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2006 DIGILAW 68 (ORI)

Gangadhar @ Mituku Mahanta v. State

2006-01-27

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JUDGMENT SUJIT BARMAN ROY, C.J. : This appeal at the instance of two appellants, namely, appellant No.1 Gangadhar alias Mituku Mahanta and his wife being appellant No. 2 Kainfula Mahanta is directed against the judgment dated 17.12.1988 passed by the learned Sessions Judge, Keonjhar convicting appellant No.1 under Section 304, Part II, IPC and sentencing him thereunder to R.I. for five years and further convicting appellant No.2 under Section 304, Part II/114, IPC and sentencing her thereunder to undergo R.I. for two years. The impugned judgment was passed in connection with S.T. Case No. 71 of 1987. 2. After the charge sheet was filed, charge under Section 302, IPC was framed against appellant No.1 and another charge under Section 302/114, IPC was framed against appellant No.2 to which they pleaded not guilty. 3. In course of trial, in all 16 P.Ws. were examined on behalf of the prosecution. Out of them, P.W.1 Tarinisen Mahanta, P.W.5 Sakuntala Mahanta and P.W.7 Sanjia Mahanta were eye wit¬nesses to the occurrence. FIR in this case was lodged by P.W.1 Tarinisen Mahana. P.W.8 alleged heard an extra judicial confes¬sion stated to have been made by appellant No.1. 4. On 7.7.1987 at or about 7 P.M. P.W.1 Tarinisen Mahanta lodged an oral information at Champua Police Station alleging basic facts of the case and the said oral information was reduced into writing by the Officer in Charge of the said police station and an FIR on that basis was registered under Sections 341/326/379, IPC. However, after about 24 hours the deceased succumbed to his injuries and accordingly Section 302, IPC was added to this case and the Police took up usual investigation. P.W.1 Tarinisen Mahanta happened to be the son of the deceased. In his evidence P.W.1 stated that the occurrence took place on 7.7.1987 and his father succumbed to the injuries on 8.7.1987. In their old backyard they had sown Biri crop. On that day they were putting up a fence for closing a portion of the land on which the deceased and P.W.1 had sown Biri. On that very day in the after¬noon the deceased had cut some jhatas (twigs) and brought them for the purpose of putting up a fence around a portion of the land in which they had sown Biri. Along with them his sister P.W.5 Sakuntala Mahanta was also there. 5. On that very day in the after¬noon the deceased had cut some jhatas (twigs) and brought them for the purpose of putting up a fence around a portion of the land in which they had sown Biri. Along with them his sister P.W.5 Sakuntala Mahanta was also there. 5. P.W.4 Srimati Mahanta being the wife of the deceased and P.W.5 Sakuntala Mahanta along with the deceased brought the said jhatas (twigs) for the purpose of raising a fence. The deceased was putting up the fence and P.Ws. 1, 5 and 6 were standing nearby. At that time appellant No.1 being the uncle of P.W. 1 was sitting on the broken mud-wall of the deceased. Seeing this appellant No.1 allegedly protested that he would not allow the deceased to use the jhatas (twigs) which were brought from the land belonging to their common elder brother. On this issue there was an altercation. At that point of time appellant No.1 tried to snatch away the jhatas (twigs) from the hands of the deceased. However, the deceased was saying that he would not allow appellant No.1 Gangadhar to take away the twigs. Then appellant No.1 asked his wife being appellant No.2 to bring a stick (lathi). On being so directed, appellant No.2 handed over a crow-bar marked M.O.I. to appellant No.1. Appellant No.1 with the said crowbar dealt a blow on the head of the deceased. The de¬ceased sustained bleeding injuries on this head. He cried out “being killed, being killed”. P.W.1 then ran to rescue the de¬ceased. Thereafter the deceased came to the verandah of one Balabhadra and the daughter-in-law of said Balabhadra tied a Gamuchha (Indian towel) around the head of the deceased. Wife of the deceased went away to call the villagers. The villagers came and saw the injuries on the head of the deceased and they advised that the deceased should be taken to Champua. P.W.1 and others brought the deceased by a bicycle to Karanjia and from there he was brought to Champua by bus. When they reached Champua it was almost evening. From there they went to the Police Station with the injured. He lodged F.I.R. at the Police Station which was ultimately reduced into writing and on that basis the F.I.R. was registered. From there P.W.1 took his father to Champua hospital for treatment. When they reached Champua it was almost evening. From there they went to the Police Station with the injured. He lodged F.I.R. at the Police Station which was ultimately reduced into writing and on that basis the F.I.R. was registered. From there P.W.1 took his father to Champua hospital for treatment. While he was undergoing treatment at the hospital, the deceased succumbed to his injuries on the next day. This is, in short, the evidence given by P.W.1. 6. It further appears from the evidence during cross-examination of P.W.1 that at that time P.W.1 was studying in Class X. During cross-examination he further stated that appel¬lant No.1 dealt a blow from the backside of the deceased while chasing him. He further clarified the statement by stating that his father was assaulted on the right side of this head. 7. Learned counsel for the appellants emphatically submits that there are two other eye-witnesses, but the trial Court did not accept their testimony. The trial Court relied upon the evidence of P.W.1 alone and on that basis the impugned judgment was passed. He further submits that appellant No.2 did not as¬sault the deceased and she never played any direct role in the matter of assault on the deceased and along with appellant No.1 she should not have been convicted under Section 304, Part II/114/ IPC. After perusing the evidence on record as given by P.W.1 and after scanning his evidence during cross-examina¬tion, I am constrained to hold that no material could be elicited from P.W.1 to disbelieve him. On a thorough analysis of the evidence, I find that his evidence appears to be fully trustwor¬thy and there is absolutely no reason whatsoever to discard the same. 8. So far as appellant No.1 is concerned, he was rightly convicted under Section 304, Part II, IPC. However, as regards appellant No.2 it seems to me that from the evidence on record it cannot be inferred that appellant No.2 abetted the commission offence under Section 304, Part II, IPC. At the most one can say that she abetted the commission of offence under Section 325, IPC and that no intention or knowledge can be attributed to her. Therefore, while maintaining the conviction of appellant No.1 under Section 304, Part II, IPC, I alter the conviction of appel¬lant No. 2 Kainfula Mahanta to one under Section 325/114, IPC. 9. At the most one can say that she abetted the commission of offence under Section 325, IPC and that no intention or knowledge can be attributed to her. Therefore, while maintaining the conviction of appellant No.1 under Section 304, Part II, IPC, I alter the conviction of appel¬lant No. 2 Kainfula Mahanta to one under Section 325/114, IPC. 9. As regards sentence, it appears that appellant No.2 has already suffered imprisonment for about one month and six days and appellant No.1 has suffered imprisonment for about a year and half including the period when he was in custody during investi¬gation stage. The alleged incident occurred in July, 1987. This appeal was filed in 1989. Since the appeal was filed, about 17 years’ time has elapsed. The appellants cannot be blamed for the failure to complete the hearing and disposal of the appeal within a reasonable period of time. It will be perhaps little unjust to maintain the sentence as passed by the learned trial Court, after passage of so many years. In these circumstances, it appears to me that sentence of R.I. for two years and six months in respect of appellant No.1 Gangadhar alias Mituku Mahanta will meet the ends of justice. The period which he had spent in prison shall be set off and adjusted from the aforesaid sentence of R.I. for two years and six months in accordance with law. With regard to appellant No.2 Kainfula Mahanta I cannot attribute any intention to her than to Section 325/114, IPC. For the very same reason, I reduce the sentence in respect of appellant No.2 to R.I. for six months. This, in my opinion, will meet the ends of justice. However, the custodial sentence which she had already undergone shall be set off and adjusted from the aforesaid sentence of R.I. for six months. 10. The appeal is, therefore, allowed in part and disposed of accordingly. The office is directed to transmit the trial Court records along with a copy of this judgment immediately to the trial Court for taking necessary action for execution of balance period of sentence of imprisonment. Appeal allowed in part.