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2001 DIGILAW 533 (ORI)

ANAMA NAIK v. STATE OF ORISSA

2001-12-11

B.P.DAS, M.PAPANNA

body2001
JUDGMENT : B. P. Das, J. - The appellant having been convicted under Ssection 302 of the Penal Code and sentenced to imprisonment for life, has preferred this appeal against the judgment and order of conviction passed by the learned Sessions Judge, Dhenkanal. 2. The prosecution case is that on 9.9.1987 at about 9 P.M. while the informant Krupa Naik, P.W. 1 (son of the deceased) was exchanging jokes with one Dukhia Naik and when both of them were playfully assaulting each other, the deceased intervened and caught-hold of Dukhia and on being explained that it was a game between them, he asked Dukhia to go to his house. The appellant took exception in the conduct of the deceased and when the deceased was about to enter the house, he dealt a blow by means of a Katari used for cutting trees on his right leg. The deceased raised alarm saying that he was assaulted by the appellant. In response to such alarm raised by the deceased, several co-villagers arrived at the spot and found the deceased having profused bleeding from the injury on the leg. Subsequently, the deceased succumbed to the injuries. The informant P.W. 1 did not venture to go out of the house in the night and on the next day morning, he reported the incident to the investigating officer of Kishorenagar Police Station. In course of investigation, the "Katari" M.O.I used for assaulting the deceased was seized in presence of witnesses upon confession made by the appellant in police custody leading the police to the place of concealment from the eastern side of the village. On completion of investigation, charge-sheet was submitted for offence committed u/s 302 of the Penal Code. 3. The appellant denied the allegation of the prosecution and pleaded innocence. 4. The prosecution in order to bring home the charge, examined six witnesses, out of whom, P.W. 1 is the informant (son of the deceased), P.Ws. 2 and 3 are the independent witnesses who saw the appellant running away from the spot and P.W. 6, the Doctor who conducted the post mortem examination. 5. Relying on the evidence of the aforesaid witnesses as well as P.W. 4 who is the Ward Member, the learned Sessions Judge found the appellant guilty of the charge and convicted him thereunder. 6. 5. Relying on the evidence of the aforesaid witnesses as well as P.W. 4 who is the Ward Member, the learned Sessions Judge found the appellant guilty of the charge and convicted him thereunder. 6. The learned counsel appearing for the appellant challenged the order of conviction on the ground that there is no eye-witness to the occurrence and the circumstantial evidence available on record is not sufficient to support the findings of the learned Sessions Judge. Alternatively he argued that even if the prosecution case is u/s 302 I.P.C., a case u/s 302 of the Penal Code is not made out and in the worst case the conviction maybe u/s 326 of the Penal Code. 7. Keeping the contentions raised by the learned counsel for the appellant, in view, we may now proceed to examine the evidence available on record. 8. P.W. 1 is the son of the deceased, who claimed to have seen the occurrence. In his examination-in-chief, he has stated that about a month prior to the occurrence, there was dispute between the appellant and the deceased in relation to land. He has further stated that he was inside the house when the appellant dealt a blow by means of a Katari on the right leg of his father. The distance between him and the place of occurrence was 20 to 25 feet. In cross-examination, this witness has stated that the appellant all on the sudden came and caught hold of his father and assaulted by means of a lathi. In cross-examination, this witness has further admitted that he had not seen the assault on his father alleged to have been made by the appellant by means of a Katari. He only found the appellant escaping from the (sic) Admittedly, there is no other eye-witness to the said occurrence. Since P.W. 1 has admitted in his cross-examination that he has not seen the appellant assaulting the deceased by means of a Katari, he cannot be accepted as an eyewitness to the occurrence. His evidence only goes to show that immediately before the occurrence he and Dukhia were playfully assaulting each other which the deceased intervened. Intervention of the deceased was not appreciated by the appellant and the appellant who was seen running away from the spot. His evidence only goes to show that immediately before the occurrence he and Dukhia were playfully assaulting each other which the deceased intervened. Intervention of the deceased was not appreciated by the appellant and the appellant who was seen running away from the spot. P.W. 2 is an independent witness and a co-villager who is his evidence has stated that on the date of occurrence while he was cleaning his hands under a tube-well, he heard the deceased raising an alarm saying the appellant had assaulted him by means of a Katari. By that lime, he rushed to the spot. He found the appellant running away. Similar is the evidence of P.W. 3 who had heard the deceased shouting that he was hit by the appellant by means of a Katari and saw the appellant running away from the spot and from the evidence of P.Ws. 1, 2 and 3, it appears that three of them had heard the deceased saying that he was assaulted by the appellant by means of a Katari. Nothing has been brought out in cross-examination to disbelieve this part of the statement of all the three witnesses. P.W. 4 in his evidence has stated that the appellant was brought by the police from their village and he confessed his guilt stating that he had assaulted the deceased by means of a Katari and led them to the forest near eastern side of the village and gave recovery of a Katari, P.W. 5 is the Investigating Officer who was also supported P.W. 4 so far as it relates to recovery of the weapon of offence, P.W. 6 is the Doctor who conducted the post mortem examination and found that a tangential sharp cut over upper part of right calf 3 inches below the knee joint. This witness in cross-examination has admitted that if best of treatment would have ben provided immediately death might not have occurred. Though the weapon of offence was seized strangely and nail clippings of the appellant were taken, they had not been sent for chemical examination. However, relying on the evidence of P.Ws. 1, 2 and 3 read with the evidence of P.W. 6, we can safely hold that these three witnesses namely P.Ws. Though the weapon of offence was seized strangely and nail clippings of the appellant were taken, they had not been sent for chemical examination. However, relying on the evidence of P.Ws. 1, 2 and 3 read with the evidence of P.W. 6, we can safely hold that these three witnesses namely P.Ws. 1, 2 and 3 had heard the deceased saying that he was assaulted by the appellant by means of a Katari and had also seen the appellant running away from the spot. No explanation has been offered by the appellant as to why he was running away from the spot. Moreover, the appellant had given recovery of the weapon of offence as stated by P.Ws. 4 and 5. P.W. 6 also found corresponding injuries as stated by the prosecution witnesses and therefore we have no doubt in our mind that the appellant has influcted the injury on the leg of the deceased. 9. Coming to the second point raised by the learned counsel for the appellant, we find from the evidence that only one blow was given on the leg of the deceased and the Doctor who conducted the post mortem examination was of the opinion that if best of treatment would have been provided immediately death might not have occurred. Considering such evidence, we agree with the learned counsel for the appellant that offence will be one u/s 326 of the Penal Code as the appellant had neither the knowledge that such injury would cause death not he had any intention to cause death. 10. We, therefore, set aside the judgment and order of the learned Sessions Judge, Dhenkanal convicting the appellant u/s 302 of the Penal Code and instead convict him u/s 326 of the Penal Code. From the record, we find that since the appellant is already in custody for more than nine years, we impose the sentence for the period already undergone. The appellant be released forthwith if not required in any other case. M. Papanna, J. 11. I agree. 12. Ordered accordingly.