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2008 DIGILAW 1182 (ORI)

SANIA HANTAL v. STATE OF ORISSA

2008-12-23

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : 1. In Sessions Case No. 181 of 1997 of the Court of Sessions Judge, Koraput-Malkangiri-Nabarangpur-Rayagada at Jeypore, arising out of G.R. Case No. 145 of 1997 of the Court of S.D.J.M., Malkangiri, Learned Sessions Judge found the Appellant guilty of the offence u/s 302, I.P.C. and sentenced him to imprisonment for life on the charge that on 25.04.1997 at about noon time he inflicted arrow-shot injury to the deceased, viz. Guru Hantal and as a result of that the said deceased succumbed to the injuries on 26.04.1997. 2. In that respect, prosecution case is that Damu Hantal @ Sisa (P.W.3) is the son-in-law of the accused and that the deceased is the brother of P.W. 3. P.W. 3 had borrowed some rice from the accused. On 25.04.1997 accused wanted return of the rice. P.W. 3 pleaded his incapability to return the rice. Accused became annoyed and picked up quarrel with P.W. 3. Deceased came to the rescue of his brother and intervened and separated them (father-in-law and son-in-law). The above conduct of the deceased resulted in a quarrel between the accused and the deceased and thereafter the accused collecting a bow and arrows from his nearby house, shot an arrow, which pierced into the chest of the deceased.' Sustaining severe bleeding injury the deceased fell down there. Buduri Hantal is the widow of the deceased. On seeing the aforesaid assault and the injured condition of the deceased, she removed him to his house but could not take steps to shift the deceased to the hospital, because the deceased was in unconscious condition and the other villagers were absent from the village and, therefore, there was nobody to carry him. On 26.04.1997 morning the deceased succumbed to the injury and the matter was reported to the O.I.C., Malkangiri Police Station. On the direction of the O.I.C., the S.I. of Police (P.W.8) took up the investigation and on completion of the investigation submitted charge sheet against the accused. In course of the investigation he attended to each method relating to visiting the spot, conducting inquest, forwarding the dead body for post-mortem examination, seizure of the incriminating materials, arrest of the accused and examination of witnesses besides forwarding the seized materials for chemical analysis and serological test. 3. In course of the investigation he attended to each method relating to visiting the spot, conducting inquest, forwarding the dead body for post-mortem examination, seizure of the incriminating materials, arrest of the accused and examination of witnesses besides forwarding the seized materials for chemical analysis and serological test. 3. Accused took the plea of complete denial and at the same time, in course of the cross-examination, suggested regarding a sudden quarrel between him and the deceased at the instance of the deceased. However, accused did not adduce any defence evidence. 4. To substantiate the charge, prosecution examined eight witnesses. Besides the above-noted witnesses, P.W. 5 - Dr. P.K. Samantaray is the Medical Officer, who conducted autopsy on the dead body of the deceased and proved the Post-mortem Report, Ext. 3 and the Opinion Report, Ext. 4. P.W. 2 Lokanath Bharati is the person who scribed the F.I.R., Ext. 1, and that was lodged by P.W. 1 Mangala Khilla at the police station. P.W. 6 is a police constable who escorted the dead body and identified the same before P.W. 5 and also collected the wearing apparels of the deceased and produced before P.W. 8, who seized the same. P.W. 7 Penta Madkami is a witness to the seizure of bow and arrow u/s 27 of the Evidence Act under Seizure List, Ext. 8 so also to the seizure of the blood-stained and sample earth and wearing apparels of the accused respectively under seizure lists, Exts.9 and 10. M.O.-I is the arrow which was extracted from the body at the time of post-mortem examination by P.W. 5 and M.O.II is the bow and M. Os.3 and 4 are two other arrows which were seized under Seizure List, Ext. 8. 5. Learned Sessions Judge, considering the evidence of P.W. 5 and Exts.3 and 4, recorded the finding that deceased suffered homicidal death due to piercing of arrow, M.O.-I. He accepted P. Ws.3 and 4 as the truthful eye-witnesses to the occurrence and also accepted Ext. 8 as the validly led evidence u/s 27 of the Evidence Act in proving of the charge. Accordingly, he recorded the order of conviction rejecting the contention of the accused-Appellant about the alternative defence plea, as noted above. 6. 8 as the validly led evidence u/s 27 of the Evidence Act in proving of the charge. Accordingly, he recorded the order of conviction rejecting the contention of the accused-Appellant about the alternative defence plea, as noted above. 6. In course of submission, though the Appellant does not dispute to the evidence of P.W. 5, but on a reference to the same we find that the arrow had pierced into the epigastric region injuring the stomach and right kidney. P.W. 5 opined that the injury was sufficient in ordinary course of nature to cause death of the deceased. In the cross examination he, however, stated that- The injured could have been survived if treatment would have been given in proper time. On perusal of the aforesaid evidence, we concur with the finding of the Trial Court that the deceased suffered homicidal death. 7. Learned Counsel for the Appellant argues that P.W. 3 being the brother and P.W. 4 being the widow of the deceased, they are highly interested witnesses for the prosecution and, therefore, their evidence should not have been accepted by the Trial Court. We find no merit in that argument, in as much as, neither the Law on Evidence nor the Code of Criminal Procedure provides that relatives cannot be accepted as eye witnesses to the occurrence. Relationship indeed breeds interestedness and therefore evidence of such witnesses are to be assessed with care and caution. At the same time it has to be borne in mind that close relatives like P. Ws.3 and 4 normally would not try to protect the real culprit and to fix the culpability of the crime on innocent person. On assessment of the evidence of these two witnesses, we do not find their evidence being affected by exaggeration or infested with falsehood. They were present at the time of occurrence and that is how they have deposed and the Trial Court found them credible. We do not depart from the method adopted by the Trial Court in accepting the prosecution evidence and rejecting the contention of the Appellant. 8. Learned Counsel for the Appellant argues that seizure of the bow and arrows, i.e., M. Os. II to IV cannot be regarded as discovery u/s 27 of the Evidence Act, when the weapon of offence, i.e., arrow (M.O.I) could be recovered by P.W. 5 from the dead body of the deceased. 8. Learned Counsel for the Appellant argues that seizure of the bow and arrows, i.e., M. Os. II to IV cannot be regarded as discovery u/s 27 of the Evidence Act, when the weapon of offence, i.e., arrow (M.O.I) could be recovered by P.W. 5 from the dead body of the deceased. Learned Standing Counsel repels that argument stating that the bow M.O.II was used and therefore a case of recovery u/s 27 of the Evidence Act is proved. On consideration of the submission of both the parties, we do not find any merit in the prosecution case relating to the seizure of the bow and arrow u/s 27 of the Evidence Act, in as much as, there was no concept of concealment and leading to discovery. Be that as it may, the seizure of the bow under Seizure List, Ext. 9, becomes relevant in view of the evidence of P. Ws.3 and 4. 9. Learned Counsel for the Appellant further argues that once the evidence of P.W. 5 clearly states that the deceased could not have died if proper treatment would have been given to him soon after the injury, therefore, the act of the accused, if at all he shot the arrow, would be a case u/s 326, I.P.C. Learned Standing Counsel does not agree to that submission of the Appellant. He argues that in view of Explanation-2 to Section 299, I.P.C., such a plea of the accused cannot protect him from recording the finding of culpable homicide. Explanation-2 of Section 299, I.P.C. reads as hereunder 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. In view of the above-quoted provision, argument of the Appellant stands nullified. 10. Explanation-2 of Section 299, I.P.C. reads as hereunder 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. In view of the above-quoted provision, argument of the Appellant stands nullified. 10. Learned Counsel for the Appellant then argues that in the event prosecution evidence is relied on and the accused is found to be the person who shot the arrow, then, in view of the evidence of P.W. 8 in the cross-examination, circumstance has been proved by the accused that in a sudden quarrel the deceased was the aggressor and the accused shot the arrow, if not in exercise of right to private defence of person, at least a case of culpable homicide not amounting to murder is made out and, therefore, the order of conviction be modified accordingly. Learned Standing Counsel does not agree to the aforesaid submission and sticks to the finding and conclusion recorded by the Trial Court. 11. In course of the cross-examination, P.W. 8 stated that during his investigation accused made statement that deceased came to assault him, so also such was the statement of P.W. 7 and also the statement of some other witnesses examined in course of investigation. Though much cannot be made out of such answers of P.W. 8, but we take note of the fact that after the aforesaid answer of P.W. 8 the said witness was recalled for further examination by the prosecution, but no question was put to him so as to contradict that circumstance on facts built up by the accused. Admittedly, one arrow was shot from the bow by the accused and no further overt act was made by him at a time when the deceased intervened in the quarrel between the accused and P.W. 3 and, therefore, the aforesaid answers of the I.O. and the conduct of the prosecution in not dislodging the same in course of further examination gathers momentum so as to grant benefit arising out of the same in favour of the Appellant. If the case is viewed from that angle, then Exception-1 to Section 300, I.P.C. is found applicable, which reads as hereunder- 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 the person who gave the provocation or causes the death of any other person by mistake or accident. The defence's suggestion about provocation provided by the deceased is not disputed by the prosecution. Learned Sessions Judge did not consider this aspect and therefore wrongly concluded that by proving homicidal death of the deceased, prosecution has proved a case of murder punishable u/s 302, I.P.C. On the aforesaid facts and circumstances we find it to be a case of culpable homicide not amounting to murder punishable u/s 304, Part-I, I.P.C. 12. For the reasons recorded above, we record the order of conviction u/s 304, I.P.C. in place of conviction u/s 302, I.P.C. and impose sentence of rigorous imprisonment for ten years instead of imprisonment for life. Accordingly, the order of conviction of the Appellant u/s 302, I.P.C. and the sentence of imprisonment for life are set aside. 13. It appears from the record that accused was arrested by P.W. 8 on 26.04.1997. It does not appear from the record that accused was ever on bail. Learned Standing Counsel also states that he has no information or instruction in that respect. Under such circumstance, accused has already spent time in jail custody for more than ten years. Be that as it may, let that aspect be verified by the jail authorities and if the accused-Appellant has completed a period of ten years inside jail custody, then he be set at liberty forthwith, unless his detention in jail is required in connection with any other criminal case. 14. The Jail Criminal Appeal is accordingly allowed in part. Final Result : Allowed