Krushna Chandra Sahu vs State of Orissa

B.K. Behera, J.—The Appellant stood charged u/s 302 of the Indian Penal Code with having intentionally committed the murder of Muralidhar Misra hereinafter referred to as the ''deceased'' on the 7th June, 1979 at village Damarpur in the district of, Cuttack. The two co-accused persons, namely, Laxmi Dei alias Hara and Nirakar Sahu, the wife and son of the Appellant respectively, stood charged u/s 323 read with Section 34 of the Indian Penal Code with having caused hurt to the deceased and his brother Somanath Misra.

The case of the prosecution was that earlier to the occurrence on that day, one bullock belonging to the deceased, while being brought from the threshing floor, hit the calf belonging to the Appellant, for which the co-accused persons abused the deceased and assaulted him by dealing fist blows and slaps. The deceased did not protest and came away. Getting this information, his brother (P.W. 1) went and met the deceased at the threshing floor where the deceased described the incident in presence of some persons. At that time, the mother of the Appellant abused P.W. 1 and when P.W. 1 protested, the Appellant and his son assaulted him by dealing fist blows and slaps. Narayan Misra (P.W. 6), the father of P.W. 1 and the deceased, was informed about the incident. Some persons of the locality were called by them for a settlement with the Appellant. After night fall, the deceased, his brother (P.W. 1) and their father along with some others went near the house of the Appellant. The Appellant was challenged and when he protested, the deceased insulted him in words. This infuriated the Appellant who brought out a Tenta (M.O. I) from inside the house and pierced it into the chest of the deceased which ultimately resulted in his death.

To bring home the charges to the Appellant and the co-accused persons, the prosecution had examined twelve witnesses of whom P.Ws. 1 to 4 and 6 were witnesses to the occurrence. Of them, P.W. 4 did not support the case of the prosecution with regard to the actual occurrence and was put leading questions u/s 154 of the Evidence Act. On a consideration of the evidence, the trial court came to the conclusion on the basis of the evidence of P.Ws. 1 to 3 and 6, coupled with that of the doctor (P.W. 8), that the Appellant had caused the death of the deceased by means of M.O. I. discarding the plea of the defence that the injury had been caused on the ''person'' of the deceased during the course of a tussle accidentally and without relying on the evidence of the doctor examined on behalf of the defence to negative the theory of the prosecution. The two co-accused persons were acquitted of the charge.

Mr. Y. Das, appearing on behalf of the Appellant, has taken us through the evidence and has submitted that the evidence of the witnesses to the occurrence was not worthy of credence. But as has nightly been submitted by Mr. Sahu for the State, the evidence at P.Ws. 1 to 3 and 6 did read well and was clear and consistent. Their evidence would clearly show that the Appellant had pierced M.O. I into the chest of the deceased which had ultimately resulted in his death. This testimony of the witnesses to the occurrence had been supported by the doctor (P.W. 8) and negatived by the doctor examined from the side of the defence. Referring to the principles laid down by the Supreme Court in Piara Singh and Others Vs. State of Punjab, , and holding that in a case of conflicting opinions of medical experts it would be proper to accept the opinion of that expert which was supported by the direct evidence, the trial court accepted the case of the prosecution on the basis of the evidence at the eye-witnesses for good and sufficient reasons which need not be repeated. There could be no doubt from the evidence that the Appellant''s act had caused the death of the deceased.

Mr. Das has urged that in case this Court accepts the evidence of the prosecution witnesses and we have so accepted, the Appellant could be convicted u/s 304 Part II and not u/s 302 of the Indian Penal Code. Mr. Sahu, the learned Standing Counsel, has fairly submitted that In the Circumstances at the case, the legal and appropriate order at conviction would be for culpable homicide not amounting to murder punishable under the second part of Section 304 of the Indian Penal Code. There had been no premeditation on the part of the Appellant and after some incidents on the same day when the party of the deceased came in a body to the house of the Appellant and challenged him regarding the incidents which had occurred earlier in the course of the day and w hen even the deceased insulted the Appellant by provocative words, in a fit of anger and on the spur of the moment, the Appellant had pierced but once M.O. I. into the chest of the deceased. In such circumstances, it cannot be said that with the intention of causing the death of the deceased or with the intention of causing such bodily injury as was likely to cause the death of the deceased, the Appellant had pierced M.O. I. into the chest of the deceased. We would accept the submission made by Mr. Das that on the evidence on record, it can reasonably be said that the Appellant had the knowledge that by his act he was likely to cause the death of the victim and nothing graver could be attributed to him. We would accordingly held that the act of the Appellant would be punishable u/s 304 Part-II of the Indian Penal Code.

As to the question of sentence, we notice that the Appellant has been in custody for more than four years in the course of investigation and trial and after his conviction. In our view, the period already undergone by him would meet the ends of justice.

In the result, the appeal is allowed in part. The order of conviction and the sentence passed against the Appellant u/s 302 of the Indian Penal Code are set aside and in lieu thereof, he is convicted u/s 304 Part-II of the Indian Penal Code and sentenced thereunder to undergo imprisonment for the period already undergone by him, The Appellant be set at liberty forthwith.

G.B. Patnaik, J.

I agree.