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2005 DIGILAW 293 (ORI)

Murali Patra and four v. State of Orissa

2005-04-29

body2005
JUDGMENT S. BARMAN ROY, CJ. — This appeal at the instance of the five appellants namely, Murali Patra, Bhagia Patra, Gunjia @ Rama Patra, Bharat Patra and Ananta Patra is directed against the judgment dated 10.7.1987 passed by the learned Sessions Judge, Keonjhar convicting all the appellants under Section 148, IPC and sentencing them thereunder to undergo R.I. for one year and also convicting them under Section 323/149, IPC and sentencing them to undergo R.I. for one year and further convicting them under Section 324/149, IPC and sentencing them to R.I. for two years. All the appellants were further convicted under Section 325/149, IPC and sentenced to undergo R.I. for three years. The impugned judgment passed in Sessions Trial No. 10 of 1986. 2. Mr. Kar, learned Addl. Standing Counsel has taken me through the evidence on record. 3. Prosecution case in brief is that P.W.1 Achutananda Patra lodged an FIR in connection with an incident that took place on 7.11.1985 at about 9.00 A.M. In the said FIR it was, inter alia, alleged that at the time of occurrence the informant Achutananda Patra being P.W.1 alongwith his brother Satyananda Patra (since deceased) were harvesting paddy from their land which is stated to be situated near the house of Pandab Patra being the son of appellant No. 1 Murali Patra. After harvesting paddy, they removed the sheaves of paddy to their house. When they again came back to remove the remaining sheaves of paddy the appellants along with Punia Patra being armed with deadly weapons like axe, spear and lathis surrounded the informant party and assaulted them. In course of such assault, both the informant as well as his brother Satyananda sustained severe injuries. This is in short the FIR story. On the basis of the said FIR, a case under Sections 147, 148, 325/149, 324/149 was registered against the appellants alongwith Punia Patra at the said police station. Few days thereafter, the deceased Satyananda succumbed to injuries and accordingly Section 302, IPC was added to this case. After usual investigation police submitted charge sheet against the appellants under Sections 147, 148, 149, 324, 323/302, IPC. In course of time, the case was committed to the Court of learned Sessions Judge, Keonjhar. On perusal of materi¬als on record, charges under Sections 148, 323/149, 324/149 and 302/149, IPC were framed against the appellants to which they pleaded not guilty. 4. In course of time, the case was committed to the Court of learned Sessions Judge, Keonjhar. On perusal of materi¬als on record, charges under Sections 148, 323/149, 324/149 and 302/149, IPC were framed against the appellants to which they pleaded not guilty. 4. In course of trial, in all, 14 P.Ws. were examined on behalf of the prosecution. None was examined on behalf of the appellants. The plea of the appellants in course of trial was that prior to the occurrence deceased Satyananda Patra committed theft of two fowls belonging to Pandab Patra being the father of appellants Murali Patra, Bhagia Patra and Gunjia Patra. In the following morning in front of their house Pandab Patra being the father of three appellants sought explanation from the deceased Satyananda and there was some altercation on that score and immediately after that deceased Satyananda alongwith his other brothers namely, P.W.3, Bipin Patra, P.W.4 Harihar Patra and P.W.2, Gachhita Patra came there and assaulted the informant party in front of their own house as a result P.W.1. Achutananda Patra inflicted injuries on appellant No. 1 Murali Patra with a spear and Satyananda shot an arrow on Murali Patra as a result of which appellant No. 1 Murali Patra fell down. Simultaneously P.W.2, Gachhita Patra inflicted an injury on appellant No. 3, Ananta Patra with a sharp cutting weapon and they were all injured. This case which now I am presently dealing with was stated to be foisted against the appellants. Appellant No. 3 Ananta Patra and appellant No. 2 Bharat Patra also took identical plea of defence stating that when they intervened in the matter they were assaulted by the prosecution party. It is stated that P.W.2 Gachhita Patra dealt with a blow on the appellant No. 5, Gunjia Patra with an axe and P.W.3 Bipin Patra dealt with a blow to appellant Ananta Patra and they were all injured in the inci¬dent. 5. On perusal of the evidence on record and also consider¬ing the plea of the appellants, I am left with no doubt that both the parties were involved in the incident. However, before fixing responsibility about this incident, I will have to examine the medical evidence thoroughly. 5. On perusal of the evidence on record and also consider¬ing the plea of the appellants, I am left with no doubt that both the parties were involved in the incident. However, before fixing responsibility about this incident, I will have to examine the medical evidence thoroughly. So far as version of the eye-witnesses examined on behalf of the prosecution is concerned, there is no doubt that the appellants were involved in the incident though there is no clear explanation as to who were the aggressors. 6. P.W.9 examined number of prosecution witnesses who were injured in the incident. From his evidence as discussed in the impugned judgment of the trial Court, it appears that P.W.9 Dr. Babaji Charan Patra being Medical Officer of Fakirpur P.H.C. examined Achutananda Patra (P.W.1) on 7.11.1985 at 6.00 P.M. and found cut injury and bruise with abrasion on his body which are stated to be simple in nature. He also examined P.W.3 Bipin Patra on 9.11.1985 at 8.15 A.M. and found four abrasions on his body which were all simple injuries caused by blunt weapon. Likewise on 9.1.1985, P.W.9 examined P.W.5 Bani Dei and found three bruises with abrasion on the occipital region of the skull and other parts of the body. However, all these injuries were found to be simple in nature inflicted by blunt weapon. He also exam¬ined Satyananda Patra when he was alive on 7.11.1985 at 1.45 A.M. and found abrasion with swelling on the upper limb above the elbow joint measuring 6" x 3" and he did not express his final opinion and referred him to the Sub-Divisional Hospital, Anandpur for X-Ray. He also found another abrasion accompanied with bruise on the left calf and both the injuries stated to have been caused by blunt weapon. He also examined P.W.2 Gachhita Patra on 9.11.1985 at 7.45 A.M. and found two abrasions accompanied with bruise on the forehead and on the left knee joint and all these injuries are simple in nature inflicted by blunt weapon. Therefore, according to P.W.9 all the P.Ws. including the deceased sustained simple injuries inflicted by blunt weapon. However, the injury on the elbow of the deceased was found to be accompanied with frac¬ture and as such he referred him to Anandpur Sub-Divisional Hospital for X-Ray. P.W.10 Dr. Therefore, according to P.W.9 all the P.Ws. including the deceased sustained simple injuries inflicted by blunt weapon. However, the injury on the elbow of the deceased was found to be accompanied with frac¬ture and as such he referred him to Anandpur Sub-Divisional Hospital for X-Ray. P.W.10 Dr. Kumarbar Sahu held post-mortem examination on the deceased Satyananda Patra on 13.11.1985 at 3.45 P.M. During post-mortem examination, he found the following injuries: (i) On removal of posterior slab and bandage from right hand it was seen that there was swelling of the whole right hand beginning from wrist to axilla, more marked from middle of fore-arm to middle of arm with blackish discolouration. There was supra-condylar fracture on right humurus. The fractured fragment is displaced posterially and medially. Muscles and subcutaneous tissues in upper half of fore-arm and lower half of arm are bruised and congested. There was one lacerated wound 2 cm. x 1 cm. with discharging blood stained pus on the posterior surface of the right elbow. On pressure the discharge increased in quan¬tity and half litre of pus was drained. (ii) One abrasion 2 cm x 1 cm. on the middle of the left leg on the anterior surface. The injuries were ante mortem in nature. He further opined that injury No. (i) was grievous and injury No. (ii) was simple and both the injuries must have been caused by blunt and hard object. As per his opinion, the death was due to septicemia and toxemia resulting from secondary infection of supracondylar fracture. 7. He clearly stated in his evidence that as per the judgment of the trial Court that the injuries on the person of the deceased were not sufficient to cause his death in ordinary course of nature and he died due to complication of the injuries on his body. 8. Hence from the evidence of P.W.10, it appears that death of the deceased was not homicidal but it was caused due to complication of the injuries that is sustained in the occurrence. He further repeated that the deceased died out of secondary infection due to septicemia and toxemia. 9. From the aforesaid it is therefore evident that the deceased died due to secondary infection and therefore the injuries inflicted upon him by the appellants were not directly responsible for the death of the deceased. He further repeated that the deceased died out of secondary infection due to septicemia and toxemia. 9. From the aforesaid it is therefore evident that the deceased died due to secondary infection and therefore the injuries inflicted upon him by the appellants were not directly responsible for the death of the deceased. For this reason the appellants were exonerated from the charge under Section 302/149, IPC. As already stated they were convicted under Sections 148, 323/149, 324/149 and 325/149, IPC. All the injuries stated to have been inflicted by the appellants were caused by blunt weapon. No sharp cutting weapon was used by them. On the other hand, it appears from the evidence on record that the appellants sustained injuries inflicted by sharp cutting weapon. In this regard, the evidence of P.W.9 is very important. The evidence of P.W.9 Dr. Babaji Charan Patra has been discussed by the learned trial Court. During cross-examination, he proved Exts. A/a to E/a being the injury reports in respect of various appellants. He examined the appellant Gunjia Patra on 8.11.1985 at 1.45 A.M. He also examined the appellant Bhagia Patra at about same time. He also examined appellant Ananta Patra on 8.11.1985 at 1.00 A.M. The appellant Murali Patra was examined by him on 9.11.1985 at 7.15 A.M. With regard to the injuries sustained by them it ap¬pears from the report that most of these injuries were inflicted by sharp cutting weapon. 10. Learned Addl. Standing Counsel has taken me through the entire evidence on record. On perusal of the evidence on record including the version of the eye-witnesses, I am unable to come to any definite conclusion as to which side of the two parties were aggressors. Therefore, possibility of the appellants having inflicted injuries upon the prosecution witnesses including the deceased in exercise of right of private defence as pleaded by them cannot be ruled out. If am unable to rule out such a possi¬bility on the basis of the evidence on record, benefit must be given to the appellants. I am constrained to observe in the context of these injuries found on the appellants inflicted by sharp cutting weapon and further fact that the prosecution wit¬nesses including the deceased suffered injuries inflicted by blunt weapon, prosecution has failed to prove the case beyond reasonable doubt that the appellants were the aggressors. I am constrained to observe in the context of these injuries found on the appellants inflicted by sharp cutting weapon and further fact that the prosecution wit¬nesses including the deceased suffered injuries inflicted by blunt weapon, prosecution has failed to prove the case beyond reasonable doubt that the appellants were the aggressors. On the other hand, possibility that the prosecution witnesses were aggressors cannot be ruled out. 11. In the result, I am of the view that conviction and sentence of the appellants on the basis of evidence on record cannot be sustained. I, therefore, allow the appeal and set aside the impugned judgment of conviction and sentence. Appeal allowed.