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2009 DIGILAW 831 (ORI)

STATE OF ORISSA v. TATANA ` OM TATSAT ACHARYA

2009-10-27

A.S.NAIDU, B.N.MAHAPATRA

body2009
JUDGMENT : A.S. Naidu, J. - In this Government Appeal, the order of acquittal dated 21 st January, 1994 passed by learned 1st Addl. Sessions Judge, Cuttack acquitting the accused-Respondent from the charge u/s 302 of the Indian Penal Code, in short, "IPC" in Sessions Trial No. 375 of 1992 but then convicting him u/s 304, Part-ll, IPC and sentencing him to undergo R.I. for five years only, is assailed by the State. Bereft of unnecessary details, the prosecution case, in brief, is that on 16.4.1992 at about 6.15 A.M. the informant, Prabir Kumar Acharya (P.W.6) lodged a written F.I.R. at Bayalisimouza Police out?post informing that when his brother Sudhir Acharya was busy in his grocery shop and his elder brother, Sankar Acharya was sitting in the shop, accused 'Tatana" who was inimical towards them came running holding a knife, gave a blow below the chest of Sankar Acharya and ran away. After receiving the injury, Sankar shouted that 'Tatana' stabbed him with a knife. The informant as well as Kartik Das, Pravakar Das, Harekrushna Das and Hadibandhu Das, who were present nearby, saw the occurrence, chased the accused to some distance, but failed to catch hold of him as he disappeared in a jungle through Radha Madhab temple road. They returned and shifted Sankar to Bentakar PHC. Thereafter, he was shifted to SCB Medical College and Hospital where he succumbed to the injuries. 2. On the basis of the said report, ASI, Bayalisimouza Out-post made a station diary entry, took up preliminary investigation, sent a report to the O.I.C., Sadar Police Station, Cuttack for formal registration of the case. On the basis of such information, P.S. Case No. 106 of 1992 u/s 302, IPC was registered. Subsequently, however, the OIC, Sadar Police Station took over investigation, examined the witnesses, made spot visit, seized the incriminating materials like blood-stained earth etc., utilized the services of Scientific Officers, seized the incriminating weapon, caused inquest over the dead-body at SCB Medical College and Hospital, sent the same for post-mortem, sent the knife to the doctor, who conducted autopsy for his opinion, seized the wearing apparels of the deceased and sent the same for medical examination, sent the biood-stained knife and earth to Forensic Science Laboratory and after completion of investigation, submitted charge-sheet in the Court of learned JMFC (R), Cuttack in G.R. Case No. 449 of 1992. Learned JMFC after going through the police papers and on being satisfied, took cognizance of the offence and committed the case to the Court of Session for trial. 3. The accused took the plea of complete denial. 4. In order to substantiate their case prosecution got examined fifteen witnesses. Out of them, P.Ws.1 and 2 were the eye witnesses to the occurrence, P.W.3 is a seizure witness, P.W.4 is the auto driver, who shifted the injured to Bentkar PHC and then to SCB Medical College, P.W.5 is the record keeper of SCB Medical College and Hospital, in whose presence, the bed-head ticket was seized, P.W.6 is the informant and also an eye witness to the occurrence so also P.W.7, P.Ws.8, 9 and 11 are seizure witnesses, P.W.10 is the Medical Officer of Bentkar PHC, who examined the injured at initial stage and referred the matter to SCB Medical College and Hospital, P.W.12 is the ASI, who received the F.I.R., P.W.13 is the doctor, who operated the injured, P.W.14 is the doctor, who conducted the post mortem and P.W.15 is the OIC, who took over investigation and submitted charge-sheet. 5. Learned 1st Addl. Sessions Judge after threadbare discussion of the evidence both oral and documentary/came to the conclusion that the accused was a young boy between 17-18 years, there was prior enmity between his family and the family of the deceased. It was further held that the accused all of a sudden came and gave only one blow on the belly and ran away, thus, the prosecution could not establish that the accused had the intention to commit murder. It was also held that no materials were produced to reveal that in fact the accused had the knowledge that the single blow given by him with the knife would cause the death of Sankar. On the basis of such analysis, learned 1st Addl. Sessions Judge acquitted him from the charge u/s 302, IPC, but then found him guilty u/s 304, Part-ll, IPC, convicted him thereunder and sentenced him to undergo R.I. for five years. In course of hearing it appears that the accused underwent the imprisonment and thus, served the sentence imposed upon him. 6. In this appeal, learned Counsel for the State fairly submitted that the learned Addl. In course of hearing it appears that the accused underwent the imprisonment and thus, served the sentence imposed upon him. 6. In this appeal, learned Counsel for the State fairly submitted that the learned Addl. Sessions Judge after coming to a conclusion that the accused intentionally gave a blow using the knife on the belly, i.e., just below the chest of Sankar, and the said injury became fatal, acted illegally in not convicting him u/s 302, IPC. Further, it is submitted that there being enough evidence with regard to inter sedisputes between the two families and the accused having intentionally stabbed the deceased, it is a fit case where he should have been convicted u/s 302, IPC and not u/s 304, Part-ll, IPC. The third submission of learned Counsel for the State is that learned Addl. Sessions Judge acted illegally in observing that the accused had no intention to cause the injury and/or had no knowledge that the said injury was sufficient to cause death and the said finding is contradictory to the evidence available on record. 7. All these submissions are strongly repudiated by learned Counsel for Respondent. According to him, the accused is a boy of 17 years and being enraged by the quarrel, which ensued between the two families, without any intention or mens rea gave one stab blow on the belly of Sankar and ran away. It is further submitted that he had no intention to kill Sankar inasmuch as if he had such an intention, he could have given more than one blow with the knife, It is stated that the prosecution has totally failed to establish the fact that the accused had the intention to murder Sankar and as such, learned 1st Addl. Sessions Judge has rightly acquitted him from the charge u/s 302, IPC and instead convicted him u/s 304, Part-ll, IPC. The conviction and order of sentence, according to learned Counsel was just and proper and calls for no interference. 8. In order to appreciate the submissions advanced before us, we have carefully gone through the evidence both oral and documentary. P.W.10 is the Medical Officer of Bentakar PHC, who had the occasion to treat Sankar at the first instance on 17.4.1992. He noticed that there was an injury near the chest of Sankar and his condition was deteriorating. 8. In order to appreciate the submissions advanced before us, we have carefully gone through the evidence both oral and documentary. P.W.10 is the Medical Officer of Bentakar PHC, who had the occasion to treat Sankar at the first instance on 17.4.1992. He noticed that there was an injury near the chest of Sankar and his condition was deteriorating. Therefore, after giving first aid, he referred him to SCB Medical College and Hospital. P.W.13, was the Resident Surgeon at SCB Medical College at the relevant time and he conducted operation on 16.4.1992 in presence of a Cardiothorasic Surgeon. He found only one incised cut 1 1/2" spindle shape over the Xiphoi (just below the stokkcom) extending towards the left. In spite of the operation, the patient died on 16.4.1992. P.W.14 is the doctor, who conducted post?mortem report. He found only one stitched wound 4.5 cm clean cut on the lower part of the sternum towards the left. He also found corresponding injury to the abdominal wall and peritoneum and stated that the injuries were anti-mortem in nature. According to him, the death was due to shock and haemorrhage as a result of injury to thoraco abdominal organs. 9. A cumulative reading of the aforesaid evidence coupled with the post mortem report clearly reveals that death was a homicidal one. Even the Respondent did not dispute the said fact. Thus, this Court is not inclined to interfere with the findings of the learned 1st Addl. Sessions Judge to the effect that the death was a homicidal one. 10. The evidence of the eye witnesses like P.Ws.1, 2, 6 and 7 reveal that the accused who was a 17 year old boy at the time of incident, all of a sudden came running, gave one blow on the belly near the chest of Sankar and ran away. The other corresponding evidence like blood-stained earth, blood on the wearing apparels, recovery of knife etc. corroborated the fact that the accused was the author of the crime. This aspect of the case was also not very much challenged by the Respondent. Thus, the only thing, which needs to be considered, is as to whether the accused had the intention to murder Sankar or being enraged by previous enmity intended to cause only bodily injury. 11. We have gone through the judgment of the learned 1st Addl. This aspect of the case was also not very much challenged by the Respondent. Thus, the only thing, which needs to be considered, is as to whether the accused had the intention to murder Sankar or being enraged by previous enmity intended to cause only bodily injury. 11. We have gone through the judgment of the learned 1st Addl. Sessions Judge, who has summed up the circumstances in which the offence was committed. Learned 1st Addl. Sessions Judge found that the accused at the time of commission of offence was between 17-18 years. The offence was committed without any pre-mediation. Learned 1 st Addl. Sessions Judge further found that there was previous enmity between two families, but then there was no evidence with regard to any altercation on the spot. |t is also found by the learned 1st Addl. Sessions Judge that only one blow was given with the knife and the said blow landed on the belly just below the heard and in fact penetrated on the left lobe of the heart and the injured succumbed to the injuries. 12. According to learned Counsel for the State, Part-Ill of Section 300 of IPC would be attracted in the case in hand, inasmuch as the Respondent not only intended to cause that particular injury but also the injury inflicted was sufficient in ordinary course of nature to cause death. 13. After going through the entire evidence, we find that in fact there was only one injury and it appears that the accused who is a boy of 17 years came running, gave a blow on the belly and ran away in the same motion. The evidence reveals that there was enmity between the two families. The prosecution totally failed to establish that the accused had pre-mediation to cause death. It could not also be said that he had knowledge that the single injury inflicted by him was sufficient to cause death. True it is, that the injury inflicted by the accused proved fatal and as opined by the doctor, in ordinary course of nature the injury was sufficient to cause death. In the case of Jagrup Singh Vs. State of Haryana the Supreme Court after referring to various previous decisions on the subject including the decision in the case of Virsa Singh Vs. In the case of Jagrup Singh Vs. State of Haryana the Supreme Court after referring to various previous decisions on the subject including the decision in the case of Virsa Singh Vs. The State of Punjab, observed that in order to bring the case within Part III of Section 300, IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In all such circumstances, the pertinent question, which has to be kept in mind, is the circumstance in which the offence was committed and whether it could ever be said that the accused had the intention'to inflict that injury which proved to be fatal. In other words, that the injury caused was the injury that was intended to be inflicted. We find it difficult to hold in the circumstances herein set out that such was the intention of the accused and this is a fit case where as has been observed by the Supreme Court in the case of Kulwant Rai v. State of Punjab 1981 STPL (LE) 10691 SC, Part III of Section 300 would not be attracted, because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. Under such circumstances, in our opinion, it can be safely concluded that the Respondent had committed the offence u/s 304, Part-ll, IPC and not an offence u/s 302, IPC. 14. Examining the case in hand in the touchstone of the decisions referred to above, we find that learned 1st Addl. Sessions Judge has not committed any error and the conclusions arrived at are just and proper. The accused was a 17 years old by, he has already undergone the imprisonment awarded by the sessions Court. Therefore, we are not inclined to interfere with the judgment. Accordingly, we find no merit in this appeal and dismiss the same. B.N. Mahapatra, J. 15. I agree.