Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 176 (ORI)

BATUA ` BHASKAR PRADHAN v. STATE OF ORISSA

2010-03-16

B.P.RAY

body2010
JUDGMENT : B.P. Ray, J. - The Appellant assails in this appeal the judgment of conviction and sentence passed by the 2nd Additional Sessions Judge, Bhubaneswar in S.T. Case No. 2/127 of 1993. The learned Additional Sessions Judge, in the impugned judgment while acquitting the Appellant of the charge Under Sections 302/34 I.P.C., held him guilty of the charge u/s 304-I, I.P.C. and sentenced him to undergo R.I. for ten years. 2. The prosecution case is that on 25.9.1991 at about noon time while Abanikanta Mohanty (hereinafter referred to as "the deceased") was going towards Khurda Railway Station, on his way near the Sitaram Chhaka of Jatni, the Appellant along with on Ashok Behera (since acquitted) accosted him and then quarreled with him and in course of such quarrel, Ashok caught hold the shirt of the deceased and the Appellant dealt a stab blow by means of a Gupti on the left side of his upper abdomen, as a result of which the deceased sustained severe bleeding injury, fell down there and became unconscious. The Appellant then along with Ashok fled away with their weapon of offence. The deceased thereafter was shifted by the witnesses present namely, Pramod Barik (P.W.4) and Trailokya Mohan ' Bulu Das (P.W.5) to the South Eastern Railway Hospital, Jatni in a Tempo and the doctor present there seeing the condition of the deceased to be critical, referred the deceased to S.C.B. Medical College & Hospital, Cuttack for better management and also sent medico logical intimation (Ext.5) to Jatni P.S. On receipt of the said intimation, Jatni P.S. Case No. 142 of 1991 was registered by the S.I. of Police, Jatni P.S. and the investigation was taken up by S.I. of Police, Sri Banka Bihari Murmu. In the meanwhile, as the deceased succumbed to the injuries sustained while undergoing treatment in S.C.B. Medical College & Hospital, Cuttack, the case was turned to one Under Sections 302/34 I.P.C. Subsequently on completion of investigation, charge sheet was placed against the Appellant and his co-accused Ashok Behera alleging commission of offence u/s 302/34 I.P.C. and during the time of investigation, it also came to light that the crime was committed by the accused being actuated by previous animosity. The Appellant along with co-accused faced their trial being charged for the offence u/s 302/34 I.P.C. and in the trial they took the plea of complete denial and false implication. The Appellant along with co-accused faced their trial being charged for the offence u/s 302/34 I.P.C. and in the trial they took the plea of complete denial and false implication. It appears that in the collusion of the trial, the trial Court while acquitting the co-accused Appellant of the charge u/s 302/34 I.P.C, basically relying on the evidence of P.Ws.4 and 5 held that the death of the deceased was caused by the present Appellant and returned the impugned judgment of conviction and sentence as stated earlier. 3. In transpires from the evidence of P.W.9, Dr. Suchitra Das, who conducted the autopsy that the death of the deceased was occurred on account of injuries sustained by him on his persons. In the cross-examination, the Appellant has not disputed the same. The evidence of doctor in this regard is corroborated by the post mortem report, Ext, 3 prepared by him. Considering the nature and situs of the injuries, the possibility of the same is ruled out to be suicidal and accidental. As such, the only inference, that can be drawn that the injuries caused were homicidal. The trial Court relying on such evidence appears to have rendered a finding that the death of the deceased was homicidal in nature. For the aforesaid reason, to this Court also, the finding of the Court below that the death of the deceased was homicidal one appears to be based on evidence on record and as such does not deserve to be disturbed. Hence, the first and foremost ingredient of the charge u/s 304-I, I.P.C. that the death of the deceased must be homicidal one, has been established in this case. 4. Now coming to the question whether the Appellant by act or omission contributed to the death of the deceased. Learned counsel for the Appellant seriously disputes the finding of the trial Court that there is evidence worth on record that the Appellant contributed to the death of the deceased. According to him, the trial Court erred in appreciation of evidence that the accused caused the death of the deceased. Hence, according to him, the impugned judgment of conviction is unsustainable. According to him, the trial Court erred in appreciation of evidence that the accused caused the death of the deceased. Hence, according to him, the impugned judgment of conviction is unsustainable. In response, learned Counsel appearing for the State submits that the evidence of P.Ws.4 and 5 in this case with regard to the Appellant caused the death of the deceased being clear, cogent and credible, the finding recorded by the trial Court holding the Appellant guilty of the charge Under Sections 304-I, I.P.C. can not be found fault with. 5. From the evidence of P.W.4 it appears that on 25.9.1991 at about 12.30 P.M., he saw the Appellant along with co-accused calling the deceased Abani at Sitaram Chhak and then they quarreled with them and in course of such quarrel, the co-accused of the Appellant namely, Ashok caught hold of the deceased and Appellant Batua gave a push by a "Gupti" to the left side belly of Abani from his front side and then both of them fled away and thereafter, he along with Bulu Das (P.W.5) in a Auto Rickshaw shifted the deceased to the Railway Hospital, Jatni and there from the deceased was shifted to Cuttack, where, he (deceased) succumbed to the injuries. Nothing substantial has been brought in the cross-examination of the witnesses to discard his version regarding the Appellant causing the injuries to the deceased. So also the evidence of P.W.5 corroborates the same, inasmuch as he deposed that he saw the Appellant along with his co-accused Ashok and three to four Ors. there at the spot i.e. Jatni market on the said date quarreling with the deceased and P.W.4 and thereafter, the Appellant along with his co-accused Ashok pushed the weapon on the left side belly of the deceased and fled away. Thereafter, he along with P.W.4 and one Somanath Patra carried the deceased to the Railway Hospital, Jatni. The matter was intimated by the doctor and after examining the deceased, the doctor referred him to S.C.B. Medical College & Hospital, Cuttack for better treatment. It also transpires from his evidence that he also intimated the fact to the doctor. In the cross-examination made nothing substantial has been brought out to discredit the same, rather it has been again reconfirmed from this witness that he had seen the deceased being assaulted by Appellant and Anr. co-accused. It also transpires from his evidence that he also intimated the fact to the doctor. In the cross-examination made nothing substantial has been brought out to discredit the same, rather it has been again reconfirmed from this witness that he had seen the deceased being assaulted by Appellant and Anr. co-accused. As it transpires from the evidence of both the aforesaid witnesses, both of them have implicated the Appellant to have caused the injuries to the deceased. According to P.W.4, while Ashoka caught hold of him, the Appellant caused the stab blow, but according to P.W.5 both of them dealt blows. But, highlighting the discrepancy in the evidence of P.W.4 i.e. when P.W.4 deposes that it was only the Appellant who dealt the blow and P.W.5 says that both the Appellant as well as the acquitted accused dealt the blow, learned Counsel for the Appellant submits that no reliance should have been placed on the evidence of both the aforesaid witnesses by the trial Court. It is true that the evidence of P.Ws.4 and 5 with regard to the author of the injury on the deceased is not in conformity. But, it can not be lost sight that both of them were present there in the spot inasmuch as their version in this regard is corroborated and complemented by the evidence of each other. So also it is found from the evidence of P.W.10, Dr. M. Joy Prakash, who had attended the patient in Jatni Railway Hospital, where the deceased was first taken from the spot and who had reported the matter to the police as a medico legal case vide Ext.5 that the deceased was brought to the hospital by the attendant in an injured condition. No doubt, there is discrepancy in the evidence of P.Ws.4 and 5 inasmuch as when P.W.4 speaks that the injury caused to the deceased was caused by the Appellant, but P.W.5 says that the Appellant and the acquitted accused both caused the injury. But, too much stress can not be given on such discrepancies to discard the case of the prosecution that it is the Appellant who caused the injuries on the deceased inasmuch as such discrepancies in the version of both the witnesses appear to be not in material points as both of them have deposed that the Appellant has caused the injuries. Further more, while appreciating the evidence of the witnesses the circumstances in which they have seen the occurrence and also their knowledge and power of observation are required to be kept in mind. Coming to the case in hand, it is seen both the witnesses deposed that with regard to the Appellant and the co-accused of the Appellant to have participated in the occurrence. According to P.W.4 while the acquitted accused caught hold of the deceased and the Appellant dealt the blow, P.W.5 says both of them stabbed the deceased. From the evidence of P.W.7, Dr. Dharanidhar Pandab, who attended the deceased in the Capital Hospital, it is seen that he found one external stab injury on the person of the deceased. The evidence of doctor in this regard is corroborated by Ext.4, the bed head ticket. The same cast a cloud in the version of P.W.5 that the Appellant and his co-acculed are said to have stabbed the deceased. The version of P.W.5 as such appears to have contained the grain of embellishment and that may be due to error in the minute observation of the incident. But of that his version can not be discarded inasmuch as Courts in India do not follow the maxim "falsus-in-uno falsus in omnibus" i.e. false in one and false in all. The Hon'ble apex Court in a decision reported in The State of Punjab Vs. Hari Singh and Another, has held that the maxim of falsus-in-uno, falsus-in-omnibus is not acted upon by the Indian Courts. In the case of Ugar Ahir and Others Vs. The State of Bihar it has been held by the Supreme Court that the maxim is neither a sound rule of law nor a rule of practice inasmuch as it may be difficult to come across a witness in this country whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In appreciation of the evidence of witnesses it is the duty of the Court to scrutinize the evidence of such witnesses carefully and separate the grain from the chaff. So also in the case of Kanbi Nanji Virji and Others Vs. In appreciation of the evidence of witnesses it is the duty of the Court to scrutinize the evidence of such witnesses carefully and separate the grain from the chaff. So also in the case of Kanbi Nanji Virji and Others Vs. The State of Gujarat, it has been held that the Court must disengage the truth from falsehood and accept what it finds to be true and only in the event when the truth and falsehood in the version of a witness are so intermingled that it is impossible to separate them, then the evidence of such witnesses has to be rejected in its entirety. In view of the aforesaid, as the version of P.W.5 that the Appellant as well as the co-accused stabbed the deceased, when scrutinized, found that his version that the acquitted accused caused the injuries to the deceased appears to be an embellishment inasmuch as only the one external injury was found on the person of the deceased and also in the medico legal intimation given to the doctor basing on the statements of the accompanying persons made soon after the occurrence vide Ext.5, name of the acquitted accused does not find place. But his version that the Appellant participating in the occurrence appears to be credible in view of corroborating evidence. This Court can very well rely such version against the Appellant to be trustworthy. There is also nothing on record to show that both the aforesaid witnesses had any mnimosity against the Appellant to falsely implicate him to be the author of the injuries. In such circumstances, when nothing has surfaced in the evidence of said witnesses or nothing has been brought to record militating against the version of P.Ws.4 and 5 that it was the Appellant who caused the injuries to the deceased which contributed to the death of the deceased, their version has rightly been accepted to be trustworthy by the trial Court. Such finding of the trial Court as such does not deserve to be disturbed. 6. A contention has been advanced in this case that as the evidence of P.W.6 discloses that by the time he was admitted at the hospital there was infection of the injuries, it can not be said that the injuries caused contributed to the death of the deceased and to make the accused liable for causing culpable homicide. 6. A contention has been advanced in this case that as the evidence of P.W.6 discloses that by the time he was admitted at the hospital there was infection of the injuries, it can not be said that the injuries caused contributed to the death of the deceased and to make the accused liable for causing culpable homicide. Such contention of the counsel for the Appellant appears to have no force inasmuch as from the evidence of post mortem doctor, P.W.9, it categorically emerges that the death of the deceased was attributable to the haemoperitonium, peritonitis and circulatory failure which might have caused by the injury to the stomach pancreas and diaphragm. 7. Learned counsel further submits that even if it is accepted that the injury caused to the deceased was attributable to the Appellant, but there being nothing on record to show that the Appellant intended to cause injury and the said injury is sufficient in the ordinary course of nature to cause the death, holding the Appellant is guilty of charge of causing culpable homicide not amounting to murder punishable u/s 304-I, I.P.C. to be unsustainable. In this regard reliance has been placed in the case of Parsuram Dhal Vs. State of Orissa, wherein in para-7 it has been held as follows : Law is well settled that intention or knowledge is very much necessary to render the killing culpable homicide. The burden lies on the prosecution to establish such intention or knowledge and it can be done by proof of circumstances and the act or omission. The existence of intention is not to be inferred unless it follows as a natural and probable consequence from the act. In absence of intention or knowledge, the offence committed may be the offence of causing grievous hurt or simple hurt as the case may be. When injuries have been followed by death and the question is what offence has been committed, it is not to be concluded by any backward reasoning as to the presumable intention or knowledge from the mere fact that the injury caused did, in fact, result in death. When injuries have been followed by death and the question is what offence has been committed, it is not to be concluded by any backward reasoning as to the presumable intention or knowledge from the mere fact that the injury caused did, in fact, result in death. What has to be seen is what degree of injury the accused actually intended or what he knew as to the probable consequence of such injury (See Lokanath Behera v. State reported in 1984 Cri.L.J. 833)." Section 299, I.P.C. stipulates that when the death is caused with intention of causing death or with intention of causing such bodily injury as is likely to cause death or with the knowledge that the act of the person is likely to cause death of the deceased, the person causing such death is said to have caused culpable homicide. It is well settled that intention and knowledge eing a mental state can be deciphered from the attending circumstances of a case, such as the nature and situs of the injuries, the weapon of offence used and also other attending circumstances. Coming to the case in hand it is seen that the stab injury was caused in the chest of the deceased by the Appellant, which ultimately contributed to the death of the deceased. From the aforesaid it can very well be sated that while the Appellant inflicted the injuries had necessary knowledge that such act is likely to cause the death of the deceased. So, the act of the Appellant squarely attracts, in the facts and circumstances, the ingredients of culpable homicide. The ratio laid down as aforesaid is of no assistance to the Appellant here in this case. 8. So, the act of the Appellant squarely attracts, in the facts and circumstances, the ingredients of culpable homicide. The ratio laid down as aforesaid is of no assistance to the Appellant here in this case. 8. Section 300 I.P.C, which defines 'murder' speaks that when the culpable homicide is committed with the intention of causing the death (clause firstly) or with the intention of causing such bodily injury which the offender knows is likely to cause death of the person to whom the harm is caused (clause secondly) or if it is done with the intention of causing bodily injuries which is intentionally inflicted and such bodily injury is sufficient in the ordinary course of nature to cause death of the deceased (clause thirdly) or the offender committed culpable homicide by an act which he knows that it is imminently so dangerous that in all probabillty such act is likely to cause death of the deceased or likely to cause any injury as is likely to cause death without any excuse for causing the death or such bodily injury (clause fourthly) the same amounts to murder. But, such culpable homicide shall not amount to murder if the same is done in any of the circumstances provided in the exception to Section 300 I.P.C. Culpable homicide caused in the circumstances mentioned in Clause-1stly to Clause-3rdly to Section 300 I.P.C, if covered by any of the five exceptions there in the said Section, the same would attract the ingredients of charge u/s 304-I, I.P.C., but when caused in the circumstances provided in clause fourthly to Section 300 I.P.C., and covered by any of the five exceptions, the same would attract the ingredients of Section 304-II, I.PC. In the case of Harendra Nath Mandal Vs. State of Bihar the Hon'ble apex Court have also held as follows :- ... if the act of the accused falls within any of the clauses (1), (2) and (3) of Section 300 but is covered by any of the five exceptions it will be punishable under the first part of Section 304. If, however, the act comes under clause (4) of Section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. If, however, the act comes under clause (4) of Section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. 9. Coming to the case in hand, it is seen that the Appellant intentionally inflicted the injuries which he knows likely to cause the death of the deceased and such injuries resulted in the death of the deceased which squarely attracts the ingredients of committing a culpable homicide in the circumstances provided in Clause-3rdly to Section 300, I.P.C. But as it appears, the act of the Appellant was not a pre-mediated one and during the course of a quarrel with the deceased such injuries were inflicted which contributed to the death of the deceased as revealed from the evidence of P.Ws.4 & 5. The Appellant-accused as such caused the death of the deceased in the circumstances provided in Clause-3rdly to Section 300, I.P.C. but the same is covered by exception 4 to Section 300, I.P.C. which speaks that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner, and as such his act attract the ingredient of Section 304(1) I.P.C. 10. So, for the foregoing reasons, the conviction of the Appellant u/s 304-I I.P.C, as recorded by the trial Court also does not need to be disturbed inasmuch as the same appears to be based on clear, cogent and convincing evidence on record as well as has the sanction of law. 11. Now coming to the question of sentence it appears to me that the trial Court has sentenced the Appellant to undergo R.I. for ten years. Section 304-I I.P.C. provides for imprisonment which may extend to R.I. for ten years or imprisonment for life and also fine. Considering the totality of the circumstances in which the offence was committed in the considered opinion of this Court, the sentence awarded by the trial Court also appears to be commensurate to the fact and circumstances of the case. 12. Considering the totality of the circumstances in which the offence was committed in the considered opinion of this Court, the sentence awarded by the trial Court also appears to be commensurate to the fact and circumstances of the case. 12. Hence, on the reappraisal of the materials on record, in the considered opinion of this Court, the impugned judgment of conviction and the sentence recorded by the trial Court do not require any interference. Hence, this appeal being devoid of merit deserves to be dismissed. Resultantly, this appeal fails and stands dismissed. The impugned judgment of conviction and sentence recorded by the trial Court are confirmed. Immediate steps be taken by the trial Court for recommitment of the Appellant to undergo sentence as it appears, the Appellant has been enlarged orrbait by this Court.