UDAYAKAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant has been convicted under Section 302 IPC for causing murder of one Balaram Sahu and has been sentenced to imprisonment for life by the learned Sessions Judge, Bhadrak in Sessions Trial No. 31/13 of 1992. The said conviction and sentence was upheld by the High Court of Orissa. Along with him, his father Sanatan Sahu and his uncle Sukadeb Sahu stood charged under Sections 323/34 for causing hurt to one Suma Bewa but the learned Sessions Judge acquitted them of the said charge and that order of acquittal has not been assailed. The prosecution case in a nutshell is that the deceased is the brother of Ratnakar Sahu, PW 1. Prior to the date of occurrence, there was some litigation between the deceased and the present appellant. On 11-7-1991 at about 8. 00 a. m. the deceased, his brother PW 1 and their mother were fencing the bari of their land. It is at that point of time the appellant and the other accused persons came to the spot being armed with different weapons and a quarrel ensued and in the course of the quarrel the appellant stabbed on the right side of the belly of Balaram Sahu, who fell down and ultimately succumbed to the injury in the hospital. The defence of the accused in Section 313 statement is that when the deceased came with kata in his hand, the appellant caught hold of the same and then there was a tussle. In the course of the tussle the spear held by the appellant accidentally slipped from his hand and pierced the belly of the deceased. Though the prosecution examined several witnesses but none of the witnesses supported the prosecution case during trial. Therefore, they were cross-examined by the public Prosecutor. From the evidence of the doctor, PW 4 who conducted the autopsy over the dead body it is crystal clear that the death was homicidal in nature and the doctor had opined that the stab injury in question would cause death in the ordinary course of nature. But to come to the conclusion that it is the accused-appellant who gave the stab-blow, the prosecution relies upon the dying declaration made by the deceased which was recorded by the doctor, pw 4 and which is exhibited in the case as Ext. 2. The deceased in his dying declaration categorically stated that Udayakar Sahu (the present appellant) stabbed his belly with a bhala. This statement of the deceased made in his declaration gets full corroboration from the medical evidence of the doctor, who conducted the autopsy over the dead body. The said declaration has been rightly held to be true and voluntary. Before the High Court a contention was raised as to whether the deceased was in a fit condition while making the statement and the High Court has positively recorded the finding that in view of the statement of the doctor, it must be held that the deceased was in a fit mental condition to make the statement in question. We see no infirmity with the said conclusion of the High Court. Mr Panda appearing for the appellant, though initially raised a contention with regard to the acceptability of the dying declaration in question but was not in a position to sustain the same. He, however, raised a contention that the dying declaration itself indicates that the appellant gave the blow after a quarrel ensued between the deceased and the accused in relation to fencing of land and the accused-appellant had never given the blow with any premeditation and therefore Explanation IV to section 300 should apply to the facts and circumstances of the case and in such event, the offence cannot be said to be one under Section 302, but under part I or Part II under Section 304. The learned counsel for the respondent, on the other hand, vehemently contended that the very fact that the accused went to the spot with a bhala in his hand clearly indicates his intention and the said intention was to cause murder of the deceased and as such the conviction of the appellant under Section 302 IPC is maintainable. In view of the rival contention, we have carefully scrutinised the dying declaration made by the deceased which forms the sole basis of conviction. Undoubtedly, in the dying declaration the deceased has said that while he, his brother and his mother were fencing the bari of the land the accused persons arrived and a quarrel ensued and soon thereafter Udayakar Sahu (the present appellant) stabbed his belly with a bhala. The accused in his Section 313 statement had taken a plea that while the deceased came with a kata in his hand the accused caught hold of a spear which was lying nearby and in the course of the tussle the spear held by the accused accidentally slipped from his hand and pierced the belly of the deceased. The later part of the defence does not appear to be correct nor gets any corroboration from any materials on record. But the first part of the defence story that there was a tussle between them is fully corroborated by the dying declaration itself. Thus, in the absence of any other material it can be safely said that after the accused reached the scene of occurrence a quarrel ensued and shortly after the quarrel ensued the accused picked up a bhala and gave the blow on the deceased. The prosecution evidence does not indicate and is totally silent as to whether the accused has gone to the place of occurrence with a bhala in his hand. In the aforesaid circumstances, we are persuaded to agree with the submission of Mr Panda that Explanation IV to Section 300 would be applicable and as such the conviction of the accused under Section 302 cannot be sustained. We, therefore, set aside the conviction of the appellant under Section 302 and instead convict him under Section 304 Part I and sentence him to 10 years' rigorous imprisonment.

(2.) The appeal is disposed of accordingly.