Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 551 (ORI)

RAMA CHANDRA GUNDE v. STATE OF ORISSA

2010-08-04

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT : 1. This appeal is directed against the judgment and order of conviction and sentence recorded by the learned Sessions Judge, Malkangiri in Sessions Case No. 64 of 1998, convicting the appellant for commission of the offence u/s 302, I.P.C. and sentencing him to undergo imprisonment for life. 2. Case of the prosecution is that the deceased and the appellant are brothers and they were living in village Bandhaguda. They were living separately having partitioned their properties. On 28.11.1997 at about 7 p.m. the deceased came to the house and reported that appellant shot an arrow, which pierced into his belly. The informant, who is the brother of the deceased, was also told that when the deceased went to the appellant to enquire as to why he had not tied the cattle, the appellant got enraged and shot an arrow on him. The deceased was taken to the hospital, where his condition was found to be serious and the doctor (P.W.1) recorded his dying declaration. F.I.R. was lodged by P.W.3 at local police station, and on the basis of the F.I.R. investigation was taken up and charge-sheet was filed against the appellant for commission of the aforesaid offence. 3. The prosecution, in order to prove the charge, examined nine witnesses, but none was examined on behalf of the appellant. The plea of the appellant was false implication in the case. 4. P.W.1 is the Doctor, who first examined the deceased and recorded his dying declaration. P.W.2 is the Doctor, who conducted the post-mortem examination of the deceased. P.W.3 is the brother of the deceased and the informant in this case. P.W.4 and P.W.4 are mother and sister of the deceased respectively and P.W.7 is the wife of the appellant-accused. P.W.8 is the widow of the deceased and P.Ws. 6 and 9 are the Investigating Officers of the case. Relying on the dying declaration recorded by P.W.1 as well as the oral dying declaration made before P.W.3 and the post-mortem report, the learned trial Court found the appellant guilty of the charge and convicted him thereunder. 5. Learned counsel appearing for the appellant assails the impugned judgment on the ground that on the date of occurrence, the deceased asked the appellant as to why he had not tied the cattle and as to why he was moving around here and there. 5. Learned counsel appearing for the appellant assails the impugned judgment on the ground that on the date of occurrence, the deceased asked the appellant as to why he had not tied the cattle and as to why he was moving around here and there. Being annoyed, the appellant having assaulted the deceased, the offence can only be one u/s 304-Part-II, I.P.C. and the appellant could not have been convicted for commission of offence u/s 302, I.P.C. Learned counsel for the State, in support of the impugned judgment, drew attention of this Court to the evidence of the witnesses and submitted that there is no material whatsoever on record to show that the deceased had provoked the appellant, for which he was assaulted by the appellant. 6. We have carefully scrutinized the evidence recorded in course of the trial. P.W.3 is the informant and brother of the deceased as well as the appellant. He, in his deposition, has stated that in the night of the occurrence the deceased came to him and disclosed that the arrow, which was sticking to his belly, had been shot by the appellant. In the morning this fact was disclosed to the villagers and the deceased was removed to the hospital at about 12 noon and he died in the hospital on the same day. This witness, thereafter, got the F.I.R. scribed through one Kamal Lochan Dalapati, the Sarpanch of Bira Laxmanpur and presented the same at the police station. P.W.1 is the doctor, who first examined the deceased on 29.11.1997 at about 11 a.m. He found one perforating wound on the upper part of epigastrium with incised entry wound. The depth of the wound could not be ascertained, as the weapon of offence was sticking to the wound. Since the condition of the deceased was deteriorating, he recorded dying declaration of the deceased at 11.10 a.m. At the time of declaration the deceased was fully conscious and was able to talk. According to this witness, the deceased was fully oriented to give dying declaration voluntarily. The dying declaration recorded by P.W.1 has been exhibited as Ext.1. P.W.2 is the doctor, who conducted post-mortem examination and found one penetrating stab wound over the left upper abdomen. The depth of the wound was about six inches. He was of the view that the injury was ante-mortem in nature and the death was homicidal. The dying declaration recorded by P.W.1 has been exhibited as Ext.1. P.W.2 is the doctor, who conducted post-mortem examination and found one penetrating stab wound over the left upper abdomen. The depth of the wound was about six inches. He was of the view that the injury was ante-mortem in nature and the death was homicidal. Nothing has been brought out in the cross-examination of these three witnesses, viz. P.Ws. 1, 2 and 3, to disbelieve their testimony that the deceased had made an oral dying declaration before P.W.3 and subsequently a dying declaration before P.W.1 was recorded. We also perused Ext.2, but could not find any defect therein to discard the same. It is established by way of evidence that the deceased, at the time of giving such declaration, was fully conscious and was able to talk. P.W.4 was declared hostile and P.W.5 is another witness, before whom the dying declaration was made by the deceased. This witness is none other than one of the brothers of the appellant and the deceased, and he has stated in his deposition that in the night of occurrence when he was sitting near the fire, the deceased came and disclosed that the appellant had shot an arrow on him. P.W.6 is the Investigating Officer, before whom the appellant produced a bow and arrow, which were seized under Ext.5. P.Ws. 7 and 8 were declared hostile. P.W.9 is another I.O., who had also investigated into the case. 7. From the evidence of P.W.1, it is established by the prosecution that the deceased had made a dying declaration implicating the appellant as the assailant and the said dying declaration was recorded by P.W.1. Evidence of P.Ws. 3 and 5 also establish that the deceased had made an oral dying declaration before both of them implicating the appellant as the assailant. From the evidence of P.W.6 it also appears that the appellant had produced the bow and arrow, which were seized under Ext.5. The Chemical Examination Report also indicates that the blade and handle portion of the arrow contained human blood of 'A' group, which matches with that of the deceased. On consideration of all these materials, the trial Court having found the appellant guilty of commission of the offence u/s 302, I.P.C., we find no reason to disturb the said judgment. 8. The Chemical Examination Report also indicates that the blade and handle portion of the arrow contained human blood of 'A' group, which matches with that of the deceased. On consideration of all these materials, the trial Court having found the appellant guilty of commission of the offence u/s 302, I.P.C., we find no reason to disturb the said judgment. 8. For the reasons stated above, the appeal is devoid of merit and accordingly the same is dismissed. Final Result : Dismissed