SUKURAM KHADIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant stands convicted under section 302 of the Indian Penal Code (for short, the Code) and sentenced to undergo imprisonment for life for having committed the murder of his brother Uttam Khadia (hereinafter to be referred to as the deceased) by shooting an arrow (M 0. I) on his chest on May 31, 1981, at village Loharen Bereni in the district of Sundagarh, after a sudden quarrel over the repayment of a loan of Rs 20/- said to have been incurred by the deceased, when both the appellant and the deceased were in a drunken state. The order of conviction has been based on the evidence of the son of the deceased, namely, Birju Khadia (P.W. 3.), who had figured as a witness to the occurrence besides his mother Parbati Khadia (P.W. 2) whose evidence has been discarded by the trial court for the reasons recorded in the judgment. The judicial confession made by the appellant has not been relied on as according to the learned trial Judge, section 164(3) of the Code of Criminal Procedure had not been complied with. The extra-judicial confession said to have been made by the appellant admitting to have killed the deceased has not been relied on having been made before a Grama Rakshi (P.W. 1), who is a police officer. The learned Sessions Judge has repeatedly made a reference in the judgment that P.W. 6 had identified MO. I sticking to the chest of the deceased which had been extracted by the doctor conducting autopsy as belonging to the appellant. On a perusal of the evidence of P.W. 6, we notice that it is an error of record as P.W. 6 had not identified MO. I as the arrow belonging to the appellant. Reliance has been placed on the conduct of the appellant in asking the co-villagers to take him to the police station and on his production of a bow and an arrow. There is, in addition, the medical evidence which conclusively establishes that the death of the deceased was homicidal in nature and could be caused by shooting of an arrow. The arrow (MO. I) sent for chemical and serological examination contained human blood.

(2.) Mr. Mohanty, appearing for the appellant, has contended that the evidence of P.W. 3 is not worthy of credence and if his evidence is discarded, there is no other evidence pointing to the guilt of the appellant. But, as rightly submitted by Mr. Indrajit Ray, the learned Additional Government Advocate, the evidence of P.W. 3 reads well and has been corroborated by sufficient other evidence. No doubt, P.W. 3 has been characterised by the trial court as a child witness who was aged about 14 years at the time of his deposition and thus was aged about 13 years at the time the occurrence took place and as is well-known, the evidence of a child witness is dangerous unless the statement is available immediately after the occurrence and before any possibility of coaching. In the instant case, however, it has clearly been testified by P.W. 3 that after a sudden quarrel, the appellant shot an arrow at his father which resulted in his death. This witness had immediately gone and informed P.W. 5 about what he had seen naming the appellant as the assailant of the deceased. As his evidence would show, there had been no delay in the examination of this principal witness in the course of investigation and he had been examined on the day of occurrence itself. Thus his statement with regard to the occurrence naming the appellant as the assailant was immediately available. The medical evidence and the recovery of MO. I which contained human blood would certainly corroborate his evidence. We are at one with the learned trial Judge that the evidence of P.W. 3 is worthy of credence.

(3.) The next question is as to whether the appellant would be guilty of the charge of murder or would be guilty of commission of the offence of culpable homicide not amounting to murder coming within the first part or second part of section 304 of the Code. As already indicated the appellant and the deceased were both in a state of drunkenness. The appellant had no motive to kill his brother. There had been a sudden quarrel between them over the repayment of a loan of Rs. 20/- demanded by the appellant. As the evidence of P.W. 2 would show, the appellant was in a heavily drunken state then and he had been unable to take care of himself. On the spur of the moment and without any plan and premeditation, the appellant went inside his house, brought out a bow and arrows and shot an arrow at his brother. It would not be legal, reasonable and proper to hold, in the circumstances of the case, that the appellant had the intention of causing the death of his brother and that with that intention, had caused the external injury with the consequent internal injuries sufficient in the ordinary course of nature to cause death. It cannot also be said that he had the intention of causing that particular injury on the chest of the deceased which proved fatal. It would not be proper to assume either that the appellant had the intention of causing an injury likely to cause the death of the deceased. The legal and reasonable conclusion would be that the appellant had the knowledge that by his act, he was likely to cause death of his brother. We are, therefore, of the view that the act of the appellant would come within the purview of the second part of section 304 of the Code. The learned Additional Government Advocate has very fairly submitted that this would be the appropriate offence for which the appellant should be convicted.