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2006 DIGILAW 826 (ORI)

Sibaram Bhoi v. State of Orissa

2006-12-05

PRADIP MOHANTY

body2006
JUDGMENT PRADIP MOHANTY, J. : This is an appeal under Section 374(2) Cr.P.C. against the judgment and order dated 13.12.1989 passed by the learned Addl.Sessions Judge, Bargarh in Sessions Trial Case No.62/18 of 1989 convicting the appellant under Sections 324/328 IPC and sentencing him to undergo rigorous imprisonment for two years on each count. 2. The case of the prosecution is that on 05.08.1988 the accused-appellant near the Bhukta bus stand met his friend-Sambaru Bhoi (P.W.1), who was then returning from Bhukta veterin¬ary hospital after getting his bullocks treated. The accused-appellant suggested him to purchase rice so that both of them could dine together with fish fry being prepared by Bhagaban Das (P.W.2) at his home. P.W.1 purchased rice and made it over to P.W.2 for cooking. While P.W.2 was preparing food, both the accused-appellant and P.W.1 sat together and exchanged views. In course of their discussion, accused-appellant enquired about the ill health of P.W.1 and gave him some medicine in form of powder for restoration of his health. He also disclosed before P.W.1 about purchase of said medicine from a ‘Sabar’, which he was subsequently tested by the doctor at Ambhabana. Believing this, P.W.1 took the medicine and swallowed the same. Immediately thereafter he felt terrible burning sensation and shouted calling P.W.2 for supply of water. On getting water, he cleaned his throat by gargling. Despite that, his throat and tongue were swollen and he was not able to talk. With much difficulty, he went to his house on a bi-cycle and narrated the incident to his son (P.W.6), P.W.8 and others. P.W.6 immediately called the local doctor (P.W.5) who noticed injuries on the tongue and interior part of the pharynx. Just to relieve P.W.1 from pain, cow ghee was obtained from the house of P.W.8 and poured in his mouth. Thereafter, P.W.1 was taken to P.W.3, the Asst. Surgeon, Ambhaba¬na dispensary. On the way to the dispensary, P.W.6 lodged FIR at Ambhabana P.S. From Ambhabana dispensary P.W.1 was shifted to V.S.S. Medical College, Burla where he was treated as an indoor patient. Police on receipt of the FIR, registered a case and started investigation and on completion of the same, submitted charge-sheet against the accused-appellant. 3. The plea of the accused-appellant was complete denial of the allegation. 4. Police on receipt of the FIR, registered a case and started investigation and on completion of the same, submitted charge-sheet against the accused-appellant. 3. The plea of the accused-appellant was complete denial of the allegation. 4. The prosecution, in order to prove its case, examined as many as nine witnesses including three doctors and the I.O. Besides, it also proved three exhibits in evidence. None was examined on behalf of the accused-appellant. Learned Addl. Ses¬sions Judge, who tried the case, by his judgment dated 13.12.1989 found the appellant guilty under Sections 324 and 328 IPC, con¬victed him thereunder and sentenced him as already indicated. 5. The appellant assails the impugned judgment on the following grounds : (i) The Court below ought to have disbelieved the prosecution story on the ground that the accused-appellant had no mens rea behind the crime and the act done by him was on good faith. (ii) Evidence of the prosecution witnesses is not trustworthy. (iii) The FIR story, statement of witnesses made before the police and the statements made on oath before the Court are contradictory to each other and there was no material before the trial Court to hold that the sickness of P.W.1 was due to taking of the powder given by the accused-appellant. 6. Mr. Mohanty, learned Addl. Standing Counsel vehemently contended that the learned Addl.Sessions Judge has rightly con¬victed the appellant basing upon the evidence of P.Ws.1, 2, 3, 4 and 5 as all of them are trustworthy witnesses and there is no discrepancy in their statements. 7. Perused the impugned judgment, depositions and the exhibits. P.W.1 is the victim. He stated in his evidence that while he was talking with the accused-appellant about his health, the latter showed some medicines, which had been purchased from a Sabar, and asked him to take the same as the doctor had already tested it. So saying, the appellant kept the medicine on his palm. P.W.1 took that medicine and felt burning sensation. He called Bhagaban Das for supply of water by saying that the ac¬cused-appellant had administered poison. Bhagaban Das supplied water and P.W.1 cleaned his throat by gargling. P.W.2 is Bhagaban Das. He corroborated the statement of P.W.1. According to him, when P.W.1 shouted, he gave some water and P.W.1. complained before him about the burning of his mouth and supply of medicine by the accused-appellant. Bhagaban Das supplied water and P.W.1 cleaned his throat by gargling. P.W.2 is Bhagaban Das. He corroborated the statement of P.W.1. According to him, when P.W.1 shouted, he gave some water and P.W.1. complained before him about the burning of his mouth and supply of medicine by the accused-appellant. He asked the accused-appellant about the medicine and the latter showed him the medicine. P.W.2 took a very small quantity of such medicine by the tip of his finger and tested the same by putting that on his tongue. He also felt burning sensation in his tongue. Both the doctors (P.W.3 and P.W.5) corroborated the injury in the mouth of P.W.1. P.W.4, the doctor then attached to the V.S.S. Medical College, Burla had treated P.W.1 as an indoor patient. He opined that the injury was simple in nature and could be caused by swallowing solid corro¬sive substance. Nothing has been elicited by way of cross-exami¬nation to discredit the testimony of the above-named prosecution witnesses. Although there are some minor contradictions here and there in the evidence of the prosecution witnesses, those are bound to occur on the part of truthful witnesses. 8. In order to prove a case under Section 328 IPC onus lies on the prosecution to prove that the accused administered or caused to be taken by P.W.1 any poison or any stupefying, intoxi¬cating or unwholesome drug, or other thing with intent to cause hurt to P.W.1 or with intent to commit or to facilitate the commission of an offence or that the accused-appellant had the knowledge that by doing so he would be likely to cause hurt to P.W.1. In the instant case, the prosecution having utterly failed to prove the same, the accused-appellant cannot be held liable for commission of offence under Section 328 IPC. Therefore, the conviction of the accused-appellant under Section 328 IPC as recorded by the trial Court, is set aside. 9. The above analysis of the evidence of the prosecution witnesses, however, shows that the prosecution has been able to establish the ingredients of Section 324 IPC against the accused-appellant and, therefore, his conviction under Section 324 IPC is affirmed. Therefore, the conviction of the accused-appellant under Section 328 IPC as recorded by the trial Court, is set aside. 9. The above analysis of the evidence of the prosecution witnesses, however, shows that the prosecution has been able to establish the ingredients of Section 324 IPC against the accused-appellant and, therefore, his conviction under Section 324 IPC is affirmed. Considering the fact that the occurrence took place in the year 1988 and in the meantime 18 years have elapsed, in¬stead of awarding substantive sentence, ends of justice will be best served if fine of Rs.2,000/- (two thousand), in default R.I. for six months is imposed against the petitioner; and this Court so directs. 10. In the result, the appeal is allowed in part. The order of conviction and sentence of the appellant under Section 328 IPC is set aside. His conviction under Section 324 IPC is affirmed, but the sentence is modified to the extent indicated above. Appeal allowed in part.