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2008 DIGILAW 618 (ORI)

Saman alias Somanath Rout v. State of Orissa

2008-07-31

PRADIP MOHANTY

body2008
Judgement This appeal arises out of the judgment and order dated 30-6-1989 passed by the Addl. Sessions Judge, Balasore convicting the appellant under Section 326, IPC and sentencing him to undergo rigorous imprisonment for three years in S. T. Nol. 15/23 of 1989. 2. The case of the prosecution is that on 24-5-1988 during morning hour the accused went to the paddy field of the deceased to plough the land as a labourer. At about 8.00 a.m. the deceased went to his paddy field, where the accused was ploughing, with perched rice and water for his tiffin. On reaching the spot, the deceased ploughed the land and the accused spread manure with the help of a spade. All on a sudden, the accused/appellant inflicted a blow by means of the spade M.O.-II on the head of the deceased. As a consequence, the deceased fell down facing downward. The nearby witnesses carried the deceased to his house in an unconscious state. Soon he was taken to Balasofe District Headquarters Hospital for his treatment. Thereafter he was shifted to S.C.B. Medical College Hospital, Guttack for better treatment. The deceased was discharged from the hospital on 5.6.1988. However, on 20.7.1988 he succumbed to the injuries. Initially a case was registered under section 326, IPC and subsequently final form was submitted under section 304 IPC. But charge was framed under section 302, IPC. 3. The plea of the accused/appellant was complete denial of the allegation. His further plea was that the Khatua family of his village might have assaulted the deceased. 4. In order to prove its case, the prosecution examined as many as fourteen witnesses including three doctors. P.Ws. 4, 5, 6 and 11 are said to be eye-witnesses to the occurrence. Defence examined none. 5. The learned Addl. Sessions Judge, Balasore, who tried the case, by his judgment dated 30.6.1989 found the appellant guilty of the offence under Section 326, IPC convicted him thereunder and sentenced him to undergo imprisonment as already indicated. The finding of the trial court was that the prosecution has failed to bring home the charge under section 302, IPC but it has proved a case under section 326, IPC. 6. Mr. Jena, learned counsel for the appellant, submitted that there is absolutely no material against the present appellant to convict him in order to prove the case under section 326, IPC. 6. Mr. Jena, learned counsel for the appellant, submitted that there is absolutely no material against the present appellant to convict him in order to prove the case under section 326, IPC. He further submits that the act committed by the appellant comes under section 324, IPC. According to him, in order to establish a case under section 326, IPC, the prosecution has to prove that grievous hurt was caused by the accused with deadly weapons. But spade does not come under the purview of deadly weapon. 7. Mr. Pattnaik, learned Addl. Government Advocate vehemently contended that the trial court has rightly passed the order of conviction under section 326, IPC. The evidence of three doctors i.e. P.Ws. 9, 10 and 11 is very clear and cogent. He further submits that the injury was on the spinal cord of the deceased near the neck, which was grievous in nature and led to cause death. The evidence of P.W. 4, who is a trustworthy witness, with regard to the blow given by the accused/appellant to the deceased has been amply corroborated by P.Ws. 5, 6 and 11. Therefore, interference with the sentence as imposed on the appellant is not warranted. 8. Perused the LCR, more particularly the deposition of the witnesses including the three doctors. From the materials placed by the prosecution it is evident that the present appellant inflicted blows on the deceased by the spade. The question for consideration is what offence has been committed by the appellant. In order to convict the appellant under section 326, IPC, it is the duty of the prosecution to prove that the grievous hurt had been caused to the deceased with a deadly weapon. The grievous hurt has been defined under Section 320, IPC. Clause-8 of the Section 320, IPC provides that any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits, would be virtually grievous. The mere fact that a sufferer has been in the hospital for twenty days or more is not sufficient to attract this clause. It must be proved that during that time he was in severe bodily pain or was unable to follow his ordinary pursuits. The mere fact that a sufferer has been in the hospital for twenty days or more is not sufficient to attract this clause. It must be proved that during that time he was in severe bodily pain or was unable to follow his ordinary pursuits. A person with some injuries may be capable of following his ordinary pursuits long before twenty days are over, but may remain as a convalescent in the hospital for the sake of permanent recovery or greater care or comfort. In the instant case, there is no clear and acceptable evidence that the deceased was suffering from severe bodily pain for twenty days or more. The evidence of P.Ws. 9 and 11 is very clear that the deceased was admitted on 24.5.1988 at about 10.30 a.m. in the surgical ward of District Headquarters Hospital, Balasore and underwent treatment there till 25.5.1988. Thereafter, he was referred to S.C.B. Medical College Hospital, Cuttack, after treatment discharged on 5.6.1988 i.e. twelve days after the occurrence. In other words, he was treated as an in-door patient for twelve days. No oral or documentary medical evidence has been produced with regard to treatment of the patient at S.C.B. Medical College Hospital, Cuttack except Ext.-8 the endorsement. After discharge on 5.6.1988, the deceased succumbed to injury on 20.7.1988 at about 11.30 p.m. There is no evidence that bodily pain persisted for another nine days or he was unable to follow the ordinary pursuits. Autopsy was conducted by P.W. 10, who opined that the cause of death was septicemia following chronic infection. There is no clear evidence that the deceased was suffering from severe bodily pain for twenty days or more. He was an ordinary patient for such period and the prosecution has not produced a scarp of paper with regard to suffering for twenty days. Rather he died more than one moth after his discharge for septicemia. For all these, this Court opines that the present case does not come under the purview of grievous hurt by a deadly weapon, but it comes under the purview of hurt. Therefore, this Court alters the conviction from one under section 326, IPC to that under section 324, IPC and sentences the appellant to undergo imprisonment already undergone and pay a fine of Rs. 10,000/- (ten thousand) in default to undergo R.I. for one year. The Criminal appeal is partly allowed. Order accordingly.