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2008 DIGILAW 1146 (ORI)

PAUIA JAGAYYA v. STATE OF ORISSA

2008-12-16

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : 1. Appellants challenged the order of conviction u/s 302/34, Indian Penal Code and sentence of imprisonment for life imposed on them as per the judgment and order of conviction dated 11.09.1998 by Learned Sessions Judge, Koraput/Rayagada/Malkangiri/Nabarangpur, At. Jeypore in Sessions Case No. 117 of 1997. 2. Prosecution case is that on 10.02.1997 at about 10.00 A.M., while Kondagori Bursa, the deceased in this case was raising fence of his land at Kajawada near village Beda Lukuti, all the three accused persons in drunken condition came that way. The deceased apprehended that they had come for Salap juice (Salap liquior) and protested to their coming to that spot. Exchange of words between the deceased and the accused group led to a quarrel, in which the accused persons manhandled the deceased, gave blows and trampled on his chest and belly. On hearing the shout of the deceased, when his wife, Kondagori Daliamma (P.W. 1) rushed to the spot together with others, the accused persons fled away. P.W. 1 found the deceased in an unconscious state and thereafter he was shifted to the house and on the next day night, the deceased died in that unconscious condition. Thereafter, Kondagori Gumpa (P.W. 2) lodged the F.I.R., Ext. 1 and set the law into motion. After a ritual investigation, charge-sheet was filed against the accused persons and they were asked to face the trial for the offence u/s 302/34, Indian Penal Code. 3. Accused persons denied to the charge and claimed for trial. However, they also took the defence that there was no quarrel for salap but there was quarrel relating to tamarind. 4. To substantiate the charge, prosecution examined ten witnesses. Amongst them P.W. 6 is Dr. P. Venkata Rao, who conducted autopsy on the dead body of the deceased and proved the post mortem report, Ext. 6, so also the opinion report, Ext. 7. In his evidence, P.W. 6 deposed that he found two bruises, one on the abdomen below umbilicus and the other on the lower part of the chest and upper part of hypochondriam and the corresponding internal injury leading to perforation as peritoneum, ileum and opined that because of traumatic nature of the internal injuries, the deceased suffered death. 7. In his evidence, P.W. 6 deposed that he found two bruises, one on the abdomen below umbilicus and the other on the lower part of the chest and upper part of hypochondriam and the corresponding internal injury leading to perforation as peritoneum, ileum and opined that because of traumatic nature of the internal injuries, the deceased suffered death. He also opined that trampling on the chest and stomach would have led to aforesaid external and internal injuries and sufficient in ordinary course of nature to cause death of the deceased. In cross-examination, he deposed that if immediate treatment would have been provided, perforation due to injuries of any internal organ could have been saved and taken care. Referring to such evidence Learned Sessions Judge recorded that the deceased suffered homicidal death. 5. Mr. S.B. Jena, Learned Counsel for the Appellants submits that negligence in giving treatment is the cause of death and therefore Appellants cannot be attributed with the motive to commit death of the deceased. On the other hand, Mr. Mishra, Learned Standing Counsel argues that in view of Explanation 2 of Section 299, Indian Penal Code, such argument of the Appellant is devoid of merit. Section 299 defines the offence of culpable homicide and Section 300, Indian Penal Code defines under what circumstances culpable homicide be regarded as offence of murder. Explanation 2 of Section 299, Indian Penal Code read as hereunder: Explanation 2 - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. The above quoted provision is sufficient enough to reject the argument of the Appellant. On the other hand, on perusal of the evidence of P.W. 6 as well as the finding of the Learned Sessions Judge, we agree with the finding that the deceased suffered homicidal death. 6. In dealing with the crucial point regarding complicity of the accused persons in the alleged crime, Learned Sessions Judge has referred to and relied on the evidence of P. Ws. 1, 3 and 4. Amongst them, as already noted, P.W. 1 is the widow of the deceased. 6. In dealing with the crucial point regarding complicity of the accused persons in the alleged crime, Learned Sessions Judge has referred to and relied on the evidence of P. Ws. 1, 3 and 4. Amongst them, as already noted, P.W. 1 is the widow of the deceased. As per her evidence, by the time of the occurrence she was at a distance of 20 cubits from the spot and she saw the entire occurrence including the physical force applied and assault made by the accused persons including the act of their trampling the deceased. Though she was cross-examined at length but nothing substantial could be brought to discredit her version. P.W. 3 Kandagori Senala, a co-villager of the deceased, stated in his evidence that on hearing the hulla of P.W. 1, he rushed to the spot along with others. He saw the accused persons assaulting the deceased and when he fell down accused Jagayya trampling on his chest and belly and that on seeing the witnesses coming to the spot, all the accused persons ran away. In course of his cross-examination nothing could be brought from his mouth so as to discredit his version as an eye witness to the occurrence regarding assault on the deceased by the accused persons. P.W. 4, Kilaka Keyan is the other eye-witness to the occurrence and he narrated about the incident in the same manner like P.W. 3. In cross-examination, he stated that he was at a distance of 200 feet when he heard the shout and thereafter ran towards the spot along with others. In course of the cryptic cross-examination, he could not be discredited about his credibility as eye witness to the occurrence. Learned Sessions Judge on referring to and relying on such evidence, recorded the finding that all the accused persons by sharing the common intention caused the bodily injuries to the deceased, which leads to death of the deceased and therefore they are guilty of the offence u/s 302/34, Indian Penal Code In that respect, Learned Sessions Judge also considered the evidence of P.W. 9, the Investigating Officer and the part of the investigation conducted by him and the spot map etc. proved by him. 7. proved by him. 7. Learned Counsel for the Appellants, while challenging the aforesaid finding of Learned Sessions Judge, argues that P.W. 1 is a highly interested witness for the prosecuting being the widow of the deceased and her evidence should not have been accepted by the Trial Court. He further argues that the evidence of P. Ws. 3 and 4 is that of two co-villagers of the deceased and they are also interested witnesses for the prosecution. On the other hand, Learned Standing Counsel argues that interestedness of P.W. 1 does not discredit her to be a competent eye witness to the occurrence and on the other hand Courts have relied on such evidence because such a close relative would not protect the real culprit to fix the responsibility of murder of her husband on innocent persons. He further argues that in this case, no enmity of P. Ws. 1,3 and 4 with the accused persons having been brought on record, their credibility is unshakable. 8. On due consideration of the aforesaid submission and on perusal of the depositions of P. Ws. 1, 3 and 4 and the finding of the Trial Court, we find that Learned Sessions Judge has not failed in properly appreciating the evidence. The interestedness of P.W. 1, which is argued, does not stand on the way to prove her credibility. There is nothing on record to prove interestedness of P. Ws. 3 and 4 to the extent of hostility against the accused persons so as to discredit their version. Under such circumstance, clear, consistent and cogent evidence of P. Ws. 1, 3 and 4 proves that the accused persons with a common intention inflicted the injury, which ultimately resulted death of the deceased. 9. Learned Counsel for the Appellants advances an alternative argument and states that if the evidence of P. Ws. Under such circumstance, clear, consistent and cogent evidence of P. Ws. 1, 3 and 4 proves that the accused persons with a common intention inflicted the injury, which ultimately resulted death of the deceased. 9. Learned Counsel for the Appellants advances an alternative argument and states that if the evidence of P. Ws. 1, 3 and 4 is relied on, then also it does not make out a case of murder punishable u/s 302, Indian Penal Code, inasmuch as, there was no pre-meditation for sharing of common intention amongst the accused persons so as to kill the deceased but at the spur of the moment because the deceased challenged them that there was a sudden quarrel between the parties which resulted in injuries and unfortunate death of the deceased and therefore it is a case of culpable homicide not amounting to murder covered by Exception 1 and 4 of Section 300, Indian Penal Code Learned Standing Counsel however does not successfully contradict the aforesaid submission of the Learned Counsel for the Appellants because the evidence of P.W. 1 proves that the deceased initiated the quarrel with the already intoxicated accused persons. 10. Exception 1 and 4 of Section 300, Indian Penal Code reads as hereunder: Exception 1 - When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of any other person by mistake or accident. Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. 11. Argument of the Appellants about 'sudden quarrel' and 'no motive' is a fact, which has been spelt out by the prosecution in this case. Appellants were also in drunken condition. No previous dispute or enmity has been stated and proved amongst the deceased and the accused persons. Accused persons and the deceased are all tribals inhabiting in a locality which has not yet seen the decency and decorum of civilized life. Under such circumstance, alternative argument of the Appellants appears to be appropriate. This aspect was not at all considered by Learned Sessions Judge. Accused persons and the deceased are all tribals inhabiting in a locality which has not yet seen the decency and decorum of civilized life. Under such circumstance, alternative argument of the Appellants appears to be appropriate. This aspect was not at all considered by Learned Sessions Judge. Thus, we set aside order of conviction u/s 302, Indian Penal Code and the sentence of imprisonment for life and considering the aforesaid submission of the parties, modify the order of conviction u/s 304, first part, of the Indian Penal Code and sentence each of the Appellants to undergo rigorous imprisonment for 10 (ten) years. Mr. Jena, Learned Counsel for the Appellants also states that all the Appellants were arrested on 13.02.1997 and they are continuing in jail custody all through out i.e. during the course of investigation, trial of the case in the Court of Session and pendency of this appeal. If that be so, then they have already suffered imprisonment for ten years and in that event, in view of the provision u/s 428, Code of Criminal Procedure period of detention is set off and resultantly, the Appellants are directed to be set at liberty forthwith, if their detention is not required in any other criminal case. Issue release warrant accordingly. 12. The Jail Criminal Appeal is accordingly allowed in part. 13. Appeal allowed in part. Final Result : Allowed