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2008 DIGILAW 555 (ORI)

Tuna Prusty v. State of Orissa

2008-07-18

N.PRUSTY, P.K.TRIPATHY

body2008
JUDGMENT Appellant Tuna Prusty and his father Kunja Bihari Prusty faced the trial in S.T. Case No.355(1) of 2000-2001 in the Court of Addl. Sessions Judge, Deogarh on the allegations that on 25.04.2000 at about 1.00 P.M., they shared the common intention to kill Benudhar Sahu (hereinafter referred to as “the deceased”). In course of trial, because of absence of sufficient evidence to connect accused Kunja Bihari Prusty with the crime, learned Addl. Sessions Judge acquitted him of the charge. At the same time on assessment of evidence on record, he found that prosecution has proved charge of murder against the accused-appellant Tuna Prusty. Accordingly, he convicted him under Sec¬tion 302, I.P.C. and sentenced him to undergo imprisonment for life. In this appeal, the appellant challenges that order of conviction pronounced by the learned Addl.Sessions Judge on 17.07.2001. 2. Prosecution case is that accused Kunja Bihari Prusty and the deceased are co-brothers-in-law. Accused Tuna Prusty is son of accused Kunja, whereas Moochi Sahu (P.W.6) is the son of the deceased. Tuna and Moochi, the cousins were good friends. On the assumption of the deceased and his wife, Tuna is a spoiled child and in his association, P.W.6 was keeping bad habits and getting addicted to intoxicants. Several times, they requested the parents of accused Tuna to caution their child i.e. Tuna not to allure Moochi or to mix with him, but notwithstanding such caution on 24.04.2000, the deceased and his wife found their son missing and not returning to the house in the night. On 25.04.2000 in the bathing ghat, when the wife of the deceased confronted that fact to her sister i.e. the mother of accused Tuna, then there was a quarrel between the two sisters. After returning to house, wife of the deceased narrated to him about the altercations with her sister and the deceased then proceeded to the house of the accused persons to raise protest. According to the prosecution, after ascertaining about the whereabouts of his son from accused Kunja and his wife and also accused Tuna, the deceased scolded them and returned. While he was so return¬ing, as alleged, accused Tuna threw the stone, M.O.I. from a distance of 20-25 cubits and that stone hit on the backside of the head near ear and caused profuse bleeding injury. While he was so return¬ing, as alleged, accused Tuna threw the stone, M.O.I. from a distance of 20-25 cubits and that stone hit on the backside of the head near ear and caused profuse bleeding injury. On sustain¬ing that blow, the deceased fell down on the road and accused tuna again picked up the brickbat more than half of its length and threw it at the deceased. That brickbat hit on the cheek and ear and also caused bleeding injury. Accused Kunja also picked up a brick and came to thrash it on the deceased but the eye-wit¬nesses gathered there caught hold of him and removed the brick from his hand. The deceased in injured conditions was taken to the hospital. He was granted treatment there but the deceased could not revive and died in the hospital. According to the Investigating Officer, this occurrence took place at a distance of about 100 yards from the Deogarh Town Police station and that too in front of the house of the Officer in-charge of the police station. Jhasketan Sahoo (P.W.4) lodged the F.I.R., Ext.4 and set the law into motion. 3. To substantiate the charge, prosecution relied on the evidence of thirteen witnesses and the stone and the brick marked M.Os. I and II as the material objects besides documents marked Exts. 1 to 8. While denying to the charge, claimed for trial, accused Kunja Bihari Prusty took the defence plea that by the time of occurrence he was not present in the house but after returning to the house, he learnt about hospitalization of the deceased and saw him there. Accused Tuna Prusty took the defence plea that the deceased came to their house and assaulted him and while running away from the house he fell on the road and sus¬tained the injuries. In support of such defence plea neither of the accused adduced supported defence evidence. 4. On appreciation of the evidence of Dr. Parsuram Sahu (P.W. 13), learned Addl. Sessions Judge recorded that “To sum up the evidence of P.W. 13, it may be stated here that the cause of death was due to head injury and the injuries were ante mortem in nature. 4. On appreciation of the evidence of Dr. Parsuram Sahu (P.W. 13), learned Addl. Sessions Judge recorded that “To sum up the evidence of P.W. 13, it may be stated here that the cause of death was due to head injury and the injuries were ante mortem in nature. Time since death as opined by P.W.13 pin pointedly points to the time of occurrence as alleged by the prosecution.” The purpose to record the aforesaid finding is to indicate that though the accused was convicted for the offence of murder, but the trial Court did not record a finding that the deceased suf¬fered homicidal death. On analysis of the evidence of the eye-witnesses, viz. Laba Behera (P.W.1), Jhasketan Sahu (P.W.4) and Laxmi Sahoo (P.W.5), learned Addl. Sessions Judge found such witnesses to be credible notwithstanding the criticism of the defence that P.Ws. 4 and 5 are the brother and widow of the deceased and P.W.1 was introduced as an eye-witness to the occur¬rence at a very belated stage. Learned Addl. Sessions Judge did not find any importance in the opinion expressed by the P.W.13 that the stone weighing about 5 Kgs. And the brickbat, M.O.II, which was in length more than half of the size of a brick could not have been thrown to a distance of 25 feet by a person of the stature and physique of accused Tuna. Learned Addl. Sessions Judge reasoned out that the oral evidence to the eye witnesses to the occurrence superseded the aforesaid opinion and since the injuries on the head according to the eye witnesses was due to the alleged act of the accused, therefore, he is guilty of the offence of murder. In the above context, the defence plea of the deceased assaulting the accused and non-explanation of the injury of the accused found by Dr. Sushil Kumar Kar (P.W.12) was also found to be non-consequential because of the superficial nature of the injuries. 5. Mr. Pujhari, learned counsel arguing for the appellant submits that the impugned order of conviction is bad in law in the absence of recording of positive finding about the homicidal death. In that context, submission of Mr. Sushil Kumar Kar (P.W.12) was also found to be non-consequential because of the superficial nature of the injuries. 5. Mr. Pujhari, learned counsel arguing for the appellant submits that the impugned order of conviction is bad in law in the absence of recording of positive finding about the homicidal death. In that context, submission of Mr. Mishra, learned Standing counsel is that prosecution allegation proved through the eye witnesses and the opinion of P.W. 13 in his deposition as well as in the postmortem report, Ext.8 are sufficient to record a finding that the deceased suffered homicidal death. However, he agrees that learned Addl. Sessions Judge had missed to record such finding notwithstanding availability of such evidence. 6. P.W. 13 stated that on examination of the dead body, he found “one lacerated wound over occipital region of scalp just left side occipital protrude rance wound was closed by seven black stalled stitches size of the wound was 3” x 1"x bone deep. The occipital bone was fractured, laceration of the adjacent meninges, laceration of adjacent of lobe of brain, large blood clots antemortem in nature adjacent to meninges. The wound was ante mortem in nature.” He opined that death is probably due to shock and haemorrhage following the head injury. He also opined that the injury found on the head of the deceased is possible by both the material objects, but it depends upon the force applied and the edge of M.Os. I and II coming into contact with the head of the deceased. In cross-examination, P.W.13 stated that a person like accused Tuna could not have thrown the stone, M.O.I. from a distance of 25 feet to cause the head injury of the de¬ceased. He also gave a similar opinion about the brickbat. He also opined that “if somebody falls by slipping of foot on hard substance, head injury as is found in this case is possible.” 7. Capitalizing on the above quoted opinion of P.W. 13 and the defence plea of the accused, learned counsel for the appel¬lant argues that a case of homicidal death of the deceased has not been proved by the prosecution. Learned Standing Counsel repels that argument with the contention that if the deceased fell while running, then he should have sustained injury on the forehead because the fall should have been with face downwards. Learned Standing Counsel repels that argument with the contention that if the deceased fell while running, then he should have sustained injury on the forehead because the fall should have been with face downwards. Accordingly, he argues that the defence theory is not acceptable relating to the head injury due to fall and to that extent, opinion of P.W. 13 has to be ignored being improbable. On due consideration of the aforesaid rival submission, we find that though the trial Court ignored to take not of the injury on the body of the accused but if that part of the evidence available on record is taken up for consideration then we find that according to the doctor, P.W.12 (who granted the injury certificate, Ext.7) accused had sustained. (i) Two parallel bruises of 4" long and 1/4" apart on the back just over the upper part of right scapula extending upto the upper part of right upper arm; (ii) Two parallel bruises each of 1" length and ½” apart over the back at the middle portion of left scapula. Accordingly to the injury report, Ext.7 such injuries are possible by a stick like object and that both the injuries were simple in nature. The aforesaid injury certificate tells about the defence plea that the deceased came and after making query about his missing son, assaulted the accused-appellant. It be remembered that appellant is none else than the nephew of the deceased being his sister-in-law’s son. According to the prosecu¬tion, the accused is a bad boy. According to the defence, after the aforesaid assault on the accused, the deceased ran away from the spot, may be with a view to avoid retaliatory assault by the appellant. If the facts are visualized in the above indicated manner, for which there is ample evidence, then the further defence plea that while so running the deceased fell down, cannot be regarded as an improbable theory. At this juncture, we take into consideration the evidence of P.W. 13 that the stone, M.O.I. weighing about 5 kgs. could not have been thrown by the accused-appellant to a distance of 25 feet to cause the head injury of the deceased. According to P.W. 13, there was no other injury on the dead body of the deceased except that solitary head injury (external). could not have been thrown by the accused-appellant to a distance of 25 feet to cause the head injury of the deceased. According to P.W. 13, there was no other injury on the dead body of the deceased except that solitary head injury (external). Therefore, the prosecution case regarding throwing of a brickbat, whose size was more than half the length of a brick and causing injury to the face at or near the ear is found to be not proved in this case. Rather, that runs contrary to the in¬jury, which could be detected by P.W.13. At the same time, if a person like the deceased running away to escape from any assault by the accused-appellant, then the position in which he slipped on the road would determine whether he was to fall with face upward or downward. Since the prosecution does not speak of the head injury due to fall and since P.W. 13 speaks that accused-appellant could not have thrown the stone to a distance of 25 feet to cause the head injury of the deceased, therefore, the defence plea of deceased suffering the head injury due to fall does not appear to be improbable. If the head injury was due to fall, then it cannot be regarded as homicidal death. In the lower Court record, there is no other evidence available to record a finding that the deceased suffered homicidal death. Thus, taking into consideration the aforesaid facts and circumstances, we record that in this case prosecution has signally failed to prove a case of homicidal death of the deceased, whereas not only the accused has explained the injury on his body but also the injury which resulted death of the deceased. 8. For the reasons recorded above, accused is entitled to benefit of doubt and accordingly, he is acquitted of the charge by setting aside the order of conviction for the offence under Section 302, I.P.C. and the sentence of imprisonment for life. If his detention in jail custody is not required in connection with any other case, then the appellant be set at liberty forthwith. The Criminal Appeal is accordingly allowed. Appeal allowed.