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2002 DIGILAW 338 (ORI)

TULASIRAM BAG v. STATE OF ORISSA

2002-06-19

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - This appeal assails the order of conviction and sentence passed against the Appellant u/s 302 of the Indian Penal Code for commission of offence of murder of Gaheswar Bag who is no other than his paternal uncle. 2. The prosecution case as narrated in the trial Court's judgment is as follows: On 5.6.1993 in the afternoon there was an altercation between the Appellant Tulasiram Bag and the deceased Ganeswar Bag for discharging filthy water which followed by an exchange of slaps between them. On 6.6.1993 morning the Appellant Tulasiram Bag to take avenge his prior enmity against the deceased Ganeswar Bag went out being armed with an axe towards Bindhanigudi side. At about 10.00 A.M. when deceased Ganeswar Bag with his nephew Chitrasen Bag (P.W.2) was returning from river "Tela" after taking bath, the Appellant suddenly appeared and inflicted two successive blows aiming at the head of Ganeswar Bag. But deceased Ganeswar in order to ward oft the blows raised both of his hands and the blow hit on the right upper arm of the deceased causing some injuries. Ganeswar apprehending further danger to his life ran towards Bindhanigudi side and the Appellant is said to have chased him and gave a blow on the head of the deceased Ganeswar by an axe. The informant Dhanmat Jani (P.W.1) was also present at that time as he was returning from the river side. P.W.4, Motharam Bag was alleged to be present at the spot. The father of the Appellant also reached at the spot and is alleged to have assaulted the deceased Ganeswar Bag. On receiving injuries deceased Ganeswar Bag fee down on the ground and he was shifted to Titilagarh Sub-divisional hospital. P.W.1 lodged a report about the incident at Titilagarh Police station and a case was registered against the Appellant and his father under Sections 341, 294 and 307 read with Section 34, IPC. On receiving report, the investigation was carried out. The I.O. proceeded to the spot and on the way he noticed the injured being brought to Titilagarh Sub-divisional hospital. Since the condition of the deceased appeared to be serious, he was referred to V.S.S. Medical College & Hospital. Burla on 6.6.93 and despite treatment Ganeswar collapsed on account of his injuries. After the death of Ganeswar on 10.6.93 the case was turned into a case of murder u/s 302/34, IPC. Since the condition of the deceased appeared to be serious, he was referred to V.S.S. Medical College & Hospital. Burla on 6.6.93 and despite treatment Ganeswar collapsed on account of his injuries. After the death of Ganeswar on 10.6.93 the case was turned into a case of murder u/s 302/34, IPC. 3. Prosecution in order to bring home the charge examined 20 witnesses. But in order to determine the culpability of the Appellant the evidence of P.W.s 1, 2, and 4, who claim to be eye witnesses is important. P.Ws. 5 and 20 are the Medical Officers who have treated the deceased and also conducted post mortem examination. The evidence o? P.Ws. 1, 2, and 4 goes a long way to hold that the Appellant had dealt the blows on the head and right arm of deceased Ganeswar. 4. Mr. Sahoo, learned Advocate appearing for the Appellant has invited our attention to the evidence of the Medical Officer (P.W.5), who treated Ganeswar and had opined that Ganeswar received two lacerated injuries, but from the eye witnesses account it has appeared that the sharp side of the weapon was used for causing such injuries. It was strongly contended that in case sharp side* of the weapon was used, no lacerated injury could have been inflicted on the deceased. But the doctor in his evidence has given the opinion that even an injured can get such type of injury by inflicting sharp side of the weapon. In that view of the matter, if the evidence of eye witnesses and also the doctor is read together it can be safely concluded that such type of injuries might have been possible by the weapon of offence. 5. P.W. 20, was the Assistant Professor of F.M.T. Deptt. of V.S.S. Medical College Hospital. Burla during the relevant period and he conducted the post mortem examination over the dead body of deceased Ganeswar. On a careful perusal of his evidence it has appeared that he opined mat the injuries of the deceased were in the process of healing. It is unfortunate to note that the prosecution has significantly failed to produce the Bed-head ticket of the deceased so that, the condition of the patient could have been determined. On a careful perusal of his evidence it has appeared that he opined mat the injuries of the deceased were in the process of healing. It is unfortunate to note that the prosecution has significantly failed to produce the Bed-head ticket of the deceased so that, the condition of the patient could have been determined. In case those wounds sustained by the deceased were in a process of healing, how he could collapse could not be determined in the absence of the Bed-head ticket and also the person responsible for deterioration of the condition of the injured. It is true that the Appellant had caused the injuries. It is true that the Appellant had caused the injuries to the deceased Ganeswar. But it is difficult to come to a positive finding that he had the intention to kill the deceased. 6. Mr. Sahoo, learned Advocate appearing for the Appellant has relied on a judgment of the Supreme Court reported in Harish Kumar Vs. State (Delhi Administration), The Supreme Court in the aforesaid case held in the following manner: We have seen the nature of the injuries and also the time gap between the time of infliction of the injury till the date of death which was two days after the injury was inflicted. We have no sufficient material as to the nature of the treatment given to the deceased during those two days. In the present case it is noticed that the deceased died after a gap of 4 days from the date of incident. It is further found that P.W.20, the doctor who conducted post mortem examination had opined that the injuries sustained by the deceased were in a healing process. Therefore, in the aforesaid context we cannot attribute that the Appellant had an intention to do away with the life of the deceased. Accordingly considering the facts and circumstances of the case, we are of the view that the Appellant is liable to be convicted u/s 304. Part I, IPC instead of u/s 302. IPC and in order to meet the ends of justice we reduce the sentence of imprisonment to the period already undergone by him. 7. In the result, the appeal is partly allowed. The Appellant is convicted u/s 304, Part I, IPC and is sentenced to the period already undergone by him. He be set at liberty forthwith. P.K. Misra, J. 8. I agree.