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2009 DIGILAW 527 (ORI)

NAKULA HATI v. STATE OF ORISSA

2009-07-20

A.S.NAIDU, S.C.PARIJA

body2009
JUDGMENT : A.S. Naidu, J. - The house of the accused-Appellants and Jibardhan Sandha is adjacent to each other in village Naradugudia. The unfortunate incident took place on 11.5.1998 in the evening at about 6.30 P.M. On the said date there was heavy rain, consequently the rain water from the house of Jibardhan passed through the house of the accused persons. It is alleged that the accused persons closed the drain and stopped flow of the rain water, consequently, there was stagnation of water in front of Jibardhan's house. He raised a protest and requested the accused persons to remove the obstruction so that the.water can be discharged. In course of such altercation, both the accused persons became enraged. They came to the house of Jibardhan being armed with lathis and accused Nakula assaulted Jibardhan thereby causing injury on his head. Receiving the blow, Jibardhan fell down on the ground. The other accused, Akula Hati, it is alleged, thereafter assaulted him twice on his head with a lathi. The sons of Jibardhan, P.Ws. 1 and 2 came to the spot and rescued their father. It is alleged that they were also assaulted. They filed a written report before Tarava Police Station, which was registered as P.S. Case No. 37 of 1998 for the offence under Sections 341, 323, 294, 506, 336, 427/34, IPC giving rise to G.R. Case No. 96 of 1998 of the court of learned S.D.J.M., Sonepur. In course of investigation, Jibardhan died, consequently the case was converted to one u/s 302, IPC. After completion of investigation and on observing all paraphernalia, charge-sheet was submitted and learned S.D.J.M.on being prima facie satisfied took cognizance of the offences and committed the case to the Court of Session for trial. 2. The plea of the defence was of complete denial. According to them, previous enmity existed between the two families and a false case was initiated to harass the accused persons. The further plea of the defence was that Jibardhan and his sons forcibly entered into their house and damaged their house-hold articles, consequently a free fight ensued in which both the parties sustained injures. The third alternative plea was that of right of private defence to their person and property. 3. In course of trial, prosecution got examined ten witnesses. To establish the charges, prosecution however mainly relied upon the evidence of P.W.1 and P.Ws. The third alternative plea was that of right of private defence to their person and property. 3. In course of trial, prosecution got examined ten witnesses. To establish the charges, prosecution however mainly relied upon the evidence of P.W.1 and P.Ws. 2 to 5 and the medical evidence of the doctors, P.Ws. 6, 7 and 9. 4. P.Ws. 1 and 2 the two sons of Jibardhan are not only eye witnesses but also sustained injuries during the incident. In their deposition, they have given a vivid description as to how the accused persons had assaulted them and their father. It appears from their deposition that on the date of occurrence, there was heavy rain and the rain water passing in front of their house was obstructed by both the accused persons. Such obstruction caused stagnation of water in front of their house Their father requested both the accused persons to remove ? the obstruction and to allow discharge of ran water. The accused persons did not remove the obstruction and when their father wanted to call the gentlemen of the village, accused Nakula all of a sudden brought a lathi and dealt a blow on his head in front of their house. Receiving the assault, he fell down. When P.Ws. 1 and 2 wanted to rescue their father, they were also assaulted by the accused persons. The evidence of P.Ws. 1 and 2 gets corroborated from the evidence of P.Ws. 3 to 5, who were also eye witnesses to the occurrence. 5. From the medical evidence, it appears that Jibardhan had a bruise on the left eye and a lacerated wound on his head, whereas P.W.2 sustained lacerated would on the middle of the scalp. Perusal of the F.I.R. reveals that accused Nakula had given one lathi blow and after Jibardhan fell down, accused Akula had given two lathi blows on his head. P.Ws. 1, 2 and 3 to 5 have also stated the same fact. P.W.4, however, deposed that only one of the lathi blows was given on the head of Jibardhan. A cumulative reading of the evidence of P.Ws. 1, 2 as well as 3 to 5, vis-a-vis the injury report, reveals that Jibardhan was assaulted thrice by lathi. The report of the doctor, P.Ws. P.W.4, however, deposed that only one of the lathi blows was given on the head of Jibardhan. A cumulative reading of the evidence of P.Ws. 1, 2 as well as 3 to 5, vis-a-vis the injury report, reveals that Jibardhan was assaulted thrice by lathi. The report of the doctor, P.Ws. 6(Ext.2), however, reveals that there were only two injuries, one over the left eye, which is a bruise and the other on the left side of scalp. The post-mortem report, Ext. 8 and the evidence of P.W.8, who conducted autopsy, reveals that the deceased had sustained one would on the left supra orbital margin to the left temporal region with light swelling of the left eye lid and presence of black eye. According to the postmortem report, Ext. 8, the cause of death was due to the lathi assault on his head. Thus, discrepancies appear between the post mortem report, Ext.8, statements of the doctors, and eye witnesses P.Ws. 1, 2 and 3 to 5 with regard to the existence of injury on the deceased in as much as though the witnesses have categorically stated that the deceased was assaulted thrice on his head with lathi, the doctor's evidence reveals that there was only one injury. Thus, it appears that the witnesses tried to exaggerate the facts. From the evidence of P.Ws. 1 to 5, it appears that accused Nakula had given the first blow on the head of the deceased and thereafter, accused Akula had given two other blows. The said statements do not go hand in hand with the medical evidence and a suspicion arises with regard to the blow said to have been given by Akula. 6. Be that as it may, fact remains, prosecution was able to establish that due to lathi blows given by the accused persons, Jibardhan received grievous injuries and breathed his last. The said aspect of the case remains consistent and is fully established. The factum of assault by the accused persons does not admit of any doubt. However, the vital blow was given by accused Nakula and it appears the other accused Akula was present at the spot and had taken apart in the assault, thus he was also jointly liable in consonance with Section 34 of the Indian Penal Code. 7. So far as assault on P.Ws. However, the vital blow was given by accused Nakula and it appears the other accused Akula was present at the spot and had taken apart in the assault, thus he was also jointly liable in consonance with Section 34 of the Indian Penal Code. 7. So far as assault on P.Ws. 1 and 2 are concerned, it appears from the evidence of P.W.6, doctor of Tarava Community Hospital centre, that P.W.2 had sustained one lacerated injury on the middle of the scalp and he was referred to the District Headquarters Hospital, Sonepur. The report, Ext.4 discloses that P.Ws. 2 instead of being treated at the District Headquarters Hospital was taken to V.S.S. Medical College, Burla for better treatment as his condition was then very precarious. P.Ws. 9, the doctor of V.S.S. Medical College & Hospital in his statement has stated that he had treated P.W.2 and had stitched a wound over the scalp on the parietal region. Thus, the assault on P.W.2 is found to be correct. In view of the injuries sustained by P.Ws. 1 and 2 that too in course of the same occurrence, this Court entertains no doubt with regard to the veracity of the statements and confirms the finding that the two accused persons had caused the injuries. 8. Much has been argued with regard to delay in submission of F.I.R. It appears that P.W.1 had lodged the report, Ext.1 on 11.5.1998 at about 11 P.M. Soon after receipt of the report, process of investigation had commenced. The report was transmitted to the court which is situated at about 30 Kms. away from the police station. Thus, this Court finds that the delay of four hours was negligible and cannot be fatal to the prosecution case. The only other question, which needs to be considered, is with regard to the injuries sustained by the accused Nakula and his mother. The injury reports Exts. A and B reveals that accused Nakula and his mother, Gharjugi had received one injury each which is simple in nature. According to learned Counsel for the Appellants, non-explanation of the said injury by the prosecution reveals that they have not disclosed all the facts and the prosecution case should be discarded on that ground alone. Burden of proving the guilt of the accused is undoubtedly on the prosecution. The prosecution has to prove the guilt of the accused beyond all reasonable doubt. Burden of proving the guilt of the accused is undoubtedly on the prosecution. The prosecution has to prove the guilt of the accused beyond all reasonable doubt. If the evidence adduced by the prosecution appears to be reasonable and believable, the other materials become redundant. In the case in hand, the positive case of the prosecution is that the accused persons committed the offence. The said fact has been proved beyond all reasonable doubts. Thus, non-explanation of the injuries sustained by one of the accused and his mother that too when the injuries are simple in nature is immaterial. 9. The defence has taken a plea that the deceased and his sons got into their house and damaged some house-hold articles. In support of such statement, they have got examined D.W.1. In her evidence, she has stated that Jibardhan and his two sons had assaulted the accused persons by means of a spade and had caused bleeding injuries. In cross examination, she had admitted that she was a lone witness to the occurrence. Accused Nakula in the statement made by him u/s 313, Code of Criminal Procedure stated that Jibardhan and his son P.W.2 created 'gandagola' and assaulted him and his mother by a spade. On the other hand, the statement of Akula is that P.Ws. 1 and 2 assaulted his brother Nakula and his mother. Thus, some discrepancies appeared between the two statements. 10. According to learned Counsel for the Appellant, P.Ws. 1 and 2 who are important witnesses being relatives of the victim, their evidence loses credibility. But then, ordinarily close relative intends not to shield the real offender. In the case of Dalip Singh and Others Vs. State of Punjab the Supreme Court observed that a close relationship with the victim far from being a foundation for criticism of the evidence is often a share guarantee of truth. In the case of The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh it was further observed that close relationship of the victim is not an interested witness and his evidence is not only reliable but preferable to other evidence. Thus, the evidence of a close relative is not required to be doubted but the same has to be scrutinized with caution. Jagir Singh, Baljit Singh and Karam Singh it was further observed that close relationship of the victim is not an interested witness and his evidence is not only reliable but preferable to other evidence. Thus, the evidence of a close relative is not required to be doubted but the same has to be scrutinized with caution. Thus, it is no more res Integra that relationship and interestedness is no ground for throwing out the evidence and the Court should only examine the evidence with caution. 11. Looking into the evidence as a whole, this Court is satisfied that the prosecution was able to prove the guilt of the accused persons beyond ail reasonable doubt. 12. The Sessions Judge while convicting both the accused persons u/s 302, IPC for intentionally causing the death of Jibardhan also held Akula guilt for committing the offence u/s 307, IPC and sentenced them to undergo rigorous imprisonment for life and seven years respectively. Fact remains, the incident took place in the year 1988. Eleven years have passed in the meanwhile. Nakula Hati has remained in custody for nine years whereas Akula Hati has been released on bail after remaining in jail only for one year. 13. A cumulative assessment of the evidence as narrated about reveals that a quarrel ensued between Jibardhan and both the accused persons with regard to stagnation of water due to closure of passage. Discharge of rain water from the house of a neighbour to one's house definitely caused hardship and annoyance. On the other hand, by stopping water to flow from inside his house by the accused persons, put Jibardhan and his family members to harassment as stagnation of water in front of one's house causes difficulties. After visualising the situation, this Court feels that both the neighbours who were not pulling on wall even before the incident got enraged for the inconvenience caused to each other. At that juncture, Jibardhan and his sons wanted to clear the obstruction created by the accused so that the water can. flow. On the other hand, accused persons protested; such action on the ground that if the obstructions are removed, water would pass through their house, thereby causing immense difficulties to them. At that juncture, Jibardhan and his sons wanted to clear the obstruction created by the accused so that the water can. flow. On the other hand, accused persons protested; such action on the ground that if the obstructions are removed, water would pass through their house, thereby causing immense difficulties to them. The aforesaid scenario gives an impression that both the parties might have lost their temper and in the spur of the moment without realizing the consequences and being enraged Nakula snatched the lathi and gave one blow to Jibardhan, which unfortunately became fatal. Of course, Akula, his brother was all along with him. Thus, the conclusion is irresistible that both the brothers and had no intention to kill Jibardhan, but dealt a single blow in a heat of passion. Therefore, this Court feels that this is a fit case where the conviction u/s 302, IPC should be modified to one u/s 304, Part-II, IPC. However, we do not find any error with regard to the order of conviction and sentence u/s 307, IPC so far as accused Akula is concerned and do not want to disturb the same. It appears that Nakula has already been in custody for nine years. We, therefore, while convicting both the Appellants u/s 304, Part-II, IPC as well as Appellant no, 2 Akula u/s 307, IPC confine the sentence in respect of accused Nakula, Appellant No. 1 to the period already undergone and so far as Akula, Appellant No. 2 is concerned, we direct that he will undergo rigorous imprisonment for a period of five years.lt is needless to say that the period for which he was in custody shall be treated as set off. Learned Sessions Judge is directed to take steps to apprehend Appellant No. 2, Akula to serve the rest of the sentence. 14. The appeal is allowed in part. S.C. Parija, J. 15. I agree.