundiguda Hat. He returned along with Lachhmi Kirsani (P.W.2). On their way, both of them consumed �Salap� juice and rested under a Mango tree. At that time accused-Appellant holding a bow and arrow approached them. The deceased and the accused cut jokes at each other. While cutting jokes, the accused all on a sudden got annoyed and shot an arrow at the deceased which penetrated into the right side chest of the deceased. When P.W.2 protested, the accused threatened him. Being so threatened, P.W.2 went to a distance wherefrom he saw that the accused shot another arrow which pierced into the chest of the deceased. The deceased fell down on the ground and died at the spot. After spending the night in the woods, P.W.2 returned home in the next morning and reported the matter.

The accused denied the entire incident and took the stand that out of enmity, the case had been falsely foisted against him.

In order to prove its case, the prosecution examined as many as eight witnesses out of whom P.W.1 was the informant, P.W.2 was an eye-witness, P. Ws.3 and 4 were seizure witnesses, P.W.5 was the doctor who conducted autopsy, P.W.6 was the constable escorting the dead-body for post mortem examination, P.W.7 was the O.I.C. and P.W.8 was the A.S.I. who investigated into the case. Apart from the oral evidence, the prosecution also produced the broken arrows and other material objects.

P.W.2 is the eye-witness to the entire occurrence. Though he has been cross-examined at length, nothing has been elicited from his statement to discredit him. P.W.5 in his evidence has clearly stated that the death occurred due to massive external and internal haemorrhage caused by arrow shot. The trial Court after analyzing the evidence of P.W.5 came to the finding that the death was homicidal in nature. After going through the evidence of P.W.5, we find no reason to differ from the said finding of the trial Court.

A cumulative reading of the entire evidence of the witnesses leads to an irresistible conclusion that the accused-Appellant shot two arrows at the deceased, thereby causing his death.

The occurrence took place in the year 1993. The Appellant was arrested in the year 1993 and is in custody for more than 11 years. The Appellant and the deceased were both tribal. Such people are very volatile. As would be evident from the evidence of P.W.2, the deceased and the accused were cutting jokes with each other. All on a sudden a quarrel started and the Appellant being enraged shot the arrows at the deceased. From the evidence it does not appear that there was any pre-meditation or any preparation of the Appellant to cause the death of the deceased. The occurrence took place all on a sudden.

Taking into consideration the community to which the Appellant and the deceased belonged, and the circumstances in which the incident occurred, we feel that it is a fit case where the conviction of the Appellant u/s 302 Indian Penal Code cannot stand. According to us, as the injuries were caused to the deceased by the Appellant on the spur of a moment being enraged by jokes cut by the deceased, the Appellant should be convicted for committing an offence u/s 304 Part II, Indian Penal Code instead.

Accordingly, we set aside the conviction and sentence of the Appellant u/s 302 Indian Penal Code We convict the Appellant u/s 304 Part II, Indian Penal Code and sentence him to imprisonment for the period already undergone by him. With the aforesaid modification of conviction and sentence, the Jail Criminal Appeal is allowed in part. The Appellant who is in custody be set at liberty forthwith if is detention his no longer required in connection with any other case.