Purandar Mirdha vs State of Orissa

L. Mohapatra, J.—The Appellant having been convicted for commission of offence u/s 302 of the Penal Code for committing murder of one Balaram Bhoi and sentenced to imprisonment for life by the learned Additional Sessions Judge, Bargarh has preferred this appeal.

The case of the prosecution is that in the morning of 11.12.1992 the deceased had a quarrel with his son (P.W. 1) and at that point of time the Appellant intervened and told the deceased as to why he was quarrelling with a grown up boy. Since the deceased gig not Heighten to him, a quarrel ensued between the Appellant and the deceased but one Dayalal Mirdha separated them and thereafter both of them left the place. Thereafter at 5 0'' Clock in the afternoon on the same day the deceased came back to the village and started quarrelling with the Appellant. When the Appellant protested he was also abused by the deceased and it is alleged that the Appellant threatened the deceased to cut him into pieces, To this statement of the Appellant, the deceased took exception and challenged him as a result of which the Appellant ran to a place called Bailichuan, brought out a knife and ran towards the deceased to assault. At that time one Bhakta Mirdha, P.W. 4 tried to stop the Appellant. However, the Appellant escaped and assaulted the deceased as a result of which the deceased fell down unconscious. Some other villagers present at the spot chased the Appellant, but the Appellant ran away from the place. On the basis of such allegations made in the F.I.R., the case was registered for commission of offence u/s 302 of the Penal Code and after investigation, charge-sheet was submitted for commission of the said offence.

In order to bring home the charge, prosecution examined 9 witnesses and the defence examined one witness. The learned Additional Sessions Judge on consideration of the evidence of the eye witnesses to the occurrence as well as injuries sustained by the deceased found the Appellant guilty of the offence u/s 302 of the Penal Code and convicted him thereunder.

The Learned Counsel appearing for the Appellant challenged the findings of the trial Court on the ground that the prosecution having admitted that there was quarrel in the morning which gave rise to a grave and sudden provocation between the Appellant and the deceased in the afternoon and in course of such quarrel, the Appellant brought out a knife and stabbed the deceased, the trial Court could not have convicted the Appellant for commission of offence u/s 302 of the Penal Code as at the spur of the moment there was a grave and sudden provocation at the instance of the deceased which resulted in commission of the offence and there was absolutely No. intention to cause death of the deceased. Apart from the above, the Learned Counsel for the Appellant also submitted that though there is consistent evidence that the Appellant dealt one blow'' on the deceased by means of a knife, the post-mortem report indicates that apart from an injury on the chest, there is another grievous injury on the body of the deceased which has remained unexplained. On the basis of the above, the Learned Counsel submitted that the prosecution having not come with clean hands, the same should be disbelieved. The learned Addl. Government Advocate, on the other hand, submitted that the eye witnesses to the occurrence are consistent in their statements that the Appellant stabbed the deceased by means of a knife on his chest and that injury on the chest alone was sufficient to cause death. Therefore, non-explanation of any other injury is not material for the purpose of the case. He also submitted that the Appellant having said that he would kill the deceased, it cannot be said that there was No. intention to cause death.

In view of the above submissions of the Learned Counsel appearing for the parties, it is required to look into the evidence of the eye witnesses. P.W. 1 is the son.of the deceased and is the informant. He is also an eye witness to the occurrence. This witness in his deposition has stated that on the date of occurrence in the early hours of the day there was quarrel between the Appellant and the deceased and the Appellant had given two slaps to the deceased stating that the deceased should not quarrel with a grown up son. Again in the afternoon the Appellant quarrelled with the deceased in relation to the incident of the morning and thereafter suddenly the Appellant went to his house and brought out a knife and stabbed the deceased by means of that knife on his left chest. Thereafter the Appellant pulled the knife and ran away from the place. The matter was reported before Godbhaga Police Out-Post and subsequently a Written report was submitted before Atabira Police Station. The deceased was also sent to V.S.S. Medical Hospital, Burla but succumbed to the injury. Similarly, the three other eye witnesses i.e. P.Ws. 3, 4 and 5 have specifically stated that during the quarrel in the evening hours, the Appellant brought out a knife from his house and stabbed the deceased on the left side of his chest and on careful scrutiny of the cross-examination of these witnesses, we do not find anything to disbelieve their statements that there was quarrel between the Appellant and the deceased and that the Appellant brought out a knife from his house and stabbed the deceased on the left side of his chest. The doctor, P.W. 9, who conducted the post-mortem examination also found one stab injury on the left side lower part of the chest and according to the said witness, this injury is sufficient to cause death in the ordinary course of nature. Apart from the above, from the evidence of P.W: 2 it appears that he has stated that the Appellant led the police to a straw heap and said that he had concealed the knife at that place. This witness along with another searched the straw heap and discovered the knife whereafter it was seized by the police. Therefore, the evidence of the eyewitnesses coupled with leading to discovery of weapon of offence leads such to accept the findings of the learned Additional Sessions Judge that the deceased met a homicidal death and the Appellant is the author of the injury which caused the death.

Coming to the next question as to whether such assault was given due to grave and sudden provocation or not, the evidence of the very same eye witnesses may be looked into. On perusal of the evidence of these eye witnesses, it is clear that there was quarrel between the Appellant and the deceased in the morning and the Appellant had given two slaps to the deceased. In the afternoon again there was quarrel between the two relating to the incident that occurred in the morning. Though P.W. 1 in his evidence has stated that the Appellant threatened to cut the deyeased into pieces, P.W. 3 who is another witness to the occurrence is silent about any such statement made by the Appellant. P.W. 4 who is another witness to the occurrence is also silent about any such statement made by the Appellant. Similarly, P.W. 5 is also silent about any such statement made by the Appellant. In view of such evidence, it is difficult to accept the version of P.W. 1 that the Appellant threatened the deceased to cut him into pieces. All the witnesses are consistent in their evidence that the assault took place immediately after the quarrel between the Appellant and the deceased. The evidence of P.W. 1 goes to show that there was quarrel in the morning between the Appellant and the deceased and the quarrel in the afternoon was in relation to the incident that occurred in the morning. It also appears that during the quarrel in the afternoon some other witnesses intervened and tried to pacify. On consideration of the entire evidence relating to the incident that occurred in the afternoon, it is clear that there was a quarrel between the Appellant and deceased and in course of such quarrel, the Appellant ran to his house, brought out a knife and stabbed the deceased on his chest. All the witnesses are also consistent in their evidence that the Appellant gave one blow on the chest of the deceased. Considering the conduct of the Appellant, we find that there is sufficient force in the contention of the Learned Counsel for the Appellant that the quarrel between the two resulted in grave and sudden provocation as a result of which the Appellant ran to his house, brought out a knife and stabbed the deceased once on his chest. On consideration of the entire evidence, we are also of the view that though the Appellant had the knowledge that the injury caused by him may cause death, he had No. intention to cause death as only one blow was given on the chest. The other injury found on the body of the deceased undisputedly has not been explalned by the prosecution. Since the injury No. 1 caused by the knife is sufficient to cause death, we do not think that much importance should be given to such evidence which has not been explained by the prosecution. In view of the discussions made above, we think it proper to convict the Appellant u/s 304, Part I of the Penal Code.

Accordingly, in view of the discussions made above, we modify the order passed by the trial Court and convict the Appellant for commission of offence u/s 304, Part \\I of the Penal Code and sentence him to undergo R.I. for 8 (eight) years. The Appellant is directed to surrender and serve the remaining part of the sentence, failing which the learned Additional Sessions Judge shall take necessary steps in accordance with law so that the Appellant serves the remaining part of the sentence. This order be communicated to the trial Court for immediate compliance.

Subject to the above modification in the order of conviction and sentence, the appeal is allowed in part.