KHAGESWAR KETAKI AND ANOTHER v. STATE OF ORISSA — 1984 DIGILAW 326 (ORI)

B. K. BEHERA, J. ( 1 ) THIS appeal has been directed against the judgment and order passed by the learned Additional Sessions Judge, Bhawanipatna, convicting the appellant no. 1 Khageswar Ketaki under section 323 of the Indian Penal Code (for short, the Code) and sentencing him thereunder to undergo rigorous imprisonment for a period of six months and convicting the appellant no. 2 Jogi Majhi under section 326 of the Code and sentencing him thereunder to undergo rigorous imprisonment for a period of two years. ( 2 ) THE two appellants and another coaccused person namely, Sibalal Jagat, stood charged under sections 333 read with section 34 of the Code for voluntarily: causing grievous hurt to Balamanta Ganda (P. W. 1) who had been functioning as a Grama Rakshi and while he was discharging his duty as a public servant in the afternoon of October 21, 1979 in Beparipada in the district of Kalahandi. The prosecution had alleged that the three accused persons with three other persons same to the house of Kansan Naik (P. W. 3) on the day of occurrence for taking liquor and took liquor. There ensued a quarrel and a fight among them and in the course of that quarrel, the appellant no. 2 Jogi Majhi sustained a bleeding injury on his head. P. W. 3 went to call the Grama Rakshi (P. W. n who came to the spot to intervene and pacify and asked Balaji and Sibalal to go away. When he asked the appellants and the co-accused Sibalal, to leave the place, the appellant no. 2 Jogi snatched away the lathi (M. O. I. ). which P. W. I. was holding and assaulted him on his head by means of that lathi which caused a fracture and P. W. 1 lay on the ground unconscious. It was alleged that the two appellants also assualted P. W. 1 by a Godu (Lota ). The appellants and the co-accused then left the spot with the lathi and the Lota. The Naib Sarpanch of the locality, namely, Gajendra Patnaik (P. W. 2) was informed about the occurrence and on going to the spot, he saw the injured P. W. 1, took steps for taking him to the police station and he lodged the first information report (Ext. 2 ). On its basis, investigation was taken up and a charge sheet was placed. 2 ). On its basis, investigation was taken up and a charge sheet was placed. On commitment, the two appellants and the co-accused stood trial in the Court of Session. The prosecution had examined ten witnesses to establish its case. The appellants bad pleaded not guilty to the charge and their case was that the appellant Jogi had been assaulted at the hands of P. W. 1 and they were innocent and has not assaulted P. W. 1. They had not examined any witness on their behalf. ( 3 ) ON a consideration of the prosecution evidence, the learned Additional Sessions Judge found that no case had been made out against the co-accused Sibalal. The learned Judge held that the prosecution had failed to show that P. W. 1 was a public servant and was discharging his duties as such when he was assaulted. It was accordingly held that section 333 of the Code had no, application to the facts of the case. Accepting the prosecution case that the appellant Jogi had voluntarily caused grievous hurt to P. W. 1 and that the other appellant had voluntarily caused hurt to the same person, the order of conviction was recorded as stated above. ( 4 ) MR. S. K. Mohanty, the learned counsel for the appellants, has taken me through the evidence and has contended that the evidence from the side of the prosecution was utterly unreliable and could not have been accepted. The learned Additional Government Advocate has supported the order of conviction as well founded on the basis of the evidence led by the prosecution. ( 5 ) THERE could be no doubt from the evidence of P. Ws. 3,4 and 5 that the two appellants along with the other co-accused and others had come to the house of P. W. 3 and had taken liquor on the day of occurrence. It would also- be seen from their evidence that there was a quarrel among the persons who had gathered there and in the course of that quarrel, the appellant Jogi had sustained a bleeding injury on his-head, but the evidence was not clear as to who was responsible for causing that injury. The case of the defence was that this injury had been sustained by the appellant Jogi when he had been assaulted by P. W. 1. Of this, there was no evidence. The case of the defence was that this injury had been sustained by the appellant Jogi when he had been assaulted by P. W. 1. Of this, there was no evidence. On the other hand, the evidence of P. Ws. 3 to 5 would clearly show that the appellant had sustained the injury in the course of the quarrel before P. W. 1 came to the scene. ( 6 ) AS to the acts of assaults on the parts of the two appellants on the person of P. W. 1, the latter had deposed: "i am the grama rakhi of village Tipiguda. I know the accused persons in the dock. Last year in the month of Dipali on a Sunday at about 2 P. M. I was coming to Dharmgarh to attend the police parade. I was wearing the uniform. I was holding a bag and a lathi. I was also bringing to birth and death register. While I was coming to Dharmagarh Kansan Naik called me and told me that the accused persons along with some others were quarrelling with each other and Jogi Majhi has sustained severe injury On his head. I went to Brahminguda pada where they were quarrelling themselves. I saw Jogi was severely injured and bleeding. I sat in the pinda of Sadhaba Naik. On-e Balaji Naik was inside the house. I rebuked him. While I was rebuking. Balaji Majhi the accused persons came to me. Accused Khetiki was holding a Gadu. whell I so. IV the accused persons I told Balaji to go away from the place as I apprehended that the accused persons may assault Balaji. When Balaji left the place the accused persons challenged me as to why J told Balaji to leave the place. All the accused persons were drunk. While I was proceeding with my lathi and bag the accused Jogi Majhi snatched any my lathi from me and dealt a lathion my head with that lathi. I fell down being injured and lost my consciousness ( 7 ) NOTHING susbtantial had been brought out in the cross-examination of P. W. 1 discrediting his testimony with regard to the assault on his person by the appellant Jogi. I fell down being injured and lost my consciousness ( 7 ) NOTHING susbtantial had been brought out in the cross-examination of P. W. 1 discrediting his testimony with regard to the assault on his person by the appellant Jogi. As he Jay unconscious, he was not in a position to see the alleged assault on his person by the Lola about which evidence had been led by the prosecution through the other witnesses to the occurrence, viz. , P. Ws. 3 to 5. The evidence of the Investigation Officer would show that P. W. 1 had actually been examined at the police station on the day of occurrence itself. It could be that the statement of P. W. 1 that he had been examined about a month after the occurrence by the investigating agency had been made as a result of some confusion in his mind. ( 8 ) THE evidence of P. W. 1 had been supported by that of P. Ws. 3 to 5 who had witnessed the occurrence. Each of these three witnesses had testified that the appellant Jogi snatched away the lathi from the hands of P. W. 1 and assaulted the latter on his head. There was no reason to discard their evidence in this, regard. There was nothing to show that these three witnesses were interested for the prosecution or had strained relationship with this appellant. P. W. 3 Kansan Naik had specifically stated that he had witnessed the assault on the person of P. W. 1. The statement made by P. W. 4 in his cross examination that Kansan Naik (P. W. 3) was not present at the time of the assault. and was in his house would not demolish the evidence of P. W. 3 with regard to the assault by the appellant Jogi on the person of P. W. 1. Even assuming that he was in his house, he might have been in a position to see the assault. My attention has been invited to the statement made by P. W. 5 in his cross-examination that Sadgar Naik (P. W. 4) was in his house and he did not see the occurrence. There was, however, the clear and cogent evidence of P. W. 4 that he had witnessed the occurrence and his evidence could not be discarded because of this statement made by P. W. 5. There was, however, the clear and cogent evidence of P. W. 4 that he had witnessed the occurrence and his evidence could not be discarded because of this statement made by P. W. 5. ( 9 ) THE evidence of P. W. 1 and that of P. Ws. 3 to 5 that the appellant Jogi had assulted P. W. I on his head also found assaurance from the medical evidence. The doctor (P. W. 8) had found laceration with fracture of the skull 2 X 1/4 on the left occipital parietal region and according to him the injury was grievous in nature. He had noticed three other lacerations one on the forehead on the left side, another on the right eye brow and the third one on the right cheek, all simple in nature. As the prosecution evidence would show, the appellant Jogi had dealt a lathi blow which resulted in P. W. 1 losing his consciousness and the evidence of the witnesses coupled with the medical evidence would show that the lacerated wound which was grievous in nature had been caused by this appellant. No doubt, the doctor had advised the police agency to have an X-ray examination of the injured, but he had explained by saying that for further treatment of the patient, he had advised X-ray examination. He was, however, sure that the injury was grievous as the fractured bone was visible through the wound. In view of this evidence the mere fact that depth of the injury had not been measured would not render the evidence of the doctor about the nature of the injury doubtful. There could thus be no doubt from the evidence that the appellant Jogi had voluntarily caused grievous hurt to P. W. 1. ( 10 ) IT was in evidence that a counter case had been instituted against P. W. 1 for robbery by the appellant Jogi. The court, however, is concerned with the evidence adduced in this case. There was no evidence that P. W. 1 had committed robbery or had caused hurt to the appellant Jogi. On the other hand, as earlier indicated, the evidence on record would show that the appellant Jogi had sustained an injury before the arrival of P. W. 1 on the spot. There was no evidence that P. W. 1 had committed robbery or had caused hurt to the appellant Jogi. On the other hand, as earlier indicated, the evidence on record would show that the appellant Jogi had sustained an injury before the arrival of P. W. 1 on the spot. ( 11 ) AS the other part of the assault by the two appellants by means of a Lota, the evidence was not quite consistent, as has been submitted by the learned counsel for both the sides. P. W. 1 had not spoken about this as he fell down unconscious on sustaining the head injury as a result of the assault by the appellant Jogi. According to P. W. 3, the appellant Khageswar was holding a Godu which was taken by the appellant Jogi from him and the appellant Jogi assaulted P. W. 1 by means of that Godu on his forehead. Thereafter, according to this witness, the appellant Khageswar brought the Godu from the hands of the appellant Jogi and assaulted P. W. 1 on his cheek. This was also the evidence of P. W. 4, but he had not spoken about the seats of assault. P. W. 5 had a different story to tell. According to him, the appellant Khageswar, after the assault by P. W. 1 on the appellant Jogi, brought a Godu and assualted P. W. 1. He had not spoken about the assault on P. W. 1 with Godu by the appellant no. 2 Jogi. As the appellant no. 2 had snatched away the lathi from the hands of P. W. 1 and had, in fact, dealt a blow on his head after which P. W. 1 fell down unconscious, it was not probable that instead of further assaulting P. W. 1 by means of that lathi which he was holding, he would snatch away a Godu from the other appellant and assault P. W. 1. It had not clearly been brought out from the cross-examination of the doctor (P. W. 8) that any of the injuries on the person of P. W. 1 could be caused tyreans of a Godu although he had testified that the injuries might have been caused by a blunt weapon. It would thus be seen that this part of the case of the prosecution, viz. It would thus be seen that this part of the case of the prosecution, viz. , assault by the appellants with Godu on the person of P. W. 1 had not been established by clear, cogent and acceptable evidence. The result would be that the order of conviction against the appellant no. 1 Khageswar who had allegedly assaulted P. W. 1 by means of Godu cannot be sustained. ( 12 ) THE next question for consideration would be as to whether the order of conviction recorded against the appellant Jogi under section 325 of the Code can be sustained in law. As found by me agreeing with the view taken by the learned Additional Sessions Judge, this appellant had voluntarily caused grievous hurt to P. W. 1. It would, however, clearly appear from the evidence that this appellant and his companions were in a state of heavy drunkenness at the time of the occurrence, There was also evidence that during the quarrel among the persons who had taken liquor, the appellant no. 2 Jogi had sustained a bleeding injury on his head. When the Grama Rakshi (P. W. 1) came on being informed about the quarrel to prevent it, he had abused the appellants. The witnesses from the side of the prosecution had evidently made an attempt to suppress this part. P. W. 3 could not say if P. W. 1 had rebuked the appellants in obscene language although he had stated so in the course of investigation. P. W. 4-had also stated in the course of investigation that P. W. l had rebuked the accused persons and others in obscene language although he had not stated about this in his evidence in the court. The evidence of P. W. 5 was that P. W. 1 had rebuked the accused persons and Balaji. As has been submitted by the learned counsel for both the sides, the appellants belong to Scheduled Tribes and are easily inflammable by nature. The appellant Jogi was in a state of heavy drunkenness and he had sustained an injury in the course of a quarrel. It was at this stage that P. W. 1 came and intervened and at that time, he had rebuked the appellants and the other accused persons. The appellant Jogi was in a state of heavy drunkenness and he had sustained an injury in the course of a quarrel. It was at this stage that P. W. 1 came and intervened and at that time, he had rebuked the appellants and the other accused persons. Undoubtedly, therefore, as the circumstances would clearly indicate, the appellant Jogi had voluntarily caused grievous hurt on P. W. 1 when he was under the Impulse of grave and sudden provocation. It has been a settled principle of law that the test for grave and sudden provocation is whether a reason- State able man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed, would be so provoked to lose his self-control. Words and expressions may also, under certain circumstances, cause grave and sudden provocation to an accused person. In my view, the appellant Jogi had voluntarily caused grievous hurt on grave and sudden provocation on P. W. 1 who caused the provocation. He was, therefore, liable to be convicted under section 335 of the Code and not under section 325 of the Code. ( 13 ) AS to the sentence to be imposed on the appellant no. 2 regard being had to the nature of the acts land the circumstances in which he voluntarily caused grievous hurt to P. W. 1, in a state of utter excitement and on grave and sudden provocation, a sentence of fine would meet the ends of justice and the fine amount should be paid to P. W. 1 as compensation for the physical and mental agony he suffered from. ( 14 ) IN the result, the appeal is allowed in part. The order -of conviction and sentence passed against the appellant no. 1 Khageswar Ketaki is set aside. The order of conviction and sentence passed against the appellant no. 2 Jogi Majhi under section 325 of the Indian Penal Code is also set aside in lieu thereof, he is convicted under section 335 of the Indian Penal Code and sentenced thereunder to pay a fine of Rs. 300/- (rupees three hundred) and in default of payment thereof, to undergo rigorous imprisonment for a period of three months. The entire amount of fine, if and when realised, shall be paid to P. W. 1 as compensation. Appeal allowed in part .