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2008 DIGILAW 727 (ORI)

UDE NAIK v. STATE OF ORISSA

2008-08-20

N.PRUSTY, P.K.TRIPATHY

body2008
JUDGMENT : P.K. Tripathy, J. - Mangulu Naik (hereinafter referred to as 'the deceased') was killed because of the arrow shot injury on the right side chest. That occurrence took place on 19.05.1995. Accused was charged as the author of that injury and the homicidal death of the deceased. In that respect, the prosecution version as it reveals from the F.I.R. and the evidence on record is that on the date of occurrence the deceased was busy in taking bricks from the kiln. The bullock carts carrying the bricks were piloted by labourers namely P.W. No. 2 Charangi Dei together with Upasi (not examined) through the plot and in front of the house of the accused. The accused not only protested for adopting such a route but also asked the labourers and the deceased to use the public road (village Danda) for the said purpose. On the third trip, when the labourers adopted the same route, the accused came with bow and arrow and shot an arrow, which pierced into the chest of the deceased and as a result of that, he died at the spot after pulling out the arrow from the chest. P.W. No. 1, brother of the deceased, getting this information came and saw the dead body and thereafter took the deceased with the villagers and reported the matter before the T. Rampur Police Station as per the F.I.R., Ext.1. After routine investigation, the Investigating Officer (P.W.8) submitted charge-sheet and that is how the Appellant faced the trial in the Court of Sessions Judge, Kalahandi at Bhawanipatna in Sessions Case No. 45 of 1995. While denying to the charge and claiming for trial, the Appellant stated that the entire allegation is false and baseless. 2. To substantiate the charge, prosecution examined eight witnesses, out of whom P.Ws. 2, 3 and 4 were examined as eyewitnesses to the occurrence; P.W. 5 as witness to the seizure of the bow u/s 27 of the Evidence Act vide seizure list, Ext.2; P.W. 6 as a witness to the inquest report, Ext.3 and seizure of the arrow from the spot vide seizure list, Ext. 2, 3 and 4 were examined as eyewitnesses to the occurrence; P.W. 5 as witness to the seizure of the bow u/s 27 of the Evidence Act vide seizure list, Ext.2; P.W. 6 as a witness to the inquest report, Ext.3 and seizure of the arrow from the spot vide seizure list, Ext. 4; P.W. 7 is the doctor, who conducted autopsy on the dead body of the deceased and proved the post mortem report, Ext.6 and examination report of the arrow, M.O.II, vide Ext.7; P.W. 8 is the Investigating Officer and amongst others, he proved the spot map, Ext.11 That spot map was not done to the scale but on approximation. Accused did not adduce any defence evidence. 3. Trial Court analysed the evidence on record and stated that evidence of P.Ws. 2 and 3 are sufficient to hold that accused shot the arrow which resulted in penetrating wound into the right chest of the deceased and evidence of P.W. 7 proves that the deceased died due to that injury and therefore the accused is guilty of the offence u/s 302, I.P.C. We find on record that learned Sessions Judge did not formulate the question for determination nor determine the factum of homicidal death of the deceased before assessing the evidence of the witnesses about the culpability of the Appellant. The criticism to that effect by learned Counsel for the Appellant is good one but at the same time that contention of the Appellant is not sufficient enough to acquit the accused inasmuch as, the case has been decided on the basis of evidence on record. At the same time, we feel it proper to reflect that when trial of a case u/s 302, I.P.C. is taken up, it is the bounden duty of the trial Court to appreciate the evidence and determine as the first point if the deceased suffered homicidal death, inasmuch as, if a case of homicide is not proved by the prosecution, then accused cannot be held guilty for the offence of murder. On the other hand, after recording finding on the homicidal death, if that goes in favour of the prosecution, then the evidence on record be assessed from which it can be judged, if the accused is the author of the crime or has any specific role to play in commission of the crime. We hope that trial Courts would follow this Principle. We hope that trial Courts would follow this Principle. 4. It is in the evidence of P.W. 7 as well as noted in the post mortem report, Ext. 6 that there was penetrating wound, which caused injury in the chest, penetrating over the upper lobe of right lung and penetrating on the right ventricle, which communicate with cavity. According to the doctor, the aforesaid external and internal injuries found on the dead body of the deceased resulted in bleeding inside the heart and that was the reason for the instantaneous death of the deceased. He has also stated that such penetrating injury is possible by arrow like weapon, M.O.II. 5. Mr. Rath, learned Counsel appearing for the Appellant invited our attention to the extensive cross-examination' of the doctor and stated that none of the answers given by the doctor was taken into consideration by the trial Court. On perusal of that deposition, we find that most of the questions put and answers obtained during cross-examination relate to theoretical aspect having no nexus with the actual aspect, i.e. as to whether the deceased died due to the arrow shot injury. We may opine that cross-examination of that nature is futile and kill the valuable time of the Court. When relevancy is not found, question put by the defence counsel may not be permitted to be answered by the witness. Be that as it may, the answers in the cross-examination, which are not relevant to be noted here are not good enough to discard the evidence of P.W. 7. His evidence clearly indicates that the deceased suffered homicidal death due to the arrow shot injury. We record the finding accordingly. 6. Mr. Rath argued that evidence of P.Ws. 2 and 3 which has been accepted by the trial Court as true and trustworthy is not acceptable because such evidence suffers from contradictions and also the other eye-witnesses to the occurrence, P.W. 4 did not support their version about the manner in which the occurrence took place learned Counsel for the State, on the other hand, argued that virtually there is no contradiction in the evidence of P.Ws. 2 and 3, inasmuch as, each of these witnesses had seen the occurrence from different spots and admittedly, those witnesses being rustic villagers in the tribal area of the State, their version on distance is far from accuracy and no adverse view should be taken. 2 and 3, inasmuch as, each of these witnesses had seen the occurrence from different spots and admittedly, those witnesses being rustic villagers in the tribal area of the State, their version on distance is far from accuracy and no adverse view should be taken. He further argued that if evidence of P.W. 4 is discarded then that ipso facto does not eliminate evidence of P.W. 2 or P.W. 3. He also argued that the spot map, Ext.11 clearly gives the approximate distance between different spots as indicated in the index maintained therein. Evidence of P.W. 8, has not been challenged on the accuracy of the distance noted by the Investigating Officer and under such circumstance, evidence of P.Ws. 2 and 3 was properly considered by the trial Court and the same methodology may be adopted. 7. P.W. 2 in her evidence stated that when she and Upasini, two labourers, returned after unloading the bricks, at that time accused obstructed their way and shot arrow aiming at the deceased, which hit on the right side chest and the deceased fell down on the ground after removing arrow from his chest. On seeing this incident; she along with Upasi, out of fear left that place. In cross-examination, it has been extracted from her that the distance of the spot is 400 cubits from the Mohua and Mango trees, where the accused was standing. In the spot map, Ext.4, that spot Is marked 'B' and the place where the deceased fell down is marked 'A' and the distance in between was 33 cubits i.e. about 50 feet. Position of P.W. 2 and her companion has been noted at Mark 'D'. Their distance from the spot 'B' has been noted as 45 cubits. Therefore, we accept the argument of the State and the findings recorded by the trial Court that P.W. 2 cannot be held to be not reliable only on the basis of the aforesaid answer on the distance. P.W. 3 stated that he along with P.W. 4 was returning from the Nala after taking bathe and then they saw the accused shooting the arrow causing injury on the right side chest of the deceased. In the cross-examination, this witness stated that the distance between the Nala and spot 'B' is about 600 cubits. P.W. 3 stated that he along with P.W. 4 was returning from the Nala after taking bathe and then they saw the accused shooting the arrow causing injury on the right side chest of the deceased. In the cross-examination, this witness stated that the distance between the Nala and spot 'B' is about 600 cubits. The spot, where these two witnesses were at the time of occurrence has been noted as 'J' and the distance between that spot and spot 'B' is about 81 cubits. The occurrence took place in day time and visibility from a distance of 81 cubits cannot be said to be untrue or exaggeration. Therefore, evidence of P.W. 3 is also not found to be untrue or unreliable. The inter se differential description of the distance is also immaterial because they were standing at different spots as rightly stated by the reamed counsel for the State. The rustic villagers have no idea of calculating the distance with accuracy and when the distance calculated by P.W. 8 is available and that remains unshaken, such evidence be accepted. P.W. 4 stated that he was coming together with P.W. 3 from the Nala and he saw the accused after shooting arrow to the deceased was running away. In cross examination he said that he had seen only the accused was running away. Capitalizing on this statement, learned Counsel for the Appellant argues that P.W. 4 was not an eye witness to the occurrence and P.W. 3 was with him, so P.W. 3 could not be an eye witness. The aforesaid answer extracted from P.W. 4 makes his evidence doubtful on the occurrence of shooting the arrow. While returning from the bathing ghat, he might not have paid attention to see the occurrence of accused shooting, the arrow but that by itself does not eliminate P.W. 3 as an eye witness. Be that as it may, his (P.W. 4) evidence that he saw the accused running away with the bow is corroborative' to the evidence of P.W. 3. Assumption that if P.W. 4 could not see the occurrence, P.W. 3 could not have seen the occurrence is uncalled for. It is not necessary for two persons walking together to look to a particular sight. The occurrence of shooting an arrow would not have consumed much time. Assumption that if P.W. 4 could not see the occurrence, P.W. 3 could not have seen the occurrence is uncalled for. It is not necessary for two persons walking together to look to a particular sight. The occurrence of shooting an arrow would not have consumed much time. Therefore, that answer of P.W. 4 does not eliminate P.W. 3 as an eye witnesses to the occurrence. 8. On perusal of the evidence of P.Ws. 2, 3 and 4, it is seen that the evidence of P.Ws. 2 and 3 directly and substantially implicated the accused as the person who shot the arrow which pierced into the right side chest of the deceased and the evidence of P.W.7 sufficiently proves that the arrow (M.O.II) which caused the injuries on the chest and lung also led to death of the deceased soon after receiving that injury. Thus, prosecution has proved that the accused inflicted the injury by shooting the arrow (M.O.II) from his bow, M.O.I. Under the given facts and circumstance, the findings to the above effect recorded by the trial Court is accepted. 9. Mr. Rath submitted as an alternative argument that keeping in view the rustic character of the accused and the witnesses, this Court may consider that there is no allegation of previous enmity and the accused did not commit the murder in a planned way. On the other hand, as per the allegation, it is at the*spur of the moment that the accused was enraged because of the conduct of the deceased carrying the bricks on the land of the accused, though a public road was available for that purpose. Mr. Rath argued that temperamentally, people in the tribal pocket are sentimental and short tempered, and conduct of the deceased provided the provocation. He further argued that retaliation of the accused though disproportionate but that may not be regarded as an act of intentional killing. Accordingly, he argued to modify the conviction to culpable homicide not amounting to murder. 10. Admittedly, the arrow travelled a distance of above 50 feet and under such circumstance it could also assume as an act of accidental hitting of the arrow into the chest. In the case of Laxman Vs. Accordingly, he argued to modify the conviction to culpable homicide not amounting to murder. 10. Admittedly, the arrow travelled a distance of above 50 feet and under such circumstance it could also assume as an act of accidental hitting of the arrow into the chest. In the case of Laxman Vs. State of M.P., relied on by the Appellant, the Apex Court has propounded that though there was no sudden quarrel as stated by the Appellant, but shooting of the arrow without accuracy of the place to hit, the act of the accused in causing arrow shot injury and the death of the deceased amounts to culpable homicide not amounting to murder. Though the facts are distinguishable on finer aspect, yet the ratio is applicable inasmuch as in the present case, there was provocation from the side of the deceased and in retaliation only, the arrow was shot and the prosecution does not say whether it was aimed to kill him, though the arrow shot injury killed the deceased. Under such circumstance, we set aside the order of conviction u/s 302, I.P.C. and the sentence of imprisonment for life and in its place find the accused guilty of the offence u/s 304, Part I, I.P.C. and a custodial sentence of ten years as good enough and appropriate punishment. The Jail Criminal Appeal is accordingly allowed in part. Release warrant be issued, as per the order passed today. N. Prusty, J. 11. I agree.