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2003 DIGILAW 439 (ORI)

Mana Santa v. State of Orissa

2003-06-28

L.MOHAPATRA

body2003
JUDGMENT L. MOHAPATRA, J. — This appeal is directed against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Jeypore. Both the appellants have been convicted for commission of offence under Section 302/34 of the Penal Code and have been sentenced to undergo R.I. for life. In addition to the above the appellant No. 1 has been convicted for commission of offence under Section 324 of the Penal Code and has been sentenced to undergo R.I. for two years and the sentences have been directed to run concurrently. 2. Case of the prosecution is that on 22.11.93 deceased Sania Santa and injured Damburu Santa (P.W.3) had come to Kundra to pay rent to the Revenue Inspector. At about 7.30 P.M. on that day while returning to their village they were assaulted by the appel¬lants and both of them reached their village with bleeding injuries. It is also alleged that both of them before P.W.1 and others stated that while returning to village near Boribeda they met the appellants who assaulted them by means of axe resulting in injuries. It is also alleged that in course of the assault the deceased snatched away the axe from one of the accused persons but sustained injuries on left-ear, hand as well as head and Dambaru (P.W.3) sustained injuries on the abdomen. Hearing of the incident from the deceased as well as the injured the matter was reported before the Sarpanch who came to the house of the deceased and before the Sarpanch the deceased and the injured narrated the incident. On the advice of the Sarpanch report was submitted and the axe which was snatched away by the deceased was produced before the O.I.C. of the police station. The oral statement of the informant (P.W.1) was reduced into writing and the F.I.R. was registered for commission of offence under Sections 107/307/34 of the Penal Code. After investigation charge-sheet was submitted for commission of the aforesaid offences. 3. Both the appellants denied the occurrence as alleged in the F.I.R. The prosecution in order to bring home the charges examined eight witnesses out of whom P.W.1 is the son of the deceased and the informant in the case. P.W.3 is the injured and eye-witness to the occurrence. P.W.5 is the doctor who conducted post-mortem examination and the P.W.8 is the doctor who recorded dying declaration of the deceased. 4. P.W.3 is the injured and eye-witness to the occurrence. P.W.5 is the doctor who conducted post-mortem examination and the P.W.8 is the doctor who recorded dying declaration of the deceased. 4. Trial Court on the basis of the evidence of eye-witness P.W. 3 and the dying declaration made by the deceased before his son (P.W.1) as well as before the doctor (P.W.8) convicted the appellants for commission of offence under Section 302/34 of the Penal Code for committing murder of the deceased Sania. On the basis of the evidence of P.W.3 as well as other evidence on record convicted the appellant No. 1 for Commission of offence under Section 324 of the Penal Code. 5. Learned counsel Sri Sinha appearing for the appellants challenged the findings of the Court below basically on the following grounds. (i) F.I.R. was dictated under the direction of the O.I.C. of the police station and the F.I.R. at the instance of Sarpanch has been withheld from the Court. (ii) There being no evidence of assault by appellant No. 2 so far as the deceased is concerned is absence of any material to attract Section 34 of the Penal Code the appellant No. 2 could not have ben convicted for commission of murder of Sania. (iii) Dying declaration of the deceased also cannot be be¬lieved in view of the fact that within a short span of time after the incident the deceased succumbed to the injuries and could not have been in a fit mental condition to make a dying declaration. 6. So far as the first point raised by the learned counsel for the appellants is concerned, it is worthwhile to refer to the evidence of P.Ws.1 and 2. P.W.1 in his evidence has stated that after the deceased and the injured came to the village with bleeding injuries and stated about the occurrence, the Sarpanch Dhanurjaya Sahu, Ward Member Ratan Santa (P.W.2) and others came near his house and saw both the deceased and injured. In cross-examination he has stated that report prepared by Sarpanch was not accepted by the O.I.C. and he was asked to make an oral report. Learned counsel for the appellants referring to the cross-examination of P.W.2 submitted that the O.I.C. asked the P.W.1 to report against the accused persons and accordingly P.W.1 reported before the police against the accused persons-appellants. In cross-examination he has stated that report prepared by Sarpanch was not accepted by the O.I.C. and he was asked to make an oral report. Learned counsel for the appellants referring to the cross-examination of P.W.2 submitted that the O.I.C. asked the P.W.1 to report against the accused persons and accordingly P.W.1 reported before the police against the accused persons-appellants. If the entire evidence of P.W.2 is looked into it will appear that Sarpanch wrote a report regarding the occurrence which was submitted before the O.I.C. The O.I.C. did not accept the report written by the Sarpanch and asked P.W.1 to submit report orally. Accordingly, oral statement of the informant (P.W.1) was reduced to writing and treated as the F.I.R. In view of such evidence just because the O.I.C. asked the P.W.1 to make an oral report it cannot be construed that the O.I.C. directed P.W.1 to make a report against accused persons. There is evidence on record also to show that the report prepared by the Sarpanch was kept by the O.I.C. but the oral statement made by P.W.1 was reduced to writing and treated as an F.I.R. we are, therefore, unable to accept first contention of the learned counsel for the appellants. 7. So far as the second contention of the learned counsel for the appellants is concerned, it is necessary to refer to the evidence of P.W.3 who is not only the eye-witness to the occur¬rence but also sustained injuries in course of the incident. This witness in his deposition has stated that while he and the deceased were returning to the village they met both the appellants on the way near house of the one Narasinga of village Pakanaguda. Both the appellants had consumed intoxicant juice and offered the same to the deceased and the injured. At that time each of the accused persons was holding an axe. He has also stated that they asked the accused persons to come with them to the village but they denied. Thereafter while he and the deceased were proceeding towards village near Boribeda both the accused-appellants armed with axes appeared before them and the appellant No. 1 dealt a blow on his abdomen as a result of which he sustained cut injury on the abdo¬men. Thereafter while he and the deceased were proceeding towards village near Boribeda both the accused-appellants armed with axes appeared before them and the appellant No. 1 dealt a blow on his abdomen as a result of which he sustained cut injury on the abdo¬men. This witness has further stated that both the appellants thereafter assaulted by means of axe to the deceased who sustained cut injuries on his head, left hand and other parts of the body. During such assault the deceased snatched away the axe from the hands of appellant No. 1, whereafter both the appellants fled away from the spot. Nothing has been brought out in cross-examination to disbelieve this witness. From the deposition of this witness it is clear that both the appellants had met the deceased and the injured some time prior to the and refused to accompany them to the village. Thereafter on the way to the village both the appellants suddenly appeared with arms with their hands and started assaulting under these circumstance it cannot be said that both the appellants did nor share common intention to assault the deceased as well as the injured. We are, therefore, unable to accept the second contention of the learned counsel for the appellants. It will not be out of place to men¬tion here that the deceased had sustained five injuries on the different places of his person and this clearly shows the inten¬tion of the accused persons to commit murder of the deceased. 8. So far as the third point raised by the learned counsel appearing for the appellants is concerned reference may be made to the evidence of P.W. 8. This witness is the doctor who examined the deceased when he was alive. In para-2 of his deposition he has stated that at the time of admission of the deceased into hospital as an Indoor patient the deceased was conscious and was able to talk properly. The I.O. prayed for recording dying declaration and after giving medical treatment to the deceased he recorded his dying declaration at about 3 A.M. in presence of two Pharmacists. He has also stated that at the time of dying declaration the deceased was able to understand the questions and give answer to them. The I.O. prayed for recording dying declaration and after giving medical treatment to the deceased he recorded his dying declaration at about 3 A.M. in presence of two Pharmacists. He has also stated that at the time of dying declaration the deceased was able to understand the questions and give answer to them. Apart from recorded dying declaration it also appears form the evidence of P.Ws.1 and 2 that after reaching the village the deceased had also made oral dying declaration before the P.Ws.1 and 2 and also before the Sarpanch and others. After perusal of the evidence on record, we do not find any reason to ignore the dying declaration, both oral and written. In the dying declaration the deceased has implicated both the appellants specifically. We are, therefore, not inclined to accept such contention and find no reason to disturb the finding of the trial Court in this regard. Accordingly, submission of the learned counsel for the appellants on the last point also has no substance. 9. In view of the discussions made above, we do not find any reason to disturb the findings of the trial Court as well as order of conviction and sentence passed by the trial Court assailed before us. Accordingly, the appeal stands dismissed. SUJIT BARMAN ROY, C.J. I agree. Appeal dismissed.