Full Judgment
B. Ranigrahi, J.
1. This is an appeal against the judgment of conviction and sentence passed by the learned Sessions Judge, Phulbani in S.T. Case No. 25 of 1995 under Sections 302/323/436 of the Indian Penal Code directing the appellant to undergo imprisonment forlife and also to pay a fine of Rs. 8,000/- in default to further rigorous imprisonment for 9 months under Section 302, IPC, but there was no separate sentence imposed for the offence under Sections 323 and 436 of the Indian Penal Code.
2. The appellant was prosecuted for commission of the offence under Sections 302/307/436, I.P.C. for having caused murder of one Sitaram Patnaik by means of a knife on 30.8.1994 around 10.30. P.M. in village Boida and also for having attempted to cause murder of Smt. Prabhasini Patnaik and Harekrushna Patnaik, It is further stated that the appellant had set fire to the dwelling house of deceased Sitaram Patnaik in the same night at about 1.00 A.M. The appellant and the deceased belonged to the same village. The deceased after retirement from his service as 'Bee Master' settled down in the village Boida and there he started a grocery shop. The house of the appellant was situated at a distance of 70 to 80 meters from the house of the deceased. The appellant was running a grocery shop in the same village. Due to business rivalry, there was bitter relationship between them. On 30.8.1994 at about 10.30 P.M. there was an outcry raised by the members of the appellant's family. The elder brother of the appellant and his sister-in-law abused deceased Sitaram Patnaik. Deceased Sitaram Patnaik had also retorted to the words of the appellant's brother, Thus there was a hot exchange of words between the deceased on one hand and the brother of the appellant on the other. After a while the deceased Sitaram Patnaik went to a nearby field to answer call of nature. The deceased shouted raising an alarm that the appellant inflicted a stab injury on his person. His wife and two sons on hearing such shrieks raised by the deceased rushed towards him. The wife and the sons of the deceased found the deceased with stabbing injuries on his person and they brought him to their house, After a while out of his inquisitiveness deceased Sitaram Patnaik went out of the house in search of the appellant and the appellant Pramod Kumar Sahu who was hiding himself near the fence of the house of the deceased all on a sudden came out and inflicted penetrating stab wound on the chest of deceased Sitaram Patnaik as a reason whereof he fell down on the ground. The other inmates namely the wife and the sons of the deceased while came to the rescue of deceased Sitaram Patnaik from the clutches of the appellant, he further assaulted P.W. 1, the wife of the deceased with an intention to do away with her life and assaulted P.W. 3, the son of the deceased, While all the inmates including the deceased were in their house the appellant was said to have set fire to their dwelling house. The matter was reported at the Sadar P.S., Phulbani on 31.8,1994 at 4.00 P.M. on the basis ofwhich the O.I.C., Sadar Police Station, Phulbani proceeded for investigation. In course of investigation, he seized blood-stained earth and sample earth, half burnt household materials, sent P.W. 1, Smt. Prabhasini Patnaikand P.W. 3, Harekrushna Patnaik for medical examination for the injuries on their persons, held inquest over the deadbody of Sitaram Patnaik and despatched the same to Headquarters Hospital Phulbani for post-mortem examination and arrested the appellant. While the appellant was in custody made a discovery statement under Section 27 of the Evidence Act on the basis of which blood-stained knife was seized. The Investigating Officer despatched the incriminating materials including the knife for chemical examination and serological test. After closure of investigation, he placed charge-sheet against the appellant.
3. The prosecution had in all examined 11 witnesses out of which P.Ws. 1 to 3 are the wife and sons respectively of the deceased and P. Ws. 1 and 3 also were injured, during the course of incident. P.W. 4 was a seizure witness. P.W. 5 was the Medical Officer who examined P.W. 1 P.W. 6 was a witness to the seizure of knife (M.O. II) P.W. 7 has proved seizure of the clothes of the appellant. P.W. 8 was the Medical Officer who examined P.W. 3 for his injuries. P.W. 10, was the Medical Officer who conducted the post-mortem examination over the deadbody of the deceased. P.W. 9 was the Officer-in-Charge.
4. The plea of the defence was one of denial of occurrence and claimed to have been falsely implicated on account of previous enmity.
There has been no dispute that the deceased met a homicidal death on account of injuries sustained by him. From the evidence of P.W. 10, who conducted post-mortem examination it has further transpired that the deceased Sitaram Patnaik sustained the following injuries :
(i) Incised wound 21/2' x 1/2' x muscle deep over front of right fore-arm, horizontally 1' above the wrist joint.
(ii) Incised wound of size 1' x 1/4th' below injury No. 1.
(iii) Perforated wound 21/2' x 1' over upper part of abdomen obliquely 1' left to medicum plane and 2' below the costal margin. Part of stomach protruding out of the perforation, blood strickling (clotted) horizontally downwards from the wound on left side. The incised wound involves all layers of muscles of abdomen and peritoneum just opposite to the perforated wound. Greater Omentum was cut just opposite the wound. Peritoneal cavity is full of clotted blood.
(iv). Haematoma occupying anterior surface of wholeof left kidney. Left kidney vessels are cut.
According to the opinion of P.W. 10, all those injuries sustainedby the deceased Sitaram Patnaik were ante-mortem in nature andthe death was due to haemorrhage and shock caused on accountof injury Nos. 3 and 4, which might have been caused by a knifelike (M.O. II). Therefore, on account of such unimpeachable andclinching evidence, there could be no manner of doubt that thedeceased met a homicidal death.
5. In this case while bringing home the charge against theaccused, the evidence of P.Ws. 1 and 3 significant who were themembers of the deceased's family and were also injured. Fromtheir eye witness account it has been brought out in evidencethat the appellant's house was about 70 to 80 meters away fromthe house of the deceased.
6. From the evidence of P.W. 2 it has further Come out that before the injuries inflicted on the deceaseds the appellant made his forceful entry by pushing the fence as a result of which the bamboo fence fell down and thereafter, the accused Prarnod Kumar Sahu poured Kerosene on the thatch of the house. It is true that P.W, 2 had claimed to have seen the appellant to have set fire to the house of Sitaram Patnaik after pouring Kerosene. But he specifically did not state the same in course of investigation, He made such disclosure for the first time only in course of hearing. Therefore, it is nothing, but a subsequent development just to implicate the appellant for making him responsible in setting fire to the house of the deceased Sitaram Patnaik. That apart, P.Ws. 1 and 3 have also significantly not stated that they had seen the appellant setting fire to their house, after pouring Kerosene. The fact remains that the solitary evidence of P.W. 2 was only disclosed in court, but, not before the Investigating Officer. Hence the prosecution could not bring home the charge against the appellant beyond all reasonable doubt that he had set fire to the house of the deceased. Accordingly, the charge against the appellant for setting fire to the dwelling house of the deceased cannot be sustainable.
7. Now turning 15 the evidence of P.W. 1, the wife of the deceased who was also one of the injured, it has been brought out that there was a hot exchange of words between the elder brother of the appellant and her husband. After such incident was over, the deceased came inside the house and took a torch light and proceeded towards the nearby field to answer call of nature. After a little while, all the inmates namely P.Ws.1 to 3 heard a cry raised by the deceased that the appellant stabbed him. All of them rushed towards that side and found Sitaram Patnaiklying injured. Therefore, they brought him to the house. After a moment the deceased Sitaram Patnaik came out of his house just to find out if the appellant was concealing himself near his house. At that juncture, the appellant who was hiding himself in a nearby fence came out and gave a stab on the back side of Sitaram Patnaik as a result of which he fell down with bleeding injuries. While P.W. 1 went to rescue her husband, she was also assaulted by the appellant. The appellant also gave a stabbing blow on the right arm and chest of P.W. 1 Although P.W. 1 the wife of the deceased was put to incisive and severe cross-examination but nothing could come out to disbelieve her evidence.
8. Now turning tot he evidence of P.W. 2, it is gathered that on 30.8.1994 at 10.00 P.M. he heard the alarm raised by his father. So P.W. 1 along with his brother went to the nearby field and found Sitaram Patnaik lying with bleeding injury on his right wrist. Therefore, they brought him to their house. After a little while Sitaram Patnaik in order to find out whether the appellant was concealing himself in the nearby place came out of his house, at that juncture, the appellant who was hiding nearby abruptly came out and dealt a stabbing blow on the chest of his father, as a result of which he fell down on the ground. P.W. 1 and his brother went to the rescue of deceased Sitaram and while bringing him inside the house, the appellant again dealt a knife blow on the back of the deceased and also dealt knife blow on the chest and right palm of P.W. 1. But since the deceased had received severe stab injuries he could not survive and instantaneously succumbed to the same.
9. Now turning to the evidence of P.W. 3, who was another injured in course of same transaction, it appears that he supported the version of P.Ws. 1 and 2 as regards the injuries sustained by deceased Sitaram Patnaik and P.W. 1. While he went to rescue his father, he too was stabbed by the appellant. After a while 30 to 40 villagers came and extinguished fire to their house.
10. Therefore, an a combined reading of the evidence of P.Ws. 1, 2 and 3 along with the medical evidence produced by P.Ws. 5, 8 and 10 there is no room for doubt that P.Ws. 1 and 3 received injuries during the same transaction and Sitaram Patnaik received fatal injury as a result of which he died.
11. Now turning to the evidence of P.W.6, who was a witness to the seizure of a knife. (M.O. II) it is found that the appellant while in custody led the O.I.C. Sadar Police Station, Phulbani and gave discovery of the knife (M.O. II) lying underneath a bridge from the side of a tree on the basis of which a seizure list vide Ext. 8 was prepared in which P.W. 6 was a signatory, besides P.W. 9, the Investigating Officer who also corroborated the statement of P.W.6 and also stated that the knife (M.O. II) which was seized at the instance of the appellant was stained with blood and as per the serological report it contained human blood of 'B' origin which tallied with the blood group of the deceased.
12. Mr. Patnaik, learned counsel appearing for the appellant submitted that all the prosecution witnesses have not been examined, but only the family members of the deceased Sitaram Patnaik were choosen to be examined in this case. We found, there is no substance in the aforesaid contention inasmuch as the prosecution is not obliged to examine each and every witness. Suffice it to say, since the family members of the deceased were competent witnesses and two of them were injured, therefore, their evidence was natural, trust-worthy and confidence inspiring.
13. Therefore, from the totality of the facts and circumstance of this case and also on evaluation of the evidence produced before the court below, it can safely be concluded that the appellant was responsible for causing the death of Sitaram Patnaik and injuries on P. Ws. 1 and 3, Prabhasini Patnaik and Harekrishna Patnaik respectively.
14. Mr. Patnaik, learned counsel further has made an attempt to bring the case under Section 304, Part-I, I.P.C. by submitting that in this case, the appellant had no intention to commit the murder of Sitaram Patnaik and at the spur of the moment and in a fit of anger, he gave knife blows as a result of which Sitaram Patnaik died. Thus even assuming that the prosecution has proved its case, the appellant should not be convicted under Section 302, I.P.C., instead he should be convicted under Section 304, Part-l, I.P.C. From the resume of the evidence on record, we found that there was no provocation because there was a quarrel not with the appellant but with his brother some time back prior to the incident. Merely because the appellant gave one murderous blow on the chest of the deceased, it cannot be said that he should be convicted under Section 304, Part-l of the Indian Penal Code.
15. Thus we do not find any illegality or factual infirmity so as to interfere with the findings of the learned Sessions Judge. However, since the prosecution has not proved the incident of house fire against the appellant, he is acquitted of the charge under Section 436, I.P.C. On an analysis of the evidence, we hereby confirm the conviction and sentence passed against the appellant under Sections 302/323, I.P.C.
In the result, the appeal is partly allowed in the light of the discussion made above.
P.K. Misra, J.
I agree.