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2007 DIGILAW 119 (ORI)

Nakula Mallik v. State of Orissa

2007-02-22

A.K.PARICHHA, P.K.TRIPATHY

body2007
JUDGMENT P. K. TRIPATHY, J. — The appellants, who are three out of eight charge-sheeted accused persons, faced trial for the offences under Sections 148, 448, 354, 506, 324/302, IPC read with Section 149, IPC in the Court of learned Addl.Sessions Judge, Khurda in S.T. No.23/127 of 1997 as the other charge-sheeted accused persons, remained absconder and were not avail¬able for trial. Trial Court taking note of the evidence available on record found the appellants guilty of the offence under Sec¬tions 302 and 148, IPC and sentenced each of them to undergo imprisonment for life under Section 302, IPC and in view of such sentence, did not award any separate sentence for the offence under Section 148, IPC. In addition to that, learned Addl. Ses¬sions Judge found the appellants Nakul and Sahadev guilty of the offence under Section 324, IPC and sentenced them to undergo rigorous imprisonment for one year each with specific direction that the sentence awarded would run concurrently. 2. Accordingly to the case projected by the prosecution a tamarind tree was the cause of dispute. On 20.2.1997 when the deceased Aintha Mallick and his two brothers, Dukhishyam Mallick (P.W.7) and Chakradhar Mallick (P.W.1) were absent from the house, the charge-sheeted accused persons formed an unlawful assembly, came and cut some branches of the tamarind tree. When the ladies of the informant household raised protest, they were molested and humiliated by accused persons. The deceased, PWs.1 and 7 returned to the house and on learning about the highhanded behaviour of the accused persons, they went and confronted the accused persons questioning them as to why they cut the branches of the tamarind tree and misbehaved with the ladies. As a matter of retaliation, all the accused persons variously armed attacked the informant party. In the process, accused Duryodhan (appellant No.3) dealt a blow on the backside of the neck of the deceased by means of a sized wood. On receipt of the blow, the deceased tried to escape, but the other accused persons stopped him and Duryod¬han gave the second blow on the head of the deceased. The third blow given by accused Duryodhan some how, hit on the ground resulting in breakage of the sized wood into two pieces. When P.W.1 came for rescue of the deceased, he was assaulted by ac¬cused Nakula. The third blow given by accused Duryodhan some how, hit on the ground resulting in breakage of the sized wood into two pieces. When P.W.1 came for rescue of the deceased, he was assaulted by ac¬cused Nakula. Similarly, when P.W.7 came for the rescue of the deceased, he was assaulted by accused Sahadev. After the inci¬dent, the deceased was admitted as an indoor patient and the matter was reported to Khurda Police Station, where a case under Section 307, IPC was registered. On the requisition by the po¬lice, the injured persons were examined and injury reports were submitted. On 22.2.1997 at about noon time the deceased succumbed to the injuries and accordingly the case was converted to a case of murder and further investigation was taken up accordingly. 3. Charge was framed on six heads as indicated in the initial paragraph. To substantiate the charges, prosecution examined as many as 12 witnesses and relied on var¬ious documents, marked Exts.1 to 22. Among the witnesses, P.Ws.1, 2 and 6 to 9 have been projected as eye witnesses to the occur¬rence. P.W.3 is the doctor who granted the initial treatment and the injury certificate to the deceased as well as to P.Ws.1 and 7, P.W.11 is the doctor, who conducted autopsy on the dead body of the deceased and P.W.10 is the Investigating Officer. Ext.17 is the F.I.R., Ext.21 is the post mortem report, whereas Exts.6,7 and 8 are the injury certificates of the deceased, P.W.7 and P.W.1 respectively. Exts.9 to 11 are the opinion reports of the doctor (P.W.3) on different queries made by the I.O. The alleged Katari, which was used to cause injury on P.W.1 was marked as M.O.II and 4 nos. of lathies were marked as M.O.III, the batton which was allegedly used to cause injury to the deceased was marked as M.O.IV. 4. Accused persons led defence evidence by examining two doctors to prove the injury certificates relating to the injuries sustained by the accused persons and those documents were marked as Exts.A, B, D and E. They also relied on the F.I.R. lodged by them on the incident and that was marked as Ext.C. 5. 4. Accused persons led defence evidence by examining two doctors to prove the injury certificates relating to the injuries sustained by the accused persons and those documents were marked as Exts.A, B, D and E. They also relied on the F.I.R. lodged by them on the incident and that was marked as Ext.C. 5. On appreciation of the evidence on record, trial Court recorded a finding that the deceased suffered homicidal death because of ante mortem injuries and three accused persons having assaulted the deceased, each of them is liable under Section 302, IPC besides being guilty of riot under Section 148, IPC. As already noted, the accused Nakul and Sahadev were separately convicted for the offence under Section 324, IPC for causing simple hurt to P.Ws.1 and 7. 6. Learned counsel for the appellants after placing the evidence on record and the judgment wanted to capitalize on minor contradictions in the evidence of the eye witnesses, inter se and also the view of the I.O. in support of the contention that all the appellants are entitled to the benefit of doubt and acquittal thereof, but after placing reliance regarding the evidence and finding that facts have been proved in systematic and corrobora¬tive manner, he advanced alternative argument for conceding the conviction of Duryodhan under Section 304 instead of 302, IPC and to acquit accused Nakul and Sahadev of the charge under Section 302, IPC and in support of that he relied on the cases of Manke Ram v. State of Haryana, (2003) 25 OCR (SC), 312, Biswamitra Karan and others v. State of Orissa, 2002 (Supp.) OLR, 119 and Subodh Behera and two others v. State, (1995) 9 OCR, 239. However, because of the distinguishable facts and circum¬stances, he does not press into service the citation except the case of Subodh Behera (supra). Mr. Khuntia, learned Addl. Government Advocate with the ability at his command argues to sustain the order of conviction under Section 302, IPC against each of the appellants and does not concede to the argument for conviction of Duryodhan for the offence under Section 304, IPC. But in course of hearing, he is unable to point out the evidence on record, which clearly proves the case of participation by Nakul and Sahadev for homicidal death of the deceased. 7. But in course of hearing, he is unable to point out the evidence on record, which clearly proves the case of participation by Nakul and Sahadev for homicidal death of the deceased. 7. After hearing the parties in the above indicated manner and no dispute on the finding of the trial Court that the de¬ceased suffered homicidal death, we take up the issue as to whether Duryodhan alone is liable for the death of the deceased and Nakula and Sahadev are not to be implicated in the matter of conviction. The decision, which we take, is totally based on evidence on record and law placed before us and so far as the other accused persons are concerned, who are yet to face trial, the trial Court is free to take appropriate decision if the evidence stands differently. We put a word of caution so as to guide the trial Court, the prosecution and defence that this judgment should not be technically or mechanically followed in course of trial of the other absconding accused persons. 8. It is the settled principle of law that appreciation of evidence by the trial Court having the privilege of assessing demeanour of the witnesses, should not be brushed aside by the appellate Court with hypothetical approach. We adhere to that principle. We find that while formulating the question about participation with culpability of the co-accused of Duryodhan, trial Court did not record positive finding as to under what circumstance and from which evidence accused Nakul and Sahadev were found guilty of the offence under Sections 302, IPC when they are not found guilty for the offence under Section 302/149, IPC. In that respect, conclusion derived by the trial Court in paragraph 17 of the impugned judgment is scanty and un-expres¬sive. In such circumstances, notwithstanding the aforesaid set¬tled principle, we have perused the evidence on record to record a reasoned order in support of our finding on the aforesaid argu¬ment. 9. In course of submission, same set of evidence of the two injured witnesses, P.Ws.1 and 7 along with the evidence of other witnesses was placed before us and the fact situation emerging therefrom is virtually not in dispute. 9. In course of submission, same set of evidence of the two injured witnesses, P.Ws.1 and 7 along with the evidence of other witnesses was placed before us and the fact situation emerging therefrom is virtually not in dispute. From the state¬ments of the witnesses, it appears that on the occurrence of cutting of branches of the tamarind tree leading to the misbehaviour shown to the protesting ladies of the family of the inform¬ant, return of the deceased, P.Ws.1 and 7 to their house, learn¬ing about the incident, discussed the matter and thereafter went near the house of the appellants and retaliated while making confrontation with the accused persons. This fact situation, which goes a long way to judge the conduct of the parties while determining the question as to what offence the accused persons have committed. In that respect both the injured persons as well as the witnesses to the occurrence and the I.O. have made neces¬sary statements and it emerges therefrom that the first place of assault on the deceased was different from the second place of assault and the distance between these two spots is about 30 ft. There is no evidence on record that after accused-Duryodhan dealt the first blow on the back side of the neck, when the deceased wanted to escape from the spot accused Duryodhan chased him. There is also no evidence on record to indicate that the other accused persons including Nakula and Sahadev detained the de¬ceased with a view that he would be further beaten by accused-Duryodhan. In such circumstances, evidence of the eye-witnesses that Duryodhan dealt the second blow on the head, which resulted in bleeding injury cannot be attributed as a case of sharing of common object or sharing of common intention by accused Nakula and Sahadev. In such circumstance, so far as the death of the deceased is concerned, we find that the blow inflicted by accused Duryodhan and the injury caused by him was responsible for the death of the deceased. 10. Learned Addl.Government Advocate argues that according to the evidence of the eye witnesses, the other accused persons also dealt lathi blows on the body of the deceased. Such evidence is not credible inasmuch as none of these witnesses has attribut¬ed as to which of the accused persons assaulted on which part of the body of the deceased by using lathi. Learned Addl.Government Advocate argues that according to the evidence of the eye witnesses, the other accused persons also dealt lathi blows on the body of the deceased. Such evidence is not credible inasmuch as none of these witnesses has attribut¬ed as to which of the accused persons assaulted on which part of the body of the deceased by using lathi. Apart from that, accord¬ing to the prosecution, accused Sahadev was holding katari and not a lathi and above all, the injury certificate granted in favour of the deceased and the post mortem report do not indicate that any other blow other than the blows given by Duryodhan resulted in injuries leading to the death of the deceased. In such circumstances, we find no good reason in support of convic¬tion of the accused Nakula and Sahadev for the offence under Section 302, IPC and accordingly set aside their order of convic¬tion for the offence under Section 302, IPC. However, participa¬tion in the occurrence together with others and causing simple hurt by deadly weapon to P.Ws.1 and 7 having been proved on record, we do not want to interfere with that order of conviction under Section 324, I.P.C. and sentence for the said offence imposed by the trial Court on accused-Nakula and Sahadev. 11. So far as accused Duryodhan is concerned, admittedly the occurrence which provoked him to deal the blows was on con¬frontation, which was made by the deceased though in the shape of protest for the alleged misbehaviour and high-handed action shown to his family members. In a similar circumstances in the case of Subodh Behera (supra), their Lordships have recorded that in absence of any intention to do away with the life and reacting under grave provocation, the conviction should be under Section 304, IPC for culpable homicide but not for murder. We adopt that ratio in the present case and accordingly, hold accused Duryodhan guilty of the offence of culpable homicide not amounting to murder punishable under Section 304, first part of IPC. It is stated at the bar that the appellant-Duryodhan is in jail custody for nearly 9 years 10 months. Therefore, we award the above sentence in his favour and direct to release him on serving that period of sentence. It is stated at the bar that the appellant-Duryodhan is in jail custody for nearly 9 years 10 months. Therefore, we award the above sentence in his favour and direct to release him on serving that period of sentence. The other two appellants, namely, Nakula and Sahdev each has been detained in jail custody for more than two years, therefore, while maintaining their conviction for the offence under Section 148, IPC, we do not propose to pass sepa¬rate sentence after such long period. 12. The appeal is accordingly allowed in part. A. K. PARICHHA, J. I agree. Appeal allowed in part.