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2010 DIGILAW 582 (ORI)

Hantala Endaya v. State of Orissa

2010-08-18

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT (1) THIS appeal is directed against the judgment and order of the learned Sessions Judge, Koraput at Jeypore dated 11- 1-2000 in Sessions Case No. 145 of 1996 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (in short 'IPC') for causing death of one Parapi Parbati on 7-2-1996 at about 4 p.m. at village Ekagoluru. (2) THE case of the prosecution is that the deceased had given birth to a child eleven days prior to the incident. On the date of occurrence, the deceased and her mother along with some others namely, P. Ws.2, 3 and 4 were sitting and the mother of the deceased was nourishing the child. At that time the appellant came in drunken state and started abusing the father of the deceased. It is also alleged that the appellant assaulted the father of the deceased, threw a stone to the house of the deceased and thereafter dealt two fist blows to the deceased, one on the chest and the other on the belly and as a result of such assault, the deceased died at the spot. P. W. 1 before whom the incident was narrated lodged the F. I. R. on the basis of which, investigation was taken up and charge sheet was filed for commission of offence under Section 302 IPC. The prosecution in order to bring home the charge, examined 9 witnesses whereas the defence examined none. Out of the 9 witnesses examined on behalf of the prosecution, P. W. 1 is the informant, P. Ws. 2, 3 and 4 are eye-witnesses to the occurrence, P. W.5 is the Constable, who had taken the dead body for postmortem examination, P. W.6 is a witness to the inquest, P. Ws. 7 and 9 are Investigating Officers and P. W. 8 is the doctor, who conducted postmortem examination. The defence plea is complete denial and false implication. The trial Court on the basis of the evidence of the eye-witnesses coupled with the evidence of P. W. 8, who conducted postmortem examination found the appellant guilty of the charge and convicted him thereunder. (3) THE learned counsel for the appellant assails the impugned judgment on the ground that even if the evidence of P. Ws. The trial Court on the basis of the evidence of the eye-witnesses coupled with the evidence of P. W. 8, who conducted postmortem examination found the appellant guilty of the charge and convicted him thereunder. (3) THE learned counsel for the appellant assails the impugned judgment on the ground that even if the evidence of P. Ws. 3,4 and 5 is accepted, considering the fact that P. W. 8 while conducting the postmortem examination did not find any internal or external injury and could not also say about the cause of death, the offence can only be under Section 323 IPC and the appellant could not have been convicted for commission of offence under Section 302 IPC. THE learned counsel for the State with reference to the evidence of P. Ws. 3, 4, 5 and 8 supported the impugned judgment. (4) UNDISPUTEDLY P. W. 1 is the informant, but he is not an eye-witness to the occurrence. Much reliance is placed on the evidence of P. Ws. 2, 3 and 4, who are eye witnesses to the occurrence. All the three witnesses are consistent in their evidence to the effect that on the date of occurrence when the deceased was sitting with her child, mother and P. Ws. 2, 3 and 4, the appellant came, abused and assaulted the father of the deceased and thereafter dealt two fist blows to the deceased, one on the chest and the other on the belly. Immediately thereafter, the deceased died. Though these three witnesses have stated about such assault on the deceased, P. W. 8, the doctor, who conducted postmortem examination did not find any internal or external injury. The doctor also could not say the exact cause of death. On the other hand, in cross examination the doctor has specifically stated that in case of natural death, the findings would have been same as what he had given in Ext. 4. Ext. 4 is the postmortem report. Considering the allegations of the prosecution that the appellant had dealt fist blows, in view of evidence of the doctor, P. W. 8, it cannot be said that the death of the deceased was the proximate result of the fist blows given by the appellant. Under these circumstances, the learned counsel for the appellant is justified in making a submission that the appellant can only be convicted for commission of offence under Section 323 IPC. Under these circumstances, the learned counsel for the appellant is justified in making a submission that the appellant can only be convicted for commission of offence under Section 323 IPC. In view of the discussions made above, we allow the appeal in part, set aside the impugned judgment and order passed by the learned Sessions Judge, Koraput at Jeypore in Sessions Case No. 145 of 1996 under Section 302 IPC and find the appellant guilty for commission of offence under Section 323 IPC and accordingly convict him thereunder. The appellant is sentenced to imprisonment for a period of one year. It is stated at the Bar that the appellant is in custody since the date of his arrest and in the meantime more than eleven years have passed. In view of the above, the appellant Hantala Endaya be set at liberty forthwith, unless his detention is required in any other case. Order accordingly.