Sanyasi Palasi @ Sania vs State of Orissa

Pradip Mohanty, J.—The Appellant has been convicted for commission of offence u/s 302 I.P.C and sentenced to imprisonment for life by the Sessions Judge, Koraput-Malkangiri-Rayagada-Nabarangpur at Jeypore, in Sessions Case No. 142 of 1996.

The case of the prosecution is that on 04.01.1996 a pig belonging to the accused-Appellant entered into the bari (back-yard) of the deceased and damaged the vegetable plants. The deceased shot an arrow at the pig and the pig ran away. On that day at about 8 P.M. while the deceased was sitting on a cot lying on the outer-verandah along with his wife, the accused-Appellant came and dragged the deceased by holding his hand. In the process, he took him to the back side of his house and gave a blow by a knife to his chest. The wife of the deceased, who was coming behind them, saw the incident. The deceased brought out the knife from the wound but succumbed to injury. The wife of the deceased went to the Head-man of the village and narrated the incident in the Panchayat. She also showed the knife to the Punch members. Thereafter, she went to Kudumulugumma Out-post and lodged the report. The A.S.I. of Police, who was in-charge of the Out-Post registered the case and I.O. (P.W.5) investigated into the matter and on completion of the same submitted charge-sheet against the present Appellant for commission of offence u/s 302, I.P.C.

The plea of the defence is complete denial of the allegation.

In order to prove its case, prosecution examined as many as five witnesses. P.W.1 is the widow of the deceased and the informant in this case. P.W.2 is the Headman of the village. P.W.3 is the wife of the Appellant. P.W.4 is the doctor, who conducted autopsy and P.W.5 is the I.O. Prosecution also exhibited fifteen documents including the chemical examination report. Defence examined none.

Learned Sessions Judge, who tried the case, by his Judgment dated 29.08.1998 convicted and sentenced the Appellant as stated hereinbefore basing upon the evidence of P.Ws. 1 ,2 and 4.

Mr. Jena, Learned Counsel for the Appellant, contended that P.W.2 is not an eye-witness. According to P.W.I, the Appellant took the deceased to the back side of the house. She also could not have seen the occurrence since it was a dark night. He further contended that the seized material contradicts the statement of P.Ws.1 and 2 and no motive has been proved by the prosecution.

Learned Addl. Government Advocate vehemently contended that the evidence of P.W. 1 is clear and cogent to the effect that she followed the Appellant and the deceased while the Appellant dragged the deceased to the back side of the house and it was not difficult on her part to recognize the Appellant in the dark night, who was no other than the person with whom she had prior acquaintance. Therefore, he contended that there is no infirmity and illegality committed by the Trial Court in convicting the Appellant for commission of offence u/s 302 I.P.C. basing upon the evidence of eye-witnesses corroborated by medical evidence.

Perused the L.C.R. P.W.1 is the informant & widow of the deceased. She stated that on the date of occurrence a pig belonging to the Appellant entered inside their bari & damaged the vegetable plants. The deceased shot an arrow at the pig & the pig ran away. At about 8 P.M. when she along with her deceased husband were sitting on the outer verandah, the Appellant came & dragged the deceased by holding his hand. The Appellant took the deceased to the back side of their house. She followed them. She saw the Appellant giving a blow to the chest of the deceased by a knife & running away. The deceased brought out the knife from the wound. She immediately reported the matter to. the Headman of the village. Thereafter, she reported the matter at the Kudumulugumma Out-post. She admitted in her cross-examination that there was no electric light in the village, but it was not dark by the time of incident. There was no light in the back side of her house. She also admitted that the back side of her house was visible & she saw the incident. She stated that she saw the assault given by the Appellant on the deceased by a knife. Nothing has been elicited from her cross-examination to disbelieve her evidence. P.W.2 is the Headman of the village before whom P.W.1 immediately narrated the incident saying that the Appellant assaulted the deceased by a knife by giving blows to his chest. P.W.2 came to the house of P.W.1 & saw the wound on the chest of the deceased. He also stated that a Panchayat was held where P.W.1 narrated the incident implicating the Appellant & produced the knife (M.O. I). Thereafter, he went to the Out-Post with P.W.1 & lodged the F.I.R. P.W.1 produced the said knife (M.O.I) which the police seized. P.W.2 also gave thumb mark on the seizure list. But in cross-examination he admitted that he could not see the deceased in the night. He also admitted that P.W.1 did not show the knife to him in the night occurrence. P.W.3 is the wife of the Appellant. She stated that on the occurrence night, the Appellant was not in the house. She heard the incident on the next day. She admitted in her cross-examination that the deceased did not return to the house on the date of incident. P.W.4 is the doctor who conducted autopsy & found one penetrating injury on the left side of the chest 5 c.m. away from sternum. The size was 3" in length 2" in breadth. The depth could not be ascertained because of decomposition. He also found two bruises which were present on the face and leg. He opined that all the injuries were ante-mortem in nature. Death was due to injury to the left side of the heart leading to severe intra-thoracic bleeding. In cross- examination he admitted that he had not mentioned in his report that the injury was sufficient to cause death in ordinary course of nature & the injuries were ante-mortem in nature. He also admitted that he had not mentioned that the death was homicidal. He further admitted that he could not ascertain the percentage of shock. P.W.5 is the I.O. who investigated into the matter & filed the charge-sheet. He also seized the sample of blood-stained earth & the knife.

After scanning the evidence of witnesses, this Court finds that there was no electric light in the village. In cross-examination P.W.1 has stated that the back side was visible and she saw the incident. She stated that while she was sitting along with the deceased on the outer-verandah, the Appellant came and dragged the deceased by holding his hand to the back side of the house. At that time, she was near the deceased and she followed them. From the above statement of P.W.1, there is no doubt about the identification of the Appellant since she was sitting near the deceased, she followed the deceased and saw the incident. She also attributed motive to the Appellant by stating that the deceased had shot an arrow at the pig of the Appellant, for which, in the night the Appellant came to the deceased, dragged him to the bari and assaulted him by a knife. P.W.2, a post-occurrence witness also stated that P.W.1 narrated the incident before him and both of them went to the spot. There is no infirmity in the evidence of P.W.1. P.W.2 also supported the version of P.W.1. P.W.3 is the wife of the Appellant, who admitted that the Appellant was not present in the house in the night of occurrence.

In view of the above, there is no doubt that the deceased died a homicidal death and the present Appellant is the author of the crime. But then, since the Appellant gave only one blow with a knife on the chest of the deceased, the intention to cause death cannot be imputed to him, and it would be reasonable to inner that he had the knowledge that such injury on. the vital part of the body of the deceased would cause death. As such, the act committed by the Appellant comes under the purview of Section 304, Part-II, I.P.C. Therefore, this Court sets aside the Judgment and order of his conviction u/s 302 I.P.C., as passed by the Learned Sessions Judge. Instead, this Court convicts him u/s 304, Part-II I.P.C. & sentence him to undergo rigorous imprisonment for seven years. It is stated at the Bar that the Appellant is in custody for more than 13 years by now. If that is so, he be set at liberty forthwith, unless his detention is required in any other case.

In the result, the appeal is allowed in part.

L. Mohapatra, J.

I agree.