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2010 DIGILAW 247 (ORI)

Sisir Kumar Rout v. State of Orissa

2010-04-06

A.S.NAIDU, B.N.MAHAPATRA

body2010
JUDGMENT A.S. NAIDU, J. : The judgment and order of conviction dated 23.04.1997 passed by the learned Sessions Judge, Dhenkanal-Angul convicting the appellant under Section 302, I.P.C. and sentencing him to undergo R.I. for life in S.T. Case No.68-D(A) of 1988 is assailed in this Criminal Appeal. 2. The prosecution case was set to motion on the basis of an F.I.R. filed by one Ajay Kumar Rout (P.W.4) alleging that when he was proceeding towards his paddy field situated in village Baliambo, under Sadar P.S., Dhenkanal, accused-Jasobanta Rout, (who has been acquitted in Session Case No.68-D/98) saw him from a distance and started abusing him in filthy language and chal¬lenged him as to why he let out the water from his filed. There¬after, he snatched one lathi from one Amar Baral and chased to assault the informant, who out of fear ran towards his village. While he was retreating, Jasobanta chased him, hurling abuses. Hearing, the shouting, his family members like Jayakrishna Rout, Subal Rout, Brajabandhu Rout, Bidhan Rout, Hitlar Rout, Sisir Kumar Rout (the appellant), Rabi Rout, Akhaya Rout and Nanda Rout came armed with lathi, Kati, spear and gun and assaulted the informant Ajay Kumar Rout. At that juncture, Josabanta arrived at the spot and caught hold of the informant. Hearing the commotion, Manas Lenka arrived and raised commotion; consequently the ac¬cused persons caught hold of Manas Lenka and assaulted him. While matter stood thus, Adikanda Rout, Biprabar Rout, Digambar Panda and others who belong to the group of informant arrived there and there was a free fight among the who groups. Sugribar Rout ar¬rived there and attempted to pacify the matter by dissuading the parties from mutual fight, and both the parties separated and moved to a distance from each other. After they separated Sugri¬bar Rout started talking with Jayakrishna Rout and suggested him for a settlement of the dispute in the village with the interven¬tion of the gentlemen. Accused Sisir Rout all of a sudden dealt a blow on the head of the deceased Sugribar Rout by means of Kati (Katari). Receiving said blow Sugribar fell down sustaining serious fracture wound on his head. Seeing this incident, accused Sisir Rout ran away with the Katari. Accused Sisir Rout all of a sudden dealt a blow on the head of the deceased Sugribar Rout by means of Kati (Katari). Receiving said blow Sugribar fell down sustaining serious fracture wound on his head. Seeing this incident, accused Sisir Rout ran away with the Katari. One Basudev Jena who was on his way back from the field tied a napkin on the head of Sugribar and shifted him to village Mandap and thereafter he was carried to Bhapur Hospital in a bullock cart. On the way, they went to Bhapur Outpost and lodged an FIR. On the basis of said FIR, investigation commenced and the injured was sent to Bhapur Hospi¬tal and from there he was referred to Dhenkanal District Head¬quarters Hospital. Seeing the condition of the injured serious, the doctors of Dhenkanal referred him to S.C.B. Medical College and Hospital, Cuttack and in course of his treatment at S.C.B. Medical College and Hospital, injured-Sugribar expired on 06.08.1986. 3. The case was thereafter converted to one under Section 302, IPC. After conducting post mortem of the dead body and seizing the material objects from the locality as well as from the accused persons, recording statements under Section 161, Cr.P.C., the I.O. completed the investigation and submitted charge sheet against nine accused persons, in the Court of learned S.D.J.M., Dhenkanal in G.R. Case No.515 of 1986. 4. On being satisfied that a prima facie case was made out by learned S.D.J.M., Dhenkanal took cognizance of the offences and committed the case to the Court of Session for trial. 5. In course of hearing, to substantiate their case, prosecution got examined nine witnesses. Out of them, PW-4 is the informant and is an eye-witness to the occurrence, PW-3 is the son of the deceased; PW-2 is another eye-witness to the occur¬rence. PW-1 is also an eye-witness to the occurrence. PW-5 was the then A.S.I. attached to Mangalabag PS who on direction of the I.I.C. had conducted the inquest over the dead body at S.C.B. Medical College and sent the dead-body to the F.M.T. Department for conducting autopsy. PW-6 was the A.S.I. attached to Bhapur Outpost who received the FIR and registered a PS case. PW-7 was the then O.I.C., Sadar PS, Dhenkanal, PW 8 is the Doctor who conducted the post mortem examination over the dead body. PW-9 is the Asst. PW-6 was the A.S.I. attached to Bhapur Outpost who received the FIR and registered a PS case. PW-7 was the then O.I.C., Sadar PS, Dhenkanal, PW 8 is the Doctor who conducted the post mortem examination over the dead body. PW-9 is the Asst. Surgeon attached to the District Headquarters Hospital, Dhenkanal who on police requisition had examined the injured on 29.07.1986 and had submitted the injury report. Apart from the aforesaid oral evidence, the prosecution also got exhibited 13 exhibits and two material objects. 6. The plea of defence was complete denial of the prosecu¬tion case. In support of their case, no evidence was adduced by the defence, but then three documents were produced which were marked as Exts.A, B and C. It appears that out of the nine accused persons eight faced trial in Session Trial Case No.68-/1988. After a vivid discussion of the evidence both oral and documentary learned Trial Court arrived at the conclusion that the prosecution had totally failed to establish the case against the said accused persons and ac¬quitted them thereunder. The said order of acquittal has not been assailed by the State and has attained finality. As the present appellant was not available to face the trial, his case was split up. It is submitted that after coming to know about the case, he surrendered and faced trial in Ses¬sions Trial Case No.689-D(A) of 1988. The Section Judge after discussing the evidence both oral documentary in extenso arrived at a conclusion that the prosecu¬tion was able to establish the charges framed against the ac¬cused-appellant and found him guilty under Section 302, IPC and convicted him thereunder. The said order of conviction, as stated earlier, is assailed in this Criminal Appeal. According to the appellant, the Sessions Court acted illegally and with material irregularity in convicting the appellant on the basis of the evidence which was disbelieved earlier in course of trial of the other eight accused persons. It is further stated that the prose¬cution witnesses were interested witnesses being related to the deceased, as such, their evidence should not have been relied upon and should have been discarded by the Sessions Judge. It is further stated that the prose¬cution witnesses were interested witnesses being related to the deceased, as such, their evidence should not have been relied upon and should have been discarded by the Sessions Judge. Fur¬ther, according to the appellant, after arriving at the conclu¬sion that there was a mutual fight inter se between the parties and as no specific evidence has been adduced by the prosecution to establish that the vital blow can be attributed to the appel¬lant, the learned Sessions Judge acted illegally and with materi¬al irregularity in convicting the appellant under Section 302, IPC. 7. Mr. S.D. Das, learned counsel appearing for the appel¬lant submits that even otherwise prosecution failed to establish that the appellant had caused the injury with premeditation and/or he had the intention to cause such injuries, and as such the order of conviction under Section 302, IPC was an apparent error. Learned counsel for the State, on the other hand, repudiated the submissions made by Mr. Das and submitted that the Sessions Judge has vividly discussed the evidence and the conclusions arrived at are just and proper. It is stated that the appellant was the real assailant and he absconded for a period of ten years which to some extent proves that he is guilty. According to Mr. Mishra, the appellant was sitting over the fence and was watching the trial. After eight accused persons were acquitted, he came and surrendered to face the trial. Mr. Mishra, further submitted that the evidence both or a land documentary are clinching and clearly reveal that the appellant was the real assailant and thus the learned Sessions Judge rightly found him guilty of commission of offence under Section 302 IPC, and convicted him thereunder. 8. To appreciate the argument advanced by the parties, this Court went through the evidence meticulously. Fact remains that all the witnesses examined are related to each other. Of course, law is well settled that if the witnesses are related their evidence should not be discarded on that ground alone. In fact, the relatives are the best witnesses, inasmuch as they will implicate only the real accused who caused the crime and should not go unpunished. In view of the aforesaid clear position of law, only because prosecution witnesses are relatives to each other their evidence cannot be discarded. In fact, the relatives are the best witnesses, inasmuch as they will implicate only the real accused who caused the crime and should not go unpunished. In view of the aforesaid clear position of law, only because prosecution witnesses are relatives to each other their evidence cannot be discarded. That apart, the evidence reveal that there was a mutual fight among the two groups and the eye-witnesses some of whom are injured persons have categorically stated that the accused-appellant took active part in the fight. It also appears that in course of the fight, the accused-appellant also sustained injuries, though the prosecution has not explained such injuries, but then fact remains that the accused appellant had sustained injuries in course of the mutual fight and the said fact clearly establishes that he has taken active part in the assault. In the aforesaid scenario, we have no hesitation to agree with the finding that prosecution was successful in establishing that the appellant has taken active part in the assault thereby causing death of the deceased-Sugribar Rout. 9. Perusal of the evidence reveals that the appellant was not initially a party to the quarrel but then subsequently he joined the assailants’ group which indicates that he had no premeditation of any plan. The prosecution has also totally failed to establish that the appellant had any intention to give the fatal blow. Fact remains that he was a participant in the mutual fight and has received grievous injuries and it also reveals that the appellant has given a blow by Kati at the spur of the moment on the head of the deceased-Sugribar. 10. In view of the above facts and circumstances, we feel that the appellant is not a harden criminal and he was in the village on the date of occurrence and he got himself involved in the commotion of offence by circumstance over which he had no control. This Court, therefore, feels that ends of justice and equity would be better served if the order of conviction is modified to one under Section 304(1), IPC and we direct accord¬ingly. 11. In view of our discussions made above, the appellant is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-. In default of the payment of the fine as directed above, the appellant shall undergo R.I. for a further period of three months. 11. In view of our discussions made above, the appellant is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-. In default of the payment of the fine as directed above, the appellant shall undergo R.I. for a further period of three months. Out of the aforesaid fine, a sum of Rs.4,000/- is to be paid to the next kin of the deceased-Sugribar Rout. B.N. MAHAPATRA, J. I agree. Appeal disposed of.