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Orissa High Court · body

2007 DIGILAW 452 (ORI)

STATE OF ORISSA v. KUSA BARIK ALIAS DAITARI BARIK

2007-06-20

P.K.TRIPATHY, R.N.BISWAL

body2007
( 1 ) LEAVE being granted on 21-8-1988, the Government Appeal is taken up for consideration against the judgment of acquittal in S. T. Case No. 16/73 of 1986-85. ( 2 ) EIGHTEEN accused persons charged for the offences punishable under Sections 147, 148, 149, 232, 326, 302/34, I. P. C. stood their trial on the allegation that on 13-10-1984 at about 1. 00 pm to 1. 30 pm, accused persons forming unlawful assembly attacked and assaulted Laxmidhar Rout (hereinafter referred to as 'the deceased') and also caused injury to Gopal Rout (P. W. 7) and Narayan rout (P. W. 6 ). After the occurrence, the deceased and the injured persons were taken to Bhadrak Hospital at about 8. 30 p. m. Laxmidhar succumbed to the injury. In course of investigation, on the basis of the f. I. R. Ext. 13, the Investigating Officer (P. W. 11) submitted charge-sheet because of overwhelming direct and circumstantial evidence in support of the aforesaid allegations. To substantiate the charge, prosecution examined as many as thirteen witnesses and relied on documents marked, Exts. 1 to 23. Wearing apparels were marked as M. Os. I to V. Prosecution claimed Niranjan Rout (P. W. 1), Karunakar Pani (P. W. 2), Madhu Rout (P. W. 3) and Rabindra Rout (P. W. 5) as eye witnesses to the occurrence. Above named p. W. 6 and 7 were the injured and the eyewitnesses to the occurrence as well. The doctor, who attended to the injured in the bhadrak hospital and proved the injury certificates Exts. 8, 9 and 10, was examined as p. W. 4. The doctor, who conducted post mortem examination on the dead body of the deceased and proved the post mortem report, Ext. 14 was examined as P. W. 8 P. W. 13 is the Malkhana Clerk of the Court of s. D. J. M. , who proved regarding receipt of the Tenta, weapon of offence and missing the same from the Court Malkhana. Ext. 22 is entry Nos. 105 to 107 of Outdoor Patient register of Chandbali P. H. C. ( 3 ) AS permissible under law, accused persons resotred to multifarious pleas. They denied to the allegations of assault and causing injuries to the deceased and P. Ws. 6 and 7. They suggested that deceased sustained injury due to fall on a wooden plank with a protruding nail which pierced into his cheek. They denied to the allegations of assault and causing injuries to the deceased and P. Ws. 6 and 7. They suggested that deceased sustained injury due to fall on a wooden plank with a protruding nail which pierced into his cheek. They also suggested that there was attack on them by the deceased and other prosecution party members and as a result of that some of them sustained injuries and Chandabali P. S. Case No. 71 of 1984 was registered about that incident. They further claimed that on police requisition, the injured persons were treated and injury certificates B/2 to H/2 were granted in favour of the accused persons Santha barik, Kusa @ Daitari Barik, Chatrubhuja barik, Gayadhar Parida, Narayan Barik and bhaskar Barik and one Ananda Barik. They also speak about inimical relationship between the parties and pendency of proceeding under Section 107, Cr. P. C. vide Misc. Case No. 255 of 1984. Certified copy of order in that proceeding was proved as Exts. L and M. They also speak about other criminal cases as per the exhibited documets N and N/1. ( 4 ) LEARNED Addl. Sessions Judge did not formulate the points, which were required to be considered. He also did not determine as the first point if the deceased suffered homicidal death. Learned Addl. Sessions judge straightway assessed evidence of the eye-witnesses and rejected their evidence either on the ground of contradictions or omissions in comparison to the statement under Section 161, Cr. P. C. or on the ground of improbability. Accordingly, learned Addl. Sessions Judge invoked principle of grant of benefit of doubt and extended the same in favour of the accused persons. ( 5 ) LEARNED Standing Counsel reads the evidence of the injured persons as well as the eye-witnesses and referred to the corresponding inference drawn by the trial Court and argues that the contradictions, which have been found cannot be termed as contradiction, the omissions which have been noted are minor and ignorable and the medical evidence which has been taken note of is contrary to the evidence of P. Ws. 4 and 8 the injury certificates and the postmortem report. Accused /respondents denied to the aforesaid criticism of the evidence on record in course of the submission. 4 and 8 the injury certificates and the postmortem report. Accused /respondents denied to the aforesaid criticism of the evidence on record in course of the submission. Therefore, it is not required to burden this judgment with the reasoning assigned by the trial Court and the contrary fact available from the evidence on record on each issue. Only for example, we point out that according to the evidence of P. W. 4 and the injury certificate, Ext. 8, the deceased when undertaken for treatment was found unconscious. There was haematoma on the parieto fronto region on the left side, there was haematoma on the left cheek with punctured wound through and through into the mouth cavity 1/4" x 1/4". In the post mortem report, Ext. 14, p. W. 8 noted that "main injuries over the body are (1) swelling over left parieto temporal region, underneath fracture and haematoma over the brain matter. (2) piercing injury over left cheek, (3) Abrasion over left upper part of skin of tibia. . . . . . " As against such positive evidence available on record, learned Addl. Sessions Judge doubted the veracity of the prosecution and the prosecution witnesses by stating that a cut injury was found on the body of the deceased and that is not possible by tenta and may be possible due to coming in contact with protuated (protruded) nail of a wooden plank. Suffice it to say that the aforesaid inference and conjecture is perverse and illegal. ( 6 ) BE that as it may, in view of the provision in Section 386 (a), Cr. P. C. this Court feels it proper to read and appreciate the evidence and come to a conclusion in accordance with law instead of directing for retrial. Therefore, we consider the evidence accordingly. ( 7 ) IN a case where a charge is under Section 302, I. P. C. , the first and foremost duty of the Court is to ascertain if the deceased suffered homicidal death. In this case, evidence of P. W. 8 and Ext. 14 leaves no room for doubt that the deceased suffered homicidal death. The injuries found on the dead body of the deceased are already noted. P. W. 8 opined that the cause of death is due to comma as a result of compression of brain matter by haematoma caused by fracture of brain and laceration of membrance. 14 leaves no room for doubt that the deceased suffered homicidal death. The injuries found on the dead body of the deceased are already noted. P. W. 8 opined that the cause of death is due to comma as a result of compression of brain matter by haematoma caused by fracture of brain and laceration of membrance. P. W. 4 as well as P. W. 8 have opined that such injuries were ante mortem in nature. Possiblity of the head injury due to fall as answered by P. W. 8 in cross examination, is a defence that remained not proved except as a mere suggestion. It is not proper to keep aside the positive evidence and to accept the suggestion as wholesome in the absence of proof. Learned counsel for the accused respondents being conscious of the legal position also does not contest on the issue that the death of the deceased is homicidal. We record the finding accordingly. ( 8 ) AS noted above, trial Court disbelieved the evidence of P. Ws. 1 to 3, 5, 6 and 7 on the ground that their evidence suffers from contradictions and omissions. As already noted, there is no glaring contradiction nor material omission. Evidence of the aforesaid witnesses are clear, consistent and corroborative to one another regarding the occurrence in which the allegation is that accused chatrubhuja Barik dealt a lathi blow to the head of the deceased, on sustaining that blow the deceased fell down, accused Kusa @ Daitari Barik pierced a tenta on the cheek of the deceased and accused Akhuja Barik dealt a blow by means of tenta to the leg of the deceased. It is also the case of the prosecution and proved by consistent and corroborative evidence of the above witnesses that accused Bhimsen dealt a lathi blow to the injured Gopal Rout and as a result of that injury Gopal Rout fell down and similarly accused Akhuja pierced a tenta on the left hand of injured Narayan Barik. The iron portion of Tenta remained there till it was removed in the hospital. Evidence of P. W. 4 corroborates to the statements of eye-witness and injured, P. W. 6. Therefore, it is proved on record that accused Chatrubhuja, kusa, Akhuja, Bhimsen and Santha have caused various injuries found on the deceased and the injured P. Ws. 6 and 7. The iron portion of Tenta remained there till it was removed in the hospital. Evidence of P. W. 4 corroborates to the statements of eye-witness and injured, P. W. 6. Therefore, it is proved on record that accused Chatrubhuja, kusa, Akhuja, Bhimsen and Santha have caused various injuries found on the deceased and the injured P. Ws. 6 and 7. Learned counsel for the accused respondents following the reasoning adopted by the trial Court, argues for grant of benefit because of the minor contradictions and non-consequential omissions. Thus, that argument of the accused persons is not accepted. ( 9 ) LEARNED Standing Counsel argues that the evidence on record proves the offences for which the accused persons were charged. On the other hand, learned counsel for the accused respondents argues that prosecution has failed to prove the case under Sections 147, 148 and 149, I. P. C. against the remaining accused persons and that there is no proof of sharing of any intention by accused Chatrubhuja Barik with the other accused and the vise versa in respect of the injuries caused on the deceased or P. Ws. 6 and 7. In the above context, we find that prosecution has not been able to prove the case of riot or sharing the common object for committing the crime. In that respect, evidence of Investigating Officer (P. W. 11) is sufficient to record such a finding, inasmuch as, he has stated that on the said incident two cases were registered, one from the side of the prosecution and the other from the side of the accused as case and counter case. Apart from that, voluminous injury certificates produced and proved by the accused persons strengthens the contention of the accused persons about mutual fight at the spur of the moment, at the spot of occurrence. In a case of sudden mutual fight, it is difficult to ascertain who is the aggressor and which party is defending the attack unless there is clear and clinching evidence to that effect. Notwithstanding the fact that p. W. 11 investigated both the cases, he has not come up with any evidence on record to suggest as to which of the parties were aggressors. Notwithstanding the fact that p. W. 11 investigated both the cases, he has not come up with any evidence on record to suggest as to which of the parties were aggressors. Under such circumstance, in the absence of clear and categorical evidence, the benefit arising out of the same has to be extended in favour of the accused so as to grant benefit against the charge under Sections 147, 148 and 149 and also sharing common intention under Section 341, I. P. C. ( 10 ) ON coming to the aforesaid conclusion, there remains to be determined, whether accused Chaturbhuja, who caused the head injury on the deceased is liable for the offence under Section 302, I. P. C. or any other offences. No doubt, P. W. 8 noted in Ext. 14 that death of the deceased was due to the injuries on the head, but in his evidence, P. W. 8 stated that "the injuries are all ante mortem in nature. Age of the injuries was within 24 hours by the time I examined. Cause of death is due to comma as a result of compression of brain matter by haematoma caused by fracture of bone and laceration of membrance. In the ordinary course of nature these injuries are sufficient to cause death. " (underlined by us to put emphasis ). The offence of murder is proved when the injuries found are sufficient in ordinary course of nature to cause the death. In the above quoted evidence, has p. W. 8 opined contribution of the other injuries for the death of the deceased, then perhaps, there would not have been doubt or hesitation to record a finding of homicidal death amounting to murder. When P. W. 8 has made the circumstance ambiguous by stating that "in the ordinary course of nature, these injuries are sufficient to cause death" and when we have excluded the offence under Section 149 and 34, I. P. C. and apart from that when the death did not occur instantaneously but after a gap of 24 hours and that too in course of treatment in the hospital, therefore, the benefit arising out of the same situation should be extended in favour of the accused. Taking that view in the matter, we find the accused persons, Chatrubhaja Barik, Kusa Barik and akhuja Barik, who dealt the blows to the deceased, are not guilty of the offence of murder. On the other hand, each of them having caused injuries to the deceased in course of the mutual fight, all such persons are to be individually guilty for the offence committed by them (by inflicting respective injuries ). Accused Chaturbhuja Barik having caused fracture injuries on the head by use of a lethal weapon like lathi is found guilty for the offence under Section 326, i. P. C. Accused Kusa Barik having pierced a tenta to the cheek by causing punctured injuries is found guilty for the offence under Section 324, I. P. C. and similarly, accused Akhuja Barika having dealt a tenta blow to the leg of the deceased is found guilty for the offence under Section 324, I. P. C. ( 11 ) TWO lacerated injuries were caused on the body of P. W. 7 by accused Bhimasen and Santha. Both the injuries being simple in nature we find accused Bhimsen Barik and Santha Barik each guilty for the offence under Section 323, I. P. C. Accused Akhuja barik caused a punctured wound on the body of injured Narayan Rout (P. W. 6 ). The consequence of the punctured wound as required to be proved for the offence under section 326, I. P. C. , is not available. Therefore, for that injury caused accused Akhuja is found guilty for the offence under Section 324, I. P. C. ( 12 ) IN course of submission, while pleading for acquittal, learned counsel for the accused respondents alternatively argues that if the above noted accused persons are found guilty of the aforesaid offences or any other offence under Chapter-XVI, IPC and if the offence is not punishable with death or imprisonment for life and come within the zone of consideration of the Probation of offender's Act, then the said beneficial provisions be extended in their favour and, in the alternative minimum sentnece provided for the offences be awarded to them. Learned standing Counsel in reply submits that the provisions of Probation of Offender's Act should not be invoked in the present case even in the case of conviction for any of the offences affecting the human body, inasmuch as, purpose of probation is not served after lapse of more than 20 years. ( 13 ) REGARD being had to the aforesaid facts and submission, we find it not to be a fit case to invoke provision in the Probation of Offender's Act. Taking into consideration submission of the parties be impose sentence of rigorous imprisonment for a period of 2 (two) years and fine of Rs. 10,000/- (ten thousand) as against accused Chaturbhuja barik for the offence under Section 326, i. P. C. in the event of default in payment of fine, to undergo rigorous imprisonment for further period of 6 (six) months. For causing hurt on deceased, accused Kusa Barik and Akhuja Barik have been convicted for the offence under Section 324, I. P. C. and each of them are sentenced to undergo rigorous imprisonment for a period of 1 (one)year and to pay a fine of Rs. 2000/- (two thousand) and in default to undergo rigorous imprisonment for a further period of 3 (three) months each. In the event, the fine amount is paid, the entire amount be given to the legal hairs of the deceased. The period of detention as under-trial prisons be set off in accordance with the provisions under Section 428, Cr. P. C. ( 14 ) FOR their conviction for the offence under Section 323, I. P. C. on causing simple hurt to Gopal, accused Bhimasen and santha each are sentenced to pay a fine of rs. 2000/- (two thousand) and in default to undergo simple imprisonment for a period of 3 (three) months each. On payment of fine, the same be paid to injured Gopal. ( 15 ) FOR his conviction under Section 324, i. P. C. on causing injury to Narayan Rout (P. W. 6), accused Akhuja is sentenced to pay fine of Rs. 3000/- (three thousand) and in default to undergo simple imprisonment for a period of 6 (six) months. On payment of fine, the same be paid to the injured Narayan rout. The fine imposed against the accused persons be paid within two months or else it be realized in accordance with law. 3000/- (three thousand) and in default to undergo simple imprisonment for a period of 6 (six) months. On payment of fine, the same be paid to the injured Narayan rout. The fine imposed against the accused persons be paid within two months or else it be realized in accordance with law. As noted above, order of accuittal of all the accused persons from the charge under other sections of Indian Penal Code is maintained. The Government Appeal is accordingly allowed in part. .