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2011 DIGILAW 87 (ORI)

Siba Karan v. State of Orissa

2011-02-09

B.K.NAYAK, PRADIP MOHANTY

body2011
JUDGMENT PRADIP MOHANTY, J. — This appeal is directed against the judgment and order dated 30.07.1996 passed by the learned Addl. Sessions Judge, Jajpur in S.T. Case No.468/45 of 1994 convicting the appellants under Section 302 read with Section 34 I.P.C. and sentencing them to undergo imprisonment for life. 2.The prosecution case in brief is that on 18.06.1994 the bullock of one Baidhar entered into the homestead of the informant (P.W.1 ) and destroyed the straw of the roof of his house. The informant asked Baidhar to take care of his bullock, but the latter abused him. Appellant no.1-Siba, the son of Baidhar came with a Tangia (axe) and also abused him. Deceased Ananta wanted to pacify the appellant, but he dealt a blow with the blunt side of the Tangia on his head, as a result of which the deceased sustained injury. Appellant no.2-Rabindra dealt a blow by a crowbar on his head whereas the other persons dealt blows by lathis on him. Other brothers of the informant and the wife of the deceased went there to rescue the deceased, but the appellants and others also assaulted them. The deceased was shifted to S.C.B. Medical College and Hospital, where he succumbed to the injuries on 19.06.1994. P.W.1 lodged F.I.R. at Jenapur Out-post. The O.I.C. of the said Out-Post sent the same to the I.I.C., Dharmasala Police Station, who registered the case. Investigation was taken up and after its completion charge-sheet was filed against the present appellants and four others under Section 302 read with Section 34 I.P.C. 3.The plea of the appellants is one of complete denial of the allegations. 4.The prosecution in order to prove the charge examined as many as ten witnesses and exhibited 11 documents. Defence examined one witness. 5.Learned Addl. Sessions Judge after conclusion of the trial held the present appellants guilty under Section 302 read with Section 34 I.P.C. and convicted and sentenced them to undergo imprisonment life. The trial Court, however, acquitted the other accused persons of the above charge. 6.Mr. Panda, learned counsel for the appellant assails the impugned judgment on the following grounds: (i)There is inordinate delay in lodging the F.I.R. and on that ground, the appellants cannot be held guilty under Section 302 read with Section 34 I.P.C. and as such are entitled to acquittal. 6.Mr. Panda, learned counsel for the appellant assails the impugned judgment on the following grounds: (i)There is inordinate delay in lodging the F.I.R. and on that ground, the appellants cannot be held guilty under Section 302 read with Section 34 I.P.C. and as such are entitled to acquittal. (ii)Non-explanation of injuries sustained by the appellants during the course of the same transaction has vitiated the prosecution case. (iii)In the inquest report, it has been described that the appellants assaulted the deceased by means of lathis but the F.I.R. shows that the deceased was assaulted by means of axe. On the face of this discrepancy with regard to the weapon of offence a serious doubt is cast on the prosecution case. (iv)The eye-witnesses are related to the deceased and as such interested witnesses and the order of conviction based on their testimony cannot be sustained. In support of his contentions, learned counsel for the appellants placed reliance upon the decisions in Ramesh Baburao Devaskar Vrs. State of Maharastra; (2009) 1 SCC (Crl) 212, and Thanedar Singh Vrs. State of M.P.; (2002)22 OCR (SC) 335. 7.Mr. S.K. Nayak, learned Addl. Government Advocate, on the other hand, submits that the occurrence took place on 18.06.1994. Immediately after the occurrence, the deceased was shifted to the SCB Medical College and Hospital, where he succumbed to the injuries. On receiving the casualty memo from the medical, I.I.E. Mangalabag Police Station registered an U.D. case. The F.I.R. was lodged on the next day. Therefore, delay in lodging the F.I.R. has been properly explained by the prosecution. Secondly, the evidence of P.Ws. 1 to 4 and 10 is very clear and cogent with regard to the assaults given by the appellants. Thirdly, there is no material on record that during course of occurrence the appellants sustained injuries. The injuries sustained by the appellants being simple in nature, prosecution is not duty bound to explain such injuries. So far as non-mentioning the weapon of offence in the inquest report, the same is not very material. In support of his contention, he relies on the decisions in Aftab Ahmad Anasari Vrs. State of Uttaranchal; (2010) 2 SCC 583 and Surendra Pal Vrs. State of Uttar Pradesh; (2010) 9 SCC 399 . 8.Perused the L.C.R and the decisions cited by the parties. P.W.1 is the informant and brother in law of the deceased who is an ocular witness. State of Uttaranchal; (2010) 2 SCC 583 and Surendra Pal Vrs. State of Uttar Pradesh; (2010) 9 SCC 399 . 8.Perused the L.C.R and the decisions cited by the parties. P.W.1 is the informant and brother in law of the deceased who is an ocular witness. He stated that on 18.06.94 his elder sister and brother-in-law (deceased) had come to his house. The bullock of one Baidhar Karan damaged the straw of the roof of his cow-shed. So, he drove the bullock and left it near the house of Baidhar Karan and told him that they were allowing their cattle intentionally to move free and so they damaged his roof. At this, Baidhar abused him, for which there was exchange of words between them. At that time, appellant-Siba Karan being armed with a Tangia came and asked the informant as to if he was prepared to die. When the deceased came there to pacify the matter, the appellants and other accused persons who were present there, assaulted him. He specifically stated that appellant no.1 gave an axe blow on the right side of the head above the ear. When the deceased fell down, appellant no.2 gave a blow by means of an iron crow bar on his head. The other accused persons also assaulted the deceased with Thenga and by hand. When he along with P.Ws. 2, 3, 4 and 10 were lifting the deceased, all the accused persons assaulted them. As they raised hullah, the accused persons left the spot. They shifted the deceased to Jenapur Hospital and as per direction of the doctor, the deceased was shifted to the S.C.B. Medical College and Hospital, Cuttack where he succumbed to the injuries. On the next day, he lodged F.I.R. at Jenapur Out-post. In cross-examination he admitted that he was standing at a distance of 50 cubits away from the house of Baidhar at the time of occurrence. He also admitted that he had not mentioned in Ext.1 that appellant no.2 gave a blow by means of an iron crowbar on the head of the deceased. Nothing has been elicited from him in cross-examination to demolish his evidence. P.W.2, another brother-in-law of the deceased corroborated the evidence of P.W.1. He specifically deposed that appellant no.1 gave an axe blow on the right side head of the deceased causing bleeding injury for which he fell down. Nothing has been elicited from him in cross-examination to demolish his evidence. P.W.2, another brother-in-law of the deceased corroborated the evidence of P.W.1. He specifically deposed that appellant no.1 gave an axe blow on the right side head of the deceased causing bleeding injury for which he fell down. Appellant no.2 gave a blow with a crowbar on his head. Nothing has been elicited from him in cross-examination to discredit his evidence. He denied the suggestion given by the defence that he had not stated before the I.O. that appellant no.2-Rabi gave an iron rod blow to the deceased. P.W.3, the widow of the deceased, is an ocular witness. She specifically stated that appellant no.1 gave a non-sharp axe blow on the right side head of the deceased for which he fell down. Appellant no.2 gave a blow by means of an iron crowbar on the head of the deceased. In cross-examination, she stated that there was no ill-feeling between her father’s family and family of the appellants. P.W.4 is yet another brother-in-law of the deceased and brother of P.W.1. He corroborated the evidence of P.Ws. 1, 2 and 3 regarding the assault given by appellant no.1 with an axe. Nothing has been elicited from him in cross-examination. P.W.5 is a seizure witness with regard to seizure of M.Os. I and II (axe and crowbar). P.W.6 is the doctor who examined P.W.1 and found the following injuries: (i)One bleeding injury on the right supra sterno claviculra space, 2" x 1" (ii)One swelling on the right dorsum of fore-arm 2" x 1/2" X 1/2". Both the injuries were caused by blunt and hard weapon and both were simple in nature. In cross-examination, he stated that he also examined one Anam Charan Karan and Baidhar Karan (accused no.5 3 before the trial Court respectively) and found some simple injuries. P.W.7 is the doctor who conducted autopsy and found some external injuries. He opined that all the injuries were ante-mortem in nature and could be caused by hard and blunt weapon. They appeared to be homicidal in nature. He also opined that all the injuries could be possible by both the weapons of offence (M.O.I & II). P.W.8 is the I.O. who registered the case, investigated into the matter, examined witnesses, seized the weapon of offence and ultimately filed charge-sheet. They appeared to be homicidal in nature. He also opined that all the injuries could be possible by both the weapons of offence (M.O.I & II). P.W.8 is the I.O. who registered the case, investigated into the matter, examined witnesses, seized the weapon of offence and ultimately filed charge-sheet. In cross-examination, he admitted the suggestion of the defence that P.W.1 had not specifically stated before him or in Ext.1 that appellant no.2 gave a blow by means of an iron crowbar on the head of the deceased. P.W.2 had also not stated the same before him. P.W.9 is the A.S.I. of Police, who registered the U.D. Case at Mangalabag Police Station, prepared the inquest report and the dead body challan, and sent the dead body for post mortem examination. He proved the inquest report (Ext.9) and dead body challan (Ext.10). In cross-examination, he stated that he immediately intimated the fact to the O.I.C., Dharmasala Police Station. P.W.10, who is the brother-in-law of the deceased and an ocular witness, corroborated the statement of P.Ws. 1 to 4. Nothing has been elicited from him in cross-examination to discredit his testimony. 9.Scanning of the evidence available on record reveals that appellant no.1 dealt an axe blow by its blunt side on the head of the deceased. Post mortem report reveals that the deceased sustained injury on the head. There is nothing on record to discredit the evidence of P.Ws. 1 to 4 and 10 with regard to the assault to the deceased by appellant no.1 by an axe. But, so far as appellant no.2 is concerned no overt act is attributed to him in the F.I.R. P.W.7, the doctor, on post mortem opined that the injury on the deceased could not be possible by a crowbar. P.Ws. 1 to 4 and 10 for the first time introduced the assault given by appellant no.2 with a crowbar to the head of the deceased. Therefore, this Court is not inclined to convict appellant no.2. Hence, he is acquitted of the charge and set at liberty. So far as appellant no.1 is concerned, there is no dispute with regard to the blow given by him to the deceased on the blunt side of the axe. Admittedly, the incident took place due to sudden quarrel. Therefore, this Court is not inclined to convict appellant no.2. Hence, he is acquitted of the charge and set at liberty. So far as appellant no.1 is concerned, there is no dispute with regard to the blow given by him to the deceased on the blunt side of the axe. Admittedly, the incident took place due to sudden quarrel. Appellant no.1 had no intention to kill the deceased, otherwise he would not have dealt the blow by the blunt side of the axe. Therefore, this Court comes to the conclusion that the case comes under the purview of Section 304 Part-II I.P.C. That apart, the appeal is of the year 1994 and in the meantime 16 years have already elapsed. Appellant no.1 was in custody for more than two years. By taking a liberal view, this Court sentences appellant no.1 to imprisonment for the period already undergone and pay a fine of Rs.25,000/- (Rupees twenty-five thousand) in default R.I. for two years. If the fine amount is realized, the same shall be paid to the widow of the deceased (P.W.3) as compensation. 10.In the result, the Criminal Appeal in respect of Appellant No.2 is allowed. The order of his conviction and sentence is set aside and he is acquitted of the charge. So far as Appellant No.1 is concerned, the appeal is allowed in part and the judgment and order of conviction and sentence as passed by the trial Court is modified to the extent indicated above. B.K. NAYAK, J.I agree. Order accordingly.