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2008 DIGILAW 1090 (ORI)

SHYAMA SUNDAR BARIHA v. STATE OF ORISSA

2008-12-02

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : 1. This case has been listed today for orders on the bail application filed by the Appellant vide Misc. Case No. 60 of 2008. In course of placing argument, Mr. Pani, Learned Counsel for the Appellant requests to take up the Jail Criminal Appeal for disposal on the submission that virtually the Appellant has nothing to argue on the order of conviction, but he is to submit as to what offence he has committed and accordingly to argue about modification of the order of conviction, and sentence. Mr. Nanda, Learned Addl. Govt. Advocate submits that he has no objection if the appeal is heard and disposed of in course of hearing of the bail application. Thus, on the request at the Bar, we hear and dispose of the Jail Criminal Appeal in the following manner. 2. It is the case of the prosecution that there was previous ill feeling between the accused and the deceased when accused wanted to drag the daughter of the deceased (may be for the customary marriage purpose of the tribal people), but the accused prevailed upon and for that reason accused bore a grudge on the deceased. No much evidence has been tendered by the prosecution in that respect. Be that as it may, the further prosecution case is that in the night between 16th and 17th May, 2000 when the deceased and his wife Kaikei Bariha (P.W.2) were sleeping on the outer Courtyard in two separate cots, at about 1.00 a.m. on hearing the groaning sound of the deceased P.W. 2 woke up and saw that accused being armed with an axe and deceased sustaining a cut injury on his right arm. Then accused fled away from the spot. The other inmates of the house including P. Ws.1, 3 and 4 gathered there and with the help of others they took the deceased to hospital for medical aid, but the deceased died. Police registered a case initially u/s 326, Indian Penal Code but later converted the same u/s 302, Indian Penal Code and submitted charge sheet. P.W. 6 is the doctor who conducted autopsy on the dead body of the deceased. Police registered a case initially u/s 326, Indian Penal Code but later converted the same u/s 302, Indian Penal Code and submitted charge sheet. P.W. 6 is the doctor who conducted autopsy on the dead body of the deceased. In her statement P.W. 6 stated that in course of the post-mortem examination she found the following external injuries- Injuries wound of 6" long encircling the lateral half of the middle of right arm 6" below the tip of right shoulder cutting all the structures like muscles, vessels and bone and only part of the skin in the medial aspect of the arm was left. In the muscle layer some stitching materials like catget were present. She opined that the injury was ante-mortem in nature and the cause of death was due to hemorrhage and shock resulting from the aforesaid injury. In the cross-examination P.W. 6 opined that, "Probably the deceased would have survived had the hemorrhage from the injury been checked." In other words, according to the doctor, non-arresting of the bleeding resulted in the death of the deceased. Looking to that opinion of P.W. 6, her other opinion that the injury was sufficient in ordinary course of nature to cause death, appears to be not correct. Be that as it may, Learned Sessions Judge, on appreciation of evidence of P.W. 6, recorded the finding that the deceased suffered homicidal death. He also appreciated the evidence of P.W. 2 and the other witnesses besides the seizure of M.O.I u/s 27 of the Evidence Act under Seizure List marked Ext. 6 and recorded the finding that prosecution has been able to prove that the accused is the author of the injury on the body of the deceased, which resulted in his (deceased's) death. 3. The case of the prosecution rests on the solitary eye-witness to the occurrence, i.e., P.W. 2 and she was not effectively cross-examined in the Court below. Mr. Pani, Learned Counsel for the Appellant argues that it is futile to argue on merit so as to doubt the prosecution case or to challenge the findings recorded by the Trial Court on the complicity of the Appellant. Mr. Pani, Learned Counsel for the Appellant argues that it is futile to argue on merit so as to doubt the prosecution case or to challenge the findings recorded by the Trial Court on the complicity of the Appellant. He further argues that when only one axe blow was dealt on the right arm of the deceased, i.e., below the tip of right shoulder, however grave that injury may be, but that does not indicate the intention of the accused to kill the deceased. Had the accused an intention to commit murder of the deceased, then such axe blow would have been dealt on vital part of his body like neck, head, etc. Accordingly he argues to set aside the order of conviction u/s 302, Indian Penal Code and to convict the Appellant u/s 304, Part-II of Indian Penal Code 4. Mr. Nanda, Learned Addl. Govt. Advocate on the other hand argues that when the injury in the hand has resulted in death of the deceased and the opinion of P.W. 6 is that such injury is sufficient to cause death in ordinary course of nature, therefore, conviction u/s 302, Indian Penal Code be maintained. In a preceding paragraph we have noted the opinion of the doctor, P.W. 6, and we find sufficient force in the contention of Mr. Pani that accused had no intention to commit murder of the deceased. Under such circumstance, for the single blow dealt on the right arm which unfortunately resulted in the death of the deceased, we find the Appellant guilty of the offence of culpable homicide not amounting to murder punishable u/s 304, Part-II of the Indian Penal Code 5. Accordingly we set aside the order of conviction u/s 302, Indian Penal Code and the sentence thereon imposed in the impugned Judgment, and convict the Appellant u/s 304, Part-II of Indian Penal Code and sentence him to undergo rigorous imprisonment for a period of seven years. 6. At this stage, Mr. Pani, Learned Counsel for the Appellant states that Appellant has remained in jail custody all throughout during the course of investigation, Trial of the case and pendency of this appeal and in that process he has already spent about eight years inside the jail. If that be so, the period of detention in jail custody be set off u/s 428, Code of Criminal Procedure. If that be so, the period of detention in jail custody be set off u/s 428, Code of Criminal Procedure. and the Appellant be set at liberty forthwith, provided his detention in jail custody is not required in connection with any other criminal case. 7. The Jail Criminal Appeal is accordingly allowed in part. The Misc. Case is disposed of as infructuous. Appeal allowed in part. Final Result : Allowed