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2004 DIGILAW 390 (ORI)

KANDHA SWAIN v. STATE OF ORISSA

2004-09-01

N.PRUSTY, P.K.TRIPATHY

body2004
P. K. TRIPATHY, J. ( 1 ) THE appellant challenges the order of conviction under Sections 302 and 323, I. P. C. imposed on him by the learned Second Addi. Sessions Judge, Berhampur in Sessions Case No. 15/96 (S. C. No. 93 of 1996 (GDC ). ( 2 ) ACCORDING to the case of the prosecution on 31. 10. 1995 at about 8 P. M. while the accused was engaged in a quarrel with one Han Bisoi (P. W. 4) Sahadev Swain (hereinafter referred to as the deceased) intervened and separated them. At about 9 P. M. when the deceased after taking his supper went to purchase Bidi from a shop the appellant in front of his house came out and dealt a blow by means of one wooden Katua (M. O. I.) which hit on the head of the deceased and as a result of that the deceased suffered homicidal death. The wife of the deceased Goluni Swain and their daughter Birajini Swain (P. Ws. 2 and 1 respectively) when came to the rescue of the deceased, the appellant assaulted them and caused simple injuries. Charge was framed for the offences punishable under Sections 302 and 323, I. P. C. Surprisingly enough, charge for the offence under Section 307, IPC was also framed against the appellant for attempting to commit murder of the deceased. According to the prosecution when the deceased suffered instantaneous death and charge was framed under Section 302, IPC, therefore, framing of charge under Section 307, IPC was redundant. ( 3 ) IN course of the trial, eight wit-nesses were examined by the prosecution and several documents vide Exts. I to 17 were exhibited besides the weapon of offence as material object, M. O. I. Out of the said witnesses, P. Ws. 1 and 2 are the injured as well as eye-witnesses to part of the occurrence and P. W. 7 is the Doctor who conducted post-mortem examination and submitted the post-mortem report (Ext. 9 ). P. W. 5 is the Doctor who examined P. Ws. 1 and 2 and the accused and his wife and granted injury certificates Exts. 4 to 7. P. W. 4 in course of the trial turned hostile to the prosecution and P. W. 3 is a post occurrence witness. 9 ). P. W. 5 is the Doctor who examined P. Ws. 1 and 2 and the accused and his wife and granted injury certificates Exts. 4 to 7. P. W. 4 in course of the trial turned hostile to the prosecution and P. W. 3 is a post occurrence witness. ( 4 ) THE defence plea of the accused was that the deceased came in front of his house in an intoxicated condition and abused him, therefore, the accused came out from his house and protested and in that process accused was assaulted by the deceased and his wife and daughter and he did not assault the deceased or P. Ws. 1 and 2. No defence evidence was adduced by the accused (appellant ). ( 5 ) ON assessment of the evidence on record, learned Addi. Sessions Judge while rejecting the argument of the defence found the evidence of P. Ws. 1 and 2 to be credible and reliable. He also found the defence plea of assault on the appellant as not proved in the manner he has stated and accordingly while rejecting the plea of self-defence of the appellant he found that the appellant is guilty of the homicidal death of the deceased. Accordingly, he convicted the appellant for the offences under Section 302, IPC and also for the offence u/ss 323, IPC. For the offence under Section 302, IPC he sentenced the appellant to undergo imprisonment for life and no separate sentence was awarded for his conviction under Section 323, IPC. ( 6 ) IN course of hearing of this appeal, Mr. Nanda, learned Counsel for the appellant fairly concedes that though the trial Court has not recorded a clear finding that the deceased suffered homicidal death but the evidence of P. W. 7 read with the post-mortem report clearly makes out a case of homicidal death. On perusal of such evidence we find that P. W. 7 has stated that on examination of the dead body he found one external injury i. e. , a lacerated wound of the size of 4 x 1/2 over the vertex of the skull. On disection he found a crack fracture of the right parietal bone, subdural haematoma of 2 x 1 at the local site of the injury and haemorrhage of the brain. On disection he found a crack fracture of the right parietal bone, subdural haematoma of 2 x 1 at the local site of the injury and haemorrhage of the brain. Accordingly, he opined that death was due to coma caused by the above injury to the brain. He also examined the Katua and gave his opinion report that the said injury found on the dead body of the deceased is possible by the Katua. ( 7 ) IT is because of the defence plea of admitting the occurrence (though denying to the allegation of assault by the accused on the deceased) that we appreciate contention of Mr. Nanda, learned Counsel appearing for the appellant, in conceding to the homicidal death of the deceased. Otherwise, it would have been a difficult case to prove the case of homicidal death because of absence of relevant evidence from the mouth of P. W. 7 and necessary endorse-ment in Ext. 9 regarding homicidal death of the deceased. In that respect, we find a casual approach both by the learned Prosecutor and the trial Court in not bringing on record that technical part in course of examination of P. W. 7. Where prosecution is not conducted diligently by bringing necessary evidence on record then it is not only the duty but also the responsibility of the Presiding Officer of the trial Court to see that such evidence properly came on record. He cannot be mute participant to the inaction and omission committed by the prosecutor because the adjudicatory forum is to decide and dispose of the cases and not merely to dispose of them. Therefore, on the inaction/failure of the prosecutor the trial Court should have asked relevant question to record a categorical answer if the deceased suffered a homicidal death and whether the injury was sufficient in ordinary course to cause the death of the deceased. Answer on that may favour the prosecution or the defence but that circumstance is not to bother the Court because it has to decide the case correctly and strictly in accordance with law without bothering whom that evidence would favour. ( 8 ) BE that as it may, we find that in view of admission of the occurrence in the above indicated manner and death of the deceased due to the injury to the head and brain, a case of homicidal death is made out. ( 8 ) BE that as it may, we find that in view of admission of the occurrence in the above indicated manner and death of the deceased due to the injury to the head and brain, a case of homicidal death is made out. Therefore, failure of the trial Court to record a categorical finding in that respect does not detain us from considering the issue of involvement of the accused as the author of that injury. ( 9 ) LEARNED Counsel for the appe-Ilant persuades us to disbelieve credibility of P. Ws. 1 and 2 as eye-witnesses to the occurrence of assault. On perusal of their evidence we find that they are natural witnesses to the occurrence and therefore their credibility cannot be brushed aside simply because they are the wife and daughter of the deceased. In their evidence, while corroborating to each other on all material particulars, both the P. Ws. 1 and 2 have stated about the quarrel picked up by the accused and about the Katua blow given by him on the head of the deceased and when they rushed to the spot for rescue of the deceased, they were also assaulted by the accused. Learned Counsel for the appellant has no answer to the defence plea in which the accused admitted about presence of P. Ws. 1 and 2 at the spot of the occurrence inasmuch as he alleged that he was assaulted by the deceased and P. Ws. 1 and 2. Thus, we find that presence of P. Ws. 1 and 2 at the spot of occurrence cannot be disbelieved. There is no material contradiction in their evidence regarding the narration of events attributing allegation against the appellant as the author of the crime. Read with that, we find that P. Ws. 1 and 2, being the wife and daughter of the deceased, would not make false accusation against an innocent man leaving the real culprit to move freely. We, thus, find evidence of P. Ws. 1 and 2 worthy of credence and in that respect we agree with the opinion of the trial Court. 1 and 2, being the wife and daughter of the deceased, would not make false accusation against an innocent man leaving the real culprit to move freely. We, thus, find evidence of P. Ws. 1 and 2 worthy of credence and in that respect we agree with the opinion of the trial Court. ( 10 ) THUS, not being successful that way, he argues that the entire evidence available on record goes to indicate that at about 8 P. M. the deceased was the uncalled for intervenor in subsiding the quarrel between the accused and P. W. 4 and again at 9. P. M. it was the deceased who came in front of the house of the accused and the occurrence took place. The accused has one injury and that suggests of a quarrel between the two. Therefore, the allegation of the prose-cution being dealing of only one blow by a wooden Katua, therefore, considering that fact and circumstance appellants conviction under Section 302, IPC is unjustified and at best that makes out an offence under Section 304, IPC Second Part. Learned Addi. Government Advocate does not dispute that contention relating to making out a case for the offence u/s 304, IPC but he states that it should be guided by First Part of that Section. ( 11 ) IT is also stated at the Bar that the accused (appellant) was arrested and produced in the Court of S. D. J. M. on 3/11/1995. His application for bail was refused during the trial and also during pendency of this appeal and therefore appellant is in Jail custody as on date. They state that in that process, the appellant has already suffered the imprisonment of 8 years and 10 months and that aspect may be appropriately considered. ( 12 ) REGARD being had to the aforesaid facts and submissions we find merit in that argument of learned Counsel for the appellant and accordingly set aside his conviction under Section 302, IPC but convict him under Section 304 Part-I, IPC and award the sentence equivalent to the period already undergone. We also do not propose to award separate sentence for the offence under Section 323, IPC. Accordingly, the appeal is allowed in part. In view of the aforesaid order in modifying the order of conviction and sentence, the appellant be set at liberty forthwith. .