GAPA BAGARTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant having been tried under section 302, I.P.C. but convicted under section 304. Part I, I.P.C. and sentenced to eight years R.I. has preferred this appeal from jail. THE deceased is the appellant's adoptive fathers brother. THE prosecution case was that the deceased was unhappy with the adoption of the appellant and was persistently asking his brother to drive him out from his house. On the day of occurrence while the deceased was coming out from the school side of the village, the appellant was found coming out from the house of his adoptive father and as soon as both met each other, the deceased abused the appellant with insulting remarks hearing which the appellant picked up a stone (M.O.I) and threw it at the deceased which hit him on the left side of the head making him fall down. THE occurrence was witnessed by P.W. 5, the wife of the deceased. THE deceased sustained bleeding injury and died. P.W. 5 called out her son P. W. 2 who came and administered some water to the deceased but he could not swallow it. THEreafter, P.W. 2, the Ward Member (P.W. 4) and the village Chhatia (P.W. 7) went to the police station and lodged the F.I.R. Investigation having been taken up and charge-sheet submitted, the trial took place.

(2.) THE learned counsel for the appellant has urged the prosecution case is liable to be thrown out as the real F.I.R. in the case was suppressed and some other F.I.R. has been put in. For the purpose reliance was placed on the evidence of P.W. 7 who stated that when he, P.W. 4 and P.W. 2 were at the police station, he gave a report to the police which he had dictated to one Satya Patra. P.W. 2s statement was that after hearing about the matter from her mother and attending to his father, when he discovered that he was dead, he went to the Ward Member (P.W. 4) and narrated before him the incident which he reduced to writing. All the three, P.W. 1, P.W. 4 and P.W. 7 went to the police station of Tikabali where he lodged the report written by P.W. 4. THE report marked as Ext. 3, was registered as the F.I.R. He is completely corroborated by P.W. 4 saying that he had written the report at, Tikabali and that had been registered as the F.I.R. though in his evidence the F.I.R. has been wrongly mentioned as Ext. 4. So far as the report referred to by P.W. 7 in his evidence is concerned, it is nowhere shown that that was a report written and lodged earlier than the F.I.R. It may be some other report as has been rightly concluded by the learned Sessions Judge. THE learned counsel for the appellant points out from the evidence of P.W. 5 that at the village when the Investigating Officer came, P.W. 4 had written out a report and handed it over to him. According to him, that was the report handed over by P. W. 4to the police and not the F.I.R. Such submission is not acceptable as it is the positive evidence of P. Ws. 2 and 4 that the F.I.R. lodged by P.W. 2 was a report written out by P.W. 4. THE report submitted to the Investigating Officer, as was stated to by P.W. 5, maybe some other report. This contention of the learned counsel must hence be rejected. Reading the evidence of the direct eyewitness P.W. 5 with the evidence of P.Ws. 2, 4and 7 and the other witnesses, there seem to be little doubt that in fact the appellant in a fit of anger picked up the stone and threw it at the deceased which hit him at the left side of the head resulting in his death. Though such is the fact yet it is hardly possible to hold that an offence under section 304, Part-I, I.P.C. was committed. That provisions deals with offences which are otherwise murder as defined in section 300 but yet is covered by any of the exceptions to the section. THE primary retirement of an offence to fall under section 300 is that there must have been an intention to kill but when such intention is prompted by any of the exceptions, in this casa Exception-I, the offence would be, under section 304, Part-I. But in the present case there is absolutely no evidence that the appellant ever had any intention of killing the deceased. He had merely picked up a stone and threw it at the deceased because of the insulting abuses made at him. It was a sudden and impulsive act without any premeditation or intention to kill. THE offence committed hence was one where the appellant would be presumed to have the knowledge that the act was likely to cause death though there was no intention to cause death. In such circumstances, the offence was under section 304, Part-II, I.P.C. and not under section 304, Part-I. His conviction as under section 304, Part I, I.P.C. is liable to be set aside and instead he is liable to be convicted under section 304, Part II, I.P.C. It is seen that the appellant was taken into custody on the next day of the occurrence, i.e. 11.1.1990. More than three and half years have passed after the occurrence. For such reason the appellants conviction under section 304, Part-I is set aside and instead he is convicted under section 304, Part-II, I.P.C. and the sentence is reduced to the period already undergone by him. He be set at liberty forthwith. THE appeal is allowed in part. Appeal allowed in part.