Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 10 (ORI)

SHYAMA BEHERA v. STATE OF ORISSA

2009-01-06

P.K.TRIPATHY, SANJU PANDA

body2009
JUDGMENT : 1. Danei ' Danardan Behera and his three sons Rama Chandra, Shyama and Lokanath faced the trial in the Court of Second Addl. District and Sessions Judge, Cuttack in Sessions Trial No. 171 of 1989 on the allegation of committing murder of the deceased Maheswar. On the basis of the allegation, white three sons of the accused Danei were charged under Section 342/302, I.P.C. accused Danei was charged under Section 302/109, I.P.C. On the conclusion of the trial, learned Addl. Sessions Judge recorded order of conviction under Section 326, I.P.C. against accused Shyama and acquitted the remaining accused persons. Accused Shyama has preferred the appeal challenging to his order of conviction under Section 326, I.P.C. and the sentence of rigorous imprisonment for three years. The State filed application for leave to appeal against the aforesaid order of acquittal from the charge under Section 302, I.P.C. After hearing the State in Criminal Misc. Case No. 376 of 1990, on 15.05.1990 leave to Appeal was granted only against the accused-Appellant Shyama. 2. Since the judgment challenged by both the parties are common, therefore both the appeals have been heard analogously and disposed of by this common judgment. 3. The ultimate occurrence of assault on Maheswar on 26.10.1988 was preceded by two occurrence on the selfsame day. The first one was at about 7.00 A.M. when Indramani Behera, nephew (elder brother's son) of the deceased was assaulted by accused Lokanath on the pretext that he did fishing of the fish from the paddy field of the accused party. Notwithstanding innocence pleaded by P.W.1, accused Lokanath assaulted him by a stick P.W.1, then a boy, aged about 12 years went and reported the matter to his father Indramani (P.W.5) and thereafter P.W.5 and the deceased together with P.W.1 came to the house of the accused Danei, where Indramani lodged the protest on the misconduct of accused Lokanath. That resulted in altercation and scuffle between both the groups and the villagers intervened and separated them and declared to settle the matter in the village meeting in the evening. That ended the second incident. After returning from the house of the accused persons, the deceased went to his Gotha, where livestock like buffalos had been kept. P.W.1 and his grandmother Ali Dei (P.W.2) also went to that Gotha but after departure of the deceased. P.W.2 is the mother of both P.W.5 and the deceased. That ended the second incident. After returning from the house of the accused persons, the deceased went to his Gotha, where livestock like buffalos had been kept. P.W.1 and his grandmother Ali Dei (P.W.2) also went to that Gotha but after departure of the deceased. P.W.2 is the mother of both P.W.5 and the deceased. While so proceeding, P.Ws.1 and 2 noticed that accused Rama, Shyama and Lokanath were also proceeding to their Gotha and then Shyama was armed with a lathi. P.W.2 so also the other co villagers present nearby could sense that accused persons were proceeding to assault and therefore the witnesses including P.W.2 requested the accused persons not to assault the deceased. Even P.W.2 catching hold of the leg of accused Shyama pleaded for mercy, but the accused persons did not adhere to such request and assaulted the deceased. In that process, Appellant dealt lathi blows which caused injuries on the head, thigh and back of the deceased who trembled 'and fell and thereafter the accused persons ran away from that place and remained absconding for certain period during the course of investigation of the case. 4. P.W.2 with the help of the eye-witnesses to the occurrence shifted the deceased in injured condition to the shade of nearby tree and then the deceased made a statement intending to see his father and also voluntarily uttered that the accused persons assaulted him. The deceased was thereafter shifted to Maniabandha Primary Health Centre via Police Station. Dr. Purna Chandra Ray (P.W.8) granted the preliminary treatment and because of the head injury, he advised to take the deceased to S.C.B. Medical College and Hospital, Cuttack and accordingly prepared the requisition, but before he could be shifted at about 9.30 P.M.", the deceased succumbed to the injury in that P.H.C. P.W.8, thus submitted a report accordingly to the local police. 5. On the basis of F.I.R. lodged by Murali Behera (P.W.7), who was amongst the persons to take the deceased to the P.H.C. via Police Station, the A.S.I. of Police took up investigation of the case but after receipt of information about death of the deceased, the O.I.C., Badamba Police Station (P.W.12) took charge of the investigation from P.W.11 and on completion of investigation, finding prima facie case against the accused persons, he submitted the charge-sheet. 6. 6. To substantiate the charge, prosecution examined 11 out of the charge-sheeted witnesses and P.W.10 Chaitanya Rout on the application under Section 311 Code of Criminal Procedure filed by the prosecution. Prosecution also relied on series of documents marked Exts.1 to 13 and amongst them, Ext.13 is the formal F.I.R. on the basis of F.I.R. marked 'X', Ext.4/1 is the injury report granted by P.W.8 and Ext.6 is the postmortem report proved by Dr. P.K. Behera (P.W.9). Ext.8 is the statement under Section 164 Code of Criminal Procedure of P.W.10 and rest of the documents are either the seizure lists or requisition for different purposes in course of the investigation. M.Os. I to IV are alleged to be the weapons of offence. 7. At the stage of framing of charge, accused persons denied to the allegations and claimed for trial, but during the trial, like other accused persons, pleaded innocence but accused Shyama pleaded exercise of right of private defence. In support of that not only they relied on the evidence of P.W.7 but also examined Bidyadhar Jena (D.W.1). 8. On appreciation of evidence on record, learned Additional Sessions Judge held that allegation of abatement of murder by accused Danai has not been proved by the prosecution. Accordingly, he acquitted accused Danai from the charge under Sections 302/109 I.P.C. With respect to Rama Chandra and Lokanath he also noticed no aggregation from them nor inflicting any injury to cause death of the deceased. In addition to that, he noticed certain contradictions in the evidence of eyewitnesses and therefore he granted benefit of doubt to those two accused persons and accordingly acquitted them from the charge under Sections 342 and 302 I.P.C. On appreciation of self-same evidence and the defence plea of accused Shyama, learned Additional Sessions Judge held that assault by him on the head and body being an admitted fact and the accused having no intention to kill the deceased, he should be convicted under Section 326 I.P.C. because right of private defence is not available to him. Accordingly, learned Additional Sessions Judge recorded the conviction against the Appellant and sentenced him to three years' rigorous imprisonment. 9. Accordingly, learned Additional Sessions Judge recorded the conviction against the Appellant and sentenced him to three years' rigorous imprisonment. 9. Learned Counsel for the accused-Appellant argues that evidence of P.Ws.1, 2, 5 and 10 are not credit worthy because they are highly interested witnesses for the prosecution, inasmuch as, P.Ws.1, 2 and 5 are close relatives of the deceased and P.W.10 is a partisan witness supporting the case of P.W.5 and his family. In the above context, law is well settled that evidence of interested witness should be scrutinized carefully but not to be rejected at the threshold on the ground that they are interested witnesses for the prosecution. Under such circumstance, contention of the accused-Appellant to reject that evidence at the threshold is impermissible in law. 10. Learned Counsel for the accused-Appellant argues that evidence of P.Ws.1, 2 and 10 are contradictory to each other on the manner in which each of the three occurrences took place and about the details of the scuffle, assault and interaction at each of the spots. It may be noted here that no charge was framed against the accused persons for assault by Lokanath on P.W.1 at about 7 A.M. on the field near the village school. Similarly, no charge was framed against any of the accused persons for the scuffle that took place in front of the house of the accused persons when the prosecution party had gone to lodge their protest on the misconduct of accused Lokanath. Therefore, some discrepancy in describing that occurrence does not discredit evidence of eyewitnesses relating to the occurrence that took place at 'the Gotha'. 11. So far as occurrence at 'Gotha' is concerned, on perusal of the evidence of P.Ws.1, 2 and 10, we do not notice any measure contradictions so as to shake their credibility or to point out that they are making false accusation. On the other hand, their evidence appears to be truthful when they narrated about assault on the deceased. At this juncture, the question comes for consideration about the participation of the acquitted co-accused. In a preceding paragraph it has been narrated that the other two brothers of the accused Appellants were granted acquittal by the trial Court and while hearing the leave application, this Court also refused to grant leave to appeal against them. At this juncture, the question comes for consideration about the participation of the acquitted co-accused. In a preceding paragraph it has been narrated that the other two brothers of the accused Appellants were granted acquittal by the trial Court and while hearing the leave application, this Court also refused to grant leave to appeal against them. Therefore, any thing connecting' with those two accused persons is of no relevance so far as allegation of assault on the deceased by accused Shyama is concerned and more so that being a fact advanced as a defence plea in addition to the allegation of the prosecution. Under such circumstance, acquittal of the co-accused in this case is of no relevance. 12. Learned Counsel for the Appellant argues that P.Ws.1, 2 and 10 could not refuse about the other persons present at the spot to witness the occurrence-and in that respect, P.W.7 being admittedly a person present at the spot, his evidence should be taken as truthful. On perusal of such evidence and taking note of the submission of learned Counsel for the Appellant so also learned Standing Counsel, we are unable to agree with the argument of the Appellant. It is readable from the evidence of P.W.7 that he has exhibited his hostility to the prosecution and the attitude to support the accused while being examined as a witness. P.W.10 was admittedly a witness examined in course of the investigation and Ext.8 is the proof in that respect. The Investigating Officer did not mention him as a witness in the charge-sheet with the apprehension that he may not support the prosecution. Therefore, that circumstance elicited in course of his examination indicates that the stigma of interestedness of P.W.10 towards the prosecution is an after thought when he supported the prosecution and not the defence plea. Therefore the story introduced by D.W.1 showing the dispute of catching of fish from a tank is of no importance. 13. Application under Section 311, Code of Criminal Procedure to summon P.W.10 was filed after examination of P.W.7. Therefore, till filing of that application, P.W.10 was not conceived to be examined by the prosecution'. Yet P.W.7 explained the character of P.W.10 in course of his cross-examination by the accused by showing him as partisan. 13. Application under Section 311, Code of Criminal Procedure to summon P.W.10 was filed after examination of P.W.7. Therefore, till filing of that application, P.W.10 was not conceived to be examined by the prosecution'. Yet P.W.7 explained the character of P.W.10 in course of his cross-examination by the accused by showing him as partisan. Though there is no material on record to prove partisan character of P.W.10, but suggestively it is available from the aforesaid conduct of the P.W.7 and the suggestion of the defence to P.W.7 that P.W.10 could be contemplated as a witness from the prosecution side. 14. Be that as it may, it is clearly proved from the case diary and Ext.8 that P.W.10 was a witness examined in course of the investigation and then he figured as an eye witnesses to the occurrence. Therefore, credibility of P.W.10 as an eye-witness to the occurrence is not doubtful. On perusal of the evidence of P.Ws.1, 2 and 10, we do not notice any major contradiction, so as to discredit their version when they narrated about the occurrence. Minor discrepancy is natural when different persons were describing the same incident which had happened a year before. Therefore, the evidence of P.Ws.1, 2, and 10 are not found to be contradictory so as to shake, their credibility. By such evidence, they proved the very fact which the accused Appellant has admitted in his defence plea and therefore, the argument of the Appellant to get rid of that evidence is of no use, because it is the trite law that the plea advanced by the accused has to be considered by the Court while deciding a criminal case. [See the case of Bhargavan and Ors. v. State of Kerala 2004 (1) Crimes 412 (SC)] 15. In this case homicidal death of the deceased is not in dispute, P.W.9 has deposed about it and also proved the postmortem report, Ext.6. The death was due to head injury leading to coma because of fracture of the frontal, parietal and temporal bones and, depressions in the skull causing blood clotting in the brain. The injuries which were noted by P.W.8 like bruises on left temporal area, upper arm and left thigh and abrasion on left side back were also noticed in course of the postmortem examination. The injuries which were noted by P.W.8 like bruises on left temporal area, upper arm and left thigh and abrasion on left side back were also noticed in course of the postmortem examination. In that respect, P.W.9 has gone in detail about that head injury because he conducted postmortem examination and dissected the body and the skull. 16. Accused himself has stated so also the D.W.1 that accused emerged at the Gotha holding a lathi and challenged the deceased as to why he had gone to his (accused) house and quarrelled with his father and brothers. According to the accused, at that time the deceased reacted with a 'Tabli' and the accused with a view to protect, himself aimed a blow to the head of the deceased but it slipped and hit the thigh and thereafter when the deceased again raised the Tabli to hit the accused, out of apprehension he dealt a bow on the head. Accordingly, accused advanced the plea of right to provide defence and in support of that he relies on the cases of Jai Dev Vs. The State of Punjab, and, Deo Narain Vs. The State of U.P.. The ratio on the right of private defence as propounded by the Apex Court in both the above citations are on distinguishable facts and circumstances, inasmuch as, in both the cases the prosecution party was the aggressors and the accused party being in possession of their disputed property only defended themselves and in furtherance thereof, exercise of right of private defence. Therefore, the ratio in the above two cited decisions are of no assistance to the Appellant. 17. Right of private defence is a right, which has not only been accepted but also codified in Chapter TV of the I.P.C. under the heading 'general exceptions'. The relevant provisions which can be taken note of are Sections 96 to 100. A conjoint reading clearly indicates that a person can cause so much of hurts to avoid the danger, which pounced on him at the spur of the moment or the apprehended danger emerging at the spot where he exercises right of private defence of life or property. In that respect, the cardinal principle is that an aggressor cannot resort to the plea of right of private defence. The second cardinal principle is that if danger can be avoided then the right of private defence should be avoided. In that respect, the cardinal principle is that an aggressor cannot resort to the plea of right of private defence. The second cardinal principle is that if danger can be avoided then the right of private defence should be avoided. The other cardinal principle is that a person cannot take shelter of the plea of right to private defence when he has no excuse to enrage the apprehended offenders. 18. In this case if we peruse evidence of D.W.1, then according to him accused Shyama together with his brothers proceeded to take bath and only accused Shyama was armed being holding a lathi. The Gotha of the deceased does not fall on the way between the house of the accused persons and the tank and therefore when the accused persons went to the Gotha of the deceased that was with the intention to challenge him for the second incident. Under such circumstance, when accused-Appellant was armed with a lathi and he had gone to challenge the deceased in the above indicated manner, therefore, he was the aggressor and not the deceased. Apart from that, neither the accused in his statement under Section 313, Code of Criminal Procedure nor the D.W.1 in his evidence has stated that when the deceased raised "Tabli", accused wanted to avoid the same by going away from the Gotha. Under such circumstance, the plea of right of private defence of the accused is a colourable pretence without substance or availability of such a right. Above all, D.W.1 did not participate in the investigation by disclosing before the Investigating Officer that he was an eyewitness to the occurrence. In that respect, suggestion of the prosecution is that he was absconding together with the accused persons and granting them protection for concealment. Apart from that, the Investigating Officer was not cross examined if he found Tabli lying at the spot, or was there any attempt to recover such Tabli. Therefore, the story of the deceased raising a Tabli also remained not proved. It is the settled principle of law that defence plea like right of private defence or alibi should be proved like proof of any other fact and that has not been done by the accused in this case. Therefore, the claim of right of private defence by the accused is not available to him. 19. Mr. It is the settled principle of law that defence plea like right of private defence or alibi should be proved like proof of any other fact and that has not been done by the accused in this case. Therefore, the claim of right of private defence by the accused is not available to him. 19. Mr. A.K. Mishra, learned Standing Counsel rightly argues that when the accused himself has admitted about the blow given to the head and body of the deceased and P.Ws. and and 9 clearly indicate that such blow was fatal, therefore, the conviction of the Appellant under Section 326, I.P.C. is improper and he should be convicted for the offence of murder. 20. Considering the facts and circumstances involved in this case, above noted contentions of both the parties and the evidence on record, we noticed that undoubtedly the accused was the aggressor when he arrived at the Gotha with the lathi. He also dealt blows to the deceased and thereafter he fled away from the spot. Therefore, from all such circumstance it clearly emerges that accused had no intention to kill the deceased but to give him a good beating for the act of the deceased in the second occurrence. Unfortunately, that injury inflicted on him has been found to be sufficient to cause the death of the deceased and under such circumstance, the offence alleged clearly falls within the ambit of culpable homicide not amounting to murder and therefore we convict the Appellant for the offence under Section 304, second part, I.P.C. Learned Additional Sessions Judge without assigning valid and proper reasoning wrongly recorded conviction of the Appellant under Section 326, I.P.C. though as noted above a case of culpable homicide not amounting to murder has been proved by the prosecution. Hence we modify the conviction accordingly and sentence accused Shyam Behera to undergo rigorous imprisonment for 5 (five) years instead of rigorous imprisonment for three years for the offence under Section 326, I.P.C. Accordingly, the Criminal Appeal filed by the accused Appellant is dismissed and the Government Appeal filed by the State is allowed in part. The accused being on bail, he is directed to surrender within two months so as to serve the remaining part of the sentence. The accused being on bail, he is directed to surrender within two months so as to serve the remaining part of the sentence. The period of detention as under trial prisoner in course of the trial and this appeal be set off in accordance with Section 428, Code of Criminal Procedure.