HIGH COURT OF ORISSA,
CUTTACK
JAIL CRIMINAL APPEAL No.268 of 1999
From the judgment and order dated 19.07.1999 passed by Shri
A.C.Pattnaik, Additional Sessions Judge, Malkangiri, in S.C. No. 16 of
1999 (S.C. No. 278/96 of the Sessions Judge, Koraput-Jeypore).
Sama Kirsani ......... Appellant
Versus
State of Orissa ......... Respondent
For Appellant - Mr. Sk. Zafarulla
For Respondent - Mr. K.K.Mishra
Addl. Govt. Advocate.
PRESENT
THE HON'BLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HON'BLE SHRI JUSTICE B.K.PATEL
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Date of hearing & judgment : 06.01.2010
PRADIP MOHANTY, J. The appellant has assailed the judgment and order dated
19.07.1999 passed by the learned Additional Sessions Judge, Malkangiri in
S.C. No. 16 of 1999 (S.C. No.278 of 1996 of the Sessions Judge, Koraput-
Jeypore) convicting him under Section 302 I.P.C. and sentencing him to
undergo rigorous imprisonment for life.
2. The case of the prosecution is that on 25.05.1996 at
about 10.00 A.M. deceased Mangala Kirsani and the accused-appellant
quarreled with each other over the doors of their house. The deceased told to
the present appellant that he has share in the doors and saying so he took
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the outer door of their house. When he came back to take the other door, the
accused-appellant wanted to kill him by arrow. At that juncture, Lachhimi
Chalan P.W.5 arrived and took the bow and arrow from the accused-
appellant. But accused-appellant stabbed the deceased on his chest by a
knife and P.W.5 out of fear left the place. Thereafter, Soma Sisa P.W.4 came
and requested the appellant not to assault the deceased. As the deceased
fell down on the ground, the appellant by means of an ‘Aunla’ wood
assaulted on the face of the deceased, as a result of which the deceased
succumbed to the injury. The appellant after killing the deceased left the
village. P.W.2, the informant, returned home from forest at about 7.00 PM,
heard from P.W.4 about the occurrence, went to the spot and found the
deceased lying dead. As it was night, P.W.2 could not go to the police
station. However, on the next day, i.e., on 26.05.1996 at about 8.00 A.M. he
went to Mudulipada Police Station and orally reported the matter before the
A.S.I. of police who reduced the same to writing, drew up formal FIR and
registered the case. On completion of investigation charge-sheet was laid
against the appellant under Section 302, IPC.
3. Plea of the accused-appellant is of complete denial. His
further plea is that he has exercised the right of private defence to his person.
4. In order to prove the case, prosecution examined as
many as eight witnesses including the medical officer, who conducted
autopsy over the dead body of the deceased, and the Investigating Officer.
The defence examined none.
5. The trial court after conclusion of the trial found the
appellant guilty under section 302, IPC, convicted him thereunder and
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sentenced him to undergo imprisonment for life with the finding that the
appellant cannot get the benefit of section 96 of the IPC and that the
prosecution has successfully brought home the charge under section 302,
IPC to the appellant.
6. Mr. Zafarulla, learned counsel for the appellant submits
that there is no cogent, convincing and reliable material on record to convict
the appellant under Section 302, IPC. P.W.4 cannot be said to be a witness
to the occurrence, as in cross-examination he has admitted that at the time of
occurrence he was inside his house and that after separating the appellant
and the deceased he went away and had not seen the assault. There are
major contradictions in the evidence of P.W.5 and as such his evidence is
wholly unreliable. Admission of P.W.5 in cross-examination, that the
appellant and the deceased were fighting with each other and that the
deceased was raising knife to kill the appellant, rather supports the
appellant’s plea of private defence to his person. His alternative submission
is that even if it is assumed that the appellant is responsible for the death of
the deceased, in the facts and circumstances of the case the act committed
by him may come under the ambit of Section 304 Part-I, IPC but not under
Section 302, IPC.
7. Mr. Mishra, learned Additional Government Advocate, on
the other hand, contends that no illegality has been committed by the trial
court by convicting the appellant under section 302 I.P.C. The evidence of
the eye witnesses, namely, P.Ws.4 and 5 is very clear, consistent and free
from doubts. There is no material on record to disbelieve the evidence of
P.Ws. 4 and 5.
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8. Perused the LCR. P.W.2 is the informant. He stated in
his examination-in-chief that after hearing the incident from Soma Sisa
P.W.4, he went to the spot and saw the deceased lying dead. On the next
day, he reported the matter orally at the police station and the police reduced
the same to writing and took his LTI. P.W.4 is said to be a witness to the
occurrence. In his examination-in-chief he stated that the accused assaulted
the deceased by a knife (Bonda Kath) on the chest, belly and also assaulted
by an ‘Aunla wood’. But in cross-examination he admitted, that at the time of
occurrence he was inside his house, that there was a quarrel between the
deceased and the appellant, and that after separating the appellant and the
deceased he went away and did not see the actual assault. He further
admitted that the deceased was holding a knife and threatening to kill the
appellant. P.W.5 is another ocular witness. He stated that the appellant
assaulted the deceased by ‘Bonda-kati’ on his belly and chest. So, out of
fear he went home. In cross-examination he admitted that the appellant and
the deceased were fighting with each other and the deceased was raising a
knife to kill the appellant. When the knife fell on the ground from the hand of
the deceased, the accused-appellant assaulted the deceased with the said
knife. P.W.1, who conducted autopsy over the dead body of the deceased,
found one internal injury and five external injuries on the person of the
deceased. He opined that the death was due to haemorrhage and shock.
P.W.3 is a witness to the seizure of earth and blood stained earth from the
spot. P.W.6 is a witness to seizure of the door vide Ext.4. P.W.7 is the
police constable in whose presence inquest was held. P.W.8 is the I.O., who
conducted investigation, seized the wearing apparels of the deceased, earth
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and blood stained earth from the spot, knife and one white blood stained
cloth and sent the same for chemical examination. In cross-examination,
P.W.8 admitted that the deceased went to the house of the present appellant
to bring the door and there was a quarrel between them.
9. From the above analysis of the evidence, it is found that
P.W.5 is a witness to the occurrence. He has categorically stated that the
appellant assaulted the deceased by Bonda-Kati on his chest and belly.
There is no such material contradiction in the evidence of P.W.5 to render his
evidence incredible. Nothing substantial has been brought out through cross-
examination to impeach his testimony. P.W.4 is a witness to the first part of
the occurrence. He corroborates the evidence of P.W.5 with regard to
quarrel between the deceased and the appellant. On appraisal of the
evidence of P.Ws.4 and 5 as well as the doctor (P.W.1) and other materials
available on record, this Court comes to the conclusion that the prosecution
has established beyond any shadow of doubt that the appellant assaulted the
deceased with the knife M.O.I and on account of such assault the deceased
met his maker by sustaining injuries.
10. Now, it is to be seen whether by the act committed the
appellant is liable for the offence under Section 302, IPC or Section 304 Part-
I thereof. P.W.4 in cross-examination has admitted that there was a quarrel
between the deceased and the appellant and that the deceased was holding
a knife and threatening to kill the appellant. P.W.5 in cross-examination has
admitted that the appellant and the deceased were fighting with each other
and the deceased was raising a knife to kill the appellant and that when the
knife fell on the ground from the hand of the deceased, the appellant
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assaulted the deceased with the said knife. The I.O. also admitted that the
deceased went to the house of the present appellant to bring the door and
there was a quarrel between them. On face of such evidence, it can safely
be concluded that there was a fight between the deceased and the appellant
in which the appellant without any premeditation assaulted the deceased as
a result of which the latter died, but the appellant had no intention to kill the
deceased. Taking an overall view of the fact situation and keeping in mind
the principles laid down by the apex Court in Ram Karan and others v.
State of Utter Pradesh, AIR 1982 SC 1185, this Court is satisfied that
Exception 4 of Section 300 I.P.C. is attracted in this case and the appellant is
guilty of committing the offence under Section 304 Part-I, IPC.
11. In the result, the appeal is allowed in part, the conviction
of the appellant under Section 302, IPC is converted to Section 304 Part-I,
IPC and he is sentenced to undergo rigorous imprisonment for ten years. It is
stated by Mr. Zafarulla that the appellant Sama Kirsani has remained in
custody from the date of his arrest and by now has completed more than
thirteen years. If that be so, the appellant be set at liberty forthwith, unless his
detention is required otherwise.
…………………………..
Pradip Mohanty,J.
B.K.Patel,J. I agree.
.............................
B.K.Patel, J.
Orissa High Court, Cuttack
Dated 6th January, 2010/Routray