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2009 DIGILAW 292 (ORI)

KASTI DALAI v. STATE OF ORISSA

2009-03-31

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT : Pradip Mohanty, J. - The Appellant in this appeal has been convicted u/s 302, IPC and sentenced to undergo imprisonment for life in S.T. Case No. 60/10 of 2000 by the Addl. Sessions Judge, Jaipur. 2. The prosecution case is that on 06.08.1999 at about 3.30 P.M. a pair of bullocks belonging to the accused-Appellant entered into the paddy field of the deceased and damaged the paddy crops. While the deceased was driving them to the kine house, the accused rushed to the spot and protested against such action of the deceased. There was an altercation between the deceased and the accused. In course of hot exchange of words, the accused dealt a lathi blow to the vital part of the deceased. As a result of such assault, the deceased fell down on the field. As it was rainy season, there was water in the field. The accused dipped the face of the deceased in the water for which his respiratory system stopped & the deceased died. Son of the deceased, P.W.1, reported the incident at Jajpur Road police station. The Officer in-charge, Jajpur Road P.S. investigated into the matter and after its completion filed charge-sheet against the accused. 3. The plea of the Appellant is complete denial of the allegation. His specific plea is that due to inimical relationship between him and the deceased, this case has been foisted against him and that the deceased assaulted him and ran away; 4. The prosecution examined as many as 12 witnesses in order to prove its case but defence examined none in support of its plea. Out of the witnesses examined by the prosecution, P.W.I, the son of the deceased, is the informant, P.Ws.2, 3, 4, 5, 8 and 9 are eye witnesses to the occurrence, P.W.6 is a witness to the extra judicial confession, P.W.7 is a witness to the seizure, P.W.10 is the Medical Officer who conducted post-mortem examination, P.W.11 is the doctor who medically examined the accused and P.W.12 is the I.O. 5. The Learned Addl. Sessions Judge, who tried the case, by his Judgment dated 09.08.2000 convicted the Appellant u/s 302 IPC and sentenced him to undergo imprisonment for life basing on the evidence of P.Ws.2 to 5 and the doctor (P.W.10). 6. The Learned Addl. Sessions Judge, who tried the case, by his Judgment dated 09.08.2000 convicted the Appellant u/s 302 IPC and sentenced him to undergo imprisonment for life basing on the evidence of P.Ws.2 to 5 and the doctor (P.W.10). 6. The impugned Judgment of conviction and sentence has been assailed on the following grounds: (i) There are major contradictions in the evidence of P.Ws.2 to 5 and also P.Ws.8 and 9, the ocular witnesses. (ii) P.Ws.2 and 3 developed the prosecution case in Court and therefore they are not reliable witnesses. (iii) The prosecution has suppressed the true story inasmuch as though P.W.11 the doctor specifically stated about the injuries on the person of the accused, the prosecution has not explained the same. 7. Mr. Mohapatra, Learned Counsel appearing for the State, vehemently contends that there is no illegality or irregularity committed by the Trial Court in convicting the Appellant u/s 302, IPC. The evidence of P.Ws.2 to 5 is very clear and cogent. There is no reason to disbelieve the evidence of the ocular witnesses. Moreover, the evidence of P.Ws.8 and 9, the ocular witnesses, is very cogent. There is no material contradiction in the evidence of P.Ws.8 and 9. The evidence of the ocular witnesses gets corroboration from the medical evidence. There is no reason to disbelieve the evidence of P.W.6, the witness to extra judicial confession. 8. Perused the L.C.R, P.W.1, the son of the deceased, is the informant in this case. He is a post occurrence witness. He has stated that after he heard about the death of his father, he rushed to the spot and saw his father lying dead in the paddy field with injuries on the chest and neck. He immediately informed the police by lodging FIR. P.W.2 is a witness to the occurrence. He has stated that at the time of occurrence, he was defecating himself on the ridge of a tank. He saw the deceased driving a pair of bullocks to the kine house. The accused obstructed his passage and in course of altercation dealt a lathi blow which hit the deceased on the left side of his neck. The deceased fell down on the ridge and thereafter accused dealt knee blows and pressed the head of the deceased in the water logged on the adjoining field. The accused obstructed his passage and in course of altercation dealt a lathi blow which hit the deceased on the left side of his neck. The deceased fell down on the ridge and thereafter accused dealt knee blows and pressed the head of the deceased in the water logged on the adjoining field. He has also stated that he went to the village and called the villagers to the spot. Thereafter, P.W.1 came to the spot. In his cross-examination, his previous statement has been confronted to him and he has admitted that he had stated before the police that after the deceased fell down, the accused dealt knee blows and pressed his head in the water. P.W.3 is a child witness. He has corroborated the evidence of P.W.2. He specifically stated that there was altercation between the accused and the deceased, in course of which accused dealt a severe lathi blow on the left shoulder of the deceased. As a result, the deceased fell down on the ridge. Then the accused pressed the deceased with his knee on the back, dipped the head of the deceased in the water of the nearby field and also dealt 2 to 3 knee blows on him. In cross-examination, the above statement was confronted to him and he also admitted that on the day following the date of occurrence he was examined by the police. P.W.4, another ocular witness, also stated about the assault to the deceased by the accused. He admitted the presence of P.Ws.2 and 3 and stated that when he (P.W.4) and P.Ws.2 and 3 raised cry, the accused ran away leaving the deceased. While so running, he fell on the ridges 2 to 3 times and then went back home. But this witness has not stated about the pressing of head of the deceased in the water. Nothing has been elicited from him during cross-examination to discredit his testimony. P.W.5 is another ocular witness who also corroborated the statement of P.W.4. P.W.6 is a post occurrence witness. He stated that the accused told him that he had given a severe lathi blow on the deceased and suspected that the deceased must have died and that the accused was totally soiled and muddy with a lathi in his hand when he made such disclosure before him. In cross-examination, his evidence has remained unshaken. He stated that the accused told him that he had given a severe lathi blow on the deceased and suspected that the deceased must have died and that the accused was totally soiled and muddy with a lathi in his hand when he made such disclosure before him. In cross-examination, his evidence has remained unshaken. P.W.7 is a witness to the seizure of lathi. P.Ws.8 and 9 are the other two ocular witnesses who have corroborated the evidence of P.Ws.4 and 5. Nothing has been elicited during their cross-examination to discard their evidence. P.W.10 is the doctor who conducted autopsy over the dead body of the deceased and found seven external injuries on the person of the deceased, which, according to him, were ante mortem in nature. He opined that the cause of death was due to cardiogenic shock and haemorrhagic shock due to rupture of right atrium and left ventricle by fractured ribs. He further opined that the death was homicidal or accidental in nature. He also opined that the bamboo lathi, which was seized by the police, was stained with mud and that the injuries inflicted on the deceased were possible by the said bamboo lathi. Nothing has been elicited by the defence through cross- examination of this witness to disprove his testimony. P.W.11 is the doctor who examined the accused and found the following injuries: (1) Bruise 1" x 1/2" on dorsum of right palm. (2) Bruise 2" x 1/2" on left side of back. (3) Swelling 1" x 1/2" on right parietal region of scalp. He opined that the injuries were simple in nature. He further opined that the injuries might have been caused by blunt and hard weapon. P.W.12 is the I.O. He in his cross-examination has specifically stated that P.Ws.2 and 3 had not stated before him that the accused dipped the head of the deceased in water. 9. On careful scrutiny of the above evidence, it is crystal clear that the accused-Appellant dealt successive blows on the deceased, as a result of which the deceased fell down and succumbed to the Injuries. There is no material before this Court to dispute the above fact. There is also no dispute that due to sudden quarrel and exchange of hot words, the Appellant dealt a lathi blow to the deceased. There is no material before this Court to dispute the above fact. There is also no dispute that due to sudden quarrel and exchange of hot words, the Appellant dealt a lathi blow to the deceased. The facts and circumstances of the case show that the Appellant had no intention to kill the deceased, but out of sudden provocation, he assaulted the deceased by means of a lathi. P.W.6 is a post occurrence witness. The accused confessed his guilt before him soon after the occurrence while P.W.6 was sitting with his nephew. P.W.6 in his examination-in-chief has stated that about 20 years ago there was a quarrel between his brother and the accused. And in cross-examination he has admitted that there was compromise and settlement between them. P.W.8 has also corroborated the evidence of P.Ws.2 to 5. In fact, there are some developments of prosecution case by P.Ws.2 and 3 with regard to knee blows and with regard to pressing of head in the water. But the I.O. specifically stated in his cross-examination that these two witnesses never stated before him about the said fact. The injuries on the person of the accused have been explained by P.W.6 in front of whom the accused made confession statement. P.W.4 also stated in his evidence that while the accused was running away from the . spot fell on the ridges twice or thrice and then went home. In other words, the prosecution has explained the injuries on the person of the accused. Moreover, all the injuries were superfluous. Therefore, this Court holds that the evidence of P.Ws.2 and 3 is partly reliable. P.Ws.8 and 9 corroborate the evidence of P.Ws.2 and 3 with regard to assault made by the accused & also with regard to his running away from the spot with lathi in his hand. Since the occurrence took place out of sudden provocation, this Court holds that the act committed by the accused comes u/s 304 Part-I, IPC and convicts him thereunder. It is found that in the meantime the Appellant has already suffered imprisonment for a considerable period. Therefore, this Court sentences him to the period of imprisonment already undergone. 10. In the result, the Jail Criminal Appeal is allowed in part. It is found that in the meantime the Appellant has already suffered imprisonment for a considerable period. Therefore, this Court sentences him to the period of imprisonment already undergone. 10. In the result, the Jail Criminal Appeal is allowed in part. The impugned Judgment of conviction and sentence passed by the Trial Court u/s 302, IPC is set aside and the Appellant is convicted u/s 304, Part-I, IPC and sentenced to the period of imprisonment already undergone. He be set at liberty forthwith, if his detention in jail is not required in connection with any other case. L. Mohapatra, J. 11. I agree.