Judgment:
ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No.91 of 2003 From the judgment and order of sentence dated 14.08.2003 passed by Shri Bibekananda Das learned Ad hoc Addl. Sessions Judge (II), Dhenkanal in Sessions Trial Case No.3 of 2003 / Sessions Trial Case No.1 of 2003 involving offence under Section 302, I.P.C. ---------- Samira Dehury … Appellant … Respondent Versus State of Orissa For Appellant : Mr. G.K. Behera, Advocate. For Respondent : Mr. Sangram Das, Addl. Standing Counsel. -------------- PRESENT: THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH ----------------------------------------------------------------------------------------------------------------------------- Date of Argument :
16. 05.2012 Date of Judgment :
21. 08.2012 ----------------------------------------------------------------------------------------------------------------------------- C.R. Dash, J.This appeal is directed against the judgment and order of sentence dated 14.08.2003 passed by learned Ad hoc Additional Sessions Judge (II), Dhenkanal in Sessions Trial Case No.3 of 2003 / Sessions Trial Case No.1 of 2003 convicting the sole appellant under Section 302, I.P.C. and sentencing him to suffer imprisonment for life”
2. The occurrence happened in the afternoon of 20.05.2000 on the land near Chhakadia Bila of village Barapada under Dhenkanal Sadar P.S. Deceased Nirmala Ram @ Hagara by alleged overt act of the sole appellant died of gun shot injury caused by (M.O.-I). Informant (P.W.11), who happens to be the uncle of the deceased, lodged the F.I.R., on the basis of which investigation was taken up. On completion of investigation, the Investigating Officer (P.W.14) submitted charge-sheet against the present appellant Samira Dehury implicating him in offence under Section 302, I.P.C. read with Section 25(i) –B/ 27(3) of the Arms Act and one Kailash Dehury (since acquitted) implicating him in offence under Section 25(i)-B/27(3) of the Arms Act.
3. Prosecution has examined fourteen witnesses to prove the charge. Out of whom P.Ws.1, 2 and 3 are the eye witnesses; P.Ws.5 and 6 are the seizure witnesses; P.W.13 is the Medical Officer, who conducted the postmortem examination; P.W.12 is the younger brother of the deceased and P.W.14 is the Investigating Officer. Some witnesses to peripheral facts like seizure, etc. are P.Ws.4, 8, 9 and 10.
4. The defence plea is one of complete denial and the present appellant got examined himself as D.W.1 to prove the defence plea to the effect that four years back the informant (P.W.11) had approached him in his village for his engagement as field servant (‘Halia’) but on denial by him (appellant) he (P.W.11) had threatened him to see. D.W.1 has taken the plea of alibi by deposing that he had never seen or gone to the spot village, i.e. Barapada at any point of time.
5. Learned Trial Court, on consideration of the materials on record and especially evidence of P.Ws.1, 2 and 3, who are eye witnesses to the 3 occurrence, held the appellant guilty of offence under Section 302, I.P.C. and convicted and sentenced him thereunder. Learned Trial Court, however, on consideration of the evidence on record, acquitted the appellant and another Kailash Dehury of the charge under Section 25(i)-B/27(3) of the Arms Act.
6. Learned counsel for the appellant sounds feeble in his submission so far as the eye witness account of P.Ws.1, 2 and 3 is concerned. It is submitted by him that the occurrence having happened after hot exchange of words between the appellant and the deceased following a tussle and yielding of gun by the appellant to cause only a single injury on the chest of the deceased, the appellant may be found guilty of offence under Section 304, Part-II, I.P.C. and his conviction under Section 302, I.P.C. is bad in law. Learned Addl. Standing Counsel, on the other hand, supports the impugned judgment.
7. There is no denying of fact that P.Ws. 1, 2 and 3 have been examined as eye witnesses to the occurrence. Learned counsel for the appellant relies on the cross-examination of P.W.1 and persuades us to take the evidence of P.W.1 as touchstone to disbelieve the presence of P.Ws. 2 and 3 at the spot at the time of occurrence and also disbelieve their version on the manner they are deposed to have witnessed the occurrence. P.W. 1 in his cross-examination has stated thus :“………I along with Abhaya and Gopal heard the sound of a gun at the deceased. We three have already reached our respective houses. We came to the spot after hearing the sound of the gun and found the deceased with gun shot injuries on his person……”. Relying on the aforesaid piece of evidence, learned counsel for the appellant submits that if P.W.1 is believed on the aforesaid aspect, then it is 4 to be held that by the time he heard the gun shot sound, Gopal (P.W.2), Abhaya (P.W.3) and he himself (P.W.1) had already reached their respective houses and from there they came to the spot hearing the gun shot sound. Such a fact, however, has not been elicited from P.Ws.2 and 3 in their cross-examination. P.Ws. 2 and 3 are consistent so far as the injury by gun shot on the deceased as caused by the appellant is concerned. P.W.3 even has identified the gun used by the appellant as (M.O.-I). P.W.2 could not identify the gun when confronted to him but he stated before the court that the appellant had used a gun of the type that was confronted to him. P.Ws. 2 and 3 are corroborated in material particulars by P.W.1 if he is even disbelieved as eye witnesses in as much as P.W.1 is the witness to the facts attending the occurrence and the facts that followed after the occurrence though in view of the afore quoted evidence in his cross-examination he cannot be held to be an eye witness to the occurrence. Further P.Ws. 2 and 3 are corroborated by the Medical Officer (P.W.13), who had conducted the post-mortem examination and specifically opined that the injury caused to the deceased is caused by gun shot. Taking into consideration all the aforesaid facts, we do not find any justification to disbelieve P.Ws. 2 and 3 on the touchstone of what P.W.1 testified in his cross-examination.
8. Coming to the next question regarding the nature of offence committed by the appellant, learned counsel for the appellant relies on the case of Surendra Singh alias Bittu v. State of Uttaranchal, A.I.R. 2006 S.C. 1920 to drive his submission home to the effect that in the fact and circumstances of the present case Exception 4 to Section 300, I.P.C. is to be invoked and the appellant is to be held guilty of offence under Section 304, Part-II, I.P.C.
9. It is well settled in law (see Ghapoo Yadav and others v. State of M.P., A.I.R. 2003 S.C. 1620) that sudden quarrel without premeditation is No.5 sufficient to invoke Exception 4 to Section 300, I.P.C. Along with the aforesaid ingredient it must further be shown that the offender had not taken undue advantage or acted in a cruel or unusual manner while committing the offence.
10. In the present case, all the witnesses, i.e., P.Ws. 1, 2 and 3 are in unison so far as the fact attending the occurrence is concerned. All of them have testified that there was some sort of enmity between the deceased and the appellant prior to the occurrence, as the appellant had taken forcibly one lathi of the deceased. The genesis of the occurrence shows that there was initial quarrel between the appellant and Abhaya (P.W.3) when the appellant begged for ‘Tadi’ (date-palm juice) from Abhaya, but Abhaya denied as he had no stock. Being enraged, the appellant broke the earthen pots used for collection of ‘Tadi’ to which the deceased protested. There was hot exchange of words followed by tussles and all of a sudden the appellant fired at the deceased causing the gun shot injury on his chest which according to the Medical Officer (P.W.13) had involved internal organs like diaphragm, 5th and 6th rib of the right side, lungs and liver. The injury, no doubt, as described by the Medical Officer (P.W.13) is sufficient in ordinary course of nature to cause death and it is opined to have been caused from close proximity. There is nothing on record to show that except the deceased other witnesses like P.Ws.1, 2 and 3 had intervened or any of them was armed at the relevant time. There is also nothing to show that the appellant was provoked by the deceased in any manner. The deceased objected to the action of the appellant when he broke the earthen pots used for collection of ‘Tadi’ and the appellant aggressed upon him resulting in hot exchange of words followed by tussles. In such a situation the appellant having yielded the gun to cause the gun shot injury which ultimately caused instantaneous death of the deceased, we do not think, facts and principles decided in the case of 6 Surendra Singh alias Bittu (supra) can be applied to the present case. Had the appellant intended, he could have caused more injuries than caused can never be made the test to apply Exception 4 to Section 300, I.P.C., not in all cases of death by single injury caused in course of a tussle, etc. can be set as a test to apply Exception 4. Each case is to be adjudged on the basis of facts peculiar to that case.
11. The appellant having taken undue advantage of the situation and he having acted in a cruel and unusual manner, he cannot be extended with the benefit of Exception 4 to Section 300, I.P.C.
12. In the result, we do not find any merit in the appeal. The appeal is accordingly dismissed. ………………………… L. Mohapatra, J.I agree. ………………………… Orissa High Court, Cuttack. The 21st day of August, 2012. / Behera