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2003 DIGILAW 502 (ORI)

GANGA PATEL v. STATE OF ORISSA

2003-08-08

L.MOHAPATRA, SUJIT BARMAN ROY

body2003
MOHAPATRA, J. ( 1 ) THE appellants in the aforesaid four appeals having been convicted for commission of offence under Section 302/34 of the Penal Code and sentenced to R. I. for life by the learned 1st Additional Sessions Judge, Pun in S. T. Case No. 37/273 of 1993 have preferred the above four appeals. ( 2 ) THE case of the prosecution is that 7 to 8 months prior to the occurrence the deceased Dibakar Sahu aged about 22 years (son of the informant) had a quarrel with appellant Rabi Bhol and the appellant Rabi Bhol had thrown the deceased in a ditch and also threw the cycle on him as a result of which he had sustained some injuries. The said incident was reported to the Secretary of the village, but nothing was done. There-after the deceased left the friendship with the aforesaid four appellants and in spite of repeated request made by the appellants since the deceased refused to continue the friendship, he was being abused and threatened at times by the appellants on the date of the occurrence at about 7. 30 P. M. the deceased had gone to purchase betel to the shop of one Pana Dei near the temple of Goddess Mangala in the village. All the four appellants were present near the shop. When the decea-sed was purchasing betel, appellant Kusa Swain went to the shop and dashed against the deceased. When the deceased protested, the appellant Kusa abused him and gave him a slap. Thereafter, the deceased abused appellant Kusa Swain. Immediately after this, all the appellants abused the deceased and assaulted him by giving kick and fist blows as well as by means of a casurina stick where after the deceased was thrown into a well by the appellants. Though several persons of the village were present, no body came forward to help out of fear of the appellants as the appellants were shouting saying that whoever come to the rescue of the deceased shall also to be killed and thrown into the well. The informant, who is father of the deceased finding no other way jumped into the well and while he was trying to take out the deceased, it is alleged that the appellant Pramod and thereafter appellant Kusa jumped into the well and did not allow the informant to lift the deceased from water. The informant, who is father of the deceased finding no other way jumped into the well and while he was trying to take out the deceased, it is alleged that the appellant Pramod and thereafter appellant Kusa jumped into the well and did not allow the informant to lift the deceased from water. When the aforesaid two appellants came out of the well, one Sridhar Sahu entered into the well with a rope and by use of a bamboo ladder the deceased was brought out of the well. There was bleeding from the head, face and ears and injuries were also found on the back and front portion of the head and the deceased had lost his sense. Thereafter, the deceased was carried to Pun Hospital where he was declared dead. On these allegations, P. W. 1, the father of the deceased, lodged the F. I. R. in Pun Town Police Station on the date of the occurrence at about 9. 15 P. M. A case was registered for commission of offence under Section 302/34 of the Penal Code and ultimately charge-sheet was also submitted for commission of the aforesaid offence. The learned 1st Addi. Sessions Judge also framed charge for commission of offence under Section 302/34 of the Penal Code and the appellants faced trial for commission of the aforesaid offence. ( 3 ) THE plea of the appellants before the trial court was complete denial of the occurrence and they stated in their statements recorded under Section 313, Cr. P. C. that they have been falsely implicated in the case. The prosecution examined 11 (eleven) wit-nesses to prove the charge, but the defence did not examine any witness. The learned 1st Addi. Sessions Judge relying on the evidence of the several eyewitnesses examined on behalf of the prosecution found the appellants guilty of the charge and convicted them thereunder. ( 4 ) SHRI Ashok Mohanty, the learned counsel appearing for the appellant in Criminal Appeal No. 351 of 1994 and Criminal Appeal No. 353 of 1994. Shri D. P. Dhal, the learned counsel appearing for the appellant in Criminal Appeal No. 295 of 1994 and Shri B. P. Ray, the learned counsel appearing for the appellant in Criminal Appeal No. 352 of 1994 referring to the evidence on record submitted that the findings arrived at by the trial court are erroneous and liable to be set aside. According to the learned counsel for the appellants, the entire incident can be divided into two phases. The first phase relates to assault on the deceased by the appellants and the second phase relates to the allegation that the deceased was thrown into a well by the appellants and two of the appellants namely, Pramod and Kusa jumped into the well to prevent P. W. 1, the father of the deceased, from saving the life of the deceased. Referring to the evidence of the doctor who conducted post-mortem examination namely P. W. 9, the learned counsel further submitted that there was no sign of drowning or asphyxia as found by the said doctor. According to the learned counsel, if a person is thrown into a well the death shall likely be for drowning or asphyxia and, therefore, in absence of any sign of drowning or asphyxia, the entire prosecution story so far as the second phase of the incident is concerned cannot be believed. It was also submitted that so far as the first phase of the incident is concerned, there is variation in the statements of the eye-wit-nesses with regard to the assault on the deceased and in view of such un-reliable evidence placed before the trial court, no order of conviction could be passed. ( 5 ) THE learned Additional Stan-ding Counsel referring to the evidence of P. W. 9 submitted that as per the evidence of this witness death was likely due to injury in the spleen and in the first phase of the occurrence, the deceased was assaulted by all the appellants and due to such assault the injury in the spleen was caused. According to the learned Additional Standing Counsel, even if the second part of the prosecution story with regard to drowning is disbelieved, the evidence in relation to the first phase of incident is concerned, is reliable and, therefore, the appellants are liable for conviction under Section 302/34 of the Penal Code for committing the murder of the deceased Dibakar Sahu. ( 6 ) IN order to appreciate the rival contentions of the learned counsel appearing for the parties, we feel it necessary to look into the evidence recorded during trial. P. W. 1 is the father of the deceased, informant and eyewitness to the occurrence. ( 6 ) IN order to appreciate the rival contentions of the learned counsel appearing for the parties, we feel it necessary to look into the evidence recorded during trial. P. W. 1 is the father of the deceased, informant and eyewitness to the occurrence. Corroborating what he had stated in the F. I. R. this witness deposed that on the date of the occurrence while he was watching playing of cards near the pan shop, his son came to the pan shop. Prior to that he had noticed all the appellants loitering near the shop. When the deceased was sitting near the pan shop, the appellant Kusa went there and deliberately gave a push to him. When the deceased protested, appellant Kusa gave him a slap where after the appellant Pramod assaulted him by means of a casurina tree. When the deceased fell down, all the appellants started assaulting him. This witness has further stated that he rushed to the spot, but was prevented by appellants Rabi and Ganga. Appellants Kusa and Pramod dragged the deceased towards the well situated near the temple and threw him into the well. Though several other persons were present, none came forward to rescue the deceased. This witness has further stated that he jumped into the well to save his son but all the appellants pelted brick bats and stones into the said well and all his attempts to prevent the appellants failed. This witness has further stated that while he was about to lift the deceased, appellant Pramod and there-after Kusa jumped into the well and prevented him from saving the deceased. At the time when the deceased was brought out of the well he was still alive but by the time they reached the hospital he died. This witness in his cross-examination has stated that the well was a stone wedded well and there are no stone projections inside the well. Some holes have been left around the well to facilitate a climber. This witness has also stated that when he went inside the well the body of his son was wholly submerged under the water and he dided into the water to locate his son. P. W. 2 is another eyewitness to the occurrence who has stated that while he was playing cards, he heard a hullah from the side of the temple and went towards the spot. P. W. 2 is another eyewitness to the occurrence who has stated that while he was playing cards, he heard a hullah from the side of the temple and went towards the spot. He was prevented by appellants Rabi Bhol and Ganga Patel. He found two appellants assaulting the deceased who was lying on the ground and thereafter Pramod and Kusa dragged the deceased and threw into the well. This witness has also stated that after P. W. 1, his younger brother, jumped into the well to save the deceased, Appellants Pramod and Kusa also jumped into the well and prevented him from saving the deceased. P. W. 3 is another eyewitness to the occurrence and brother of the deceased. In his deposition he has stated that he had seen all the four appellants assaulting the deceased by kick and fist blows and also by means of branch of a casurina tree and the deceased was lying on the ground. Thereafter, the deceased was dragged and thrown into a well despite protest of the villagers present there. This witness has also stated that after P. W. 1 jumped into the well to save his son, appellants Pramod and Kusa jumped into the well and prevented him from saving the deceased. Similar is the evidence of P. W. 4 who is an eyewitness to the occur-rence. P. W. 5 is another eyewitness to the occurrence who has supported the prosecution case. P. W. 8 who is also an eyewitness to the occurrence supported the prosecution case. Even though these eyewitnesses have stated that after the deceased was assaulted by the appellants he was thrown into a well. P. W. 9, the doctor who conducted the post-mortem examination in his cross-examination has clearly stated that the death could not have been caused due to drowning and asphyxia. There was no sign of drowning. Rather this witness has stated that there was injury on the spleen which was ante mortem in nature and was the cause of the death. Though P. W. 1 in cross-examination has stated that when he jumped into the well to save his son the deceased was completely submerged under the water, the said story does not get any corroboration from the evidence of the doctor, P. W. 9. Though P. W. 1 in cross-examination has stated that when he jumped into the well to save his son the deceased was completely submerged under the water, the said story does not get any corroboration from the evidence of the doctor, P. W. 9. If an injured is thrown into a well which has sufficient water that can cause drowning there should be at least some symptom of drowning or asphyxia. The positive statement of P. W. 9 is that there was no sign of drowning and asphyxia. In view of said medical evidence, the prosecution case with regard to second phase of the occurrence that the deceased was thrown into the well and P. W. 1 jumped into the well to save him, but two appellants who also jumped prevented him from saving, is not free from doubt. In view of the evidence of the doctor that the death was due to injury on the spleen and in view of specific evidence of P. W. 1 that there was no stone projection inside the well which could hit the abdomen so as to cause the injury on the spleen, we have no other option except to examine the first phase of the evidence where it is alleged that the deceased was assaulted by all the four appellants. The statements of all the eyewitnesses show that out of the four appellants, appellant Pramod was holding a branch of casurina tree. The evidence further goes to show that the other three appellants assaulted the deceased by kick and fist blows whereas the appellant Pramod assaulted by means of a casurina branch on the head. No witness has stated specifically as to whether there was any assault on the abdomen either by the branch of the casurina tree or by kicks or fist blows. P. W. 9 in his cross- examination has stated that there was no external injury corresponding to the internal injury found over the spleen. He has also stated that since abdomen is an elastic surface, a heavy blow by means of lathi or by Gotali may not always cause external injury but it may at times cause such external injury. P. W. 9 in his cross- examination has stated that there was no external injury corresponding to the internal injury found over the spleen. He has also stated that since abdomen is an elastic surface, a heavy blow by means of lathi or by Gotali may not always cause external injury but it may at times cause such external injury. In absence of any specific evidence that the deceased was assaulted by any of the appellants on the abdomen and in absence of any external injury on the abdomen, we are unable to hold that anyone of the appellants or all of them can be held responsible for causing the injury on the spleen either by way of kick blows or by way of fist blows. Undisputedly during the course of such assault, the deceased had also received other injuries. Though some contradictions were pointed out by the learned counsel for the appellants with regard to first phase of the incident since the contradictions are not material, we have no reason to disbelieve these witnesses, so far as the first phase of the incident is concerned. The doctor, P. W. 9 who conducted the post-mortem examination found one linear abrasion on the interior part of the face and abdomen and on both thighs which are multiple in number of various sizes. He also found one contusion present over the right side of forehead just below the half margin. Evidence of eyewitnesses is consistent to the effect that appellant Pramod dealt a blow on the head by means of a branch of a casurina tree while all other appellants assaulted the deceased by giving kicks and fist blows. The corresponding injury on the head is also found by the doctor, P. W. 9. ( 7 ) IN view of such evidence available on record, we are of the view that in absence of any evidence that the deceased died due to drowning or asph-yxia and that any of the appellants caused the injury on the spleen, the offence under Section 302 of I. P. C. is not established. However, considering the evidence as discussed above and the corresponding injury on the head of the deceased as well as other parts of the body by use of branch of a casurina tree. We are of the view that the appellants are guilty of the offence under Section 326/34 of the Penal Code. However, considering the evidence as discussed above and the corresponding injury on the head of the deceased as well as other parts of the body by use of branch of a casurina tree. We are of the view that the appellants are guilty of the offence under Section 326/34 of the Penal Code. We, therefore, set aside their conviction under Section 302/34 of the Penal Code and convict them for commission of offence under Section 326/34 of the Penal Code. From the record, it appears that all the appellants have served more than three years of sentence in the meantime and are on bail at present. We, therefore, while convicting the appellants under Section 326/34 of the Penal Code sentence them to undergo imprisonment for a period of three years. The appeals are accordingly partly allowed. Appeals allowed partly.