Full Judgment
S.N. Phukan, C.J.
1. This appeal has been filed from jail by the accused-appellant Subash Chandra Sahu against the judgment and order of the Sessions Judge, Mayurbhanj, at Baripada, in S. T. Case No. 39 of 1992.
['After stating the facts evidence of witness and finding of Sessions Court, The Hon'ble Court held']
11. The first point to be determined is whether the accused-appellant gave two blows, as stated by the eye-witnesses P.Ws 2, 3 and 6. As the learned trial Court has disbelieved the case against the accused persons under Section 34, IPC. We have to determine the individual act of the accused-appellant.
12. From the evidence of the above three eye-witnesses, we find that on the night of occurrence when they-along with the deceased were returning from the village tank, at the point near the road crossing of the village, accused-appellant Subash along with accused Laba, Nath and Biranchi suddenly appeared being armed with lathi etc. and attacked the deceased Shankarlal. According to these eye-witnesses, the accused-appellant dealt a blow with his axe on the head the head of the deceased who fell down, and when one of them namely, Kuanr Munda P.W.3, tried to intervene, accused Biranchi dealt a blow with stick on his right hand. These witnesses have stated that the accused-appellant gave the second blow with the axe on the head of the deceased. From the medical evidence quoted above it is proved that two injuries were found and the doctor has stated that the injuries could be possible with the axe, which was recovered according to the prosecution at she instance of the accused-appellant Subash.
13. The accused persons took the plea that, as the occurrence took place at night, and there was insufficient light, identification was not possible: and that they were falsely implicated due to enmity. The accused-appellant Subash took the further plea of alibi.
14. As on behalf of the accused persons as many as nine witnesses have been examined including the accused-appellant as D.W.1 let us consider the law regarding the evidentiary value of defence witnesses.
15. In Kaur Sain v. State of Punjab, AIR 1974 SCJ29, the Apex Court held that the defence witnesses are often untrustworthy, but it is wrong for that reason to assume that they always lie and that prosecution witnesses are always trustworthy.
16. In a subsequent decision in Dudh Nath Pandey v. State of U.P. AIR 1981 SC 911, the Apex Court held that the defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional instinctive disbelief in defence witnesses. It was also observed that quite often they tell lies, but so do the prosecution witnesses.
17. In view of the above law, we have to give almost the same amount of credibility to the defence witnesses as is given to the prosecution witnesses; but their evidence has to be scrutinised properly.
18. According to the eye-witnesses, there were electric lights in front of the nearby houses. There were also street lights. On behalf of the defence, witnesses were examined mainly to show that no electric light was burning at the time of occurrence. From the evidence it has come out that the house of Maghrai Majhi is at distance of 500 cubits from the place of occurrence and there are other houses nearby. According to the eye-witnesses examined by the prosecution lights were burning in those houses and street lights were also burning. Regarding street lights, defence has examined the S.D.O., Electrical as D.W. 3 who only produced some records to show that there was no street light at the village and the electricity was disconnected from the houses of Dukhu Sahu and Rathu Sahu since 25.9.1988. But he has confirmed that there was electricity in the houses of Megharai Majhi, Shyam Charan Majhi and Padaram Sahu. Learned trial Court took into consideration the statement of this witness that in rural areas there are instances where consumers even after disconnection of electricity officially, take direct line by putting hooks. This statement supports the. prosecution version of the story. D.W. 2 has stated that there was no electric light in the houses of Dukhuram Sahu, Padaram Sahu, Mohan Sahu and Rathu Sahu. He has further stated that there was no street light. Rathu Sahu has been examined as D.W. 4. He has stated that his electricity supply was disconnected D.W.5 has stated that there was no electric light in the houses of Dukhuram Sahu. Ghati Majhi and Rathu Sahu. D.W.7, who is the Sarpanch of the locality, has also stated that there is no electric connection in the house of Dukhuram. He has further stated that the Grama Panchayat has not taken any street light connection. According to him, there is a transformer near the village Chhaka where the murder took place and there is light provision at the electric sub-station.
19. Thus, from the evidence on record, more particularly, the evidence of the witnesses examined by the defence, it has come out that there was light at the electric sub-station, which is near the place of occurrence, and that there were also lights in the houses of Megharai Majhi, Shyam Charan Majhi and Padaram Sahu. We have already stated that the house of Meghrai Majhi is only at a distance of 500 cubits from the place of occurrence. Therefore. the plea of the accused persons that in absence of adequate light, identification was not possible, is ruled out.
20. It is not disputed that the deceased, the prosecution witnesses and the accused persons are not only closely acquainted, but they also reside in the same village. In State of U.P. v. Manoharlal, AIR 1981 SC 2073, the Apex Court expressed the view that even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice gaits, features, etc. In view of the above, in addition to the fact that there was sufficient light for identification . the plea of the accused persons on the point of identification is rejected.
21. Accused-appellant Subash also took the plea of alibi In Dudh Nath Pandey (supra), the Apex Court held that the plea of alibi postulates physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. Therefore, it has to be shown that at the relevant time, the accused could not have been present at the place of occurrence.
22. According to the accused-appellant Subash, there was a feast in the village at the relevant time, which the accused persons attended. Therefore, they could not have caused the death of the deceased. He has stated on oath that the feast was in front of the house of Natha Majhi around 9.00 to 9.30 P.M. and after that he returned home alone. On the way, someone dealt a blow on his head and he sustained injury. He has further stated that subsequently police came to his house at midnight and arrested him. But this accused (D.W.1) has stated that accused Laba and Biranchi were not there at the feast and that the place of occurrence is at 5 to 7 minutes walking distance from the place of the feast.
23. The feast was, as stated by D.W.1 around 9.00 to 9.30 P.M. and the occurrence took place at about 8.00 to 8.30 P.M. Therefore, the plea of the accused-appellant that he could not have been present at the place of occurrence is completely ruled out as the feast look place after the occurrence. In other words, it has not been shown that it was not physically possible for the accused-appellant to be present at the scene of the offence by reason of his presence at another place.
24. From what has been stated above, we have no hesitation in holding that the accused-appellant Subash gave two blows on the head of the deceased who succumbed to the injuries. The only question is whether it is a fit case for conviction under Section 302, IPC.
25. There is always a tendency with the witnesses more particularly, prosecution witnesses, to suppress the actual occurrence. The prosecution party consisted of four persons, namely, the three eye-witnesses and the deceased, and, as alleged, they were attacked when they were returning from the village tank by the appellant and his party, which also consisted of four persons. Therefore, the possibility of altercation giving rise to provocation cannot be ruled out. Otherwise, there would not have been sudden fight, as has come but from the evidence oh record.
26. In Surindar Kumar v. Union Territory, Chandigarh AIR 1989 SC 1094, the Apex Court held that to attract Exception 4 to Section 300 IPC. four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion: and (iv) the appellant had not taken any undue advantage or acted in a cruel manner. It is immaterial as to which party offered provocation or started the assault. The number of wounds caused during the occurrence is also not a decisive factor.
27. We have already held that there was provocation and sudden fight. As the case under Section 34, IPC was not proved, according to the learned trial Court, premeditation is ruled out. There is also nothing to show that the accused-appellant took undue advantage. We, therefore, hold that it is a fit case for altering the conviction under Section 302, IPC to Section 304, Part-I, IPC, and we do so. Regarding sentence, we are of the opinion that rigorous imprisonment for a period of eight years would meet the ends of justice. The accused-appellant shall get the benefit of set off of the period of imprisonment already undergone.
28. In the result, the appeal is allowed in part to the extent indicated above.
A. Pasayat, J.
29. I agree.