JUDGMENT
A.S. Naidu, J.
1. On the basis of an FIR lodged by one Brundabati Pangi, G.R. Case No. 290 of 1994 was initiated against the accused-appellant. He was charged under Section 302 of the Indian Penal Code for committing the murder of Ghasi Pangi, husband of the informant. The said G.R. Case was converted to Sessions Case No. 78/84 (122/84 SJ). By the impugned judgment, the learned Additional Sessions Judge, Jeypore convicted the appellant under Section 304, Part II, IPC and sentenced him to undergo rigorous
imprisonment for five years. The said judgment is impugned in this appeal.
2. Brundabati Pangi (P.W. 1) filed the FIR on 2.5.1984 at the Kolab Outpost at about 2 P.M. stating therein that on the previous night at about 9 P.M. after returning from his work her husband was relaxing on the verandah of his house and P.W. 1 after finishing her cooking was looking after their daughter inside the house. At that time, it is alleged, the accused-appellant who stayed only two houses apart from the house of the informant, came to their house and started quarrelling with her husband. She came there and questioned as to why they were quarrelling, but without paying any heed to that, the accused-appellant dragged the husband of P.W. 1 to the street and assaulted him with an iron rod on his head two to three times. P.W. 1 being alone and as she was holding her daughter could do nothing, but cried. It was stated that some other perso’ns, namely, Bima Maharana, Babaji Sahu, Krushnamurty, Mahadev Swain, Gopi Mali, the wife of a neighbour, and others had witnessed the occurrence. After being assautted, the husband of P.W. 1 lay on the street in front of his house. P.W. 1 sent word to the brothers of her husband and receiving the information one Tankadhar Pangi, Hari Khara and two other persons came to the spot and took her husband on a cot to hospital, but the deceased succumbed to the injuries at the hospital. P.W. 1 thereafter came to the police station and lodged the FIR.
3. In course of trial, to substantiate the case, prosecution examined as many as twelve witnesses and exhibited seventeen documents. On behalf of the defence, one witness was examined. Out of the witnesses examined by the prosecution, P.W. 1 was the widow of the deceased and the only eye-witness. P.W. 2 was the doctor who conducted the post-mortem examination, his report being marked Ext. 1. P.Ws. 3 to 7 were the post-occurrence witnesses. P.W. 12 was the Investigating Officer.
The accused-appellant in his statement took the plea that deceased Ghasi Pangi had borrowed a sum of Rs. 220.00 from him. He (deceased) had received his salary on the alleged date of occurrence. So the accused-appellant demanded his money at about 6.00 p.m., but the deceased being intoxicated, quarrelled with him. At about 9 p.m. while the accused-appellant was returning from market, the deceased was standing near the house of the accused-appellant with an iron rod and suddenly rushed to assault the accused-appellant, in order to save his life the accused-appellant picked up a lathi which was lying there and assaulted the deceased for his private defence.
4. The learned trial Court, on the basis of the evidence, both oral and documentary, disbelieved the story advanced by the accused-appellant that as there was a reasonable apprehension in his mind that the deceased would assault him, to save his life the accused-appellant assaulted the deceased with a lathi. He has held that there were more than one injury on the body of the deceased which indicated that more than one stroke might have been given. The Addl. Sessions Judge came to a categorical finding that the strokes given by the accused-appellant could not be said to have been given in exercise of his right of private defence to his body and holding him guilty under Section 304, Part II of the Indian Penal Code, convicted him thereunder.
5. Heard Mr. Swain for the appellant and the learned Addl. Govt. Advocate for the State at length. I have also perused the impugned judgment and the evidence on record, both oral and documentary. This is a peculiar case where though half a dozen of witnesses were named in the FIR, none of them has been examined in Court. The only eye-witness to the occurrence is P.W. 1 whose statement in Court varies from what is stated in the FIR. Law is well settled that an FIR cannot be treated to be the encyclopaedia of the entire case. But then, on perusal of the FIR and the statement of P.W. 1 in Court it is revealed that prosecution has developed the story during the trial. In the FIR it is clearly stated that the accused-appellant dragged the deceased from his verandah of his house and gave two to three strokes on him. But this story has been given a go-by at the stage of evidence in Court. In her evidence in Court, P.W. 1 has stated that her husband, the deceased, and the accused quarrelled and thereafter both of them went to the house of the accused-appellant. She followed them holding a ‘Dibri’ in her hand and saw the accused-appellant assaulting the deceased on his head with iron rod. It is further stated that her husband ran to the house of one Khuntia Babu after the assault and fell down there, but the accused-appellant chased him and gave more strokes. This vital statement is omitted in the FIR which itself reveals that P.W. 1 was trying to exaggerate the prosecution story. From the FIR it appears that the place of occurrence was in front of the house of the deceased; whereas from the evidence it appears that the deceased fell down in front of the house of one Khuntia Babu. Neither the said Khuntia Babu nor any of the neighbours in the colony have been examined to substantiate the prosecution case. A cumulative assessment of the evidence throws a cloud of suspicion is one’s mind regarding the manner of the occurrence and the way in which the accused-appellant assaulted the deceased. But then, the fact remains that the accused-appellant
himself admitted in his statement as well as in his deposition in Court as D.W. 1 that as the deceased attempted to assault him with iron rod, he picked up a Lathi and gave one blow on his head. It is also stated in the evidence that prior to the occurrence, on the same day, there was a quarrel between the accused-appellant and the deceased leading to a scuffle and both of them fell down on the ground, as a result of which the deceased had received some Injuries. In view of the clear admission of the accused-appellant that he had assaulted the deceased with a lathi and the doctor’s evidence that such injury was existing on the body of the deceased, it is difficult to discard the entire prosecution case.
6. A cumulative assessment of the entire evidence clearly reveals that the accused, as has been admitted by him, gave a blow with a lathi at the spur of the moment and that he had no intention or mens rea to kill the deceased. Though prosecution has totally failed to substantiate its case, the admission made by the accused conclusively proves this fact. It further appears that the blow was given by the accused in order to protect himself as admittedly the deceased was drunk and according to D.W. 1 he was waiting to assault the accused as the latter demanded back the money borrowed by the deceased. The learned Addl. Sessions Judge taking into consideration all the facts has rightly convicted the accused-appellant under Section 304, Part II of the Indian Penal Code. I find no infirmity in the said finding and confirm the same. But taking an overall picture of the entire episode specially the truthfulness of the accused-appellant who had admitted in his statement under Section 313, Cr.P.C. as well as evidence in Court that he had given the blow as a right of private defence, I feel that a sentence of rigorous imprisonment for three years will mitigate the offence.
7. Accordingly, the Criminal Appeal is allowed in part. While confirming the conviction of the accused-appellant under Section 304, Part II of the Indian Penal Code, the sentence of imprisonment passed against him is reduced to the period of three years. Needless to say, the period of imprisonment already undergone by the accused-appellant will be set off. The Court below is directed to cancel the bail of the accused-appellant and proceed to apprehend the accused-appellant to suffer the sentence in accordance with law.
The records called for from the Court below be returned forthwith.
