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2001 DIGILAW 334 (ORI)

SATRU ALIAS SATRUGHANA GAUDA v. STATE OF ORISSA

2001-08-09

A.S.NAIDU, P.RAY

body2001
A. S. NAIDU, J. ( 1 ) A letter written by the accused-appellant from jail is entertained and registered as a jail criminal appeal. ( 2 ) THE appellant is convicted under Section 302 read with Section 34, I. P. C. and has been sentenced to undergo imprisonment for life by the First Additional Sessions Judge, Berhampur. On the basis of an F. I. R. lodged by one Padma Charan Sarangt on 3-10-1994, the Officer-in-charge of Badagada Police Station in the District of Ganjam registered P. S. Case No. 61 of 1994: which subsequently converted to Sessions case No. 5 of the 1995/s. C, No. 20 of the 1995-GDC. ( 3 ) BEREFT of unnecessary details, the short facts as narrated in the F. I. R. are that Nilachal Sarangi (herein referred to as the Tdeceased), brother of the informant Padma Charan Sarangi, a resident of village Mathura, had been to his field on 2-10-1994 for the purpose of watering the crops. He did not return till 8. p. m. The villagers of Mathura, thereafter searched for said Nilachal Sarangi in the nearby forest canal and school, but failed to trace him out. On the next morning i. e. 3-10-1994 at 5 A. M. , the villagers once again searched for Nilachal and found his dead body lying in his agricultural field. It is also alleged in the F. I. R. that on 2-10-1994 at about 7 A. M. accused Satrughana Gouda while going on a bicycle near the crossing of a road, tried to dash the cycle against the deceased. On being questioned, the said accused warned the deceased that he would kill him by evening and left the place. Accused Satrughana is said to be an exfarm servant of the deceased and it is alleged that they had certain dispute regarding the loan availed by Satrughana. It is stated that earlier also the accused threatened the deceased to kill him. From the aforesaid circumstances the informant presumed that his brother Nilachal has been killed by accused-appellant Satrughana. The incident was brought to the notice of the villagers and father of the deceased and thereafter reported before the police. After completion of investigation the police could not arrest the other accused Abhi Gouda and submitted charge sheet against appellant Satrughana only. From the aforesaid circumstances the informant presumed that his brother Nilachal has been killed by accused-appellant Satrughana. The incident was brought to the notice of the villagers and father of the deceased and thereafter reported before the police. After completion of investigation the police could not arrest the other accused Abhi Gouda and submitted charge sheet against appellant Satrughana only. To substantiate the case, the prosecution examined as many as 14 witnesses.-P. W. 1 is the Doctor of M. K. C. G. Medical College Hospital who conducted the post-mortem examination over the dead body. P. W. 2 is the informant who is the younger brother of deceased Nilachal. P. W. 3 is the police officer who took over charge of the case from the Officer-in-charge. Badagada Police Station and after completion of investigation submitted chargesheet. P. W. 4 is a co-villager of Mathura and a witness to the occurrence. P. W. 5 is the Constable who carried the dead body for post-mortem examination. P. W. 6 is an eye-witness to the occurrence who also proved M. O. II the Katuaand M. O. 1 the axe an instrument of assault used by accused Abhi Gouda. P. W. 7 is a seizure witness. P. W. 8 is a villager and pre-occurrence witness. P. W. 9 is another eye-witness to the occurrence, P. W. 10 is a witness who had seen the attempt made by accused Satrughana to dash the bicycle against the deceased at 7 a. m. on the date of occurrence. P. W. 11 is another witness to the occurrence. P. W. 12 is a co-villager and a pre-occurrence witness and deposes regarding previous enmity between the appellant and the deceased. P. W. 13 is the father of the deceased. P. W. 14 is the Officer-in-charge and the Investigating Officer of the case. ( 4 ) THE plea of the defence is a complete denial of the occurrence. The accused in his statement recorded under Section 313. Cr. P. C. emphatically submitted that he was never a farm servant under the deceased and a false case has been foisted against him. No witness was examined by the defence. It is pertinent to mention here that the appellant was arrested on 4/10/1994 whereas the other accused Abhi Gouda, who is the brother of the appellant absconded. The case was split up and the appellant alone is facing the trial. No witness was examined by the defence. It is pertinent to mention here that the appellant was arrested on 4/10/1994 whereas the other accused Abhi Gouda, who is the brother of the appellant absconded. The case was split up and the appellant alone is facing the trial. ( 5 ) THE trial Court relying upon the evidence of the P. Ws. 4. 6, 9 and 11 as well as recovery of the alleged weapons of assault and on the basis of confession said to have been made by the accused-appellant while in police custody, arrived at the conclusion that due to previous enmity the accused appellant as well as his brother Abhi Gouda assaulted the deceased and that the guilt of the accused has been well founded and sentenced the accused appellant to undergo imprisonment for life. ( 6 ) MRS. Sujata Jena, learned counsel for the appellant has vehemently argued that the order of conviction and sentence passed by the Court below is not sustainable in the eye of law since there are material discrepancies in the evidence of so-called eyewitnesses i. e. P. Ws. 4, 6, 9 and 11 visavis the statements recorded before the Magistrate under Section 164, Cr. P. C. It is also argued that there are several circumstances, which throw cloud of suspicion regarding involvement of the appellant with the crime. To elaborate her argument Mrs. Jena submitted that as per the F. I. R. lodged by P. W 2, the deceased went to the field in the morning for the purpose of watering his crops. He did not return till late evening. The informant along with other villagers searched for him. The place where such search was conducted has been clearly mentioned in the F. I. R. so also in the evidence which reveals that the villagers searched for the deceased at Tota, in jungle, near the canal near the School etc. but could not trace him out. It is rather strange that though it was in the knowledge of the persons conducting the search that the deceased went to his field and, did not return, the villagers and P. W. 2 did not go to the field to find out as to what happened to him. According to Mrs. but could not trace him out. It is rather strange that though it was in the knowledge of the persons conducting the search that the deceased went to his field and, did not return, the villagers and P. W. 2 did not go to the field to find out as to what happened to him. According to Mrs. Jena, common human conduct would have been first to go to the place where the deceased had gone and only thereafter, search at other places. Thus, not searching for the missing person in the field in the evening of the day of occurrence is not only strange, but also a circumstance which reveals that the prosecution has not come to Court with clean hands. It is submitted that the evidence of P. W. 2 and the action of the villagers are against the normal human conduct. ( 7 ) MRS. Jena drew Our attention to the evidence of P. Ws. 9 and 11, both of whom are cousin brothers of the deceased and claim to have seen the occurrence on October 2nd 1994 being close to the field where the deceased was watering the plants locally known as Kuradhia Gaja fieldt. According to P. W. 9, he was present in his own field, which is at a distance of 200 feet when the occurrence took place. According to him the accused Satrughana (appellant) gave a Katua blow to the back of the deceased as a result of which the latter fell down. Thereafter, accused Abhiram assaulted him with an axe and then both the accused persons mercilessly assaulted Nilachal. He also deposed that when he came to the spot the accused persons threatened to assault him and out of fear he returned back thinking Nilachal to be dead. Surprisingly this fact was not disclosed by P. W. 9 before any of the villagers even when search was conducted. This fact was not also reported to the police on the next day. As it appears, P. W. 9 was examined by police only on 4/10/1994 i. e. two days after the occurrence. No explanation is given for the delay as well as the reason as to why P. W. 9 did not disclose the occurrence though he was eyewitness to any of the villagers. ( 8 ) MRS. As it appears, P. W. 9 was examined by police only on 4/10/1994 i. e. two days after the occurrence. No explanation is given for the delay as well as the reason as to why P. W. 9 did not disclose the occurrence though he was eyewitness to any of the villagers. ( 8 ) MRS. Jena thereafter drew our attention to the evidence of P. W. 11 who claims to be an eyewitness. According to his evidence at about 5 p. m. while he was watering his field, saw the accused-appellant and one Abhiram assaulting the deceased. It is stated that the appellant gave a blow on the neck of the deceased with a Katua and thereafter Abhiram dealt an axe blow as a result of which, the deceased fell down. It is stated that he found the deceased lying dead on the field. Mrs. Jena submitted that though this eye-witness has seen the occurrence that deceased Nilachal was lying dead in the field he did not report the matter to any of the villagers nor did he disclose it before the police on the next day. He made a statement before the police only two days after. Such improbable human conduct is not explained by the prosecution. Mrs. Jena also drew our attention to the evidence of eye-witnesses and submitted that they have described the incident in a parrot like fashion, their conduct being against the normal human nature, the same cannot be the basis for conviction. ( 9 ) WE have carefully considered the submissions made by Mrs. Sujata Jena, learned counsel for the appellant. For the purpose of appreciating the submissions we have also carefully perused the evidence of the four eyewitnesses to the occurrence being P. Ws. 4, 6, 9 and 11, It is unnecessary to reproduce the entire testimonies of those witnesses except saying that all of them have stated on solemn affirmation that they saw accused Satrughana assaulting deceased with a Katua (wooden stick ). Having scrutinised the evidence of the aforesaid witnesses, we have no manner of doubt that the learned Sessions Judge has reached a correct conclusion that the evidence of those witnesses was worthy of acceptance. Having scrutinised the evidence of the aforesaid witnesses, we have no manner of doubt that the learned Sessions Judge has reached a correct conclusion that the evidence of those witnesses was worthy of acceptance. After giving our careful consideration, we are also of the opinion that it is not possible to say that the view taken by the trial Court in the facts and circumstances of the case was not a possible view, let alone it being perverse or unreasonable. Under these circumstances, we are not inclined to accept the submissions made by the learned counsel for the appellant regarding credibility and/or trustworthiness of versions of the aforesaid eye-witnesses, The other circumstances basing upon which the trial Court came to the conclusion is that, the appellant made a confession while in police custody. There is also certain discrepancy regarding the seizure of Katua and the axe. P. W. 14, the Investigating Officer, on the basis of such confession, has stated that on 4/10/1994, he recovered a Katua and an axe from the house of the appellant in presence of the witnesses namely, Iswara Gouda and Dandapani Gouda, both of whom have not been examined. These two M. Os. though said to have been seized from the house of the appellant, according to P. W. 7 the seizure-witness, the Katua and the axe, were seized from the Kuradhia Gaja field, as per the disclosure made by the appellant. It appears that in consonance with the confession made by the appellant before the police, the weapons of assault were seized. Such confession is admissible in consonance with Section 27 of the Evidence Act so far as it relates to discovery of the M. Os. The discrepancy pointed out by Mrs. Jena being triffle in nature, desires no consideration. ( 10 ) MRS. Jena has brought another suspicious circumstance to our knowledge. According to her, though the dead body was found lying in the field and, according to the eye witnesses the assault took place in the field, P. W. 14, the 1. 0. in his evidence has clearly stated that neither any mark of violence nor blood was found at the spot or the nearby place, and the paddy field was full of mud and water. Thus, the statement of eye-witnesses that due to assault there was profuse bleeding, becomes inconsistent. ( 11 ) RELYING upon the doctors evidence, Mrs. 0. in his evidence has clearly stated that neither any mark of violence nor blood was found at the spot or the nearby place, and the paddy field was full of mud and water. Thus, the statement of eye-witnesses that due to assault there was profuse bleeding, becomes inconsistent. ( 11 ) RELYING upon the doctors evidence, Mrs. Jena submitted that though the doctor categorically opined that some of the injuries are only possible by pressing the neck with M. O. n or M. 0. III, the eye-witnesses who claim to have seen the occurrence from starting to end, and have assigned the specific roles to both the accused persons, have not stated that any of them pressed the neck of the deceased by any wooden stick. ( 12 ) ON the basis of the aforesaid circumstance, Mrs. Jena concluded her argument that as the evidence adduced would reveal that the assault was made somewhere else and the dead body was shifted to the field after the murder, as a result of which no blood stain or mark of violence is available at the spot and submitted that, in view of the infirmities in the evidence, the appellant who belongs to lower strata of the society, has been falsely entangled with the murder and has been made a scapegoat and it is a fit case where he should be acquitted. In the alternative, Mrs. Jena submitted that the present appellant was alleged to have assaulted only with Katua (wooden stick), The case of death, as opined by the doctor, being external injury No. 1 corresponding to internal injury No. 4, which is caused by a sharp cutting weapon (like the axe), the accused-appellant cannot be said to be the author of the crime and he should be acquitted. ( 13 ) AT the other hand, the learned Additional Govt. Advocate vehemently supported the order of conviction and submitted that in view of the categorical statement of four eye-witnesses as well as the other circumstantial evidence leading to discovery of weapon, there can be no other conclusion than, the appellant to have committed the murder. ( 13 ) AT the other hand, the learned Additional Govt. Advocate vehemently supported the order of conviction and submitted that in view of the categorical statement of four eye-witnesses as well as the other circumstantial evidence leading to discovery of weapon, there can be no other conclusion than, the appellant to have committed the murder. ( 14 ) AFTER hearing the learned counsel for the appellant and the learned Additional Government Advocate at length and after going through the evidence vividly and perusing the judgment, we find that though there are minor discrepancies in the evidence and there are some lacunae in conducting the prosecution case, the over all circumstance and materials available lead us to a conclusion that the prosecution case cannot be discarded in toto. As would be evident from the doctors evidence, there are as many as 12 external injuries on the body of the deceased, which reveal that he was brutally assaulted and killed. Admittedly, there was previous enmity between the appellant and the deceased. In the morning hours of the day of the occurrence, as the F. I. R. and the evidence reveal the appellant tried to dash the bicycle against the deceased and on being questioned, he threatened to kill him. This part of the evidence is not shaken nor cross-examined. In the statement made by the appellant under Section 313, Cr. P. C. , except taking a plea of denial, no positive statement is made with regard to seizure of the incriminating materials. We are, therefore, not agreeable to accept the plea of innocence of the appellant, but then as evidence would reveal, the appellant was holding only the Katua (wooden stick) and has given only one blow and thereafter the other accused Abhiram assaulted the deceased with an axe and caused fatal injury. No evidence is adduced to reveal that the appellant had any intention to kill the deceased. If such an intention would have been there, he could not have gone to the field with a wooden stick. Cumulative assessment of the evidence on record, the surrounding circumstance and the arguments of the counsel for the parties, as well as the reasonings given by the trial Court, persuade us to hold that the appellant had not intended to cause death of the deceased nor he had any re-meditation. He had also no prior knowledge about the intention of his brother. He had also no prior knowledge about the intention of his brother. The evidence on record reveals that he/has given only one blow with the Katua and the offence committed by the appellant, therefore, amounts to culpable homicide not amounting to murder which comes under Sec. 304, Part-I of the Indian Penal Code. As a consequence, we modify the conviction of the appellant under Sec. 302 read with Section 34, I. P. C. to one under Section 304, Part-I of the Indian Penal Code and convict him there-under. ( 15 ) ADMITTEDLY, the appellant is languishing in prison since 1994 and has already undergone imprisonment for a period of seven years. Ends of justice would be met if the sentence is converted to the period of imprisonment already undergone by the appellant. The jail criminal appeal is thus allowed in part and the conviction and sentence is modified as stated above. ( 16 ) BEFORE leaving the case it may be pertinent to mention here that as has been stated, we have been confined to examine the evidence on record in respect of the case of appellant Satrughana Gouda alone and nothing of this judgment should be taken to have any bearing on the case of the other accused Abhiram Gouda. It is made clear that the case of Abhiram may perhaps, require examination of the evidence on its own merit and the result of the said case would be on the basis of appreciation of evidence keeping in mind that the said accused is alleged to have given the fatal blow by means of an axe. Appeal allowed partly.