Kishore Chandra Sahu and Another vs State of Orissa

R.K. Patra, J.—This appeal is directed against the judgment dated 31.5.1997 of the learned Sessions Judge. Dhenkanal in S.T. Case No. 200 of 1993 by which the appellant Kishore Chandra Sahu has been convicted u/s 302. I.P.C. and appellant Gopal Sahu has been convicted u/s 109. I.P.C. read with Section 302. I.P.C. Each of them has been sentenced to undergo imprisonment for life.

The case of the prosecution is that on 9.4.1993 at about noon appellant Kishore and P.W.5 quarrelled with each other in the village Tank of San Dagadari. The appellant Kishore while coming away after taking bath threatened P.W.5 with dire consequences. Some time thereafter both the appellants were found standing on the village read with a view to assault P.W.5. Hearing the shout aiming at P.W.5, deceased Brundaban and his elder brother Balabhadra came rushing to the spot. Brundaban was trying to dissuade the appellants from creating any untoward incident and suggested to them that the dispute will be settled in the evening by convening a meeting. At this moment appellant Gopal who was inimical to Brundaban instigated appellant Kishore to kill him (Brundaban). On being incited, appellant Kishore who was armed with an axe dealt a blow on the head of Brundaban as a result of which the latter fell down and succumbed to the injury.

The plea of the appellant was one of denial.

Prosecution examined fifteen witnesses out of whom P.Ws.5, 6, 7. 10 and 14 are the eye witnesses to the occurrence. P.W. 1 is the doctor who conducted autopsy on the deadbody of the deceased Brundaban. He found one external injury which is as follows :

"Depressed wound size 8 cm. x 5 cm. on the left side of the head parietofrontalarea. A lacerated cut 6 cm. x 2 c.m. bone deep with clotted blood and mated hair. Bone of skull was fractured into multiple pieces under the depressed area of 8 c.m. x 5 cm. Membranes of brain were ruptured below the area. Brain matter underneath was lacerated with clotted blood."

There is no dispute that the deceased Brundaban had a homicidal death.

We have perused the evidence of the eye witnesses who have consistently deposed that on being instigated by appellant Gopal Sahu, appellant Kishore dealt a blow on the head of the deceased with the axe which he was holding. The witnesses were cross-examined but nothing substantial was brought out to discredit their evidence. Learned counsel for the appellants has not been able to furnish any cogent and valid reason to disbelieve their testimony.

For the reasons aforesaid, we concur with the finding of the learned Sessions Judge that appellant Kishore Chandra Sahu dealt an axe blow on the deceased Brundaban resulting in his death and he did it on being abetted by appellant Gopal Sahu.

Learned counsel for the appellants however, submitted that appellant Kishore had no intention to cause the death. He assaulted the deceased at the spur of the moment on being instigated by the other appellant. Evidence on record indicates that the deceased Brundaban had come to the spot to pacify the quarrel which had ensued between the appellant on the one hand and P.W. 5on the other. The appellant Kishore had, therefore no intention to cause the death of the deceased Brundaban nor had he any such intention to cause such bodily injury as was likely to cause the death. Therefore, we hold him guilty u/s 304. Part-II. I.P.C. We accordingly hold the appellant Gopal Sahu guilty u/s 109. I.P.C. read with Section 304 Part-II thereof.

In the result, the conviction of appellant Kishore Chandra Sahu u/s 302. I.P.C. and the conviction of appellant Gopal Sahu u/s 109. I.P.C. read with Section 302, I.P.C. are set aside. We. however, convict appellant Kishore u/s 304 Part-II. I.P.C. and the other appellant Gopal Sahu u/s 109. I.P.C. read with Section 304 Part-II, I.P.C. Each of them is hereby sentenced to undergo rigorous imprisonment for seven years.

Appeal is allowed in part.

M. Papanna, J.

I agree.