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Orissa High Court · body

2007 DIGILAW 929 (ORI)

Sanat,Chaku Jena v. State of Orissa

2007-12-14

P.K.TRIPATHY

body2007
JUDGMENT Though this Criminal Appeal has been listed for orders on the bail application, learned counsel for the appellants consents for hearing and disposal of the Criminal Appeal, which is of the year 1988. Accordingly the appeal is heard, hearing is concluded and the judgment is as follows. 2. Both the appellants have been convicted by learned Sessions Judge, Balasore in Sessions Trial No. 89 of 1987. Ac¬cused-appellant Pahali Prahallad Jena has been convicted for the offence under Section 304, Second Part of I.P.C. and has been sentenced to undergo rigorous imprisonment for five years and accused-appellant Sanat @ Chaku Jena has been convicted for the offence under Section 304/34, I.P.C. and has been sentenced to undergo rigorous imprisonment for three years. In addition to that, this appellant has also been convicted for the offence under Section 323, I.P.C. and sentenced to undergo rigorous imprisonment for two months with a direction to run both the sentences concurrently. 3. It reveals from the impugned judgment, defence plea of the accused persons and the evidence on record that there exists a land dispute between the family of Khetramohan Das (‘hereinafter referred to as the ‘deceased’) and the accused persons. Babaji Das (P.W.1) is the brother of the deceased. On 06.04.1987 at about 6 a.m. the deceased and the injured (P.W.1) were intimated about putting ‘kia’ fence by the accused persons on the disputed area. Both the brothers went to lodge protest, but retrieved because of pelting of stones by the accused persons. Even when they returned to the house, accused persons came upon there and pelted stones to the house of the deceased. When pelting of stones stopped, both deceased and P.W.1 came out of their house and again protested against the highhanded action of the accused persons. At that, accused Sanat @ Chaku Jena dealt a lathi blow, which caused injury on the area over the eye-brow of P.W.1. Lathi blow dealt by accused Pahali @ Prahallad Jena could be prevented by the deceased, who caught-hold of one end of that lathi. There was a scuffle between accused Pahali and the deceased to take possession of the lathi. Lathi blow dealt by accused Pahali @ Prahallad Jena could be prevented by the deceased, who caught-hold of one end of that lathi. There was a scuffle between accused Pahali and the deceased to take possession of the lathi. At that juncture accused Sanat came and caught-hold of the waist of the deceased and thereafter, taking possession of the lathi, accused Pahali brought out the knife M.O.-II from his waist and dealt a stab blow on the abdomen of the deceased causing bleeding injury. After being taken to the hospital, deceased succumbed there on the same day. Though as many as ten members from the family of the accused were arrayed as accused persons and charge was framed for the offence under Section 302, I.P.C. against accused Pahali and under Section 302/149, I.P.C. against the remaining accused persons besides charge under Section 323, I.P.C. against accused Sanat together with the charge under Section 148, I.P.C. against all the accused persons, but on assessment of the prosecution evidence, the trial Court acquitted the other accused persons in absence of any evidence of overt act by them and recorded the finding that the act of the accused Pahali was in course of a scuffle, therefore, ante-mortem injury, which was sufficient in ordinary course of nature to cause death of the deceased, makes out an offence of culpable homicide not amounting to murder punishable under Section 304, Part II of the I.P.C. The trial Court also recorded the finding that accused Sanat having participated in that occurrence by holding the waist of the deceased, he is liable under Section 304/34, I.P.C. besides for the offence under Sec¬tion 323, I.P.C. for causing simple hurt to P.W.1. 4. Learned counsel for the appellants argues that discrep¬ancy in the evidence of the injured (P.W.1) and the eye-witnesses (P.Ws. 2 and 3) was not taken into consideration and though further eye-witnesses were present, they were not examined by the prosecution and, therefore, that benefit should go in favour of the accused persons. It has been noted by the trial Court and also on perusal of the evidence on record it is seen that there is no material contradiction in the evidence of the aforesaid three witnesses. Their evidence on occurrence has remained unshaken to prove participation of both the appellants in both the occurrence and therefore no advantage is available to the appellants on the aforesaid ground. Their evidence on occurrence has remained unshaken to prove participation of both the appellants in both the occurrence and therefore no advantage is available to the appellants on the aforesaid ground. 5. Learned counsel for the appellants further argues that the sequence, in which the stab blow was given, belies the prosecution theory in view of the fact that M.O.-II could not have been utilized as a weapon of offence unless unfolded. That aspect has been detaily dealt with by the Trial Court in para¬graphs 9 and 10 of the impugned judgment to give the correct reasoning that the knife was in such a condition that use of two hands was not necessary to open it, and under such circumstance the theory told by the defence is not acceptable. There is nothing on record to contradict that factual finding recorded by the Trial Court and, under such circumstance the aforesaid argu¬ment is devoid of merit and accordingly rejected. 6. Learned counsel for the appellants further argues that, according to the sequence of event there was no meeting of minds between the appellants for causing stab injury on the deceased by appellant Pahali. Learned counsel for the appellants further argues that when accused Pahali and the deceased were engaged in the scuffle to take possession of the lathi, accused Sanat intervened and caught-hold of the waist of the deceased only to facilitate in taking possession of the lathi by the co-accused and, therefore, he could not have shared the common intention with accused Pahali for a dealing a stab blow to the deceased by use of knife. Learned Standing Counsel though does not admit to that argument, but virtually that is the sequence made out by P.Ws. 1, 2 and 3, and under such circumstance accused Sanat cannot be found guilty of the offence of culpable homicide by sharing common intention with accused Pahali. Under such circum¬stance, the order of conviction of accused Sanat under Section 304/34, I.P.C. is set aside. No other argument is advanced as against the finding recorded by the Trial Court regarding guilt of accused Pahali under Section 304, I.P.C. and the guilt of accused Sanat under Section 323, I.P.C. On perusal of evidence and the finding recorded by the Trial Court in that respect, it is seen that appreciation of evidence was made correctly. No other argument is advanced as against the finding recorded by the Trial Court regarding guilt of accused Pahali under Section 304, I.P.C. and the guilt of accused Sanat under Section 323, I.P.C. On perusal of evidence and the finding recorded by the Trial Court in that respect, it is seen that appreciation of evidence was made correctly. Thus, there is nothing to interfere with that part of the order of conviction and sentence imposed thereon. 7. In the result, the conviction and sentence of accused-appellant Pahali @ Prahallad Jena for the offence under Section 304, Part II of the I.P.C. is maintained. Similarly, conviction and sentence of accused-appellant Sanat @ Chaku Jena for the offence under Section 323, I.P.C. is maintained, but so far as the conviction of accused Sanat @ Chaku Jena for the offence under Section 304/34, I.P.C. is concerned, that is set aside. The Criminal Appeal is accordingly allowed in part. Appeal allowed in part.