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2008 DIGILAW 113 (ORI)

Kanhu alias Kanhei Gouda v. State of Orissa

2008-02-08

B.K.PATEL, L.MOHAPATRA

body2008
Judgement L. MOHAPATRA, J. :- The three appellants in both the appeals have been convicted by the learned ad hoc Additional Sessions Judge, Fast Track Court, Aska in Sessions Case No. 72 of 2004 (S.C. No. 432 of 2004-GDC) for commission of offences under Sections 302/34 of the Indian Penal Code and have been sentenced to imprisonment for life and have also further been sentenced to pay fine of Rs. 5000/- each, in default, to undergo R.I. for one year. 2. Case of the prosecution as revealed from the FIR is that on 17-1-2004 at about 7 p.m. Indra Gouda, Henka alias Ananta Gouda, Bhagaban Gouda and Kanhel Gouda who were accused persons went to village Sumantapolli and dragged the deceased to the river bank. Brother of the informant accused Kanhei caught hold of the deceased while other three accused persons assaulted the deceased by means of kati and axe on the right shoulder and left wrist causing cut injuries. When the deceased cried loudly, her husband (the informant) rushed to the spot and saw assailant on the deceased. Informant also raised hullah upon which all the accused persons ran away towards their village Sumantapolli. The deceased was immediately shifted to Balisiri Hospital and then to Berhampur Hospital where she succumbed to the injuries. The FIR was lodged by P.W. 11 and the case was registered for commission of offences under Sections 341/ 326/307/34 of the Indian Penal Code initially and after death of the deceased the case turned to be one under Section 302/ 34 of the IPC. On completion of investigation, charge-sheet was submitted against four accused persons for commission of offence under Section 302/34 of the IPC. 3. The prosecution in order to establish the charge examined 11 witnesses, whereas one witness was examined on behalf of the defence. Plea of the defence was complete denial of the prosecution allegation. The trial Court relying on the sole testimony of P.W. 11 who is the husband of the deceased as well as the injury report, found the three appellants guilty of the charges, but accused Indra Gouda was acquitted of the charge. 4. Plea of the defence was complete denial of the prosecution allegation. The trial Court relying on the sole testimony of P.W. 11 who is the husband of the deceased as well as the injury report, found the three appellants guilty of the charges, but accused Indra Gouda was acquitted of the charge. 4. Shri Ashok Mohanty, learned senior counsel appearing for all the appellants in both the appeals assailed to impugned judgment on the ground that P.W. 11 being the sole eye-witness to the occurrence and his evidence being full of contradictions, trial Court should not have found the appellants guilty of the charge solely on the basis of evidence of P.W. 11 without corroboration from any independent source. It was further contended by the learned senior counsel that the daughter of the deceased and P.W. 11 had been named as an eye-witness to the occurrence, but she denied to have any knowledge in course of her examination in Court as P.W. 7. the FIR discloses presence of one P. Nilima Patro at the time of occurrence, but she has been withheld by the prosecution and was not examined in Court. Learned counsel for the appellants relied upon a decision of the Apex Court to support of his contention that testimony of P.W. 11, the sole eye-witness to the occurrence, could not be the basis of conviction without corroboration of independent source. Learned counsel for the State submitted that even though P.W. 7 did not say anything regarding the occurrence, P.W. 11 has categorically implicated all the three appellants and has described the manner in which assault took place on the deceased. Nothing having been brought out in cross-examination to disbelieve the testimony of the sole eye-witness, the Court relied on the evidence of P.W. 11 and the evidence of P.W. 11 being corroborating by injury report, trial Court rightly found the appellants guilty of the charges. 5. In the FIR lodged by P.W. 11, it is alleged that on the date of occurrence appellant Kanhei came to the village of the informant and forcibly lifted the deceased to the river bank. Appellant Kanhei caught hold of the deceased and other appellants namely Indra Gouda, Henka alias Ananta Gouda and Bhagaban Gouda assaulted the deceased by means of Kati and Tangia. Appellant Kanhei caught hold of the deceased and other appellants namely Indra Gouda, Henka alias Ananta Gouda and Bhagaban Gouda assaulted the deceased by means of Kati and Tangia. Hearing cry of the deceased, P.W. 11 ran to the spot and found the appellants assaulting the deceased and when he started shouting the appellants ran away towards their village. He has further stated in the FIR that apart from him, the incident was witnessed by his daughter (P.W. 7) and P. Nilima Patro. Much reliance has been placed by the learned counsel for the appellant on this statement of P.W. 11 to say that out of two other witnesses to the occurrence, daughter of the deceased was examined, but she denied to have any knowledge about the occurrene and other eye-witness P. Nilima Patro was not examined by the prosecution. Referring to the evidence of P.W. 11, it was further contended by the learned senior counsel appearing for the appellant that there was good relationship between both the families and no motive has been proved by the prosecution. P.W. 11 is undoubtedly the informant and husband of the deceased. Appellant Kanhei is the brother of this witness. He has alleged that on the date of occurrene at about 7 p.m. accused persons came to his house at Maharajpur and appellant Kenhei forcibly lifted the deceased from his house and took her to the river bank. Thereafter appellants Bhagaban and Ananta assaulted the deceased by means of kati and axe causing injuries on the right arm and left wrist. When he saw assault on his wife, he ran to rescue her, and appellants ran way from the spot. He thereafter along with Raghu Gounda shifted the deceased to Balisiri Hospital and then to MKCG Hospital, Behrampur. On the next day he reported the matter at Aska Police Station in writing. The day thereafter the deceased died at about 3 p.m. in Berhampur Hospital. He is also a signatory to the inquest report. In cross-examination this witness has stated that on the date of occurrence, deceased told her that she had a quarrel with appellant Kanhei. Nothing has been brought out in cross-examination of this witness to disbelieve his statement that out of three appellants Kanhei alias Ananta Gouda caught hold of the deceased and other two appellants assaulted her. In cross-examination this witness has stated that on the date of occurrence, deceased told her that she had a quarrel with appellant Kanhei. Nothing has been brought out in cross-examination of this witness to disbelieve his statement that out of three appellants Kanhei alias Ananta Gouda caught hold of the deceased and other two appellants assaulted her. Though it was contended by the learned counsel for the appellants that both the families had good relationship as admitted by P.W. 11, it further appears from cross-examination of P.W. 11 that on the date of occurrence there was a quarrel between the deceased and the appellant Kanhei which could be the motive for assaulting the deceased. It is true that P.W. 7 who is stated to be an eye-witness to the occurrence in the FIR has deposed in Court saying that at the time of occurrence she was absent from the house and had been to another Sahi to play with friends, but the intrinsic value of evidence of P.W. 11 having not to be shattered in any way, there is no reason for this Court not to accept the evidence of P.W. 11 as an eye-witness to the occurrence. Not only P.W. 11 states that manner in which the offence was committed, but also the injuries found on the deceased by P.W. 8 who conducted postmortem examination find corroboration from the evidence of P.W. 11, P.W. 8 who conducted post-mortem examination found chop wounds and incised wounds on the body of the deceased, but all those injuries were on arms and wrist and there is no injury on any vital part of the body. It is true that all the injuries are grievous in nature and the doctor is of the opinion that cause of death was due to haemorrhage and shock because of the injuries sustained by the deceased. However, we are of the view that no injuries having been inflicted on any vital parts of the body of the deceased, the appellants never intended to kill the deceased. They being armed with axe and kati could have assaulted on the vital parts of the body of the deceased if they had any intention to cause death. However, we are of the view that no injuries having been inflicted on any vital parts of the body of the deceased, the appellants never intended to kill the deceased. They being armed with axe and kati could have assaulted on the vital parts of the body of the deceased if they had any intention to cause death. The very fact that the appellants are alleged to have assaulted on arm and wrist and corresponding injuries are also found in course of post-mortem examination, we think it proper to convict the appellants for commission of offence under Section 304, Part-II read with Section 34 IPC since they had no intention to cause death but had knowledge that such injuries may cause death. The decision relied upon by the learned counsel for the appellant reported in 1983 Cri. LJ 1105 : ( AIR 1983 SC 810 ) does not speak of different law than the settled law. 6-7. In view of the discussions made above, we set aside the order of conviction and sentence imposed by the trial Court and convict the appellants for commission of offence under Section 304, Part II read with Section 34, IPC and sentence each one of the them to R.I. for a period of seven years and pay fine of Rs. 5000/- each, in default, to undergo R.I. for a further period of six months. The appeals are allowed in part with the above modification in the judgment of the trial Court. 8. B. K. PATEL, J. :- I agree. Order accordingly.