1. This Jail Criminal Appeal is directed against the judgment dated 5th August, 1999 passed by learned Addl. District & Sessions Judge, Berhampur in Sessions Case No. 1 /98/SC No. 322/97 (GDC) convicting the appellants for commission of offence under Sections 302/307/34, IPC.
2. As per the prosecution case, on 2-8-1997 accused-appellants cut the ridge of the agricultural land of the informant, for which there was altercations between the informant group and the accused persons. Due to intervention of village 'Bhadralokas' accused persons left the place and went to their houses. Sometimes thereafter the informant Jogi Naik came out of his house by hearing shout in front of Hadu Naik's house and saw that Kesab was armed with a 'Farsa', Khadala armed with a sword and Hadu armed with a lathi. Bhikari (deceased) and Ishwar were lying down with profuse bleeding on the floor. Ulla Naik was trying to separate the accused persons. Bhikari sustained severe injury on his head. Ishwar also sustained injury on his head, back and left hand. Bilasini Naik and others were present at the spot. Bilasini Naik stated that both Khadala and Kesaba assaulted her, Bhikari and Ishwar. Thereafter the accused persons left the spot with the weapons of offence. With the help of other persons, informant took the injured persons to Jagannath Prasad Hospital. By then Bhikari Naik was dead and Ishwar Naik was struggling for life. Then the informant lodged a written report on 3-8-1997 at Jagannath Prasad Out-Post, and on his report Police registered a case, investigated into the matter, seized the incriminating materials and submitted charge-sheet against the accused persons under Sections 302/307/326/324/323 read with Section 34, IPC.
3. The plea of the accused persons was one of complete denial.
4. Prosecution, in order to establish its case, examined as many as 14 witnesses. P.W. 9 Ishwar Naik is the injured, P.W. 7 is the wife of Ishwar Naik, P.W. 8 is the cousin brother of deceased Bhikari Naik, P. W. 10 Jogi Naik is the informant, P.Ws. 4, 5 & 6 are independent eye-witnesses to the occurrence. P.W. 12 is the Doctor who conducted post-mortem examination of the deceased and P.W. 13 is the Doctor who examined the injured persons. P.Ws. 1, 2 and 3 are Grama Rakhis and seizure witnesses and P.Ws. 11 and 14 are the Investigating Officers.
5. On consideration of the evidence of P.W. 12, trial Court recorded the finding that deceased suffered homicidal death. On assessment of evidence of P.W. 13, trial Court recorded the finding that attack on the injured was with a view to attempt their murder besides causing simple hurt to Bilasini Naik (P.W. 7). On assessment of evidence of P.Ws. 4 to 10, trial Court recorded the finding that accused Keshab and Khadal (appellants) are guilty of the offence under Sections 302/307/34, IPC. Accordingly he convicted them to undergo imprisonment for life for each of the offences with a direction to run the sentences concurrently. Accused Hadu Naik was found guilty only for the offence under Section 323, IPC and sentenced to undergo R.I. for 10 months and to pay a fine of Rs. 50/-. Obviously he was acquitted of the other charges. There is nothing on record to indicate that Hadu has challenged the order of conviction.
6. Appellants argue that the process by which trial Court eliminated accused Hadu Naik from the charge under Section 302/307/34, IPC, the same process should have been adopted with respect to the case of each of the appellants. Such an argument does not bear any merit in the absence of pointing out that all the material evidence available on record stands at par for such a consideration. Merely because advantage was granted to accused Hadu for want of evidence to implicate him for sharing the common intention and thereby granting the benefit and acquitting him of the charges under Sections 302/307/34, IPC, the same benefit cannot be extended to the appellants when the trial court has recorded that there is positive evidence to prove such offence against them.
7. While not disputing to the evidence of P.W. 12 and the finding recorded by the trial Court that the deceased suffered homicidal death, learned Counsel for the appellants argues that the evidence on record is contradictory to prove the charge against them and the benefit arising therefrom be extended to the appellants. We also do not find any merit in such an argument in as much as the appellants do not point out any glaring or material contradictions in the evidence of P.Ws. 3 to 9 when they narrate about the occurrence implicating the appellants. Under such circumstance, that argument also does not bear any merit.
8. Learned Counsel for the appellants alternatively argues that there was no intention of the appellants to kill the deceased and the facts narrated by the witnesses sufficiently establishes that at the spur of the moment a sudden quarrel resulted in the injuries and death of the deceased and the injuries to other injured persons. He argues that there was no intention found to attempt to commit murder of the deceased or the other injured persons and at best offence punishable under Sections 304 and 324, IPC are made out. In that context he brings to our notice the evidence on record, which needs consideration.
9. According to the evidence of P.W. 12, there are two injuries on the palmer area and two incised wound on the head and upper part of the neck area extending up to the back of the head. According to the opinion of the Doctor, death was due to the aforesaid two injuries on the head and the consequential internal injuries. It is the evidence of the prosecution witnesses that accused Hadu Naik is the father and the two appellants are his sons. Hadu Naik is the cousin of injured Ishwar Naik. Deceased Bhikari Naik is the son of injured Ishwar Naik. It is also the admitted fact that there was land dispute subsisting between the parties. The eye-witnesses have narrated in their evidence (in examination-in-chief) describing the accused persons as the aggressors and assailants, but in the cross-examination each of them have directly or circumstantially admitted to the fact situation that when the accused persons were on the agricultural field, it is the prosecution party, i.e. the deceased and his father and supporters went there and made altercations with the accused persons and thereafter the occurrence of assault took place between the parties. P.Ws. 4, 5 and 6 have also stated that the accused persons also sustained injuries in course of that occurrence. The trial Court did not take note of this fact situation so as to consider as to whether the offence of murder has been established. On the other hand trial Court has recorded the finding for conviction under Section 302, IPC only on the ground that deceased suffered a homicidal death and appellants inflicted the injuries. A detail narration of the chart indicating distinction between murder and culpable homicide not amounting to murder is not essential so as to resolve the dispute and to accept the argument of the appellants in as much as the narration of events indicates that there was no premeditation or previous meeting of minds of the appellants to kill the deceased. It is at the spot and at the spur of the moment that one blow each was given by each of the accused persons in course of sudden fight between the parties relating to the land dispute. Under such circumstance the order of conviction under Section 302, IPC against the appellants is set aside. On the other hand they are found guilty of the offence of culpable homicide covered by Exception No. 4 and accordingly they are found guilty of the offence under Section 304, First Part, IPC. On record we find that appellants are in jail custody from 4th August, 1997, i.e. for a period of nine years and eight months. Therefore, we impose sentence of rigorous imprisonment for nine years and eight months for the aforesaid offence.
10. So far as the offence under Section 307, IPC is concerned, the nature of the injuries on the injured persons are sufficient to indicate that there was an attempt to murder. Even if that amounts to offence punishable under Section 304, First Part, IPC in case the injured would have died. Therefore, we do not interfere with the order of conviction for the offence under Section 307, IPC. Trial Court has awarded life imprisonment for the said offence. That appears to be exorbitantly excessive. We modify the sentence and direct each of the appellants to undergo rigorous imprisonment for five years for the offence under Section 307, IPC. That sentence is to run concurrently with the sentence imposed for the offence under Section 304, First Part of IPC.
11. The Jail Criminal Appeal is accordingly allowed in part.
12. Since the appellants have already been detained inside the jail custody for the maximum period of sentence imposed and awarded, therefore, they be set at liberty forthwith, if their detention in jail custody is not required in connection with any other case.