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2008 DIGILAW 644 (ORI)

STATE OF ORISSA v. APPA RAO KUTUMA

2008-08-05

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : 1. Accused Appa Rao Kutuma faced the trial in the Court of Additional Sessions Judge, Malkangiri in Criminal Trial No. 55 of 2004. Charge under Sections 302/307/294/506, IPC was framed against him. As per the impugned Judgment passed on 9.1.2007 he was found guilty of all the aforesaid offences. Learned Additional Sessions Judge imposed sentence of death for the offence u/s 302, IPC imprisonment for life for the offence u/s 307, IPC, rigorous imprisonment for three months for the offence under Sec. 294, IPC and rigorous imprisonment for two years for the offence u/s 506, IPC. Learned Addl. Sessions Judge also ordered that all such substantive sentences are to run concurrently. In view of the provision in Section 366, of the Code of Criminal Procedure, 1973 (in short 'Code') learned Addl. Sessions Judge made the reference for confirmation of the death sentence. The condemned prisoner, i.e. the accused also preferred appeal from the jail challenging the order of conviction and that is how the Jail Criminal Appeal has been registered. On consent of the parties, the Death Sentence Reference and the Jail Criminal Appeal are heard analogously and disposed of by this common Judgment. 2. According to the case of the prosecution, there was dispute between the accused and Balabhadra Mandal (hereinafter called 'the deceased') relating to possession of the land where the occurrence took place. On 17.6.2004 the deceased together with his son Madan Mandal (P.W.1) and nephew Trinath Mandal (P.W.2) along with another arrived at the disputed land, they found the accused cultivating the same by sowing paddy. Balabhadra Mandal challenged the accused for undertaking such cultivation, and as a retaliation to the same accused went to his house and brought bow and arrows and shot arrows on the deceased, P.W.1 and P.W.2. Their companion however ran away and therefore escaped in hurt. After the incident, P.W.2 lodged FIR and Chitrakonda P.S. Case No. 31 of 2004 corresponding to G.R. Case No. 216 of 2004 of the Court of S.D.J.M., Malkangiri was registered. On completion of the investigation, charge-sheet was submitted and, as noted above, charge was framed against the accused on the accusation that he intentionally committed murder of the deceased and attempted to commit murder of P.Ws. 1 and 2, and in the process used obscene languages and made criminal intimidations. On completion of the investigation, charge-sheet was submitted and, as noted above, charge was framed against the accused on the accusation that he intentionally committed murder of the deceased and attempted to commit murder of P.Ws. 1 and 2, and in the process used obscene languages and made criminal intimidations. To substantiate the charge, prosecution relied on the evidence of the aforesaid two witnesses (P.Ws. 1 and 2) besides the doctor P.W.3 who conducted autopsy on the dead body of the deceased and granted injury certificates in favour of P.Ws. 1 and 2, and also the witness to the seizure and the investigating officer as the other two witnesses. The documents, which the prosecution relied on, were marked as Exts. 1 to 11 and the weapon of offence as M.Os. I to IV. Though accused took the plea of complete denial, but in course of the trial he also took the alternative plea of right of private defence and in furtherance of that he tendered documentary evidence, which was marked as Exts. A. 3. On assessment of the evidence on record, learned Addl. Sessions Judge recorded that deceased suffered homicidal death and that aspect has been proved by P.W.3. After placing the evidence of P.W.3 and Ext. 1, learned Counsel for the accused does not dispute to the finding regarding homicidal death of the deceased. We find from the evidence of P.W.3 that deceased suffered homicidal death due to penetrating wound on the left side chest which had also caused an exit wound correspondingly on the backside and the arrow was sticking to the wound when the dead body was chalaned for post mortem examination and was taken to the post mortem table. Thus, we find nothing to comment on the findings recorded by the trial Court on the homicidal death of the deceased. 4. P.Ws. 1 and 2 deposed that along with the deceased when they approached the disputed land and found the accused cultivating the land, deceased protested, and in retaliation to that accused went to his house and brought bow and arrows and shoot at them and each of them sustained injuries. In course of the short cross-examination of the each of the two witnesses, nothing substantial was brought by the defence so as to discredit the version of the two witnesses. 5. Learned Counsel for the accused argues that since P.Ws. In course of the short cross-examination of the each of the two witnesses, nothing substantial was brought by the defence so as to discredit the version of the two witnesses. 5. Learned Counsel for the accused argues that since P.Ws. 1 and 2 are the son and nephew of the deceased, therefore, they are interested witnesses and their evidence should be discarded. The aforesaid argument is heard to be rejected in as much as there is no law in the criminal jurisprudence so as to discard the evidence of a relative even if it is true and trustworthy. In this case accused is facing the prosecution not only for committing murder of the deceased but also for causing injuries to P.Ws. 1 and 2 and, therefore, P.Ws. 1 and 2 are injured eye-witnesses to the occurrence and as such they are competent witnesses to depose about the occurrence. Under such circumstance, we find no mistake in the findings of the trial Court regarding credibility of P.Ws. 1 and 2 and proof of the occurrence through their mouth. In other words, the evidence of P.Ws. 1 and 2 proves beyond all reasonable doubts that accused is the author of the injuries, which resulted in the death of the deceased. 6. Learned Counsel for the accused argues that in view of the ratio in the case of Laxman Vs. State of M.P. at least the order of conviction should be made u/s 304, Part-I, IPC and not u/s 302, IPC. In that respect we find that the Hon'ble Supreme Court has clearly spelt out as to where and how the distinction is to be applied between 'murder' and 'culpable homicide not amounting to murder'. In the present case, according to the evidence available on record, when the deceased and the prosecution party arrived at the spot, they became the aggressors in as much as, according to the entries in Ext. A, the deceased threw an axe which hit on the right toe of the accused and caused a minor bleeding injury. In the present case, according to the evidence available on record, when the deceased and the prosecution party arrived at the spot, they became the aggressors in as much as, according to the entries in Ext. A, the deceased threw an axe which hit on the right toe of the accused and caused a minor bleeding injury. At the same time, it is in the same document that after sustaining that injury accused went to his house situated about more than a kilometer's away from the spot of occurrence and returned to the spot along with bow and arrows and shoot arrows at each of the members of the prosecution party, and in that process he injured three of them and one of them died at the spot. Under such circumstance, when the injury which was inflicted on the deceased, according to the opinion of P.W.3, is sufficient in ordinary course of nature to cause death and there is no evidence worth the name that the accused had no intention to kill him or he intended to cause some bodily injuries without the knowledge that such injuries would cause death of the deceased, therefore, a case of culpable homicide not amounting to murder is not made out. 7. Learned Counsel for the accused argues that from the facts and circumstances available on record, the right of private defence is available to the accused, in as much as, according to Ext. A, i.e. the opinion recorded by the Investigating Officer in the charge-sheet, it is mentioned that deceased threw an axe and caused injury on the body of the accused. Accordingly learned Counsel for the Appellant argues that accused had justification to shoot arrows when the members of the prosecution party were more in number. The aforesaid argument does not hold good in view of the provision in Section 102, IPC, which reads as hereunder: 102. Commencement and continuance of the right of private defence of the body - The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. In the present case, it emerges from Ext. In the present case, it emerges from Ext. A that after sustaining blow on his toe, accused went to his house, which is situated more than a kilometer's away, and returned with weapons, i.e. bow and arrows and injured the deceased and P.Ws. 1 and 2. Therefore, the case of right of private defence was not at all available to him, because he could not have apprehended danger to his life after he left the place of occurrence and went to his house. 8. Learned Counsel for the accused argues that an offence u/s 307, IPC is not made out, in as much as accused had no intention to kill P.Ws. 1 and 2 and the arrow-shoot injuries which were caused, were not opined to be sufficient in ordinary course of nature to cause death of P.Ws. 1 and 2. On the other hand, learned Standing Counsel argues that for similar act of the accused the deceased suffered homicidal death and it is their good luck that P.Ws. 1 and 2 could survive and under such circumstance conviction of the accused for the offence u/s 307, IPC is just and proper. On perusal of the evidence on record, we find that though P.W.1 has stated that accused chased him to kill, but similar statement has not been given by P.W.2. On the other hand P.W.2 has simply stated that, He also shot another arrow to me and it hit on my right arm (shows the healing portion of the injury). Also he shot another arrow to Madan Mandal (P.W.1) and it hit on his right chest. Out of fear we fled to safety, to our home. P.W.3 stated that P.W.1 had sustained one piercing injury of the size 1.8 cm ? .8 cm. on the right up-arm over deltoid muscle of right shoulder joint. He found that injury to be grievous but did not make any statement that such injury could have endangered the life of P.W.1. We also do not find any endorsement on the Injury Report, Ext. 3 that the aforesaid injury on the body of P.W.1 was dangerous to human life. P.W.3 further stated that, on examining P.W.2 he found one piercing injury with associate bruise of size 4 cm. ? 5.5 cm. upon the right side of the back of 14 cm. lateral to midline at T-9. 3 that the aforesaid injury on the body of P.W.1 was dangerous to human life. P.W.3 further stated that, on examining P.W.2 he found one piercing injury with associate bruise of size 4 cm. ? 5.5 cm. upon the right side of the back of 14 cm. lateral to midline at T-9. T-10 label and an exit wound on the right side back. He opined that the injury was simple in nature. There was no endorsement by P.W.3 that injuries found on the body of P.W.1 were dangerous to his life. No such opinion has also been expressed in the Injury Certificate. Under such circumstance we find that the learned Addl. Sessions Judge did not properly evaluated the evidence vis-a-vis the ingredients u/s 307, IPC. On the other hand we find sufficient force on the argument of the learned Counsel for the accused that a case of 307, IPC has not been proved beyond all reasonable doubt. Under such circumstance we set aside the order of conviction for the offence u/s 307, IPC and the sentence imposed thereon. At the same time we find the accused guilty of the offence u/s 324, IPC for causing the aforesaid injuries on P.Ws. 1 and 2. For his conviction u/s 324, IPC, we impose sentence of rigorous imprisonment for one year. 9. Learned Counsel for the accused argues that prosecution has not been able to prove the charge u/s 506 or 294, IPC. Learned Standing Counsel says that since the accused used abusive words and threatened to kill, therefore the charge under Sections 294 and 506, IPC been made out. Section 294, IPC provides punishment for abusive acts and songs. It provides that: 294. Obscene acts and songs - Whoever, to the annoyance of other: (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. In this case, evidence of P.Ws. 1 and 2 does not indicate that because of use of abusive words by the accused, it caused annoyance to them or the deceased. Under such circumstance, learned Addl. Sessions Judge went wrong in convicting the accused for the offence u/s 294, IPC. In this case, evidence of P.Ws. 1 and 2 does not indicate that because of use of abusive words by the accused, it caused annoyance to them or the deceased. Under such circumstance, learned Addl. Sessions Judge went wrong in convicting the accused for the offence u/s 294, IPC. Similarly, we also find lack of adequate evidence to prove the case of criminal intimidation and therefore conviction for that offence is also set aside. 10. In the result, we maintain the order of conviction of accused Appa Rao Kutuma for the offence u/s 302, IPC but we set aside the death penalty imposed on him and in its place impose sentence of imprisonment for life, because the case does not fall in the category of 'rarest of the rare case' in view of the ratio propounded by the Apex Court in different cases. See the cases of State of U.P. v. Satish (2005) 30 OCR (SC) 663, Bachan Singh v. State of Punjab (1980) SCC 684, and Machhi Singh and Others Vs. State of Punjab, We find that, for causing injury to P.Ws. 1 and 2, accused is liable to be convicted u/s 324, IPC and not u/s 307, IPC. Accordingly, we set aside the order of conviction and sentence for the offence u/s 307, IPC and in its place we convict the accused u/s 324, IPC and sentence him to undergo rigorous imprisonment for one year. We find that conviction of the accused u/s 294 and 506, IPC are not proved beyond all reasonable doubt and therefore such conviction order and sentence thereof are set aside. Accordingly, the Death Sentence Reference is discharged and the Jail Criminal Appeal is allowed in part.