MADHABA POLLAI Vs. STATE OF ORISSA

JUDGEMENT

(1.) APPELLANT faced trial for the offence under Section 302, I.P.C. Learned Second Addl. Sessions Judge, Berhampur found him guilty and imposed punishment of imprisonment for life as per the impugned Judgment delivered on 16.8.1997, in Sessions Case No. 3 of 1996 (Sessions Case No.14 of 1996 GDC).

(2.) PROSECUTION case is that Brundaban Pollai (hereinafter mention as deceased) was running a tea stall in his village Allapur under Hinjli P.S. in the district of Ganjam. On 10.4.1995, in the morning hours, accused/appellant came and asked for tea but deceased denied to supply the same on credit. There was quarrel between the two on account of that. P.W.4, a nephew of the deceased intervened and separated them. In the afternoon, after taking his food, when the deceased came to his tea stall he found the accused giving kick blows to the Cabin of the tea stall. He raised protest and that resulted in tussle between the two. In the process of that fight, as alleged by the prosecution, accused being in possession of a knife, dealt blows by the same to the chest of the deceased, causing severe bleeding injuries and that resulted in homicidal death of the deceased. P.W.4, was present at the scene of occurrence during such fight, and he failed to separate both of them or stop the accused causing the injuries. As an eyewitness to the occurrence he saw the accused dealing the knife blow to the chest of the deceased. The other eyewitness is P.W.5. Out of the rest witnesses examined by the prosecution, P.W.8 is the doctor who conducted autopsy and proved the post mortem report Exhibit -5 and P.W. No.10 is the doctor, who granted injury certificate in favour of the accused. M.O.1 is the knife, which was recovered at the instance of the accused under Section 27 of the Evidence Act. In the trial Court accused took the plea that in the process of quarrel, the deceased, who was in possession of the knife, got stabbed on his chest. In other words according to the accused he did not give any knife blow and the injury sustained by the deceased was out of mutual fight. No evidence has been given in support of that plea except giving such suggestion to the witnesses.

(3.) MR . Nanda, learned counsel for the accused appellant argues that plea of self -defence of the accused is readable from the narration of events by PWs.4 and 5, if their evidence read together with the statement of the accused recorded under Section 313 Cr.P.C. He therefore, urges to give the accused benefits of Self defence. Alternatively, he argues that accused had no intention to do away with the deceased and therefore the fatal blow on the chest of the deceased may at best amount to culpable homicide not amounting to murder and accordingly conviction of the accused be converted to one under Section 304 I.P.C. Learned Addl.Government Advocate, on the other hand, supports the impugned judgment of the trial Court and argues that the accused appellant has neither made out a case of self -defence nor a case of culpable homicide not amounting to murder and therefore, the appeal is liable to be dismissed.