Khilludu Nilakantha @ Khillo vs State of Orissa

Appellant is one of the four accused persons in Sessions Case No. 37 of 1995 of the Court of Additional Sessions Judge, Jeypore (S.C. No. 238 of 1995 of the Court of Sessions Judge, Koraput-Jeypore) arising out of G.R. Case No. 120 of 1995 of the Court of S.D.J.M., Malkangiri. In the trial Court the three acquitted accused as well as the Appellant were charged u/s 302/34, I.P.C. on the allegation that on 21.04.1995 at about 6.00 p.m. at Kotapalli Dangar they committed murder of Sona Hatnal (hereinafter referred to as the ''deceased'') by sharing common intention. It is alleged therein that the present Appellant dealt axe below to the neck of the deceased for his instantaneous death at the spot.

The facts involved in the case, as reveals from the lower Court''s record, is that Appellant and the deceased are cousins. Appellant had a grievance against the deceased for not permitting him (Appellant) to take ''Salap'' juice from ''Salap'' tree. Thus, on 21.04.1995 he along with the co-accused persons were waiting at Kotapalli Dangara and on arrival of the deceased together with Hantalo Pilesu (P.W.3) and Khilla Muli (P.W.4) accused Guru Sukri and Khilla Anta @ Basudev Khillo obstructed the deceased and the Appellant dealt axe blow to the neck of the deceased causing his instantaneous death due to the cut injuries because of such blow. P.Ws.3 and 4 intimated the fact to Bisi Hantala (P.W.2) and the latter went and lodged F.I.R. Ext.3 and set the law into motion. In course of the investigation the police officer visited the spot, held inquest over the dead body and forwarded the same for post-mortem examination by Dr.R. Gouri Shankar Patnaik (P.W.1). He also seized the weapon of offence u/s 27 of the Evidence Act on being given discovery by the Appellant. Attending to the other routine requirements, the Investigating Officer completed the investigation and submitted charge-sheet.

Accused persons denied to the charge and claimed for trial.

To substantiate the charge, prosecution examined six witnesses. Amongst them P.Ws.3 and 4 are the eye-witnesses to the occurrence and P.W.5 is the Investigating Officer. Accused persons did not adduce any oral or documentary evidence in course of the trial.

Learned Addl. Sessions Judge on assessment of the evidence of P.W.1 and the post-mortem report Ext.1 besides the opinion report Ext.2/1, recorded the finding that deceased suffered homicidal death due to the axe blow on the neck. Relying on the evidence of P.Ws.3 and 4 he held that Appellant is the author of that injury. However, relying on the self-same evidence he found that no offence is made out against the co-accused persons relating to sharing common intention. Accordingly, while convicting the Appellant u/s 302, I.P.C., he acquitted the co-accused persons.

Miss Tripathy, learned Counsel for the Appellant argues that according to the evidence of P.Ws.3 and 4 each of them were in drunken state when they witnessed the occurrence and, apart from that they were ahead of the deceased when the occurrence of assault took place at the spot and, therefore, their version as eye-witnesses to the occurrence is not to be relied on. On perusal of the evidence of P.Ws.3 and 4 we find that P.W.3 has stated that he was walking ahead of the deceased, but by giving that answer he is not excluded himself as an eye-witness to the occurrence, in as much, in the cross-examination not only P.W.3 but also P.W.4 have specifically stated that they saw the Appellant dealing axe blows to the deceased. That fact is totally corroborated by P.W.1 in course of his evidence in Court as. well as through the post-mortem report, Ext.1. The Opinion Report, Ext.2/1, also corroborates to the aforesaid evidence of P.Ws.3 and 4. Thus, the argument of the Appellant is of no avail when prosecution clearly proves homicidal death of the deceased as well as the accused-Appellant being the author of that injury. P.Ws.3 and 4 have not excluded themselves to be competent witnesses because of the intoxication. They state in their evidence that they had consumed small quantity of liquor. P.Ws.3 and 4 both are Adivasis and by habit they consume liquor at any hour of the day. Unless the drunken condition is such to make them incapable to see things, their evidence cannot be discarded. Both the witnesses have clearly stated that they saw the occurrence. No suggestion has been given to either of them that because of the intoxicating condition they were incapable of witnessing the occurrence. Under such circumstance, we find evidence of P.Ws.3 and 4 to be credible enough and it was rightly relied on by the trial Court in proof of the charge u/s 302, I.P.C.

Learned Counsel for the Appellant alternatively argues that since a single blow was given and unfortunately that resulted in the death of the deceased, accused may be convicted u/s 304, I.P.C. We are unable to agree to that argument in as much as there was no provocation from the deceased so as to necessitate the accused to commit that offence. Apart from that, as per the narration of facts by the prosecution, Appellant was waiting for arrival of the deceased so as to commit his murder. Under such circumstance, intention to kill was there before committing murder of the deceased. Therefore, a case of culpable homicide not amounting to murder is far away from the Appellant.

Regard being had to the facts involved in the case and the evidence available on record, we agree with the findings recorded by the trial Court in convicting the Appellant for the offence of murder of the deceased and the punishment of imprisonment for life, which is the minimum punishment for the offence u/s 302, I.P.C. and accordingly we do not find any merit in the appeal. Thus, the Jail Criminal Appeal is dismissed.

At this stage, learned Counsel for the Appellant argues that Appellant has already spent about thirteen years and eight months'' time inside the jail. He being an Adivasi and was compelled by the conduct of the deceased in depriving him to enjoy the ''Salap'' juice, that he committed the crime and, therefore, in the absence of any past criminal record against him, at least observation may be made for his premature release under Sections 433 and 433-A, Code of Criminal Procedure Learned Counsel for the State submits that if any such step is initiated by the Jail Authorities or the Appellant himself, the State Government would consider the same strictly in accordance with law. Section 433, Code of Criminal Procedure provides authority with the Government to commute the sentence from imprisonment for life to a term not exceeding 14 years and Section 433-A, Code of Criminal Procedure also mandates the same duration of detention. Therefore, it is for the Jail Authorities to take note of the conduct of the Appellant so far they have experienced and if it is found suitable, they may write to the Government for premature release of the accused-Appellant Khilludu Nilakantha @ Khillo on completion of fourteen years of imprisonment, if that has not so far done. However, we observe that it is open to the State Government to take a decision strictly in accordance with law.

With the said observation, we dispose of the Jail Criminal Appeal in the above indicated manner.