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2009 DIGILAW 105 (ORI)

HEMLAL GOUD v. STATE OF ORISSA

2009-02-04

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT : L. Mohapatra, J. - The Appellant in this appeal assails the judgment and order of the learned Sessions Judge, Kalahandi at Nuapada passed in Sessions Case No. 70 of 1997 convicting him for commission of offence u/s 302, IPC and sentencing him to imprisonment for life. 2. The case of the prosecution as revealed from the record is that the Appellant and two other accused persons (since acquitted) were working as constables in APR Force, Nuapada. On the date of occurrence in between 11 P.M. and 2.00 P.M., they entered inside the premises of the liquor Bhati at Nuapada by scaling over the boundary wall to take liquor. The business of the Bhati was closed by then. After entering into the Bhati, they knocked at the window of the sales counter. At that point of time, the Manager of the Bhati, the Salesman and others were taking their food. The Salesman of the Bhati went to the counter, opened the window and found the three accused persons demanding liquor. The Salesman did not agree to supply liquor without payment, as a result of which all the three accused persons out of anger broke some of the empty beer bottles lying near the window. In the meantime, the Manager and one of the workers as well as the Salesman went out of the residential premises and found two of the accused persons catching hold of the hands of the deceased and another dealing a blow on the head of the deceased by means of an empty beer bottle, as a result of which the deceased fell down on the ground senseless with bleeding injury on his head. The deceased was thereafter taken to the verendah and after a vehicle was arranged he was shifted to the district headquarters hospital at Nuapada. In the hospital, he was declared dead. Thereafter, the FIR was lodged and on completion of the investigation charge sheet was submitted against all the three accused persons including the Appellant for commission of offence under Sections 302 and 34, IPC. 3. The prosecution examined eight witnesses to prove the charge and the defence examined one. The plea of defence was complete denial and it was specifically stated by the accused persons that on the date of occurrence they were on duty and were not involved in the alleged offence. 4. 3. The prosecution examined eight witnesses to prove the charge and the defence examined one. The plea of defence was complete denial and it was specifically stated by the accused persons that on the date of occurrence they were on duty and were not involved in the alleged offence. 4. Out of the eight witnesses examined on behalf of the prosecution, the material witnesses are P. Ws.4, 5, 6 and 7. On the basis of the evidence of the three eye witnesses, namely, P. Ws.5, 6 and 7 and on consideration of the injury sustained by the deceased, as revealed from the evidence of P.W.4, the trial court convicted the Appellant alone for commission of offence u/s 302, IPC and acquitted the other two accused persons of the charges. 5. Shri Kanungo, learned Counsel appearing for the Appellant assails the impugned judgment on the ground that even accepting the evidence of P. Ws.5, 6 and 7, the offence can only be u/s 304 Part-II, IPC and conviction of the Appellant u/s 302 of the said Code is not in conformity with law. 6. Learned Counsel for the State referring to the evidence of P. Ws.5, 6 and 7 submitted that these three eye witnesses are consistent in their statement that it is the Appellant who dealt the blow on the head of the deceased whereas two other acquitted accused persons had caught hold of the deceased and, therefore, the trial court was justified in convicting the Appellant for commission of offence u/s 302, IPC. 7. We have carefully examined the evidence adduced before the trial court. P.W.5 is an eye witness to the occurrence and he has deposed in his deposition that he was working as Manager of the liquor Bhati at Nuapada on the date of occurrence. After closing the shop while he was taking food, found the three accused constables scaling over the boundary wall of the Bhati came inside, went to the sales counter and pushed the window of the sales counter. He has further stated that the Salesman Mohanlal came near the window of the sales counter and opened it whereafter all the three accused persons asked him to serve liquor free of cost. When the Salesman refused to serve liquor, the three accused persons being annoyed picked up some empty beer bottles and broke them. He has further stated that the Salesman Mohanlal came near the window of the sales counter and opened it whereafter all the three accused persons asked him to serve liquor free of cost. When the Salesman refused to serve liquor, the three accused persons being annoyed picked up some empty beer bottles and broke them. Thereafter, the deceased opening the main gate went inside and tried to make the accused persons understand and also tried to pacify them. Out of the three accused persons, two caught hold of the deceased and one assaulted him on his head by means of a broken bottle. Similar is the evidence of P.W.6, who was working as a labourer in the said liquor Bhati, and P.W.7, who was working as a Salesman in the liquor Bhati. Though P. Ws.5 and 6 have not named the person who assaulted on the head of the deceased, P.W.7 has specifically implicated the present Appellant to have assaulted on the head of the deceased by means of a beer bottle. As is evident from the evidence of these three eye witnesses to the occurrence, the Appellant had dealt one blow by means of a beer bottle on the head of the deceased. P.W.4 is the doctor who conducted the post-mortem examination. In Para 2 of his deposition, it is specifically stated that on external examination it was found that there was no mark of injury anywhere over the body except the left side of the head. There was a lacerated wound over occeputo-temporal region of the skull about 2" behind and above the left pinna measuring 2" x 1" x skin deep obliquely directed towards backwards and downwards. On dissection he found a liner fracture on the skull about 1" length. The cause of death, as stated by P.W.4, is due to intracranial haemorrhage, which might have been caused by the blow on the left side of the head. There was no foreign body like glass or other thing on the injuries. On examination of the evidence of this witness, it appears that only one blow had been inflicted on the head of the deceased and the injuries even did not contain any foreign body like glass, even though it is alleged that the deceased was hit on his head by means of a broken beer bottle. On examination of the evidence of this witness, it appears that only one blow had been inflicted on the head of the deceased and the injuries even did not contain any foreign body like glass, even though it is alleged that the deceased was hit on his head by means of a broken beer bottle. This itself shows the force with which the deceased had been hit on his head by means of a beer bottle. 8. The question that comes up now for consideration is as to whether the Appellant should be convicted for commission of offence u/s 302, IPC or u/s 304 Part-II of the said Code. It would be worthwhile to refer to a decision of the Supreme Court in the case of Mavila Thamban Nambiar Vs. State of Kerala. In the said reported case, the accused had given one blow with a pair of scissors on vital part of the body of the deceased. While accepting the evidence in this regard, the Supreme Court was of the view that the accused had knowledge that such injury could cause death but he had no intention to kill and accordingly convicted the accused in that case for commission of offence u/s 304 Part-II, IPC. As discussed earlier, the Appellant, who is alleged to have assaulted the deceased, used a broken beer bottle and hit the deceased at his head once only. But unfortunately because of the internal injury the deceased died. It can therefore safely be held that though the Appellant had the knowledge that such injury may cause death, he had no intention to kill the deceased. From the circumstances enumerated earlier, it is also found that three accused persons had entered into the Bhati only for the purpose of taking liquor and they had no intention to assault anyone. The circumstances became such that without intending to kill the deceased the Appellant had hit the deceased on his head by means of a broken beer bottle. We are, therefore, of the view that this is a fit case where the Appellant should have been convicted for commission of offence u/s 304 Part-II, IPC instead of Section 302, IPC. We, accordingly, set aside the judgment of the trial court impugned before us convicting the Appellant u/s 302, IPC and convict the Appellant for commission of offence u/s 304 Part-II, IPC. We, accordingly, set aside the judgment of the trial court impugned before us convicting the Appellant u/s 302, IPC and convict the Appellant for commission of offence u/s 304 Part-II, IPC. The Appellant having already served more than six years of imprisonment in the meantime, we sentence him, for his conviction u/s 304 Part-II, IPC, imprisonment for the period already undergone. 9. In the result, the appeal is allowed in part. Final Result : Allowed