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2007 DIGILAW 83 (ORI)

Sebak Sahoo v. State of Orissa

2007-02-05

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT Heard further argument, hearing is concluded and the judg¬ment is as follows. 2. Order of conviction under Section 302/34, I.P.C. in Sessions Trial No. 99/35 of 1995 of the Court of Additional Sessions Judge, Rourkela is under challenge by the three appel¬lants. In addition to his conviction for the offence under Sec¬tion 302/34, I.P.C. accused-appellant Sebak Sahoo was also con¬victed for the offence under Section 326, I.P.C. as against the charge under Section 307, I.P.C. Accused-appellant Sebak Sahoo having died in the meantime, abatement of the appeal against him was noted on 14.05.2002. 3. The deceased accused-appellant No.1 Sebak Sahoo is the father and the accused-appellants Bharat Sahoo and Giridhari Sahoo are his sons. According to the case of the prosecution, on 01.02.1994 at about 5 p.m. when the accused persons wanted to tie a cattle on the village road in front of the house of late Subodh Chandra Sahoo (hereinafter referred to as the ‘deceased’), the deceased objected to that, for which accused Sebak Sahoo directed his sons accused Bharat Sahoo and Giridhari Sahoo to assault the deceased. Responding to such call, accused Bharat Sahoo by means of a lathi and later on by a crowbar dealt blows to the head of the deceased and accused Giridhari by means of a wooden plank (wooden stump for tying cattle) dealt several blows to the head of the deceased and accused Sebak Sahoo by means of a spade dealt several blows to the head of the deceased. According to the prosecution, as a result of such assault, not only the deceased sustained injuries but also succumbed to those injuries. The further case of the prosecution is that on seeing the assault on her husband, Arati Sahoo (P.W.10) rushed to the spot with a view to prevent assault on her husband. In that process accused Sebak Sahoo and Bharat Sahoo assaulted her. Accordingly they were charged for the offence of attempt to murder. 4. To substantiate the charge for the offence under Sec¬tion 302/34, I.P.C. and also for the offence under Section 307/34, I.P.C., prosecution examined as many as 16 witnesses and relied on series of documents marked Exts. 1 to 25/5. It also relied on the spade as M.O.-I, the wooden planks described as ‘Bali’ as M.Os. II and III and the ‘Lungi’ of the deceased as M.O.-IV. Accused persons took the plea of denial; they adduced no defence evidence. 1 to 25/5. It also relied on the spade as M.O.-I, the wooden planks described as ‘Bali’ as M.Os. II and III and the ‘Lungi’ of the deceased as M.O.-IV. Accused persons took the plea of denial; they adduced no defence evidence. 5. Learned Addl. Sessions Judge, Rourkela, with due refer¬ence to the evidence of Dr. Ramesh Chandra Routray (P.W. 11) and the Post mortem Report - Ext.13 and the Opinion Report Ext. 14, recorded the finding that in view of the ante mortem external injuries sustained by the deceased, he suffered homicidal death. That finding of the trial court is not under challenge. After perusal of the evidence on record, we do not want to disturb the finding recorded by the trial court regarding homicidal death of the deceased. 6. Trial Court noticed that P.Ws. 4 to 8, 10 and 14 are the eye witnesses to the occurrence and keeping in view the criticism against the veracity of P.Ws. 4 to 8, learned Addl. Sessions Judge, eliminated their evidence as the evidence of interested witnesses with discrepancies to rule out their possi¬bility as eye-witnesses to the occurrence. At the same time trial court perused and relied on the evidence of the injured wife of the deceased, i.e., P.W. 10 and finding, her evidence to be true and trustworthy and that being corroborated by Dr. Uttam Charan Jena (P.W.3) in relation to the injuries sustained by her so also the Injury Report - Ext.4 and the Opinion Report - Ext.5, learned Addl. Sessions Judge found that the charge of murder is proved against the accused persons for their conviction under Section 302/34, I.P.C. Learned Addl. Sessions Judge however found that there is no proof of attempt to murder and inflicting of injuries on P.W. 10 by accused Bharat Sahoo. Sessions Judge found that the charge of murder is proved against the accused persons for their conviction under Section 302/34, I.P.C. Learned Addl. Sessions Judge however found that there is no proof of attempt to murder and inflicting of injuries on P.W. 10 by accused Bharat Sahoo. Accordingly, said accused was acquitted from the charge under Section 307, I.P.C. So far as accused Sebak Sahoo is concerned, trial Court found that though a case under Section 307, I.P.C. is not proved, but the injuries sustained by P.W. 10 are sufficient to find accused Sebak Sahoo guilty of the offence punishable under Section 326, I.P.C. Ac¬cordingly, all the accused persons were sentenced to undergo imprisonment for life and fine of Rs.1,000/- (one thousand) each for the offence under Section 302/34, I.P.C. and accused Sebak Sahoo was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/- (one thousand) for the of¬fence under Section 326, I.P.C. 7. Learned counsel for the appellant Nos. 2 and 3 argues that evidence of P.W.10 is full of contradictions and that aspect was lost sight of by the trial Court in support of the erroneous finding against the appellants. In the note of submission he has also submitted some contradictions, after perusal of which we are satisfied that either no contradiction is pointed out or the contradictions which have been pointed out are minor in nature so as to not to discredit her version. On perusal of the evidence we find that the occurrence is clearly and categorically proved by P.W.10 regarding participation of each of the accused persons and the manner in which they assaulted the deceased and P. W. 10, and the trial court having taken all precautions, scanned the evi¬dence. In the absence of any illegality in such scanning, we do not find any reason to interfere with the finding recorded by the trial Court in appreciating the evidence of P. W.10. Indeed her evidence prove participation of both the accused persons in the assault and murder of the deceased, and the corroborating evi¬dence having been relied on by the other evidence including the doctor and the witnesses to the seizure, there is nothing to interfere with the order of conviction and accordingly the Crimi¬nal Appeal is dismissed. Crl. Appeal dismissed.