Judgment:
A. Pasayat, J.
1. Kaira Munda, who is presently interned in Sundargarh Jail, has filed this appeal questioning legality of the judgment of conviction and sentence passed by the learned Sessions Judge, Sundargarh.
2. The background facts as depicted by the prosecution are to the following effect:
On 19-6-1986 in the afternoon one Pandu Munda (hereinafter referred to as 'deceased') and his wife Sankari Mundani (P.W. 2) took shelter in the verandah of Chakra Munda (P.W. 11) as it was raining. At the relevant point of time Chakra's wife Bangia alias Lalmani (P.W. 10) was also present. The accused and his wife had already been there. Accused called the deceased and his wife to come inside the house. Since it was raining, P.W. 2 went out for arranging an umbralla and P.W. 11 went out to bring rice at the request of his wife (P.W. 10). Suddenly the accused dealt blows on the deceased with a Bujia (M.O. I) causing bleeding injuries on various parts of his body including his head. The accused immediately fled away and immediately his wife also ran away. On hearing the cry for help by P.W. 10, P.W. 11 appeared and in the meantime P.W. 2 also returned. Information was lodged with the Officer-in-charge of K. Balang Polic Station, investigation was undertaken and after completion of investigation charge-sheet was submitted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
3. To further its case the prosecution examined twelve witnesses. P.W. 10 is the eye-witness while P.W. 11 is the post-occurrence witness, who immediately arrived on hearing the cry for help by his wife P.W. 10. One other witness was held vital to the prosecution case, that is P.W. 8. The evidence of this witness was to the effect that about a month prior to the incident the accused stated before him that the deceased was having amorous relationship with his wife and he had office tried to kill him, when he found him in a compromising position with his wife. Though he had shot an arrow, luckily the deceased survived. Thereafter the deceased and the accused's wife had gone out for about two weeks. The witness stated that after the occurrence the accused came and made a statement before him that he had killed the deceased because of his indecent acts. This was considered to be an extra-judicial confession. The learned Sessions Judge, on consideration of the evidence of P.Ws. 10 and 8, came to hold that the prosecution was able to establish its case beyond a shadow of doubt. It was also noted by him that the author of the first information report (P.W. 1) had described in detail the incident as was reported to him by the daughter of the deceased.
4. The learned counsel for the accused has urged that the evidence is so shaky that no credence can be put on it and the circumstances can also lead to an inference that P.Ws. 10 and 11 admittedly in whose house the occurrence took place were the authors of the crime. It is also submitted that the evidence of P.W. 8 cannot be accepted because no reason has been shown as to why the accused was making a confession before this witness. Alternatively it is submitted that there was no intention to cause death of the deceased, particularly when the deceased and the accused had a chance meeting. The accused was not carrying any weapon and the prosecution case is that the weapon which was in the house of P.Ws. 10 and 11 was utilised for the purpose of murderous attack. It is also submitted with some amount of vehemance by the learned counsel for the accused that the scenario as depicted by the prosecution relating to the amorous relationship of the deceased with the accused's wife was sufficient in the ordinary course of life to provoke a person and even if the accused had given the murderous attack on the deceased, yet that can be looked into as provocation, and therefore Exception I to Section 300 was applicable.
5. Mr. J. Mohanty, learned counsel for State, however, submitted that the evidence of P.W. 10 is very clear and cogent. A lady in her seventies who has no axe to grind against the accused would not falsely implicate the latter, and the alternative possibility as suggested by the learned counsel for the accused has no basis. It is also submitted that P.W. 8's evidence is categorical about the accused's role in the Incident and suffers from no infirmity and therefore, the same can be the basis of conviction. So far as the provocation aspect is concerne, it is urged that no question of grave and sudden provocation arises in this case and therefore, the plea in that regard is not sustainable.
6. Coming to the evidence of P.W. 10, we find the same to be truthful and suffers from no exaggeration. It unerringly proves complicity of the accused in the crime. Much has been attempted to be made out of her statement in cross-examination that she did not tell any other persons as to how the deceased had been injured. She also did not tell her husband about it. Her husband immediately arrived, according to her version, and also of P.W. 11. At that moment, since a person was lying in a serious injured condition, it was but natural to make attempt to save the injured. Therefore, there is nothing unnatural in P.W. 10 not telling P.W. 11 who had almost immediately arrived and as to how the deceased had been injured. We find no infirmity in the conclusion of the learned Sessions Judge as evidence of this witness is credible.
7. Coming to the extra-judicial confession, it is trite law that the prosecution has to show as to what compelling reasons existed for an accused to make a confession before another. If a person is closely related or a close friend, the accused may speak out the truth or make a confession. But when it is alleged to have been made to a complete stranger, a doubt is cast as to why such a confession was made in the instant case there is no denial that the accused and P.W. 8 were known to each other and he has also stated about an earlier statement made about illicit relationship and the attempt on the life of the deceased. He has categorically stated that while he was in his hotel the accused came at about 8 p.m. and told him that he had killed Pandu Munda. We find no reason as to why the evidence of this witness is to be discarded.
8. Coming to the question of intention to cause death, we find from the injury report and the statement of the doctor (P.W. 5) that there were in all five injuries. The injuries on the head were injury Nos. 3 and 4. The skull bone was broken into pieces on left parietal and occipital region. Left brain tissue was lacerated on left parietal and occipital region. The attacks were on vital parts of the body and therefore, we have no hesitation in holding that the accused committed the act with the only intention of causing death of the deceased.
9. Coming to the plea that the act was on account of grave and sudden provocation, it has to be borne in mind that Exception I to Section 300 mitigates the offence of murder. There can be no doubt that in great mass of men's mind, anger is a passion to which good and bad men are both subject and mere human frailty and infirmity ought not to be punished equally with other evil feelings. Homicide committed in the sudden heat of passion on great provocation ought to be punished but in general it has not to be punished so severely as murder. It ought to be punished in order to teach men to entertain respect for human life. The circumstances for mitigation is to condone the act which is done under great mental stress and strain. Therefore, the mitigating circumstance is grave and sudden provocation. A mere provocation would not be sufficient. The provocation must be shown to be grave and sudden and should be of such a nature as to deprive the accused of the power of self-control. Where there is time for reflection the Exception is not applicable. In the instant case there being no material to show that there was provocation of such severity that it took away the power of self-control from the accused, we are not inclined to accept the plea that the act was on account of grave and sudden provocation so as to attract Exception I to Section 300.
10. The inevitable result from our conclusions is dismissal of the appeal, which we direct.
D.M. Patnaik, J.
11. I agree.