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2008 DIGILAW 550 (ORI)

SANTOSH KUMAR PATRA v. STATE OF ORISSA

2008-07-16

N.PRUSTY, P.K.TRIPATHY

body2008
JUDGMENT : 1. Appellant challenges the order of conviction u/s 302, IPC passed by the Additional Sessions Judge, Baripada in S.T. Case No. 4/178 of 999/96, arising out of G.R. Case No. 616 of 1996 of the Court of S.D.J.M., Baripada. 2. It is alleged by the prosecution that on 6.7.1996 while Khetramohan Dwari (hereinafter referred to as the 'deceased') was engaged in cultivation operation, at about 12.30 p.m. accused came and dealt two successive blows on the blunt side of an axe causing bleeding injuries on the backside of the head of the deceased. After inflicting the injuries Appellant fled away, but the eye witnesses namely Gangadhar Barik (P.W.1) and Kalia Marandi (P.W.4) together with the post-occurrence witnesses namely Dilip Kumar Behera (P.W.2), Jogesh Chandra Pradhan (P.W.3) and Bibakananda Naik (P.W.5) brought the deceased in an injured condition to the village, got him treated by a private medical practitioner Dr. P.C. Mohapatra (P.W.10) in the occurrence village namely Kumbharmundakata and on his advice shifted the deceased to the district headquarters hospital at Baripada. In the said hospital, after attending to the deceased, Dr. Bhabani Shankar Mishra (P.W.12) advised to take the deceased to S.C.B. Medical College and Hospital, Cuttack, but P.W.11 - Hiralal Dwari, son of the deceased together with the other relatives took the deceased to Jamshedpur for treatment in the Tata Main Hospital. Dr. R. Wagji (P.W.7) from that hospital produced the Treatment File, Ext. 3 relating to the deceased and proved different entries made by the treating physician and the Death Report, Ext. 3/3. On police requisition, Dr. Y. Nath, Associate Professor of Forensic Department, M.G.M. Medical College, Jamshedpur (P.W.13) conducted post mortem examination and proved the Post mortem Report, Ext. 11. In the meantime, i.e. after the deceased was taken to the house and thereafter to the Baripada hospital, P.W.1 went and lodged oral report at the police station, and on the basis of the same P.S. Case was registered against the Appellant for the assault. On 9.7.1996 the deceased succumbed at 7.05 a.m. while at Tata Main Hospital, and on getting that information the case was converted to one u/s 302, IPC. 3. Accused denied to the charge framed u/s 302, IPC and claimed for trial. 4. To substantiate the charge, prosecution examined fourteen witnesses and relied on documents marked Exts. On 9.7.1996 the deceased succumbed at 7.05 a.m. while at Tata Main Hospital, and on getting that information the case was converted to one u/s 302, IPC. 3. Accused denied to the charge framed u/s 302, IPC and claimed for trial. 4. To substantiate the charge, prosecution examined fourteen witnesses and relied on documents marked Exts. 1 to 18 besides exhibiting the wearing apparels and the weapon of offence, etc. as M.Os.-I to V. Besides examining the aforesaid eye witnesses and the post-occurrence witnesses, prosecution also relied on the recovery made u/s 27 of the Evidence Act under Seizure List, Ext. 5 and the statement of the accused, Ext. 4 leading to that discovery. While denying to the charge, as stated above, accused also advanced the plea that the deceased being an old man aged about 80 years, he suffered the death due to fall on the ridge by hitting against a stone and not because of the assault by the Appellant and that, there is land dispute and enmity between the deceased and the accused's family. In furtherance of that defence plea, he examined two witnesses as D.Ws. 1 and 2. Amongst them D.W.2 is the father of the Appellant. Appellant also relied on the certified copy of the Judgment in G.R. Case No. 813 of 1995 and that was marked Ext. A. 5. Learned Addl. Sessions Judge without adopting the appropriate approach to determine the pivotal issue as to whether the deceased suffered homicidal death, she first ascertained if the Appellant is the author of the injuries and thereafter referring to the medical evidence determined that the death being due to the injuries, therefore the Appellant is guilty of the offence of murder punishable u/s 302, IPC. That incorrect approach however does not make the Judgment illegal but requires us to appreciate the evidence afresh vis-a-vis the findings recorded by the trial Court, but in appropriate manner, i.e. determining as the primary issue whether the deceased suffered homicidal death. 6. P.W.10 deposed that at about 12.30 p.m. to 1.00 p.m. on 6.7.1996 he examined the deceased in the occurrence village and found one contusion and hematoma on the occipital region of the size 2" ? ?". The injury was fresh, i.e. caused within an hour. 6. P.W.10 deposed that at about 12.30 p.m. to 1.00 p.m. on 6.7.1996 he examined the deceased in the occurrence village and found one contusion and hematoma on the occipital region of the size 2" ? ?". The injury was fresh, i.e. caused within an hour. He found the deceased being vomiting and complaining of headache, hence the doctor suspected it to be a case of brain hamorrhage and advised the relatives and attendants of the deceased to shift him to the headquarter hospital. To that effect also he proved his report, Ext. 6, submitted on the requisition of the police. He also opined that the injuries, which he noticed on the head of the deceased, are possibly by weapon like M.O.-II (axe). In course of cross-examination, nothing substantial was brought from him save and except obtaining an opinion that the injury, which was found on the backside of the head of the deceased, is also possible by fall on hard object like stone. P.W.12 stated that on 6.7.1996 at about 3 p.m. he admitted the deceased in the district headquarters hospital. He noticed the stitch wound, the stitch being provided by P.W.10. The deceased was vomiting time and again though he was conscious. Thus, he advised for shifting the patient to Neurology Department of the S.C.B. Medical College & Hospital, Cuttack. In the context of the treatment given and the opinion of the Surgery Specialist, he proves the documents marked Ext. 8. Virtually there is no challenge to the evidence of this Doctor. P.W.7 proves the case history (treatment history) of the deceased in Tata Main Hospital from 7.7.1996 (night between 6th/7th July, 1996) and about the death of the deceased on 9.7.1996 at 7.05 a.m. The entries in the case history clearly suggest about injuries on the backside of the head and the treatment provided to him, and ultimately the Opinion Report, Ext. 3/3 about the death. Dr. Y. Nath (P.W.13) as the Associate Professor from Medical College, Jamshedpur stated that in course of the post mortem examination he found one stitch wound on the backside of the head over the neck and adjoining occipital skull and another stitch would on the occipital skull. 3/3 about the death. Dr. Y. Nath (P.W.13) as the Associate Professor from Medical College, Jamshedpur stated that in course of the post mortem examination he found one stitch wound on the backside of the head over the neck and adjoining occipital skull and another stitch would on the occipital skull. On dissection he also noticed contusion on the whole of the skull, crack fracture of occipital bone which started from the margin of the bony gap situated over the lower part of occipital bone, contusion and laceration of whole brain, laceration underlying the brain and presence of blood and clotted blood in the cranial cavity. P.W.13 opined that all the injuries are ante mortem in nature, contusion of brain and fracture was due to hard and blunt object and the death was due to head injury. 7. Mr. Mohapatra, learned Counsel for the Appellant argues that learned Addl. Sessions Judge has not specifically recorded about the homicidal death by referring to the medical evidence, but the trial Court made a mess of the whole evidence to ambiguously note about the homicidal death. He argues that the evidence of the doctor does not suggest of a homicidal death. Alternatively, he argues that if death was due to the injuries which were noticed on the backside of the head, keeping in view the fact that the injury was received on 6.7.1996 at about 12.30 p.m. and the deceased died on 9.7.1996 at about 7 a.m., it cannot be concluded as a case of culpable homicide amounting to murder. On the other hand, Mr. A.K. Mishra, learned Standing Counsel while concedes to the deficiency in the evidence of P.Ws. 7, 10, 12 and 13, he argues that the other evidence on record leaves no room of doubt that the death was due to the head injury. He says that the head injury produced not only external injury but also internal injury to the brain together with crack fracture to the occipital bone, therefore, from the aforesaid circumstance the Court can conveniently come to a conclusion that the assault was homicidal and the person who committed it is liable u/s 302, IPC. 8. He says that the head injury produced not only external injury but also internal injury to the brain together with crack fracture to the occipital bone, therefore, from the aforesaid circumstance the Court can conveniently come to a conclusion that the assault was homicidal and the person who committed it is liable u/s 302, IPC. 8. On perusal of the evidence on record, the findings recorded by the trial Court and the aforesaid submission of the parties, we find that argument of learned Standing Counsel could have been accepted if there would have been positive medical evidence that the injuries which were found on the dead body of the deceased were sufficient in ordinary course of nature to cause death of the deceased. Such an opinion is conspicuously missing when the fact remains that the deceased succumbed after lapse of about 72 hours. At the same time, we do not find any merit in the argument of the Appellant that the medical evidence ipso facto does not prove regarding death due to the injury to the backside of the head. Therefore, from the medical evidence on record, we record the finding in favour of the prosecution that death of the deceased was due to head injuries and death was accordingly homicidal. 9. After discussing the evidence on record about the eye witnesses and the defence evidence, it would be ascertained whether accused is guilty or not guilty and if he is found to be guilty, then whether it is culpable homicide amounting to murder or culpable homicide punishable u/s 304, IPC. 10. P.W.1 is the adjacent cultivator and P.W.4 is one of the field-servants of the deceased. Their presence at the scene of occurrence is natural, and both of them saw the accused dealing blows by an axe. Learned Addl. Sessions Judge has rightly recorded that in course of the cross-examination nothing substantial has been brought out from their mouth so as to discredit their version. On perusal of evidence of P.Ws. 1 and 4, we also do not find any infirmity so as not to rely on it. Their evidence is found to be true and trustworthy. Each of them have stated that the accused came and randomly dealt two blows on the blunt side of the axe aiming to the backside of the head of the deceased. 1 and 4, we also do not find any infirmity so as not to rely on it. Their evidence is found to be true and trustworthy. Each of them have stated that the accused came and randomly dealt two blows on the blunt side of the axe aiming to the backside of the head of the deceased. In that context evidence of D.W.1 is that deceased died due to fall and hit against a stone. That defence evidence has been disbelieved by the trial Court. We find no reason to discredit the opinion of the trial Court in disbelieving D.W.1, in as much as there is no corroborating evidence available on record to show or suggest that at the place of occurrence there was availability of stone. By giving mere suggestion to P.W.1 about possibility of the injuries due to fall and not extracting anything from any of the witnesses to the occurrence about availability of stone at the spot of occurrence and not putting any question to the Investigating Officer on that account makes the evidence of D.W.1 unacceptable. P.Ws. 2, 3 and 5 who were also present near about the spot of occurrence, arrived at the spot and two of them saw the accused running away holding an axe and that circumstance not only goes against the accused but also lends corroboration to the evidence of P.Ws. 1 and 4 as the eye witnesses to the occurrence. Thus, the evidence of the aforesaid five witnesses clearly proves that the head injury, which the deceased suffered, was not because of any other reason but for the axe blow dealt with by the accused, and under such circumstance accused is guilty of the offence of causing injury, which led to death of the deceased. 11. At this juncture, we consider contention of the parties as to whether it is a case of murder or culpable homicide punishable u/s 304, IPC. We need not over-burden this Judgment by narrating the distinction between culpable homicide amounting to murder and not amounting to murder. It is sufficient to indicate here that deceased died due to the head injury. That head injury was caused by the weapon like M.O.-II (axe) by using its blunt side. We need not over-burden this Judgment by narrating the distinction between culpable homicide amounting to murder and not amounting to murder. It is sufficient to indicate here that deceased died due to the head injury. That head injury was caused by the weapon like M.O.-II (axe) by using its blunt side. Therefore, even if the accused proclaimed to kill the deceased, it was a mere declaration without having any intention to kill him but to teach him a lesson by causing severe injuries. Or else accused could have used the sharp edge of the axe to fulfil his intention, if any, to do away with the deceased. Be that as it may, the blow, which was dealt by the accused, was aimed at the back of the head. Undoubtedly, head is a very vital organ of the human body and weapon like axe is a lethal weapon and therefore, even, without having any intention the act of the accused in dealing the blows to cause bodily harm to the deceased resulted in bleeding injuries and fracture of the occipital bone and consequently death of the deceased. Had there been the evidence on record that the injuries were sufficient in ordinary course of nature to cause death of the deceased, then Appellant could not have escaped conviction for offence u/s 302, IPC. But, when such medical opinion is not available and the deceased succumbed to the injuries two days after, therefore the offence committed by him is culpable homicide as defined in Section 299, IPC and punishable u/s 304, IPC. Under such circumstance, we find the accused guilty of culpable homicide not amounting to murder. 12. For the reasons indicated above, we set aside the order of conviction of the accused-Appellant u/s 302, IPC but convict him for the offence u/s 304, Part-I, IPC because the Appellant in a cruel manner assaulted an old man aged about 75 to 80 years, which resulted in tragic death of the deceased. 13. It is stated at the Bar that after his arrest on 9.7.1996, accused-Appellant was remanded to jail custody by learned S.D.J.M., Baripada on 10.7.1996. He was allowed to remain on bail in course of the trial and that is how he was released from jail custody on 12.11.1997 and he remained outside the jail till 31.8.1999, i.e. the date of the impugned Judgment. He was allowed to remain on bail in course of the trial and that is how he was released from jail custody on 12.11.1997 and he remained outside the jail till 31.8.1999, i.e. the date of the impugned Judgment. Therefore, if all these periods are calculated, then he has already spent a period of ten years two months and eighteen days inside the jail. We find that detention to be sufficient and accordingly award the sentence of rigorous imprisonment to the above extent. The Criminal Appeal is accordingly allowed in part.