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2009 DIGILAW 365 (ORI)

NAJU MALLIK v. STATE OF ORISSA

2009-04-27

I.MAHANTY, L.MOHAPATRA

body2009
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the Judgment and Order Dated 05.05.1999 passed by the Learned Additional Sessions Judge, Parlakhemundi in Sessions Case No. 1 of 1997 (Sessions Case No. 390 of 1996 (GDC)) convicting the Appellant for commission of an offence u/s 302 I.P.C. and sentencing him for imprisonment for life. 2. The case of the prosecution as reveals from the F.I.R. is that on 24.3.1996 at about 7.00 A.M., while the deceased was standing at his verandah, the Appellant suddenly arrived and shot an arrow at the deceased which pierced into his belly and came out from the back side & thereafter, the Appellant fled away from the spot. The deceased fell down with bleeding injury & removed the arrow by breaking the same. He was removed to Mohana Hospital & succumbed to the injuries at about 9.30 P.M. On these allegations, the F.I.R. having been lodged by P.W.2, investigation was taken up & charge-sheet was submitted for commission of offence u/s. 302 of the Indian Penal Code. The prosecution in order to prove the charge examined 11 witnesses but none was examined on behalf of the defence. The plea of the Appellant is denial of prosecution allegation. P.Ws 1, 3, 4 and 6 were examined as eye-witnesses to the occurrence and P.Ws 2, 5, 7 and 9 said about dying declaration made by the deceased before them. P.W.8 stated about previous enmity between the Appellant and the deceased. P.W.10 is the doctor who conducted the post-mortem examination and P.W.11 is the I.O. The Trial Court on the basis of evidence of eye-witnesses coupled with the dying declaration found the Appellant guilty of the charge and convicted him thereunder. 3. Learned Counsel for the Appellant assails the impugned Judgment on the ground that the evidence of none of the eyewitnesses is acceptable in view of what they have stated in cross-examination. So far as the dying declaration is concerned, it was also contended by the Learned Counsel that the dying declaration as deposed by P.Ws. 2, 5, 7 and 9 suffers from inconsistencies and therefore, no reliance can be placed on the evidence of these witnesses in order to accept the dying declaration. So far as the dying declaration is concerned, it was also contended by the Learned Counsel that the dying declaration as deposed by P.Ws. 2, 5, 7 and 9 suffers from inconsistencies and therefore, no reliance can be placed on the evidence of these witnesses in order to accept the dying declaration. Learned Counsel for the Appellant also submitted that in the event the Court accepts the evidence led by the prosecution, the offence could be only u/s 304, Part-ll I.P.C. and the Appellant could not have been convicted for commission of offence u/s 302 I.P.C. 4. Learned Counsel for the State submitted that there is no material to disbelieve P.Ws 1, 3 and 4 and the evidence of P.W.6 stands on a different footing. The evidence with regard to dying declaration also does not suffer from any inconsistency and, therefore, the Trial Court was justified in relying on direct evidence as well as the evidence with regard to the dying declaration. 5. P.W.1 was examined as an eye-witness to the occurrence. Though he stated to have seen the Appellant shooting an arrow to the deceased, in cross-examination, he has stated that when he came, he saw the deceased lying on the ground. Therefore, this witness as claimed by him in examination-in-chief could not have seen the occurrence having come to the place of occurrence after the deceased received the injury and fell down. He has also stated that other witnesses arrived at the place of occurrence half an hour after his arrival. Relying on this statement of P.W.1, it was contended by the Learned Counsel for the Appellant that P.Ws.3, 4 and 6 could not have seen the occurrence having come to the place of occurrence half an hour after the incident took place. The other eye-witness to the occurrence is P.W.3, though in examination-in-chief, he claimed to have seen the assault on the deceased in cross-examination, he stated that when he saw the deceased, there was a gathering of 50 to 60 people. In view of such statement, it is clear that by, the time this witness came to the spot the deceased had already been assaulted and there was a gathering of 50 to 60 people. In view of such statement, it is clear that by, the time this witness came to the spot the deceased had already been assaulted and there was a gathering of 50 to 60 people. Similarly, P.W.4 though claimed to have witnessed to assault on the deceased, has stated in the cross-examination that when he arrived near the deceased, the deceased was lying on the ground and ten persons were present. P.W.1 has also ruled out the presence of P.Ws 3, 4 and 6 at the time of occurrence and all the three witnesses have admitted in cross-examination to have come to the place of occurrence after the deceased fell down receiving the injury. The only other eye-witness to the occurrence is P.W.6. He stated in his deposition that on the date of occurrence when the deceased came out from his house, the Appellant suddenly dealt an arrow shot on the deceased, which hit on his belly and crossed from one side to the other. The deceased broke the sharp portion of the arrow and pulled out the rest portion of the arrow from his belly and there was profuse bleeding. There is nothing in his cross-examination to show that he was not present at the time of occurrence. However, the P.W.1 having stated that the. other witnesses came to the place of occurrence half an hour after the incident, some doubt arises as to whether P.W.6 could have seen the occurrence or not and the benefit of such doubt has to be extended to the Appellant. 6. Coming to the dying declaration, it appears that the deceased had made a dying declaration implicating the Appellant before RWs 2, 5, 7 and 9. RW.2 (the informant) in his deposition has stated that after receiving the information about the incident from P.W.1, he came to see the deceased who was lying on the Pinda. On being asked the deceased told her that the Appellant shot an arrow on him. Nothing has been brought out in cross-examination to disbelieve that part of the statement of P.W.2. P.W.5 is another witness to the dying declaration. He is an independent witness and has stated that he was informed by his son about the assault on the deceased and he came to the house of the deceased and found him lying shot-injury on his belly. P.W.5 is another witness to the dying declaration. He is an independent witness and has stated that he was informed by his son about the assault on the deceased and he came to the house of the deceased and found him lying shot-injury on his belly. The deceased told him that the Appellant shot an arrow and went away. P.W. 7 is the widow of the deceased who also came to hospital after receiving the information regarding assault on the deceased and has stated in her deposition that on arrival in the hospital, the deceased told her that the Appellant shot an arrow on his belly and went away. Nothing has been brought out in cross-examination of P.Ws.5 and 7 to disbelieve this part of their statement relating to dying declaration. The other witness to dying declaration is P.W.9 who stated that when he visited the hospital, the deceased told him that the Appellant shot an arrow on him and from the evidence of the I.O. (P.W.11), it appears that in course of investigation, this witness has not stated about dying declaration before the I.O. Therefore, P.W.9 has developed the case of the prosecution by stating about the statement made by the deceased before him which he had not made in course of investigation. We find that the evidence of RWs.2, 5 and 7 corroborate each other and there is consistency in their statement that the deceased disclosed before them that he was shot by an arrow by the Appellant. We find nothing in their statement to disbelieve their testimony. We, therefore, hold that even though some doubt arises with regard to the evidence of P.W.6 who claims to be an eye-witness to the occurrence, the prosecution has been able to prove the case on the basis of dying declaration made by the deceased before P.Ws 2, 5 and 7. 7. Admittedly, the Appellant shot an arrow at the deceased which pierced into his belly. P.W.10, the doctor, who conducted the post-mortem examination, also found one stitched wound situated horizontally over left side of the abdomen, 18 cm. below the nipple and one stitched wound situated horizontally on left back and 18 inch above natal cleft. As is evident from the evidence of the witnesses, the arrow pierced into the belly and came out from the back side. below the nipple and one stitched wound situated horizontally on left back and 18 inch above natal cleft. As is evident from the evidence of the witnesses, the arrow pierced into the belly and came out from the back side. Therefore, these two injuries have been found, even though one arrow had been shot. The witnesses also stated that the deceased broke the arrow and pulled it out which might have caused further injuries. P.W.10 found the injuries to be ante-mortem in nature and the cause of death was due to hamarrahage and shock. The broken arrow which was produced before him was examined and P.W.10 was of the view that the injuries found by him could be caused by such arrow. 8. In the case of Bishnu Charan Das v. The State of Orissa reported in 1985 (1) Crimes 1069. a single stab blow was dealt on the chest of the deceased by means of a dagger. This Court came to hold that intention to kill was not clear or proved and convicted the Appellant for commission of offence u/s 304, Part-ll I.P.C. Such view was taken relying on an earlier decision of the Apex Court in the case of Vasanta Vs. State of Maharashtra. In the case of Krushna Chandra Sahu v. State of Orissa reported in 1984 (2) Crimes 400 , the same view was taken. In this reported case single injury Was inflicted by the Appellant which had pierced into the chest of the deceased and the Appellant therein was found guilty for commission of an offence u/s 304 Part-ll I.P.C. 9. In the present case, admittedly, the Appellant shot an arrow which pierced into the belly of the deceased and though the incident took place in the morning, death occurred almost 12 hours thereafter. It is also the evidence of witnesses that the deceased by breaking the arrow pulled it out and such act might have caused further injuries. In this connection we may refer to the evidence of P.W.1 who has specifically stated that the deceased broke the sharp side of the arrow from his back side and pulled out the rest portion from his belly. As a matter of fact, all the witnesses to the occurrence and witnesses to the dying declaration have consistently stated that the deceased broke the arrow and pulled it out. As a matter of fact, all the witnesses to the occurrence and witnesses to the dying declaration have consistently stated that the deceased broke the arrow and pulled it out. On consideration of such nature of evidence and the fact that only one arrow was shot at the deceased which pierced into his belly, we hold that the intention to kill has not been proved by the prosecution though the prosecution has been able to prove that the Appellant had knowledge that the injury inflicted by him may cause death. 10. We, therefore, allow the appeal in part. The impugned Judgment and Order Dated 05.05.1999 passed by the Learned Additional Sessions Judge, Paralakhemundi in Sessions Case No. 1 of 1997 (Sessions Case No. 390/96 (GDC)) convicting the Appellant u/s 302 I.P.C. is set aside. We find the Appellant guilty for commission of offence u/s 304, Part-ll I.P.C. and convict him thereunder and sentence him to undergo rigorous imprisonment for a period of seven years. It is stated at the Bar that the Appellant-Naju Mallik is in custody for more than seven years and is still in jail custody. The authorities may verify the period of detention and if the Appellant has already suffered the period of sentence, he be set at liberty forthwith, unless his detention is required in any other case.