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2001 DIGILAW 378 (ORI)

PANDABA RANA v. STATE OF ORISSA

2001-09-04

B.PANIGRAHI, L.MOHAPATRA

body2001
B. PANIGRAHI, J. ( 1 ) THIS appeal is against the judgment/order dated 23-11-1995, passed by the Sessions Judge, Balangir, in Sessions Case No. 60 of 1995, convicting the appellants under Section 302, Indian penal Code and sentencing them to undergo rigorous imprisonment for life. They were further convicted under sections 147 and 148. Indian Penal Code, and sentenced to undergo rigorous imprisonment for one year on each count. ( 2 ) THE gist of the prosecution story as revealed from the impugned judgment of the learned Sessions Judge is as follows: on 28-1-1991 at about 7. 00 A. M. , Abadhuta Rana (P. W. 1) and his father Kalarsingh Rana had been to the house of one Basudev Kumbhar of village Bhatapada on a bicycle to get back their she- buffalo pawned with him. After discussing with him when they were returning on the bi-cycle, the appellants all of a sudden appeared from a nearby paddy field of one Dasarathi Bag. Three of them were holding one tangia each and appellants Pandab Rana and Jira Rana were armed with bamboo lathi, Abadhuta Rana (P. W. 1) on seeing the appellants suddenly applied brakes and lost balance as a result of which his father fell down on the ground. After Kalarsingh Rana fell down on the ground, these appellants allegedly started assaulting him as a result of which he succumbed to those injuries, Abadhuta Rana after seeing the assault on his father rushed to the police station and immediately submitted a report which was treated as F. I. R by the officer-in-Charge, Belapada P. S. , who registered P. S. Case, No. 5 of 1994 and immediately swung into action. In course of investigation the Investigating Officer examined the eye witnesses, namely P. Ws. 1 and 4, held inquest on the dead body of Kalarsingh Rana and seized the garments of the deceased, the cycle one tangia from the spot. He sent the dead body for post-mortem examination and the material objects to RF. S. L. , Sambalpur for opinion and after completion of investigation, placed charge- sheet against these appellants. ( 3 ) THE plea of the appellants was one of complete denial before the trial court. ( 4 ) IN order to bring home the charge to the appellants, prosecution has mostly relied upon the ocular evidence of P. Ws. 1 and 4 apart from other circumstances. ( 3 ) THE plea of the appellants was one of complete denial before the trial court. ( 4 ) IN order to bring home the charge to the appellants, prosecution has mostly relied upon the ocular evidence of P. Ws. 1 and 4 apart from other circumstances. The learned Sessions Judge on closer scrutiny or the evidence available on record held these appellants guilty under sections 302,147 and 148, Indian Penal Code, and sentenced them to suffer imprisonment as already indicated. ( 5 ) MR. Sahoo, learned counsel appearing for the appellants had critically placed the evidence of P. Ws. 1 and 4. P. W. 1 is the son of the deceased. It has been elicited in cross-examination that there was no love lost between deceased. P. W. 1 and P. W. 4 on one hand and the appellants on the other. There were number of litigations both civil and criminal, between the deceaseds family and the appellants pending in different courts. Learned counsel for the appellants has argued with great tenacity that with this back-ground evidence of P. W. 1 should not be accepted without any corroboration. It has been stated that out of enmity this case might have been foisted against the appellants. Therefore, in this case apart from the evidence of P. Ws. 1 and 4 there being no ocular evidence the case put forward by the prosecution should not be easily accepted. Enmity is not the only reason by which the intrinsic value of the evidence can be discarded if it is otherwise credible all trustworthy. In this case, we find that in the morning hours both father and son went together on a cycle and the father was sitting on the carrier. All of a sudden all the accused persons surrounded them and assaulted the father. It is quite natural that P. W. 1 the son, seeing the appellants assaulting his father must have felt panicky and left the place out of fear. But, however, he was watching the incident at a short distance and found appellant Harisankar and Sudarsan giving blows on blunt side of tangia. It has been contended that assuming that P. W. 1 was present then how the appellants did not assault him. Since there is evidence that P. W. 1 left the place out of fear, it is expected that the appellants might not have made him a victim. It has been contended that assuming that P. W. 1 was present then how the appellants did not assault him. Since there is evidence that P. W. 1 left the place out of fear, it is expected that the appellants might not have made him a victim. From the summary of the evidence, it further transpires that P. W. 1 did not raise any protest being afraid of these appellants. Had he raised protest, he might have been also assaulted like his father. ( 6 ) P. W. 4 although a. relation of both the groups, namely deceased as well as accused corroborated the evidence of P. W. 1. Even though there might have been some enmity between the two groups, because of such enmity, the evidence of P. W. 4 should not be thrown out if it is otherwise true. From his evidence, it appears that he described a graphic picture of the incident how it had taken place. It is a settled position of criminal law that merely because there are litigations between the two parties the ocular evidence cannot be brushed aside if it is otherwise trustworthy, credible and inspires confidence. On a thorough discussion of the evidence, the learned Sessions Judge recorded conviction against the appellants. Therefore, their evidence according to us cannot be tainted as suspicious. ( 7 ) MR. Sahu, learned counsel for the appellants, invited our attention to the evidence of P. W. 5, the Medical Officer, who conducted the postmortem examination on the dead body of the deceased Kalarsingh Rana. He found external injuries and on dissection it was noticed that the legs and left and right fore-arms were completely broken into pieces; the soft tissues came outside and there were profuse blood clots over the wounds. From the injuries we notice that the appellants could not have intended to do away with the deceased since all the injuries were not on vital parts of the body. In respect of destruction of eye-ball, P. W. 5 in his cross-examination has stated that this injury could only be possible by a pointed object. It is not the prosecution story that any pointed weapon was used by any of the assailants. It has been stated by P. W. 5 that such type of injury can be possible if a bird pierces by its beak on the eye. It is not the prosecution story that any pointed weapon was used by any of the assailants. It has been stated by P. W. 5 that such type of injury can be possible if a bird pierces by its beak on the eye. From the nature of injuries received by the deceased, one cannot assume that the appellants had the intention to kill the deceased. Mr. Sahu, the learned counsel has relied upon the judgment of the Supreme Court reported in Ramkishan and others v. State of Rajasthan, wherein the Supreme Court made the following discussions:4. The trial court after appreciating the evidence, in the case of the appellants opined that there was no evidence on the record to show any pre-meditation on the part of the appellants. It was also concluded that the prosecution had failed to establish as to who among the 10 accused, had struck the fatal blow resulting in the death of Bhura. The learned Sessions Judge further observed that it remains a mystery who the killers of Bhura are. This observation was made in the context of as to who had caused the fatal injuries, particularly when according to the prosecution case itself none of the appellants was armed with a lathi and the deceased had suffered a few blunt-weapon injuries. We find that the prosecution has established the complicity of the appellants with the crime but the question however, is about the nature of offence committed by them. 6. However, in spite of recording all the above findings, the trial court still convicted the appellants for offences under Section 302 IPC and Section 148 IPC and the High Court also confirmed their conviction and sentence. In our opinion the approach of both the courts below on the question of nature of offence was faulty and erroneous. 7. On the basis of the findings of the learned trial court as noticed above, it is quite obvious that the intention of the appellants could only have been to cause injuries to the deceased by obstructing his bullock cart and they did not share any common intention or object to cause the death of the deceased. 7. On the basis of the findings of the learned trial court as noticed above, it is quite obvious that the intention of the appellants could only have been to cause injuries to the deceased by obstructing his bullock cart and they did not share any common intention or object to cause the death of the deceased. Indeed by causing injuries with an axe it could be said that the appellants should have realised that the injuries were likely to cause his death but that would only bring the case of appellants under Section 3o4, Part-IT, IPC and not one under Section 302, IPC. ( 8 ) IN view of the findings recorded by the learned Sessions Judge and the material on record, we are unable to ascribe to the finding that the appellants intention was to cause death of Bhura deceased. The finding betrays the observation of the trial court as noticed above. The medical evidence also does not support the ultimate finding recorded by the, trial court and upheld by the High Court. The offence in the established facts and circumstances of the case in the case of the appellants would only fall under Section 304 Part-IT IPC read with Section 149 IPC and not under Section 302 IPC. Indeed no specific charge indicating the applicability of Section 149 IPC was framed, but all the ingredients of Section 149 IPC were clearly indicated in the charge framed against the appellants and as held by the Constitution Bench of this Court in Willie (William) Slaney v. State of M. P. ( AIR 1956 SC 116 = (1955) 2 SCR 1140 ) the omission to mention Section 149 IPC specifically in the charge is only an irregularity and since no prejudice is shown to have been caused to the appellants by that omission it cannot affect their conviction. The learned counsel for the appellants has also relied upon another judgment of the Supreme Court reported in Maliya and others v. State of Rajasthan. In paragraph-4 of the judgment, it has been held:4. The trial court, however, noticed certain features in the evidence of those witnesses and pointed out that even if the entire evidence is accepted, that would only show that the injuries were inflicted on non-vital parts of the body of the deceased and according to these witnesses, all the accused put together dealt four or five blows. The trial court, however, noticed certain features in the evidence of those witnesses and pointed out that even if the entire evidence is accepted, that would only show that the injuries were inflicted on non-vital parts of the body of the deceased and according to these witnesses, all the accused put together dealt four or five blows. The evidence is not clear that each one of them dealt four or five blows. On the other hand it reads as though all the four accused together gave four or five blows. In view of these circumstances, the trial court pointed out that there is no direct or circumstantial evidence to show that the accused intended to cause the victims death. It held that they must be attributed knowledge that by inflicting such injuries they were likely to cause death. In that view of the matter, the trial court convicted the accused under Section 304 Part 11 IPC. The High Court while reversing the said finding held that since Moti died almost instantaneously it should be inferred that the intention of the accused persons was to cause the death of Moti. Unfortunately in this case there is no medical evidence available. No doubt the accused have acted highhandedly though there was a grievance for them. But in deciding the nature of the offence, the part played by the accused, the weapons used and the nature of the blows inflicted assume importance. On this aspect the view taken by the trial court cannot be said to be unreasonable as to warrant interference in this case. "on consideration of the above Supreme Court judgments, we are of the view that since no intention has been proved, nor could be gathered from the evidence of the prosecution, it is a fit case where the accused-appellants should be convicted under section 304, Part-I, I. P. C. Accordingly, we modify the sentence to 7 (seven) yearst rigorous imprisonment. However, we affirm the conviction of the appellants under sections 147 and 148, I. P. C. and the sentence of rigorous imprisonment for one year and the direction that the sentence are to run concurrently, as passed by the trial court. ( 9 ) IN the result the Criminal Appeal is partly allowed. Appeal allowed partly.