Jayaram Khora vs State of Orissa

Pradip Mohanty, J.—Judgment dated 8.11.1996 and order of conviction u/s 302 and 323, I.P.C. passed against the Appellant by learned Sessions Judge, Koraput in Sessions Case No. 252 of 1995 is under challenge in this Jail Criminal Appeal.

Before nothing the contention of the Appellant and consideration of the same, the fact leading to the prosecution of the Appellant is, Put on record in brief. Sundar Takri is the deceased, Padlam Khora (P.W. 3) is the brother-in-law of the deceased being the husband of Sebati Khora (P.W. 6), a sister of the deceased. Deceased is the son-in-law of Basu Khora (P.W. 2). and accused is the nephew (brother''s son) of P.W. 2. Therefore, the inter se relationship between the accused and the deceased was that of brother-in-law. Padlam had borrowed a sum of Rs. 30/- (Rupees thirty) from the accused. On 28.5.1995 where Padlam and two other persons namely Daya (P.W. 4) and Sundar (deceased) were spending time under a tamarind tree, at about 4 P.M. accused arrived there and demanded for refund of the borrowed money. Padlam pleaded his inability to repay that immediately. Reacting to such refusal, accused attacked and assaulted Padlam by giving a slap blow and also giving a bite to his cheek. Other persons present there intervened and they were separated and Padlam was removed from that spot by his wife. At that time the deceased challenged the accused for such high-handed behaviour and aggressive conduct. Being enraged by that provocation, accused brought a ''Tangia'' (M.O.-I) and dealt two blows on the neck of Sundar (the deceased) resulting in his death at the spot. On the report of P.W. 3 law was set into motion and after a routine investigation, charge sheet was filed against the accused for the aforesaid offences. Charge for the offence u/s 323, I.P.C. was framed against the accused for causing simple hurt to Padlam and charge for the offence u/s 302, I.P.C. was framed against the accused for committing murder of the deceased.

To substantiate the charge, prosecution relied on both oral and documentary evidence and that includes the evidence of P.W. 1, Dr. K.P. Behera, who proved the Post-mortem Report, Ext. 1 and the Opinion Report, Ext. 2, giving the opinion that the injury found on the dead body was possible by M.O.I. Prosecution also examined P. Ws. 2, 3, 4, 6 and P.W. 7 (widow of the deceased) besides P.W. 10 Moti Khora as the eye-witnesses to the occurrence.

Prosecution also examined another Padlam Khora as P.W. 5, to prove the inquest as well as seizure of the blood-stained and sample earth and recovery of the axe and seizure thereof respectively under Seizure Lists marked Exts. 4, 5 and 6 and Dr. Smita Sahu (P.W. g), who examined P.W. 3 and granted the Injury Certificate, Ext. 7, besides the police constable (P.W. 5) who accompanied the dead body and P.W. 11, the Investigating Officer.

Trial Court recorded that the evidence of P.W. 1 and the post-mortem report, Ext. 1 are sufficient to prove that the deceased suffered a homicidal death because of the two incised wounds on the neck region which were antemortem in nature and possible by the weapon like M.O.I. Learned Sessions Judge found the evidence of the eye-witnesses to be reliable and acceptable in support of the proof of the aforesaid charge against the Appellant. He found the other circumstantial evidence to be sufficiently corroborating to prove the charge against the Appellant. Accordingly learned Sessions Judge convicted the Appellant and sentenced him to imprisonment for life for committing offence u/s 302, I.P.C. and rigorous imprisonment for six months for the offence u/s 323, I.P.C. with the direction to run the sentences concurrently.

At the outset of his argument, Mr. S.N. Biswal, Learned Counsel for the Appellant placed before us the entire evidence and argued to reject the evidence of the eye-witnesses except P.W. 10 on the ground that such witnesses being related to the deceased and P.W. 3, are in the status of interested witnesses and their evidence is not to be considered in proof of the charge. We find no factual support or legal backing in respect of such argument of the Appellant in as much as it is the settled position of law that evidence of a relative as a witness to the occurrence is to be discarded on the ground of such interstedness unless there is circumstance on record indicative or suggestive of the fact that such witness has deposed falsehood with the motive to implicate the accused. On perusal of the evidence on record, we do not find that anything has been brought out in course of the cross-examination to attribute such motive to the aforesaid eyewitnesses to the occurrence..

Learned Counsel for the Appellant lastly contended that the offence would not attract Section 302, I.P.C. but would come within the ambit of Part-II of Section 304 I.P.C., as the Appellant dealt ''Tangia'' blows out of sudden provocation and in the heat of passion without any premeditation and without any intention to cause such injury and, thus, the case is covered by Exception-IV to Section 300, I.P.C.

We notice from the evidence on record that for refund of money, which was borrowed by Padlam Khora (P.W. 3), brother-in-law of the deceased, there was some altercation between the Appellant and Padlam. At this, the deceased intervened and challenged the Appellant. The latter being enraged by such provocation, brought a ''Tangia'' and dealt two blows to the deceased, who died instantaneously. There was no premeditation and the Appellant at the spur of the moment gave the assaults. Under such circumstances, according to us, the case comes within the ambit of Exception-IV to Section 300, I.P.C. and the appropriate conviction would be under Part-I of Section 304 I.P.C. and not Part-II thereof, as contended by Learned Counsel for the Appellant.

For the foregoing discussions, we alter the conviction of the Appellant from one u/s 302, I.P.C. to that u/s 304, Part-I, I.P.C. and sentence him to undergo rigorous imprisonment for ten years.

In the result, the appeal is allowed to the extent indicated above.