The court ruled that a stabbing occurring during a quarrel, influenced by mutual provocation and intoxication, merited a conviction under Section 304-I of the IPC instead of Section 302.

JUDGMENT :

D.Dash, J.

The Appellant, by filing this Appeal, from inside the jail, has challenged the judgment of conviction and order of sentence dated 08.10.2004 passed by the learned Sessions Judge, Phulbani in Sessions Trial No.178 of 2002, corresponding to Balliguda P.S. Case No.42 of 2002 of the Court of the learned Sub-Divisional Judicial Magistrate, Balliguda.

The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the INDIAN PENAL CODE , 1860 (in short, ‘IPC’) and sentenced to undergo imprisonment for life.

2. Prosecution Case:-

On 03.04.2002 during noon hour, one Arjuna Mallik of village Soutikia had gone to take bath in the nearby river. He having found a tortoise near the river, he brought it to their village. He then told the same to Ghasiram (P.W.6), Meher, Champeswar (P.W.3) and Rameswar (deceased) that they would prepare curry in the evening. Around 7 pm, all of them gathered in the bari of Champeswar (P.W.3) for preparing the curry. Accused arrived there and demanded some curry. Rameswar (deceased) refused the request of the accused. So there was a quarrel between the two followed by hot exchange of words. It is stated that the accused then left for his house and came with a knife. He then again demanded the tortoise curry and as Rameswar (deceased) refused, he pushed the knife into the left side of his chest causing profused bleeding resulting his death. It is stated that the accused then throwing the knife, left the spot. Soon thereafter, Kabiraj, the son of the deceased (P.W.1) arrived and having seen the dead body of his father Rameswar lying there, went to the Balliguda Police Station. That Kabiraj (Informant-P.W.1) having presented a written report with the Officer-in-Charge (OIC) of Balliguda Police Station narrating the above incident and informing about the death of his father being injured by the accused. The written report being received by the O.I.C., he treated the same as FIR (Ext.1) and registering the case, took up investigation.

3. In course of investigation, the I.O (P.W.8) examined the informant (P.W.4) and other witnesses, held inquest over the dead body of the deceased Rameswar in presence of the witnesses and prepared the inquest report (Ext.2). He sent the dead body for post mortem examination. He seized the weapon of offence i.e. a knife from the spot in presence of the witnesses and prepared the report to that effect vide Ext.3. He also seized the blood stained earth and sample earth from the spot in presence of the witnesses and prepared the seizure list vide Ext.9. The I.O (P.W.8) seized the wearing apparels of the deceased in presence of the witnesses on production by Police Constable and prepared the seizure list (Ext.10). He (P.W.8) also seized the wearing apparels of the accused in presence of the witnesses and prepared the report vide Ext.11. He arrested the accused and forwarded him in custody to Court. The seized incriminating articles were sent for chemical examination to SFSL, Bhubaneswar through Court. He examined other witnesses. He too prepared a spot map under seizure list vide Ext.14. Finally, on completion of investigation, the I.O (P.W.8)submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC.

4. Learned SDJM, Balliguda on receipt of the Final Form, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused.

5. In the Trial, the prosecution in total has examined eight (8) witnesses. Out of them,