BABAJI SATYANARAYAN DAS v. STATE OF ORISSA — 1996 DIGILAW 189 (ORI)

P. K. MOHANTY, J. ( 1 ) THIS is an appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment of the First Additional Sessions Judge, Cuttack passed in Sessions Trial No. 159 of 1990 convicting the accused-appellant under Section 304-I, I. P. C. and sentencing him to undergo R. I. for 5 years. ( 2 ) THE short fact of the prosecution case was that the accused-appellant is the Babaji of 'bidhar Moth'in village Kabalpur. On 13-10-1989 at about 11 A. M. the deceased went to his land situated near the said Math with one of his bullockwhere the accused had raised Biri crop over math land and the bullock of the deceased damaged some Biri plants for which caused a quarrel between the accused and the deceased and in course of such quarrel the accused dealt a lathi blow on the head of the deceased as a result of which he fell down with bleeding injury on his head and there was also bleeding from the nose and ear of the deceased. The persons present nearby including the Mataji of the Math had seen the occurrence. The deceased was shifted to Jaipur P. H. C. The matter was reported to the police by the wife of the deceased, who was the informant, on the same day i. e. on 13-10-1989 at 11. 30 P. M. The police after investigation chargesheeted the accused under Section 302, I. P. C. and after the commitment proceeding, the Sessions trial was taken up. ( 3 ) THE prosecution had examined 8 witnesses of whom P. W. 1 was the informant and wife of the deceased. P. Ws. 2 and 4 are the witnesses to the occurrence and they were present near the place of occurrence and cutting grass. P. W. 2 proved to have collected the weapon of offence from the spot and produced the same before the I. O. who seized it. P. W. 2 is further stated to have chased the accused along with his villagers who had produced him before the I. O. while the accused tried to escape towards Naharpada immediately after the occurrence. P. W. 3. accompanied the injured to the P. H. C. at Jaipur and ultimately to the S. C. B. Medical College where the injured expired. P. W. 3. accompanied the injured to the P. H. C. at Jaipur and ultimately to the S. C. B. Medical College where the injured expired. He has also proved the inquest made by the Mangalabag police station on the dead body of the deceased and had identified the dead body before autopsy. P. W. 5 is a witness to seizure of lathi M. O. 1, on production by P. W. 2, P. W. 5 is the A. S. I. of police, Mangalabag P. S. , P. W. 7 is the doctor conducting post-mortem examination and the investigating officer is P. W. 8. ( 4 ) IT appears that the accused had almost admitted the entire occurrence except the assault part alleged to have been made by him with the lathi to the deceased. It is revealed from records that the plea of the accused is that the deceased fell down from a guava tree located near the Math campus and his head came in contact with a piece of broken brick lying below the tree, as a result of which he sustained the injury which ultimately caused the death. The accused has not examined any witness in support of his case. ( 5 ) THE learned Additional Sessions Judge on examination and scrutiny of the evidence on record in detail has recorded the finding that the defence plea that the death of the injured was caused due to fall from a guava tree, is not possible inasmuch as the death is homicidal in nature. The further finding is that the deceased was assaulted near the Tulsi Chaura and the blood sticking to the earth was of the deceased and the accused assaulted the deceased and none else. The finding is that the accused had assaulted the deceased by giving one blow with lathi and due to the said blow the deceased succumbed to the injury. The finding is that the accused had assaulted the deceased by giving one blow with lathi and due to the said blow the deceased succumbed to the injury. But, however, on a consideration of the evidence and having come to the conclusion that the accused and the deceased were in good terms prior to the occurrence, but due to a sudden quarrel between the accused and the deceased the blow was inflicted, he has found that the accused did not have any intention to commit the murder of the deceased and accordingly he has convicted the appellant under Section 304-I, I. P. C. and sentenced him to undergo R. I. for 5 years under the said Section. ( 6 ) SRI Sisir Sunder Mohanty, the learned counsel appearing on behalf of the appellant strenuously argued that P. Ws. 2 and 4, who have been relied on as eye-witnesses by the learned Sessions Judge, cannot be treated as eye-witnesses in view of their evidence that they have not seen the actual factum of assault, inasmuch as in absence of the evidence of Mataji, who admittedly was present at the place of occurrence, the learned trial Judge ought to have seriously doubted their testimony. Sri Mohanty has further submitted that the Doctor, who treated and examined the deceased at the Jaipur P. H. C. having been examined, the learned Addl. Sessions Judge, ought to have doubted the veracity of the statement of witness P. Ws. 2 and 4. The learned counsel has further submitted that the delay in lodging the F. I. R. and the other circumstances cast serious doubt on the prosecution case inasmuch as in absence of reliable and unimpeachable evidence on record, the order of conviction is not sustainable in law. ( 7 ) P. W. 2, Mata Das, in his evidence, has stated that on the day of occurrence at about 9/10 A. M. when he was cutting grass near Bidhar Math owned by the accused, the accused was working inside the math land and Maheswar Das, the deceased went to that side with his bullock. At that time he was holding a lathi in his hand and after tying the bullock at a little distance away from the Math he came near the accused. He sawthe deceased and accused had a tussle with each other and both of them went near a hut inside the Math. At that time he was holding a lathi in his hand and after tying the bullock at a little distance away from the Math he came near the accused. He sawthe deceased and accused had a tussle with each other and both of them went near a hut inside the Math. Padi and Mani were also cutting grass near the said hut. He heard a sound of infliction of a blow, immediately thereafter, Padi and Mani shouted at him to go near them. They were saying "babaji Mahiaku Badei Dela, Daudi Asa". He immediately rushed to the place and found Maheswar lying there with bleeding injury on his head and was vomiting. There was bleeding from his ear nose and mouth and he was (Sic) (growning) and P. W. 2 saw Padi and Mani standing near Maheswar. The Mataji was also present there and condemned the accused for this assault to the deceased and the accused was sitting inside the hut. He found the lathi of the deceased lying there and blood was sticking thereto. It is further in his evidence that apprehending that the accused may escape, they searched for him and saw the accused running towards Mahorpada. But they finally caught, after having chased him. In his cross-examination, he has stated that he was cutting the grass at a distance of about 200 cubits away from the place of assault. It is his statement that both the accused and the deceased dragged each other and accused was trying to snatch the lathi from the hands of Maheswar and Maheswar was trying to retain it. In the process, they reached near the hut whereafter things were not visible to him. P. W. 4 Padi Dei in his evidence has stated that on the date of occurrence at about 10. 30 A. M. she and Mani were cutting grass together at a distance of about 30 cubits away from the Math premises. P. W. 3 was also cutting grass in a piece of land which was 3 kiaries apart from the Math premises. At that time deceased Maheswar came with one of his bullocks and tied it on the village Danda. Maheswar being armed with a lathi while coming with bullock the accused was then present inside the Math premises. When Maheswar was returning after tying the bullock the accused charged him saying that he damaged his Biri crops. At that time deceased Maheswar came with one of his bullocks and tied it on the village Danda. Maheswar being armed with a lathi while coming with bullock the accused was then present inside the Math premises. When Maheswar was returning after tying the bullock the accused charged him saying that he damaged his Biri crops. Maheswar having refuted, there ensued a quarrel between the two. Both of them dragged each other and went towards a hut which is called the Math. While cutting the grass they heard the sound of infliction of a blow followed by the alarming noise raised by Maheswar. She also corroborated the other part of the statements of P. W. 2. In cross-examination it is stated by her that after mutual dragging between the accused and the deceased, when they went near the Math, the said place was not visible from the place where they were cutting grass. Except hearing the sound the actual infliction of the blow was not seen. It is her further statement that the accused and the deceased were in good terms prior to the occurrence. She identified M. O. I as one of its ends had bit sharpen edge. M. O. I. was lying at the spot. ( 8 ) THE learned Additional Sessions Judge has observed that during the examination of P. Ws. 2 and 4 they have given an impression that they are witnesses of truth and there is no reason to disbelieve their statement. The trial Court has further found that non-examination of Mataji no adverse inference should be drawn against the prosecution specially in view of the fact that P. W. 4 in cross-examination had stated that Mataji is pretty old by now and she has lost her eye sight for the last 10 years, and she is moving with great difficulties, Presence of P. Ws. 2 and 4 had been admitted by the accused in his statement under Section 313, Cr. P. C. He has also admitted about the quarrel and the fact that the deceased was armed with lathi. The accused and the deceased were seen together in a heat of anger while quarrelling. The plea of the accused that the injuries on the person of the deceased was due to fall from guava tree has been negatived by the evidence of doctor, P. W. 7. The accused and the deceased were seen together in a heat of anger while quarrelling. The plea of the accused that the injuries on the person of the deceased was due to fall from guava tree has been negatived by the evidence of doctor, P. W. 7. P. W. 7 is the doctor, who conducted the autopsy and found one linear split lacerated wound 6 cm x 1/2 cm x bone deep situated almost horizontally, 5 cm. above the left ear on the left side of the head on the (Sic) (tempora) parietal region on the head of the deceased and the external injuries are the wound was stitched with three nylon stitches and did show any sign of healing except gluing of the margins with lymph exudates. The injuries are opined to be ante-mortem in nature and they in ordinary course cannot be caused by fall. It is further stated that the injuries are possible by the lathi M. O. I. The doctor has ruled out the possibility of the injuries by fall as pleaded. P. W. 1, the wife of the deceased arrived at the spot when her husband was already shifted to Jaipur P. H. C. by P. W. 3. With regard to the delay of about 12 hours from the time when the F. I. R. was lodged by P. W. 1, it transpires that P. W. 1 who is the informant is the wife of the deceased and in normal course she is expected to be in huge tension since her husband was gasping for life, inasmuch as thedistance between the place of occurrence and the police station is 18 kilometres and therefore no adverse inference can be drawn for the delay in making the F. I. R. So far as the factum of seizure of the lathi, M. O. 1 by the police is concerned, it is found that P. W. 2 has stated that he preserved the lathi, M. O. 1 after collecting the same from the spot which was subsequently produced by him before the police, whereafter the same was seized. P. W. 5 in his evidence has stated that the lathi was seized on production by P. W. 2 in his presence. P. W. 8 has also corroborated the statement of P. Ws. 2 and 5. M. O. I. as per serologist report contains human blood. P. W. 5 in his evidence has stated that the lathi was seized on production by P. W. 2 in his presence. P. W. 8 has also corroborated the statement of P. Ws. 2 and 5. M. O. I. as per serologist report contains human blood. The conduct of the accused in trying to escape immediately after the occurrence goes a long way to connect his involvement in the commission of the crime, otherwise. ( 9 ) AFTER going through the evidence on record and on consideration of the reasonings given by the Additional Sessions Judge, while finding the accused guilty of the offence under Section 304-I, I. P. C. I do not find any reason to interfere with the findings recorded, and as such I am not inclined to interfere with the judgment of the Additional Sessions Judge. In the result, the criminal appeal fails and is accordingly dismissed. Appeal dismissed. .