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Orissa High Court · body

2007 DIGILAW 28 (ORI)

GULA v. STATE OF ORISSA

2007-01-10

P.K.TRIPATHY, R.N.BISWAL

body2007
( 1 ) THE appellants call in question the judgment and order dated 24- 8-1993 passed by the Sessions Judge, sambalpur in S. T. Case No. 213 of 1992 convicting the accused-appellants for the offence punishable under Sections 302/307 both read with Section 34 of. P. C. and sentencing each of them to undergo imprisonment for life for the offence under Section 302/34 of. P. C. and not passing separate sentence for the offence under Section 307/ 34 of. P. C. ( 2 ) SUCCINCTLY stated, case of the prosecution is that on 24-8-1992 at about 6. 00 p. m. there was a hot discussion between accused Santosh Nath and deceased bhaktaram Nath near a tamarind tree in their village, Mundhenpall, relating to damage of ridge of the paddy field belonging to the latter. During this time accused Gula @ dibya Lochan Nath, the father of the accused santosh being armed with Lathi rushed to the spot and inflicted a blow with it on the head of the deceased causing bleeding injury. Sometime thereafter, accused Santosh nath, Surya Nath and Gula Nath assaulted the deceased near their house with axe, knife and Lathi respectively causing severe injuries. Hearing hullah, raised by the deceased, when his wife Maithili Nath came to his rescue all the accused persons assaulted her to do away with her life, but she could be saved providentially. Immediately thereafter, while P. W. 1 (son of the deceased) and the injured Maithili (P. W. 2) with the assistance of Kalpeswar Majhi and Kumuda Kisan were shifting the deceased in a tempo to sambalpur District Headquarters Hospital, on the way near Sindurpanka he succumbed to the injuries. On 25-8-1992 during morning hour, the S.. of Police Garupalli Outpost (P. W. 7) on hearing a rumour about the assault on Bhaktaram Nath and, his wife and their shifting to Sambalpur District Headquarters hospital and the death of injured bhaktaram Nath on the way, entered the same in the Station Diary and "then proceeded to Sambalpur District Headquarters hospital where he reached at 10. 00 a. m. There, P. W. 1 orally reported the incident before him, which he reduced into writing vide Ext. 1 /1. As the allegations contained in the F.. R. revealed a cognizable case, P. W. 7 sent the F.. R. to the O.. C. of Jamankira police Station for registration and accordingly the case was registered. 00 a. m. There, P. W. 1 orally reported the incident before him, which he reduced into writing vide Ext. 1 /1. As the allegations contained in the F.. R. revealed a cognizable case, P. W. 7 sent the F.. R. to the O.. C. of Jamankira police Station for registration and accordingly the case was registered. P. W. 7 held inquest over the dead body, prepared the inquest report, sent the dead body to V. S. S. Medical College, Burla for autopsy, sent the injured, Maithili Nath (P. W. 2) to hospital for examination, arrested the accused persons and forwarded them to Court, seized some material objects including the weapons of offence, examined the witnesses and after completion of investigation submitted charge sheet against all the accused persons. The case having been committed to the Court of Session, accused persons stood trial under Sections 302/307, both read with section 34 of. P. C. The plea of the accused persons is that on the evening of the date of alleged occurrence the deceased and his wife (P. W. 2) trespassed into their house in drunken state and while the deceased was strangulating the child of accused Surya. the latter tried to separate him and in the process the deceased and P. W. 2 fell down on the door and thereai'ter left their house. They denied to have committed murder of the deceased or assaulted P. W. 2. ( 3 ) IN order to prove its case prosecution examined nine witnesses as against one by the defence. After assessing the evidence on record, as noted earlier, the trial Court found the accused persons guilty of the offence under Sections 302/307 read with Section 34 of. P. C. and sentenced each of them accordingly. ( 4 ) TO bring home the charges levelled against the accused persons, prosecution mainly relied on the evidence of P. Ws. 1, 2, 5 and the doctor (P. W. 4 ). It would be profitable to deal with the order of conviction under Section 302/34 of. P. C. first. P. C. and sentenced each of them accordingly. ( 4 ) TO bring home the charges levelled against the accused persons, prosecution mainly relied on the evidence of P. Ws. 1, 2, 5 and the doctor (P. W. 4 ). It would be profitable to deal with the order of conviction under Section 302/34 of. P. C. first. ( 5 ) ON perusal of the evidence of P. W. 4 who conducted autopsy it is seen that he found the following external injuries on the dead body of the deceased :- i) One incised wound placed in a curved fashion, the convexity of which was in anterior position of the occipital surface of the head, of size 71/2 cm. x 1 cm. x scalp deep. The margins were bluntly incised and edges were clean cut and bruised. ii) Vertically placed stab wound extending from the lower border of the middle of clavicle downward, of size 21/2 cm. x l1/2 cm. thorasic deep. The edges were clean cut and margins were bluntly incised. It looked spindle in shape. iii) Vertically placed stab wound on the upper aspect of the left side deltoid area of size 2 cm. x 1 cm. x muscle deep. Margins and edges were clean cut and looked spindle shaped. On dissection, he found the following internal injuries. i) Corresponding to the external injury No. (i) he noticed the scalpal tissue to have been cut up to the periostum. The bone was not cut. The scalpal tissue was contused in an area of 10 cm. x 4 cm. underneath the said external injury. ii) Corresponding to the external injury no. (ii) he noticed costal muscle of the left side sternum to have been sharply cut. The corresponding pleura and lobe of the lungs in the left side were also cut and haemothorax present. iii) Corresponding to the external injury no. (iii) he noticed the muscle, fascia, sub- tissue and vessels to have been cut in the upper aspect of the left side arm. As per the opinion of P. W. 4 all those injuries were ante mortem in nature and the death of the deceased was due to shock and haemorrhage resulting from cumulative effect of all the injuries. Relying on that evidence trial Court recorded the finding that deceased suffered homicidal death. That finding is not challenged before us. As per the opinion of P. W. 4 all those injuries were ante mortem in nature and the death of the deceased was due to shock and haemorrhage resulting from cumulative effect of all the injuries. Relying on that evidence trial Court recorded the finding that deceased suffered homicidal death. That finding is not challenged before us. So a further discussion of that evidence and relevant finding of the trial Court is not necessary when we are satisfied about correctness of that finding. ( 6 ) ON perusal of the evidence of P. Ws. 1 and 2 it is found that on the first occasion altercation ensued between the deceased and accused Santosh near a tamarind tree. In course of that incident accused Gula assaulted the deceased with a Lath. It transpires from the evidence of P. W. 4, that he noticed one incised wound on the occipital surface of the deceased. During cross-examination in very explicit terms he stated that the said injury could not be caused by m. O. II, the lathi, which was shown to him. So it cannot be said that accused Gula is the author of any of the injuries found on the dead body of the deceased. It is seen from the impugned judgment that the trial court acted on irrelevant opinion from modi's Medical Jurisprudence to state that the incised wound on the head of the deceased could be possible by a split bamboo lath. That theoretical proposition in Modi's medical Jurisprudence has no application at all in view of the specific answer of the P. W. No. 4 that the head injury is not possible by the lathi, M. O.. ( 7 ) WITH regard to the occurrence in the second occasion, which took place near the house of the accused persons, it transpires from the evidence of P. W. 2 that first Gula alias Dibya Lochan came out of his house and caught hold of the deceased; soon thereafter, accused Santosh appeared at the spot and dealt an axe blow on the head of the deceased. In the meantime accused Surya emerged out of his house with a knife and inflicted blows on the deceased. He also pierced a knife on his chest. It is found from the evidence of P. W. 5 that accused Gula, santosh and Surya assaulted the deceased with lathi, axe and knife respectively. In the meantime accused Surya emerged out of his house with a knife and inflicted blows on the deceased. He also pierced a knife on his chest. It is found from the evidence of P. W. 5 that accused Gula, santosh and Surya assaulted the deceased with lathi, axe and knife respectively. While pw 2 deposed that accused Gula caught hold of the deceased, this witness stated that he assaulted him with a lath. So the evidence of these two witnesses contradicts each other in this regard. With regard to the occurrence in the second occasion. P. W. 1 deposed that accused Dibya Lochan alias Gula, Santosh and Surya were assaulting the deceased with lathi, axe and knife. But P. W. 5 admitted to have stated before the Magistrate that the entire second occurrence took place in absence of P. W. 1. So it does not inspire confidence that p. W. 1 saw the second occurrence. Moreover, P. W. 4 in very clear terms stated that the injuries found on the person of the deceased could not be possible by the axe (M. O. III) shown to him. He further stated that all these injuries could be possible by the curved knife shown to him. So the evidence of P. Ws. 1, 2 and 5 which was wrongly appreciated and acted upon by the trial Court that accused Santosh assaulted by axe is not correct. In other words prosecution has failed to prove that accused santosh dealt axe blow and caused injury on the dead body of the deceased. ( 8 ) ON perusal of the evidence of D. W. 1, it is found that on the date of occurrence at about 6. 00 p. m. while passing on the road in front of the house of the accused persons, he heard an unusual cry and went inside house and found the deceased and his wife (P. W. 2) were trying to press the neck of the son of accused Surya Nath, aged about 4 years and the mother of the child resisting it. Thereafter, accused Surya came to rescue the kid from their clutches. Being unsuccessful, he went inside one of his rooms and came out with a knife and inflicted three blows with it on the deceased and rescued the child. Thereafter, accused Surya came to rescue the kid from their clutches. Being unsuccessful, he went inside one of his rooms and came out with a knife and inflicted three blows with it on the deceased and rescued the child. During cross-examination it was elicited from him that Murali bhoi and Dhanapati Bhoi were present in the house of accused Dibya Lochan before he (D. W. 1) arrived there. It appears improbable that the deceased and P. W. 2 were attempting to press the neck of a child in presence of those two witnesses and the mother of the child. There is nothing to show that the child sustained any injury or that he was medically examined. It appears improbable that even though two persons tried to press the neck of a child of four years, nothing happened to him. Moreover, accused surya in his statement under Section 313 of Cr. P. C. denied to have inflicted any knife biow on the deceased. Furthermore, in his cross-examination D. W. 1 stated that he did not disclose the incident before anybody till the date of his examination. e. 16-7- 1993, even though the alleged occurrence took place on 24-8-1992. It appears equally improbable that D. W. 1 saw the occurrence but did not disclose it to any one for about one year. So the evidence of this witness cannot be relied upon. The evidence of P. Ws. 2 and 5, as discussed earlier coupled with the evidence of P. W. 4 who deposed that the injuries found on the deceased could be possible by the knife (M. P. 1) show that surya assaulted the deceased. As noted earlier injury caused by knife were found sufficient in ordinary course of nature to cause death. Accordingly we hold that accused surya is guilty for the death of the deceased. ( 9 ) LEARNED counsel for the appellants submitted that admittedly the deceased did not die at the spot. Accused Surya Nath inflicted the knife blows on the deceased without premeditation and he neither took undue advantage nor acted in cruel or unusual manner. So his act is culpable homicide not amounting to murder. Admittedly the deceased did not die at the spot and according to the opinion of the doctor (P. W. 4) had proper medical attendance been provided he could have survived. So his act is culpable homicide not amounting to murder. Admittedly the deceased did not die at the spot and according to the opinion of the doctor (P. W. 4) had proper medical attendance been provided he could have survived. Under such circumstances we are of the view that the case would fall under Section 304-11 of. P. C. Learned counse for the appellants further submitted that as found from the evidence on record, on the first occasion, while there was altercation between Santosh and the deceased, Gula arrived at the place of occurrence. During second occurrence the accused persons came to the spot one after another. There is no evidence whatsoever to show that there was prior meeting of mind of the accused persons to kill the deceased. So accused Santosh and Gula cannot be vicariously held liable for the death of the deceased. But the trial Court did not consider this aspect correctly. We are one with the submission of learned counsel for the appellants in this regard. Accused Surya alone would be liable for the offence under Section 304-II of. P. C. ( 10 ) WITH regard to the assault on P. W. 2, it is found from the evidence of P. W. 3, the doctor that on police requisition she examined her on 27-8-1992 and found the following injuries on her person :- i) Lacerated injury 1 1/2" x 1 /3" x skin deep situated at the middle of scalp. ii) Incised wound 3" x 1" x 3/4" situated over the middle third of the right arm. The margins were clean cut and contused. iii) Incised wound 1" x1/2. " x 1 /3" situated over the front side of the right shoulder joint. Margins were clean cut and contused. As per her (P. W. No. 3) opinion injury nos. (ii) and (iii) were simple in nature and might have been caused by heavy sharp cutting weapon, such as axe. As regards injury No. 1 he did not give any opinion and stated that he referred the injured to surgical specialist for his opinion, but no such opinion is forthcoming. As per the evidence of P. Ws. 2 and 5 all the three accused persons assaulted P. W. 2 with deadly weapons. As regards injury No. 1 he did not give any opinion and stated that he referred the injured to surgical specialist for his opinion, but no such opinion is forthcoming. As per the evidence of P. Ws. 2 and 5 all the three accused persons assaulted P. W. 2 with deadly weapons. If it was their intention to do away with her life, they would not have assaulted her in such manner so as to cause simple injuries only. When they were armed with axe, lathi and knife they could have achieved their goal by killing her. So the finding of the trial Court that all of them were liable under Section 307 of. P.- C. cannot stand. In our view, they, in furtherance of their common intention voluntarily assaulted P. W. 2 with deadly weapons causing injuries, and as such would be liable for the offence under Section 324,. P. C. ( 11 ) IN the result, the orders of conviction and sentence passed against the appellants for the offence under Section 302/34,. P. C. and under Section 307/34,. P. C. are set aside. On the other hand considering the evidence and recording the preceding finding accused-appellant Surya nath is only convicted under Section 304 -.. P. C. For the said offence he is sentenced to undergo R.. for five years. Any period spent by him as U. T. P. or convict in jail in S. T. Case No. 313 of 1992 of the Court of Sessions Judge, Sambalpur be accordingly set off. All the accused/appellants are convicted under Section 324/34,. P. C. for voluntarily causing hurt with deadly weapons to p. W. No. 2 in furtherance of their common intention and each of the appellants is sentenced to undergo R.. for six months for the said offence. Any period of detention by the appellants be set off in the previously indicated manner. The sentences imposed on appellant Gula alias Dibya Lochan Nath shall run concurrently. The Criminal Appeal is accordingly allowed in part, order accordingly. .