BHAGABAT PRASAD BOHIDAR v. STATE — 1984 DIGILAW 159 (ORI)

BEHERA, J. ( 1 ) THE four appellants stood charged under Section 302 read with Section 34 of the Indian Penal Code (for short, the Code) for having committed the murder of Trinath Lenka, the father-in-law of Rabinandan Bohidar (P. W. 1), by means of lathis and iron rods in furtherance of their common intention on June 26, 1979 at village Jamupalli in the district of Phulbani. They also stood charged under Section 326 read with Section 34 of the Code for having committed grievous hurt to Rabinandan (P. W. 1) in furtherance of their common intention by assaulting him with lathis and iron rods. The case of the prosecution was that owing to a land dispute between the deceased and P. W. 1 on the one hand and the appellants on the other, trouble arose for which there had been a murderous assault on the person of the deceased and grievous hurt had been caused to P. W. 1. To bring home the charges against the appellants, the prosecution had examined ten witnesses of whom P. W. 1, one of the victims of assault and P. Ws. 2 to 4 had figured as witnesses to the occurrence. The deceased had first been treated by P. W. 6, the doctor, at Manamunda and had succumbed to the injuries and the doctor (P. W. 5) had conducted the autopsy. P. W. 1 had been examined by P. W. 6 who had noticed injuries on his person. P. W. 10 had investigated into the case. On a consideration of the evidence, the learned Sessions Judge found the appellant Nos. 1 and 4, namely, Bhagabat Prasad Bohidar and Bhobani alias Bhabani Sankar Bohidar, guilty of the charge of murder in furtherance of their common intention and each of them was convicted under Sections 302 read with 34 of the Code and sentenced there under to undergo imprisonment for life. The other two appellants, namely, Sivasankar Bohidar and Umasankar Bohidar, were acquitted of the charge of murder. As regards the charge under Section 326 read with Section 34 of the Code for the assault on the person of P. W. 1, the learned Sessions Judge found that there was no case against the appellant Nos. The other two appellants, namely, Sivasankar Bohidar and Umasankar Bohidar, were acquitted of the charge of murder. As regards the charge under Section 326 read with Section 34 of the Code for the assault on the person of P. W. 1, the learned Sessions Judge found that there was no case against the appellant Nos. 1 and 4 and that the other two appellants could be convicted for causing grievous hurt in furtherance of their common intention punishable under Section 325 read with Section 34 of the Code. Each of them was accordingly convicted, but instead of being sentenced, was released on probation of good conduct. ( 2 ) IT is not disputed that the deceased died a homicidal death which was clear from the evidence of the two doctors (P. Ws. 5 and 6 ). It is also not disputed that P. W. 1 had sustained injuries on his person. There was the clear and acceptable evidence of P. Ws. 1 to 4 that the injuries had been sustained by the deceased and P. W. 1 during the occurrence. ( 3 ) COMING first to the conviction of the appellant Nos. 2 and 3 under Section 325 of the Code for causing grievous hurt to the deceased and P. W. 1, Mr. Bohidar bas submitted that there was paucity of evidence to convict these appellants under Section 325 of the Code for causing grievous hurt to the deceased and P. W. 1. But as has been submitted by Mr. Sahu for the State, there was no paucity of evidence in this regard with regard to the assault on P. W. 1. We, however, notice one disquieting feature in the finding recorded by the trial Court that these two persons could be convicted for causing grievous hurt. The doctor (P. W. 6), who had examined P. W. 1 had, no doubt, stated that two of the injuries, viz. , fracture of right redius from the middle and fracture of right 6th and 7th ribs anteriorly 2 from the sternum were grievous in nature, but his evidence would show that he was not quite sure about the nature of the injuries for which he had advised an X-ray examination of these two injuries for confirmation. , fracture of right redius from the middle and fracture of right 6th and 7th ribs anteriorly 2 from the sternum were grievous in nature, but his evidence would show that he was not quite sure about the nature of the injuries for which he had advised an X-ray examination of these two injuries for confirmation. It would be noticed from the evidence of the Investigating Officer (P. W. 10) that he bad taken steps in this regard and had obtained a report. That report had not been produced and proved. In the absence of that report, it could notaffirmatively be said that the injuries were grievous in nature and the learned Standing Counsel has fairly submitted before us that in this state of the evidence, the appellant Nos. 2 and 3 could be convicted for causing simple hurt punishable under Section 323 of the Code. ( 4 ) THERE was no acceptable evidence that the appellant Nos. 2 and 3 had caused grievous hurt to the deceased and they could not be held liable under Section 325 of the Code for causing grievous hurt to the deceased. ( 5 ) COMING to the charge of murder against the appellant Nos. 1 and 4, the learned Sessions Judge observed and held: From the above facts it is quite clear that accused No. 2 Shiv Sankar and accused No. 3 Uma Sankar and voluntarily caused grievous hurt on P. W. 1 and had committed the offence under Section 325, Indian Penal Code. All the accused persons caused several injuries, both simple and grievous, on different parts of the body of Trinath including the head, a vital part of the body, the means of iron rods. The circumstances that deceased Trinath had sustained grievous injuries on the head and ribs and moved with great difficulty from the spot of the house of P. W. 1 and died a few hours after assault and the weapons used by the assailants were iron rods which are heavy weapons, though blunt, indicate that the first assailants, accused Nos. 1 and 4, must have known that the injuries were likely to cause death of Trinath. 1 and 4, must have known that the injuries were likely to cause death of Trinath. But it is not clear from the prosecution evidence if the fatal blow inflicted on Trinath was already over or not by the time accused No. 2 Shivsankar and accused No. 3 Hma Sankar joined accused No. 1 Bhagabat and accused No. 4 Bhabani Sankar who were at first assaulting Trinath. So the intention or knowledge of accused No. 2 Shivsankar and accused No. 3 Umasankar that injuries on Trinath were like to cause death cannot be attributed to them beyond doubt. They may be at best pinned down with the commission of offence under Section 325 Indian. Penal Code for having caused grievous injury on the person of Trinath. ( 6 ) IT may be kept in mind that all the four appellants had been charged for committing the murder of the deceased in furtherance of their common intention. But of them two were acquitted and we have been told at the Bar that no appeal has been preferred by the State Government against the order of acquittal in respect of the appellant Nos. 2 and 3 for the charge of murder. The appellants were alleged to have committed the murder by means of lathis and iron rods. As has been submitted by the learned counsel for the appellants, it was not quite clear from the evidence as to what weapons had been used by the appellant Nos. 1 and 4 who now stand indicated for murder. According to P. W. 5, who had conducted the autopsy, death was due to the head injury with intracranial haemorrhage consequent upon laceration of the brain matter and haemorrhage into the chest cavity causing shock. As has been submitted by the learned counsel for both the sides, there was no clear evidence as to who of the four appellants had caused the fatal injury. Although the prosecution evidence was that the appellant Nos. 2 and 3 had also assaulted the deceased, they have been acquitted of the charge of murder. From the evidence it could reasonably be said that the appellant Nos. 1 and 4 had, be their assault, caused grievous hurt to the deceased in furtherance of their common intention. But it could not be said that the fatal external and internal injuries had been caused by them. From the evidence it could reasonably be said that the appellant Nos. 1 and 4 had, be their assault, caused grievous hurt to the deceased in furtherance of their common intention. But it could not be said that the fatal external and internal injuries had been caused by them. In these circumstances, we are of the view that the appellant Nos. 1 and 4 could appropriately be convicted for causing grievous hurt in furtherance of their common intention and not for committing the murder of the deceased. ( 7 ) IN the result, the appeal is allowed in part. The order of conviction and sentences passed against the appellant Nos. 1 and 4, namely, Bhagabat Prasad Bohidar and Bhobani alias Bhabani Sankar Bohidar, under Section 302 read with Section 34 of the Code is set aside and in lieu there of each of them is convicted under Section 325 read with Section 34 of the Code and sentenced thereunder to undergo imprisonment for the period already undergone by them, which, as has been submitted as the Bar is more than three-and-a-half yearst These two appellants be set at liberty forthwith. The order of conviction passed against the appellant Nos. 2 and 3, namely, Sivsankar Bohidar and Umasankar Bohidar under Section 325 of the Code is set aside and in lieu thereof, each of them is convicted under Section 323 of the Code. The order releasing the appellant Nos. 2 and 3 under the Probation of Offenders Act is maintained although it has already spent its force. .