Nila Ganda vs State of Orissa

P.K. Misra, J.—The Appellant has been convicted u/s 302 of the Indian Penal Code (for short, ''I.P.C.'') and sentenced to undergo imprisonment for life.

The prosecution case, in brief, is that there was previous ill-feeling between the.family of the informant and the family of the Appellant. On 10-12-1993 at about 3 p. m. when the deceased, the mother of.!he informant, was returning to her home, the Appellant dealt two thenga blows, as a result of which she sustained bleeding injuries on her head. Information was lodged alleging commission of offence u/s 307. I.P.C.. Subsequently, however in the next morning, the deceased expired in Boriguma C.H.C. and ultimately charge sheet was submitted alleging commission of offence u/s 302, I.P.C..

The plea of the Appellant was one of denial. It was stated that the deceased had consumed liquor and fell down on the road as a result of which the inquires had been sustained by her and she had not been assaulted by the Appellant and a ''false case had been foisted due to previous ill-feeling.

During the trial prosecution has examined eight witnesses. p. ws. 1 and 2 are the two eye witnesses to the occurrence. p. w. 3 is a seizure witness. p. w. 4 is the informant. p.w. 5 is the doctor who initially treated the deceased. p. w. 6 is the doctor who conducted the post-mortem examination and p. ws. 7 and 8 are the two Investigating Officers.

Relying upon the evidence of p. ws. 1 and 2, as corroborated by the medical evidence, the trial court has convicted the Appellant u/s 302, I.P.C. and sentenced him to undergo imprisonment for life. In this appeal the learned Counsel for the Appellant has contended that the evidence of p. ws. 1 and 2 cannot be accepted in view of the several discrepancies in their evidence and particularly in view of the fact that p.w. 1 being the grand daughter of the deceased (son''s daughter) and p.w. 2 being the aunt (mother''s sister) of p. w. 1, were interested witnesses. It is also contended that even assuming that the prosecution has been proved, it cannot be said that an offence u/s 302, I.P.C. has been made out and it can be said to be a case punishable u/s 304, I.P.C.

Coming to the first submission made by the learned Counsel for the Appellant we ate unable to accept this contention. It is no doubt true that p. w. 1 is the grand daughter of the deceased being her son''s daughter and p. w. 2 is also related being the aunt (mother''s sister) of p. w. 1. However, merely because the two witnesses were related to the deceased, their evidence cannot be discarded, if the same is'' otherwise acceptable. The discrepancies pointed out do not go to the root of the matter. The evidence of p. ws. 1 and 2 receives ample support from the medical evidence. Their evidence in examination-in-chief implicating the Appellant has not been shaken in any manner in cross-examination and from their evidence it is apparent that the appellate had dealt two blows with lathi.

The alternative submission of the learned Counsel for the Appellant, however, merits consideration. It has been contended that it cannot be said that the appellate had intention to kill the deceased nor it can be said that the Appellant had the intention to cause such injuries as were likely to cause death of the deceased or the Appellant know that the injuries would cause death of the deceased.

Keeping in view the background of the case and the manner of assault, it can ''safely be concluded that though the Appellant did not have the requisite -intention, he had the knowledge that he is likely to cause death of the deceased but it cannot be said beyond reasonable doubt that he know that his action was so imminently dangerous that it must, in all probability, cause death. Therefore, even though, he had the knowledge as contemplated u/s 299, I.P.C., it cannot be said that he had the requisite knowledge to bring the case within the fourth clause of Section 300, I.P.C..

For the aforesaid reasons, we are inclined to alter the conviction u/s 302, I.P.C, to one u/s 304, Part-II, 1. P. Coo Having regard to the facts and circumstances of the case, we feel that interest of justice would be served by imposing the sentence of eight years rigorous imprisonment.

The appeal is all owed in part and the conviction of the Appellant under.Section 302, I.P.C., is altered to one u/s 304, Part-H, I.P.C., and the sentence is reduced to rigorous imprisonment for eight years.

A. Pasayat, J.

I agree.

Appeal partly allowed.