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2009 DIGILAW 808 (ORI)

STATE OF ORISSA v. ARJUN CHETTY

2009-10-20

A.S.NAIDU, B.N.MAHAPATRA

body2009
JUDGMENT : A.S. Naidu, J. - The judgment dated 27th September, 1996 passed by learned Addl. Sessions Judge, Jeypore acquitting the accused persons from the charge u/s 302/34 of the Indian Penal Code, in short, 'IPC is assailed by the State Government in Government Appeal No. 10 of 1998. The same judgment convicting the accused persons u/s 323/34, IPC and sentencing them to undergo R.I. for six months is assailed by the accused-Appellants in Criminal Appeal No. 209 of 1996. The facts and point of law of both the appeals being same, the same are heard together and disposed of by this common judgment. 2. The prosecution case, in brief, is that on 23.5.1995 Ramdas Kondhapan and his brother, Dhanapati Kondhapan along with their co-villager went to village Chik Amba to purchase subsidized rice which was sold at the rate of Rs.2/- per Kg. At about 2.00 P.M. they returned home without bringing any rice. Raghunath Kondhapan, their father asked for the reason. Dhanapati told his father that he was standing in the queue to purchase rice and at that juncture, accused Arjun Chetty quarreled with him and assaulted him. At that stage, his brother, Dhanapati and Ors. intervened. Consequently, there was a tussle and accused persons gave a push to Dhanapati and after he fell down on the ground, indiscriminately dealt kicks and fist blows to his back, chest and abdomen. It is further alleged that the accused persons threatened to kill the villagers of Phatakijan if they would come to purchase rice. Due to the above assault and threat given by the accused persons, both the brothers had to return to their village. Ramdas also complained of pain in his abdomen. His father Raghunath admitted him in Dasmantapur PHC and thereafter went to Dasmantapur police station and filed an F.I.R., which was marked as Ext.1. On the basis of the said F.I.R., Dasmantapur P.S. Case No. 22 of 1995 was registered and investigation commenced. It appears that the injured Ramdas fled away from the hospital during the night of 25.5.1995 and on the next day he expired at his residence. Consequently, charges were framed u/s 302/34, IPC and after completion of the investigation, charge-sheet was submitted in the Court of learned SDJM, Koraput in G.R. Case No. 313 of 1995. It appears that the injured Ramdas fled away from the hospital during the night of 25.5.1995 and on the next day he expired at his residence. Consequently, charges were framed u/s 302/34, IPC and after completion of the investigation, charge-sheet was submitted in the Court of learned SDJM, Koraput in G.R. Case No. 313 of 1995. Learned SDJM on being satisfied that prima facie case was made out, took cognizance of the offence and committed the case to the Court of Session for trial. 3. The plea of the accused persons was one of complete denial. 4. It is stated that a false case has been foisted against them. In order to substantiate the charges framed, the prosecution got examined eleven witnesses in course of trial. Out of them, P.W.1 was the father of the deceased and was the informant. He is not an eye witness to the occurrence, but then heard about the incident from his sons. P.Ws.2, 3, 4 and 10 were the eye witnesses to the occurrence. P.W.5 was a witness to the inquest, P.W.6 was a witness to the seizure, P.W.7 was the scribe of the F.I.R. (Ext.1), P.W.8 was the constable, P.W.9 was the Medical Officer, who examined the deceased and admitted him in the Hospital and also conducted autopsy, P.W. 10 was the younger brother of the deceased and P.W. 11 was the investigating Officer. 5. After discussing the evidence both oral and documentary in extenso and relying upon the evidence of the doctor (P.W.9), the Sessions Court came to the conclusion that the prosecution failed to substantiate their case u/s 302/34, IPC against the accused persons and acquitted them from the said charge. But then, as the prosecution was able to prove the allegations with regard to assault, the Sessions Court held the accused persons guilty for the offence u/s 323/34, IPC and convicted them thereunder. The judgment is assailed by the State, mainly on the ground that the Sessions Court acted illegally and with material irregularity in not properly appreciating the evidence. But then, as the prosecution was able to prove the allegations with regard to assault, the Sessions Court held the accused persons guilty for the offence u/s 323/34, IPC and convicted them thereunder. The judgment is assailed by the State, mainly on the ground that the Sessions Court acted illegally and with material irregularity in not properly appreciating the evidence. It is averred that in view of the clear evidence of the doctor coupled with the post mortem report that Ramdas succumbed to the injuries and further as four witnesses being eye witnesses to the occurrence, vividly narrated about the assault on Ramdas, it is a fit case where the Sessions Court should have convicted the accused persons u/s 302/34, IPC. 6. These submissions are strongly repudiated by learned Counsel for the accused-Appellants. It is submitted that the Sessions Court has rightly appreciated the evidence and the conclusions arrived at are just and proper. Further, according to learned Counsel for the accused, there is absolutely no material to reveal that Ramdas died due to the assault and as such, the order of acquittal of the accused persons u/s 302/34, IPC is just and proper. Further, it is submitted that after coming to the conclusion that the prosecution has failed to prove their case beyond all reasonable doubt, the Addl. Sessions Judge committed error in convicting the accused persons u/s 323/ 34, IPC. Consequently, II rs submitted that the order of conviction needs interference. 7. Heard learned Counsel for the parties at length. Perused the evidence meticulously. Fact remains, the occurrence took place in course of sale of subsidized rice, which was sold at the rate of Rs.2/- per Kg. It appears that number of persons gathered and all of them remained standing in the queue. No evidence is available to reveal that any steps were taken to maintain law and order or discipline by the local police. It appears that certain disputes cropped up in course of such sell of subsidized rice and the said dispute culminated in inter-se assault between the accused persons in one hand and the deceased and his brother at the other. The evidence of P.Ws.2, 3, 4 and 10, who are eye witnesses to the occurrence clearly reveals that in course of such tussle Ramdas fell down on the ground and the accused persons assaulted him by kicks and fist blows. The evidence of P.Ws.2, 3, 4 and 10, who are eye witnesses to the occurrence clearly reveals that in course of such tussle Ramdas fell down on the ground and the accused persons assaulted him by kicks and fist blows. After the incident, the deceased as well as his brother, Dhanapati (P.W.10) walked to their residence. Two days thereafter, i.e., on 25.5.1995 Ramdas complained of pain in his abdomen. On the same day, i.e., on 25.5.1995 he was admitted at Dasmantapur PHC as an indoor patient. Unfortunately, he fled away from the hospital. On the very next day, i.e., on 26.5.1995 he died at his residence. The doctor (P.W.9), who conducted autopsy over the dead body of Ramdas, in his examination in chief stated as follows: Rupture of spleen. The above internal injury was ante-mortem in nature and death was caused due to shock arising 6ut of bleeding inside peritoneum due to rupture of spleen." In cross-examination, P.W.9 admitted that rupture of spleen cannot cause instantaneous death. He further stated that in case of rupture of spleen a man can survive for few days without any treatment and if proper treatment is given to such a patient, he/she can be cured. As stated earlier, in the case in hand, the incident took place on 23rd May, 1995. Ramdas was not admitted in any hospital for two days, i.e., till 25.5.1995. Even otherwise, after being admitted on 25th May, 1995 as an indoor patient, he fled away from the hospital and on the next day he expired. The death of Ramdas thus cannot be solely attributed to the assault, rather, it can be safely concluded that due to lack of proper treatment, he breathed his last. That apart, as would be evident from the statements of the eye witnesses, both Ramdas and his brother, Dhanapati (P.W.10) were standing in the queue to purchase rice. At that time, accused Arjun came and asked P.W.10 to give him a place to stand in the queue, to which P.W.10 declined. Consequently, Arjun gave a fist blow on the nose of P.W.10. At that juncture, Ramdas intervened and assaulted accused Arjun and being enraged, the accused persons who are friends of Arjun gave a push to Ramdas and when he fell down gave him fist and kick blows. Consequently, Arjun gave a fist blow on the nose of P.W.10. At that juncture, Ramdas intervened and assaulted accused Arjun and being enraged, the accused persons who are friends of Arjun gave a push to Ramdas and when he fell down gave him fist and kick blows. Thus, it is very much apparent that there was no pre-meditation to cause any assault and the entire incident took place at the spur of the moment. Considering all these facts, the Sessions Court has rightly arrived at a conclusion that the prosecution has failed to substantiate their case u/s 302/34, IPC. The submissions made by learned Counsel for the State have no legs to stand more so because the evidence of the doctor, who has opined that if proper treatment could have been given, the deceased would have survived. That apart, Ramdas was admitted in the hospital two days after and to add to it, he fled away from the hospital. After thorough scanning of the evidence, we find no infirmity in the conclusions arrived at by the Sessions Court. Accordingly, we are not inclined to interfere with the same. Consequently, the Government Appeal fails and is dismissed. 8. So far as Criminal Appeal is concerned, the analysis of the evidence made above leads to an irresistible conclusion that the accused persons have in fact dealt kick and fist blows, which ruptured the spleen of Ramdas and also caused other injuries. Thus, the Sessions Court has rightly found the accused persons guilty u/s 323/ 34, IPC. The said conclusions do not suffer from any infirmity. We are, therefore, not inclined to interfere with the same. However, taking into consideration the fact that the incident took place way back in the year 1995 when all the accused persons were quite young and fourteen years have passed in the meanwhile, we feel, ends of justice and equity will be better served, if the accused persons are sentenced to undergo R.I. for a period of three months and to pay a fine of Rs. 500/- each, in default to pay the fine, they would undergo R.I. for a further period of fifteen days and we direct accordingly. After the fine amount is collected, 75% of the same shall be paid to the informant. It is needless to say that a period of imprisonment already undergone by them shall be treated as set off. 9. 500/- each, in default to pay the fine, they would undergo R.I. for a further period of fifteen days and we direct accordingly. After the fine amount is collected, 75% of the same shall be paid to the informant. It is needless to say that a period of imprisonment already undergone by them shall be treated as set off. 9. With the modification of sentence, Criminal Appeal is also disposed of. B.N. Mahapatra, J. 10. I agree.