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2008 DIGILAW 114 (ORI)

Krupasindhu Das v. State of Orissa

2008-02-08

B.K.PATEL, MOHAPATRA

body2008
Judgement L. MOHAPATRA, J. :- Both the Criminal Appeals are directed against the judgment and order dated 29-5-1995 passed by the Addl. Sessions Judge, Jajpur in Sessions Trial No. 86/12 of 1993. As it appears, eighteen persons were charged for commission of offences under Sections 148, 302/149 and 307/149 of the Indian Penal Code, but seventeen persons faced trial and the case was split up against one of the accused persons. Out of the seventeen accused persons who faced trial, five were acquitted, namely Dura Jena, Dinabandhu Das, Parsu Das, Padan Jena and Kasi Das. All the appellants were convicted for commission of offence under Section 148 of the IPC. Learned trial Court is silent with regard to award of any sentence for conviction under Section 148, IPC and thereby, has not awarded separate sentence thereunder, though the same should have been specifically pointed out. Appellants Krupasindhu Das, Narahari Jena, Laxmidhar Jena, Jairam Das, Trilochan Ghadei, Alekha Ghadei and Gobinda Mohanty were convicted for commission of the offences under Sections 302 / 149 of the IPC and were sentenced to R.I. for life, whereas other appellants were convicted for commission of offences under Sections 307/149 of the IPC and were sentenced to R.I. for seven years each. It was further directed that in respect of the appellants who were convicted for both the offences, the sentences would run concurrently. 2. P.W. 1 is the informant and father of the deceased. In the FIR which was lodged on 15-6-1991 at about 7 p.m. before the OIC Balichandrapur Police Station, it is alleged that on that day at about 10 a.m. his elder son (P.W. 5) had been to guard jute field and other two sons, deceased Ramesh and P.W. 8, had been to Panasus booth to cast votes for the Panchayat election. At that time accused Krupasindhu Das and other accused persons being armed with Farsa and lathis numbering about 20 to 30 drove cattle to the jute field belonging to the informant and started damaging the crop. P.W. 5 who was guarding jute field out of fear ran towards the booth to call his other two brothers and all of them started running on the road and when they came near the jute field to scare away the cattle, all the accused persons rushed towards them, whereafter the three brothers started running on the road out of fear. It is further alleged that the deceased Ramesh was assaulted by means of lathi and Farsa and he ultimately succumbed to the injuries at S.C.B. Medical College and Hospital, Cuttack. P.W. 5 was brutally assaulted when he tried to rescue the deceased and P.W. 8 was also brutally assaulted. In course of the assault when hullah was raised, other persons came to the field and the accused persons fled away from the spot. On these allegations an FIR having been lodged, investigation was taken up and charge-sheet was filed for commission of the aforesaid offences. 3. The prosecution examined 13 witnesses to prove the charges, whereas one witness was examined on behalf of the defence. Out of 13 witnesses, P.Ws. 1, 2, 3, 4, 5 and 8 are the eye-witnesses out of whom P.Ws. 5 and 8 are the injured eye-witnesses. P.W. 6 is witness to the seizure of Exts. 5 and 6 and P.W. 7 is the doctor who conducted post-mortem examination. P.W. 9 is the person who prepared a sketch map and P.W. 10 is the I.O. of Mangalabag Police Station. P.W. 11 is the doctor who examined the injured and P.Ws. 12 and 13 are the I.Os. The trial Court accepting the version of the eye-witnesses to the occurrence convicted the appellants as stated earlier. 4. Plea of defence is that Nrusingha Ghadei and his brother Lokanath Ghadei while going to cast their votes were detained by P.Ws. 1, 5 and 8 and deceased Ramesh and there was a quarrel as to whom Nrusingha and his brother would cast votes and thereafter they assaulted Nrusingha, Lokanath and Gobinda Mohanty. There was counter assault by the supporters of Nrusingha and in the process the unfortunate incident took place. 5. Shri Bramhananda Panda, learned counsel appearing for the appellants in Criminal Appeal No. 165 of 1995 and Sri Sahoo, learned counsel appearing for the appellant in Criminal Appeal No. 186 of 1995 challenge the impugned judgment on the following grounds. (1) First FIR was lodged before the OIC, Mangalabag Police Station after death of the deceased. That FIR has been suppressed and the subsequent FIR has been produced before the Court. (1) First FIR was lodged before the OIC, Mangalabag Police Station after death of the deceased. That FIR has been suppressed and the subsequent FIR has been produced before the Court. (2) Though the FIR for the purpose of which investigation started is stated to have been lodged at 7 p.m. on 15-6-1991 and it is also mentioned in the FIR that it was despatched from the police station on 16-6-1991, no reason has been given as to how the records were received by the learned S.D.J.M. on 19-6-1991. According to the learned counsel appearing in both the appeals, records having been sent to the Court of learned S.D.J.M. on 19-6-1991, there was no FIR at least till 18-6-1991 and the alleged FIR has been antedated. (3) Evidence of the so-called eye-witnesses are full of contradictions on material particulars and should not have been relied upon by the trial Court. (4) So far as offence under Section 307 of the IPC is concerned, the injuries sustained by the injured persons do not speak of any such injury on any vital part of the injured which could cause death so as to say that there was intention to cause death. 6. Learned counsel for the State on the other hand, submitted that no FIR had been lodged in Mangalabag Police Station and the first FIR on the basis of which investigation was taken up has been produced before the Court and the prosecution has not suppressed the so-called first FIR. It was contended by the learned counsel for the State that, that FIR was registered on 15-6-1991 and it was also despatched from the police station on 16-6-1991, because of intervening holidays it was received by the learned S.D.J.M. on 19-6-1991. So far as evidence of eye-witnesses is concerned, learned counsel for the State referred to the depositions and pointed out that there is no contradiction to disbelieve the said witnesses. So far as offence under Section 307 of the IPC is concerned, learned counsel for the State submitted that though the injuries found on the injured persons do not indicate that it may cause death, but the weapons used clearly give picture of the intention of the accused persons in assaulting both the injured. 7. So far as offence under Section 307 of the IPC is concerned, learned counsel for the State submitted that though the injuries found on the injured persons do not indicate that it may cause death, but the weapons used clearly give picture of the intention of the accused persons in assaulting both the injured. 7. The first submission of the learned counsel for the appellants is that an FIR was lodged at Mangalabag Police Station but the same has been suppressed. In this connection, learned counsel appearing for the appellants relied upon the deposition of P.W. 4. This witness is an eye-witness to the occurrence and in para 4 of his deposition he has stated that on the request of Dhal family he came to the spot and took the deceased in a trolley to Ratnagiri hospital. As the doctor was absent, the Pharmacist advised to take the deceased to SCB Medical College and Hospital, Cuttack. Thereafter he shifted the deceased in a trekker to Cuttack and none of the family members of the deceased accompanied him. Two other persons namely Kartika and Panchanan came to medical in another trekker. The deceased was admitted in Cuttack hospital at about 12 to 12-30 p.m. and at about 5 to 6 p.m. doctor declared him dead. Thereafter Panchanan and he went to Mangalabag Police Station and informed the matter. Police made inquest over the dead body of the deceased and he signed the inquest report. In cross-examination, this witness has stated that he does not recollect what was written in the information given to the Mangalabag Police Station, but in the report how Ramesh died was mentioned. Much reliance is placed on this statement of P.W. 4 to advance an argument that an FIR had been lodged before the Mangalabag Police Station indicating the manner in which the deceased died, but the same has been suppressed. We have perused the U.D. Case records which does not contain any FIR, rather it contains information given by the doctor to the police regarding death of the deceased. P.W. 4 is a witness to the inquest. The inquest report (Ext. 4) describes the manner in which the deceased was assaulted and it appears that in cross-examination this witness only referred to the inquest report. We hold as such because the inquest report indicates how Ramesh died. P.W. 4 is a witness to the inquest. The inquest report (Ext. 4) describes the manner in which the deceased was assaulted and it appears that in cross-examination this witness only referred to the inquest report. We hold as such because the inquest report indicates how Ramesh died. The other person who accompanied P.W. 4 is P.W. 8. This witness has stated that he and P.W. 4 informed the matter to the Magalabag Police for seizure of the dead body of the deceased. There is nothing in his evidence to show that any formal FIR had been lodged in the Mangalabag Police Station. P.W. 10 is the officer who was attached to Mangalabad Police Station on 15-6-1991. He has specifically stated that U.D. Case No. 310/91 was registered by the Inspector-In-Charge on the basis of casualty memo issued by the S.C.B. Medical College and Hospital, Cuttack regarding death of the deceased Ramesh Chandra Dhal and he was directed to investigate into the matter. Ext. 10 is the U.D. FIR drawn by the then IIC of Mangalabag Police Station. There is nothing in his statement either in examination-in-chief and in cross-examination to show that either P.W. 4 or P.W. 8 had lodged any FIR in the said police station. In view of the reasons stated above, we do not find any force in the contention of learned counsel appearing for the appellants that there was an FIR earlier to the present FIR and the said FIR has been suppressed. Learned counsel in this regard had referred to some decisions of the Apex Court. These decisions lay down guidelines as to how the Court should proceed when an FIR is suppressed. Having found that there was no FIR at all prior to Ext. 3, question of suppression does not arise and therefore the decisions cited by the learned counsel for the appellants have no application in this regard. 8. The second point raised by the learned counsel for the appellants is that the FIR (Ext. 3) was received at 7 p.m. on 15-6-1991 and was despatched on 16-6-1991. Admittedly, the records were received by the learned S.D.J.M. on 19-6-1991 and therefore in absence of any explanation as to why the records were sent to the learned S.D.J.M. after three days, presumption is that the FIR has been antedated. We are unable to accept such contention in view of the following reasons. Ext. Admittedly, the records were received by the learned S.D.J.M. on 19-6-1991 and therefore in absence of any explanation as to why the records were sent to the learned S.D.J.M. after three days, presumption is that the FIR has been antedated. We are unable to accept such contention in view of the following reasons. Ext. 3 clearly indicates that the FIR was registered at 7 p.m. on 15-6-1991 and records were despatched on 16-6-1991. The C.S.I. received the FIR on 16-6-1991 but did not place the records before the Court of learned S.D.J.M. till 19-6-1991. Endorsement of the E.S.I. on the body of the formal FIR indicates the date of receipt to be 16-6-1991. If there has been any fault on the part of the C.S.I. in putting up the records before the Court, the I.O. cannot be blamed for that. As is evident from the FIR itself, the same was registered on 15-6-1991 and despatched from the police station on 16-6-1991. We, therefore, decline to accept contention of the learned counsel appearing for the appellants to the effect that there is no explanation by I.O. as to why records were sent to the Court of S.D.J.M. on 19-6-1991 and that the FIR must have been antedated. 9. The third ground taken by the learned counsel for the appellants is with regard to contradictions and unreliability of the eyewitnesses. Undisputedly the prosecution has projected P.Ws. 1, 2, 3, 4, 5 and 8 as eye witnesses to the occurrence and P.Ws. 5 and 8 are injured eye-witnesses. P.W. 1 is the father of the deceased. He has stated in his deposition that at about 10 a.m. accused Krupasindhu armed with a Farsa, accused Nari and others armed with thengas abused and damaged the jute crops by leaving cattle into the land and when his sons protested, accused Krupasindhu shouted to kill his sons. When his sons were trying to run away, accused Krupasindhu Das, Nari Jena, Trilochu Ghadei, Jairam Das, Laxmidhar Jena, Govinda Mohanty, Alekha Ghadei chased the deceased. First accused Nari Jena gave lathi blow on the head of Ramesh, as a result of which he fell down. Thereafter accused Krupasindhu Das, Jairam Das and Trilochan Ghadei assaulted the deceased. There are injuries on the head of the deceased and he was lying unconscious on the ground. First accused Nari Jena gave lathi blow on the head of Ramesh, as a result of which he fell down. Thereafter accused Krupasindhu Das, Jairam Das and Trilochan Ghadei assaulted the deceased. There are injuries on the head of the deceased and he was lying unconscious on the ground. Accused Krupasindhu gave a blow on the backside of the Farsa on the thigh of the deceased and others assaulted by means of lathis. When other brother Kartika rushed to rescue the deceased, accused Gagan Bhanja, Anila Bhanja, Sarata Ghadei, Brata Jena and Krupasindhu assaulted him. Gagan assaulted Kartik on his knee, as a result of which he fell down and others, namely, Sarata Ghadei, Bharat Jena and Anila Bhanja assaulted on other parts of the body of Kartik by means of lathis. Thereafter Krupasindhu gave Farsa blow on the head of Kartik, as a result of which he lost his sense. Similarly, Panchnan who is the other injured was assaulted by Jairam Das, Nabaghana Das, Alekha Ghadei, Govind Mohanty, Laxmidhar Jena by means of lathis. Similar is the evidence of rest of the eye-witnesses including the injured eye-witnesses. It was contended by the learned counsel for the appellants that all these witnesses in their statements recorded in course of investigation had stated that accused Krupasindhu had assaulted the deceased on his head by means of Farsa, but they changed their statements in Court implicating Nari Jena to have assaulted on the head by means of a lathi to corroborate the medical evidence. Since all the witnesses in course of investigation had implicated Krupasindhu to be the assailant and to have assaulted by means of Farsa and they changed the entire story during their examination in Court and implicated Nari Jena as the assailant who assaulted on the head of the deceased by means of a lathi, these witnesses so far as assault on the deceased is concerned, should not have been believed. P.W. 1 is the informant. In the FIR he has specifically alleged that Nari Jena assaulted on the head of the deceased by means of lathi, as a result of which the deceased fell down. Thereafter, accused Krupasindhu Das, Trilochan Ghadei and Jairam Das assaulted him by means of lathis. P.W. 1 is the informant. In the FIR he has specifically alleged that Nari Jena assaulted on the head of the deceased by means of lathi, as a result of which the deceased fell down. Thereafter, accused Krupasindhu Das, Trilochan Ghadei and Jairam Das assaulted him by means of lathis. This statement in the FIR that Nari Jena had assaulted the deceased on his head by means of a lathi is repeated by all the eye-witnesses in course of examination in Court. Apart from above, the inquest report (Ext. 4) also shows that the deceased was assaulted by Narahari Jena and others by means of lathis. The documents, such as FIR and the inquest report clearly indicate that the deceased was assaulted by means of lathi and specifically by Narahari Jena. Under what circumstances in course of investigation these witnesses have implicated accused Krupasindhu to have assaulted on the head of the deceased by means of Farsa is not explained. Though we agree in this connection with the learned counsel appearing for the appellants that such an anomaly has not been explained by the prosecution, however, it is seen that the prosecution case as revealed in the FIR and the inquest report which are initial documents and came into existence immediately after the occurrence, corroborate the statements of eye-witnesses made in course of their examination in Court. We are, therefore, not prepared to accept the contention of the learned counsel for the appellants that on this ground alone the eye-witnesses are to be disbelieved. However, we find from the evidence of all the eye-witnesses, so far as assault on the deceased is concerned, that they have implicated four accused persons out of seven found guilty for commission of offences under Sections 302/149 of the IPC. The eyewitnesses are consistent in their statement to the effect that the appellants Nari Jena, Krupasindhu, Trilochan and Jairam assaulted the deceased by means of lathis and Krupasindhu assaulted by means of Farsa. There is no allegation whatsoever so far as other three appellants namely Laxmidhar Jena, Alekha Ghadei and Govinda Ghadei are concerned. They have been convicted with the aid of Section 149 of IPC. There is no allegation whatsoever so far as other three appellants namely Laxmidhar Jena, Alekha Ghadei and Govinda Ghadei are concerned. They have been convicted with the aid of Section 149 of IPC. We have carefully perused the evidence of all the eyewitnesses and it appears that these three appellants who have not been named as assailants of the deceased were waiting along with other appellants under a Mango tree, but never participated in assault the deceased. Therefore, they could not have shared the same common object as that of the above four appellants. Accordingly, we are of the view that these three appellants should not have been convicted for commission of the offences under Sections 302/149 of the IPC. But so far as these four appellants namely, Nari Jena, Krupasindhu. Trilochan and Jairam are concerned, evidence with regard to their role and complicity in causing the death of the deceased in furtherance of their common intention is clinching and is corroborated by medical evidence. Therefore they are liable to be convicted under Section 302/34, IPC instead of Sections 302 / 149, IPC. So far as assault on the injured P.Ws. 5 and 8 is concerned, it appears that rest of the appellants have been convicted for commission of offence under Sections 307/149, IPC. These two injured witnesses were examined by Dr. Banabihari Mishra (P.W. 11). On 15-6-1991 this witness examined both the injured. So far as P.W. 5 Karuka Dhal is concerned, the doctor found lacerated injury over left temporal region which is simple in nature and one lacerated skin injury over right forehead simple in nature and might have been caused by hard and blunt object. One contusion on left shoulder simple in nature and Naemarthrosis over left knee joint. Similarly P.W. 8 was examined by him and he found one contusion over right elbow and contusion on the right side neck, shoulder and right upper leg and all the injuries are simple in nature. As it appears, these injuries could be caused by lathi blows. Since the injuries are found to be simple in nature, these appellants should have been convicted for commission of offences under Section 324 / 149 of the IPC. 10. As it appears, these injuries could be caused by lathi blows. Since the injuries are found to be simple in nature, these appellants should have been convicted for commission of offences under Section 324 / 149 of the IPC. 10. In view of the discussions made above, the judgment and order of the learned Additional Sessions Judge so far as conviction of the appellants Nari alias Narahari Jena, Krupasindhu Das, Trilochan Ghadei and Jairam Das for commission of offence of murder in furtherance of their common intention is upheld and they are convicted under Sections 302/34 of IPC. However, the appellants Laxmidhar Jena, Alekha Ghadei and Govind Ghadei are acquitted of the charges under Section 302/149 of the IPC. So far as rest of the appellants are concerned, who have been convicted for commission of offences under Sections 307/149 of the IPC, we set aside the order of conviction and convict them for commission of offences under Section 324/149 of the IPC. Conviction of the appellants under Section 148, IPC as recorded by the learned trial Court is also confirmed. In the result, so far as the four appellants namely Nari alias Narahari Jena, Krupasindhu Das, Trilochan Ghadei and Jairam Das are concerned, sentences imposed by the trial Court is also confirmed. Rest of the appellants who have been convicted for commission of offences under Section 324/149, IPC are directed to serve R.I. for a period of one year. The sentences already undergone by these appellants shall be set off. 11. Both the appeals are allowed in part. 12. B. K. PATEL, J. :- I agree. Appeals partly allowed.