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2019 Supreme(Ori) 426
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Mishra, A.K. Mishra, JJ.
Kabu @ Kabula Behera - Appellant
Versus
State Of Odisha - Respondent
Jail Criminal Appeal No. 47 of 2015
Decided On : 18-12-2019
Sahasransu Sourav, Advocate, Saswata Patnaik, Advocate
Cases Referred
Ramji Surjya Padvi and Ors. Vrs. State of Maharashtra, (1983) AIR(SC) 810
Sujit Biswas Vrs/ State of Assam, (2013) 12 SCC 406
The absence of premeditation and the presence of an altercation between the accused and deceased led to the court's decision to alter the conviction from U/s.302 I.P.C. to U/s.304 Part-I I.P.C.
Headnote:
U/s.383 Cr.P.C. - Conviction U/s.302 of the Indian Penal Code, 1860 - I.P.C. - [302 IPC] - The court discussed the evidence and found the accused guilty under U/s.304 Part-I I.P.C. instead of U/s.302 I.P.C. based on the altercation between the accused and deceased, and the absence of premeditation.
Fact of the Case:
The deceased, Kalu Behera, was attacked and killed by the accused, Kabula Behera, in a family dispute. The sole eye witness, P.W.10, the wife of the deceased, testified to the attack and subsequent fleeing of the accused with the murder weapon. The defense pleaded denial simplicitor.
Finding of the Court:
The court found the accused guilty under U/s.304 Part-I I.P.C. instead of U/s.302 I.P.C. based on the evidence of an altercation between the accused and deceased, and the absence of premeditation.
Issues: The reliability of the sole eye witness testimony, the absence of motive, and the discrepancies between medical evidence and ocular testimony were key issues.
Ratio Decidendi: The court considered the evidence of an altercation between the accused and deceased, and the absence of premeditation to conclude that the offense committed was culpable homicide not amounting to murder under U/s.304 Part-I I.P.C.
Final Decision: The appeal was allowed in part, and the conviction and sentence of the accused under U/s.302 I.P.C. were altered to U/s.304 Part-I I.P.C. The accused was sentenced to undergo R.I. for ten years and to pay a fine of Rs.1000/-.
JUDGMENT
A. K. Mishra, J. - In this appeal U/s.383 Cr.P.C., the appellant has assailed his conviction U/s.302 of the Indian Penal Code, 1860 (herein after referred as "I.P.C." for brevity) and the sentence of imprisonment for life and fine of Rs.100/-, in default R.I. for 10 days passed by 3rd Addl. Sessions Judge, Puri in S.T. Case No.99-77 of 2013-10 by his judgment dtd.31.3.2015.
2. Put briefly, the case of the prosecution is that deceased Kalu Behera @ Pintu, accused Kabula Behera and witness P.W.5 Babuli Behera are agnatic brothers. Deceased with his wife and mother were staying at Basudeipur - Gadiupara in a coconut firm of one Jagannath Panda. Deceased had right to sikim tenancy over the same. The elder brother P.W.5 was staying outside. Accused who was staying outside came with his family and constructing a hut near the house of deceased stayed there prior to 2 to 3 months of the incident. Both deceased and accused persons had family dispute.
On 09.12.2009 at about 5.30 P.M. deceased while returning from grocery shop in his bicycle, in front of his house, accused dealt sword blows, as a result deceased fell down, struggled and succumbed to the injuries. The request of the wife of the deceased and his mother was not heard by the accused. Soon thereafter accused left the spot with his wife and children taking the sword in a bicycle.
At 6.45 P.M. police reached the spot. The wife of deceased got the F.I.R. scribed from P.W.11 at her instance and lodged the same which is Ext.11. Police took up investigation but sent the same to Pipili Police Station for registration. It was registered as Pipili P.S. Case No.213 dtd.09.12.2009 at 7.15 P.M. The investigating officer (P.W.9) took up investigation, visited the spot, apprehended the accused on the next day morning at 5 A.M. and at his instance the weapon of offence, i.e., blood stained sword, was seized from one bush near Pipili - Delanga road. Thereafter the sword and other articles were placed before the Scientific Officer and also forwarded for chemical examination. Inquest over the dead body was made vide Ext.8. At 11.30 A.M. the dead body was dispatched for post mortem examination to District Headquarters Hospital, Puri under Ext.7. P.W.8 - Dr. Subhakanta Ojha conducted post mortem and found the death to be homicidal vide his Post Mortem examination report Ext.6. The doctor had also inspected the recovered sword (M.O.I) on that date and had opined that the injuries found on the dead body of the deceased could be caused by that sword. After completion of investigation charge-sheet was submitted. Learned J.M.F.C., Pipili took cognizance and committed the court to the court of Session. Accused faced trial for the offence U/s.302 I.P.C.
3. The plea of defence is denial simplicitor.
4. In support of its case, prosecution examined 11 witnesses. Defence examined none. Out of prosecution witnesses, P.Ws.1, 2, 3 and 4 are post occurrence witnesses. P.W.5 is the brother of the deceased and accused, who has stated that during incident he was not present in the village. P.W.10 is the informant who is an eye witness. P.W.7 is the Forensic Science Laboratory Officer while P.W.6 is the Scientific Officer, D.F.S.L., Puri. P.W.8 is the Doctor, P.W.9 is the investigating officer and P.W.11, as stated above, is the scribe of the F.I.R. (Ext.11).
Prosecution exhibited 11 documents including F.I.R., seizure list, spot map, serological report, post mortem examination report, etc.
The seized sword, shirt of deceased and blood stained grass and earth collected from the spot are marked M.O.I to M.O.IV. No document is exhibited from the side of defence.
5. Mr. Sahasransu Sourav, learned amicus curiae engaged on behalf of appellant, strenuously urged that the sole testimony of P.W.10 is not reliable and in absence of corroboration, the same cannot form the basis of conviction. To support his contention he has submitted that the F.I.R. lodged under thumb impression discloses previous enmity which is f
