JUDGMENT
P. K. Patra, J.
1. This is an appeal challenging the judgment dated 22.6.1994 passed by Shri P. N. Patnaik, Sessions Judge, Kalahandi-Nuapada, Bhawanipatna in Sessions Case No. 63 of 1993 convicting the appellant (hereinafter referred to as “the accused” under Section 302 of the Indian Penal Code (hereinafter referred to as “IPC”) and sentencing him to undergo rigorous imprisonment for life for alleged commission of murder of one Ratha Majhi of village Bankakunduru under Lanjigarh police station in the district of Kalahandion 26.7.1993.
2. The facts leading to the prosecution case are as follows :
On 27.7.1993 at 4 p.m. the informant (P.W. 2) lodged a written report (Ext. 1) before the O.I.C. of Lanjigarh P.S. (P.W. 7) to the effect that his elder brother (deceased) had been assaulted in the previous night in village Bankakunduru when he had been to that village to perform Puja. The informant (P.W. 2) accompanied by some villagers went to village Bankakunduru and found the deceased sitting in front of the school adjacent to that village with bleeding injury on his head. On being questioned the deceased told them that the accused assaulted him by means of a spade when he could not supply him liquor on his demand after performance of the Puja. The injured was carried in a cot to Bijaypur Outpost where no officer was found and, therefore, he was taken to Lanjigarh where they arrived at 2 p.m. and the report was lodged at 4 p.m. On receipt of the report of informant P.W. 7 registered the case under Section 326 IPC and took up investigation. The injured was admitted into Lanjigarh P.H.C. for treatment where he succumbed to the injuries on 2.8.1993. Thereafter the case turned to one under Section 302 IPC. P.W. 7 completed the formalities of investigation and submitted chargesheet against the accused who stood his trial. The accused pleaded not guilty to the charge and his plea was one of denial.
3. Prosecution examined seven witnesses in support of its case whereas the defence examine none. Learned Sessions Judge after careful analysis of the medical evidence on record as well as the ocular testimony of the prosecution witnesses came to the conclusion that the accused inflicted fatal injury on the deceased with intention to cause his death and accordingly convicted him under Section 302 IPC and sentenced to rigorous imprisonment for life.
4. Shri N. P. Patnaik, learned counsel for the accused, and Shri R. N, Acharya, learned Addl. Govt. Advocate for the State, were heard at length.
5. While Shri Patnaik strenuously urged for setting aside the impugned judgment contending that the same is legally not sustainable due to wrong appreciation of evidence on record as also error of law committed by the trial court, learned Addl. Govt. Advocate supported the impugned judgment as legally sustainable not warranting any interference. The rival contentions require careful consideration.
6. P.W. 6 is the medical officer who first medically examined the injured on 27.7.1993 and submitted the injury report (Ext. 3). He also conducted the autopsy over the deadbody of the deceased and submitted the post-mortem examination report (Ext. 6). The injury report (Ext. 3) reveals that the deceased had sustained a cut injury of the size 5″ x 1″ x 1″ on the right side and another cut injury of the size 5″ x 1/2″ x 1″ on the left side towards back on the front parietal area of his head. He had also sustained a fracture of skull of 5″ long at the same site corresponding to injury No. 1 and the injuries were grievous in nature, caused by sharp cutting weapon. The post-mortem report (Ext. 6) reveals the same injuries and there is no discrepancy in Ext. 3 and Ext. 6. According to P.W. 6, the cause of death was coma with cardiac respiratory failure due to cut injury on brain and by infection from injury to scalp and fracture of skull and the death was homicidal in nature. Therefore, the death of the deceased was homicidal in nature.
7. The informant (P.W. 2) was not an eye-witness to the occurrence, but he has stated that the deceased being questioned told him and others that the accused assaulted him by means of a spade when liquor could not be supplied to him after performance of Puja. P.W. 1 is a resident of village Borpadar who stated that he and his elder brother sent one Tudu to village Malpeta to call a Guru, i.e. village quack, to perform Puja for the welfare of their children who were ailing and the said Guru was none other than the deceased Ratha Majhi who came to their house and performed the Puja during day time asking them to sacrifice a cock in the evening. Accordingly they sacrificed a cock and the deceased also joined them. According to P.W. 1, the accused arrived there and dealt a blow on the head of the deceased with the sharp side of a spade, as a result of which the deceased sustained bleeding injury and fell down and on his information the villagers reached the spot. P.W. 3, Tudu Naik alias Harijan, was the person who was deputed by P.W. 1 and his brother to call the deceased to perform the Puja. He has not stated anything about the occurrence. P.W. 4 was a witness to seizure of bloodstained earth from the spot under the seizure-list (Ext. 2). He has also not stated anything regarding the occurrence. P.W..5 is a co-villager of P.W. 2 who has stated to have accompanied P.W. 2 to the spot. He has corroborated the statement of P.W. 2 that the deceased told them that the accused assaulted him by means of a spade on his head when liquor was not supplied to him after the Puja. P.W. 7 was the investigating officer and P.W. 8 was the police constable who carried the deadbody for post-mortem examination. During the investigation, the I.O. seized the blood-stained earth and sample earth as per the seizure-list Ext. 2 and the weapon of offence, i.e. spade with its broken handle lying on the spot as per the seizure-list Ext. 10. He also seized one “DIBIRI” (Lamp) and two aluminium LOTAS under the seizure-list Ext. 10. He arrested the accused on 30.7.1993 at 3.30 p.m. and forwarded him to court in custody. After receiving information regarding the death of the deceased, he proceeded to the hospital and held inquest over the deadbody of the deceased as per the inquest report Ext. 11, send the deadbody for post-mortem examination, seized the wearing apparels of the deceased and sent the wearing apparels and the spade for chemical examination. The chemical examiner’s report (Ext. 16) revealed that the spade contained human blood of group “A” which tallied with the blood-stains found on the napkin and Dhoti as also the blood-stains on earth. After completing investigation, he submitted chargesheet under Section 302 IPC against the accused.
8. Shri Patnaik strenuously urged for rejecting the statement of P.W. 1, the only eye-witness to the occurrence examined in this case on the ground that P.W. 1 could not have identified the accused in a dark place and that his statement has not been corroborated by any other witness and non-examination of his elder brother who was the other eye-witness to the occurrence being present at the spot would adversely affect the prosecution case. He also urged for rejection of the statements of P.Ws. 2 and 5 contending that they were related to the deceased and hence interested for the prosecution. The contentions of Shri Patnaik are not sustainable in view of the fact that P.W. 1 has categorically stated in his cross-examination that he knew the accused prior to the occurrence by name and he could identify him by the light of the lamp (DIBIRI) burning at the place where he along with his brother and the deceased were taking liquor. He had also no axe to grind against the accused. No doubt P.W. 2 was the younger brother of the deceased and P.W. 5 was a co-villager, who have stated about the statement of the deceased which can be treated as the dying declaration of the deceased. These two witnesses are consistent with each other and nothing has been elicited from their mouth to discredit them or discard their testimony from consideration. They cannot be said to be partisan or interested witnesses and their statements are not tainted with interestedness.
9. Regarding reliability of dying declaration, the Apex Court in the case of Laxmi V. Om Prakash, reported in AIR 2001 SC 2383 has held as follows :
“One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or tongish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it.”
10. Applying the aforesaid principle, the statements of P.Ws. 2 and 5 can be safely relied upon in the present case.
11. The learned Sessions Judge has rightly placed reliance on the statements of P.Ws. 2 and 5 as well as on the statement of the eye-witness P.W. 1 and held that the accused dealt the fatal blow on the deceased as alleged by the prosecution, which cannot be said to be erroneous and unsustainable in the eye of law so as to warrant interference.
12. The next contention of Shri Patnaik is that even if.it is held that the accused dealt a blow with spade on the deceased which turned to be fatal, he cannot be convicted under Section 302 IPC since he had no intention to do away with the life of the deceased by dealing the said blow and at best he can be held guilty under Section 304 Part II, IPC. In the present case, the blow with spade was dealt on the head of the deceased in the night of 26.7.1993 _ and the deceased succumbed to the injuries on 2.8.1993 and as stated by the medical officer (P.W. 6), the condition of the deceased became serious due to infection. As stated by P.W. 1 when the accused demanded liquor and was refused, he suddenly dealt the blow on the head of the deceased and hence the possibility of grave and sudden provocation due to quarrel between them cannot be overruled. It is well settled principle of law that the Second Part of Section 304 IPC will apply when there is no guilty intention, but there is guilty knowledge. In other words, the act by which death was caused was done with the knowledge that the act was likely to cause death, but without any intention to cause death, or such bodily injury, as was likely to cause death or so imminently dangerous that it must in all probabilities cause death, or such bodily injury as was likely to cause death, without any excuse for incurring the risk of causing death. Part I of Section 304 IPC will apply where the act by which death was caused was done either with the intention to cause death or with the intention to cause such bodily injury as was likely to cause death. In the present case, on the materials on record, no intention can be attributed to the accused to cause the death of the deceased, or to cause such bodily injury as was likely to cause his death. Therefore, the present case will clearly fall within the ambit of Part II of Section 304 IPC. Accordingly, the conviction of the accused under Section 302 IPC cannot be sustained and is liable to be modified to one under Section 304 Part lI, IPC. The learned Sessions Judge has not dealt this aspect of law while convicting the accused under Section 302 IPC.
13. In the result, the Jail Criminal Appeal is partly allowed. The conviction of the accused under Section 302 IPC and the sentence of rigorous imprisonment for life vide judgment dated 22.6.1994 passed by the Sessions Judge, Kalahandi-Nuapada, Bhawanipatna in Sessions Case No. 63 of 1993 are set aside and instead the accused is convicted under Section 304 Part II, IPC and is sentenced to undergo rigorous imprisonment for ten years.
14. I agree.
P. C. Naik, J.