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2002 DIGILAW 603 (ORI)

ISWAR BAG v. STATE OF ORISSA

2002-09-16

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - The accused in S.C. No. 42 of 1995 of the Court of Sessions Judge, Kalahandi-Nuapada Bhawanipatna has challenged the order of his conviction u/s 302 of the Indian Penal Code (for short. "IPC") for having committing the murder of one Kumardhan Bag and sentence of imprisonment for life. 2. The prosecution case, as unravelled in the trial Court's judgment, is as follows: On 06.04.1995 at about 11.00 A.M. the deceased Kumardhan Bag, Appellant Iswar Bag and two Ors. quarrelled in front of the house of the Appellant. Since the deceased was then suffering from fever, he went to the house of his daughter Karuna Dei (P.W.3) and slept on the verandah. At that time, the Appellant went there and. demanded Rs. 18/- from the Appellant, which the latter had taken from him. The deceased arranged the amount by pledging an alluminium pot and paid the same to the Appellant. Thereafter he told that the Appellant was to pay him Rs. 300/- and asked the Appellant as to why he was not paying the same. On hearing this, the Appellant gave out that he was having money in his house and asked the deceased to accompany him. Since the deceased was suffering, P.W.3 protested against his going to the house of the Appellant. However, the Appellant dragged him towards his house. Suspecting that something evil might happen, P.W.3 followed them. The Appellant made the deceased sit on his verandah and sent inside his house saying that he would bring money and pay the same to the deceased. Instead of bringing money, the Appellant bought out the handle of the hand pounding pump, by means of which he dealt a severe blow on the head of the deceased. As a result, the deceased fell down with bleeding injuries. P.W.3 who was following her father, noticed the incident and raised an outcry, on hearing which, P.Ws.2 and 5 rushed to the post. Seeing the profuse bleeding from the head of her father, P.W.3 became senseless P.W.1 also reached at the spot, to whom P.W.3 narrated the incident and thereafter she became senseless. P.W.3 who was following her father, noticed the incident and raised an outcry, on hearing which, P.Ws.2 and 5 rushed to the post. Seeing the profuse bleeding from the head of her father, P.W.3 became senseless P.W.1 also reached at the spot, to whom P.W.3 narrated the incident and thereafter she became senseless. The matter was reported at Thuamal-Rampur police-station vide Ext.1 Since the O.I.C. and the A.S.I, were not present at the P.S., the Constable (P.W.8) made a station diary entry and sent the report to the A.S.I. Mahulpatna Out-post (P.W.10), who on receipt of the report came to the police-station, drew up formal F.I.R. and took up investigation. During investigation, he visited the spot, examined witnesses and seized the weapon of offence (M.O.I.) He also sent requisition to the Medical Officer. Thuamal-Rampur P.H.C. for treatment of the injured Kumardhan who was then alive. As his condition deteriorated P.W.10 sent message for Ambulance for shifting the injured to the District Headquarters Hospital. Bhawanipatna for better treatment P.W.10 also arrested the Appellant and seized his wearing apparels. On 07.04.1995, the Circle Inspector of police (P.W.12) took charge of the investigation Subsequently on 11/12.04.1995, the deceased died at Bhawanipatna Government Hospital. After completion of investigation, P.W.12 submitted charge-sheet u/s 302 IPC against the Appellant. 3. The defence plea was one of complete denial ct the occurrence. 4. In order to sustain the conviction against the Appellant, twelve witnesses were examined by the prosecution P.W.3 was the daughter of the deceased who claimed to be an eye-witness to the occurrence. P.Ws.1, 2 and 5 were post-occurrence witnesses. P.W.11 was the doctor who treated the deceased Immediately after the incident and P.W.4 was the doctor who conducted post mortem examination over the dead-body of the deceased. 5. As per the evidence of the doctors (P.Ws.4 and 11), there were two external injuries on the body of Kumardhan - one of the left side of the forehead and the other on the left of parietal region. On dissection, P.W.4 found that there was blood inside the scalp tissue, which was ante mortem in nature. There were three fracture lines over the scalp. On opening the skull, it was found that there was subdural haemorrhage over the left temporal area. There was intra-cerebral haemorrhage into the left cerebral lobe. There was laceration of left cerebral lobe. On dissection, P.W.4 found that there was blood inside the scalp tissue, which was ante mortem in nature. There were three fracture lines over the scalp. On opening the skull, it was found that there was subdural haemorrhage over the left temporal area. There was intra-cerebral haemorrhage into the left cerebral lobe. There was laceration of left cerebral lobe. According to P.W.4, the injuries were ante mortem in nature and death was due to injury to the most vital organ of the body, i.e. left side of the brain. He further opined that the injuries could be possible by M.O.I. Thus, there is no doubt that the deceased met a homicidal' death. 6. Now let us see who was the perpetrator of the crime P.W.3 presented a graphic picture of the prosecution case. She stated that the Appellant assaulted her father on his head by means of the handle. She also dosed that the Appellant asked her father to give back Rs. 18/- which as paid by pledging an alluminium pot. In return, the deceased asked the Appellant to return Rs. 300/- which he had taken beforehand. The Appellant suggested the deceased to go his house for collecting the money. While the deceased went to collect the money, he was assaulted on the head by a hand pounding handle. Seeing this P.W.3 raised a scream, by hearing which witnesses came to the spot. P.W.1 who was the younger brother of the deceased, arrived at the spot on hearing the outcry of P.W.3. P.Ws.2 and 5 who were co-villagers, also reached at the spot. All of them have substantially corroborated the statement of P.W.3. 7. Learned Counsel appearing for the Appellant has submitted that from the evidence of P.W.3 it is apparent that she became senseless after seeing the assault on her father. Therefore, it is not believable that she narrated the incident to P.W.1. But on a closer study of the evidence of P.W.3, we notice that she became senseless after narrating the incident to P.W.1. P.Ws.2 and 5 have also corroborated the version of P.W.3. In this background, the prosecution story can in no circumstance be viewed with suspicion. 8. In view of the foregoing discussions it has been amply proved that the deceased met a homicidal death out of the injury inflicted by the Appellant. P.Ws.2 and 5 have also corroborated the version of P.W.3. In this background, the prosecution story can in no circumstance be viewed with suspicion. 8. In view of the foregoing discussions it has been amply proved that the deceased met a homicidal death out of the injury inflicted by the Appellant. From the facts situation, we, however, gather that there was a quarrel between the Appellant and the deceased just before the incident. On the suggestion of the Appellant, the deceased went to his house to collect the money alleged to have been lent to the Appellant. At the spur of the moment, the Appellant went inside his house, brought out a hand pounding handle and inflicted a single blow on the head of the deceased. Although two injuries have been found on the person of the deceased. P.W.4 has made it clear that both the injuries can be possible by a single stroke. After receiving the injury, the deceased survived for six days and died in the hospital. In this background, it cannot be said that the Appellant had any intention to do away with the deceased. But, since the assault was on the head, it can be concluded that he had the intention for causing such bodily injury which is likely to cause death. Therefore, this is a fit case where the Appellant should be convicted u/s 304, Part-I, IPC. As regards sentence, it is submitted that the Appellant is in custody for the last seven years. In order to meet the ends of justice, we sentence him to undergo imprisonment for the period already suffered by him. 9. In the result, the appeal is allowed in part. The conviction and sentence passed against the Appellant u/s 302 IPC is set aside. Instead, he is convicted u/s 304, Part-I, IPC and sentenced to undergo imprisonment for the period he has already suffered. He be released from jail custody and set at liberty forthwith. P.K. Misra, J. 10. I agree.