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2012 DIGILAW 158 (ORI)

Akhila Dehury v. State of Orissa

2012-03-22

B.K.PATEL, L.MOHAPATRA

body2012
JUDGMENT L. MOHAPATRA, J. : The impugned judgment and order dated 17.5.2003 passed by the learned, Additional Sessions Judge (I), Dhenkanal in S.T. Case No.44 of 2002 (16 of 2002) convicting the appellant for commission of offences under Sections 302 and 324 of Indian Penal Code (for short ‘the I.P.C.’) and sentencing him to undergo imprisonment for life under Section 302 of the I.P.C. and to undergo imprisonment for six months under Section 324 of the I.P.C. has given rise to this appeal. Nine accused persons were charge sheeted for commission of offences under Sections 147/148/323/307/302/149 of the I.P.C. Out of the said nine accused persons, the appellant was convicted for commission of offences under Sections 302 and 324 of the I.P.C., and accused Jaganath Dehury was convicted for commission of offence under Section 324 of the I.P.C. only. Rest of the accused persons were acquitted of the charge. 2.The case of the prosecution, as revealed from the record, is that deceased Kanhu Dehury, the injured Dhani Dehury P.W.6, Nitei Dehury (since dead) and Basu Dehury as well as accused persons were residing in Sabarasahi of village Rathapada and they are also closely related to each other. The prosecution group and group of the accused persons were on inimical terms in relation to passage lying adjacent to their house. It is alleged that on 17.4.2000 in the afternoon, a quarrel ensued between accused Ghana Dehury and P.W.6 Dhani Dehury. The deceased Kanhu Dehury came to the spot and asked accused Ghana Dehury not to quarrel. Since the injured group put a fence on the passage and asked the accused group not to use the passage, the accused Jagannath Dehury went and removed the fence to which P.W.6 protested. At that point of time accused Ghana and Jaga called other accused persons who came to the spot being armed. Thereafter, it is alleged that three accused persons caught hold of the deceased and the present appellant dealt a tangia blow on the neck of the deceased as a result of which he fell down and succumbed to the injuries at the spot. Thereafter, it is alleged that accused persons assaulted to Nitei Dehury (since dead), P.W.6 and some others and caused hurt to them. Thereafter, it is alleged that accused persons assaulted to Nitei Dehury (since dead), P.W.6 and some others and caused hurt to them. The wife of the Dhani Dehury namely, Smt. Kuma lodged the F.I.R. at Bhapur Out Post at about 3.30 P.M. which was transmitted to Sadar Police Station, Dhenkanal and a case was registered for commission of offences under Sections 147/148/323/307/302/149 of the I.P.C. On completion of investigation, charge-sheet was submitted for commission of the said offences. 3.The prosecution in order to establish the charge examined as many as twenty witnesses. Out of the twenty witnesses examined on behalf of the prosecution, P.W.1 is the wife of P.W.6 and is also an injured eye-witness to the occurrence. She had lodged the F.I.R. P.W.2 is the wife of Nitei who had sustained injury during the incident but by the time of trial he had already expired. This witness is also an eye-witness to the occurrence. P.W.3 is an independent witness who had also seen the assault on the deceased and other witnesses. P.W.4 is the witness before whom the appellant is alleged to have made extra judicial confession. P.W.5 is a seizure witness who was declared hostile. P.W.6 is the husband of P.W.1 and an injured eye-witness to the occurrence. P.W.7 is a witness to seizure in Ext.2. P.W.8 is a constable who accompanied the dead body of the deceased for post-mortem examination. P.W.9 is a witness to seizure in Ext.3. P.W.10 is a Scientific Officer who visited the spot after the occurrence. P.W.11 is the doctor who conducted the post-mortem examination. P.W.12 is a witness to inquest. P.W.13 is a seizure witness who turned hostile. P.W.14 is the doctor who examined P.W.1 on police requisition. P.W.15 is a post-occurrence witness who had scribed the F.I.R. but was declared hostile. P.W.16 is a constable who had also accompanied the deceased for post-mortem examination. P.W.17, an independent witness, was declared hostile and similarly P.W.18, another independent witness, was also declared hostile. P.W.19 is the doctor who examined P.W.6 on police requisition and P.W.20 is the investigation officer. The plea of accused persons was denial of the prosecution case and two witnesses were examined on behalf of the defence to prove that in course of the incident some of the accused persons have also received injuries. 4.The trial Court relying on the evidence of four eye-witnesses to the occurrence namely, P.Ws. The plea of accused persons was denial of the prosecution case and two witnesses were examined on behalf of the defence to prove that in course of the incident some of the accused persons have also received injuries. 4.The trial Court relying on the evidence of four eye-witnesses to the occurrence namely, P.Ws. 1, 2, 3 and 6 coupled with the medical evidence found the appellant guilty of the charge under Section 302 of the I.P.C. for causing death of Kanhu Dehury and he was also found guilty of the charge under Section 324 of the I.P.C. for causing injury to P.W.6. 5.Learned counsel for the appellant assails the impugned judgment on the ground that there was no pre-meditation and all of a sudden following a quarrel between P.W.6 and the accused Ghana the incident took place. According to the learned counsel, there was not only hot exchange of words between P.W.6 and accused Ghana but also there was exchange of blows for which the supporters of both of them came to the spot and there was a fight. In course of such fight, the appellant dealt a blow by means of a tangia to the deceased which caused his death. According to the learned counsel, only one blow was dealt by the appellant on the deceased in course of the said incident and therefore, the appellant should have been convicted for commission of offence under Section 304, Part-I of the I.P.C. instead of Section 302 of the I.P.C. 6.Learned counsel for the State placed reliance on the evidence of P.Ws.1 2, 3 and 6 and submitted that there was no provocation from the side of the prosecution and in absence of any provocation the appellant having assaulted the deceased by means of a tangia on the vital part of the body of the deceased, the offence under Section 302 of the I.P.C. is well made out and therefore, there is no reason to interfere with the impugned judgment. 7.Out of the twenty witnesses examined on behalf of the prosecution, four witnesses are the eye-witnesses to the occurrence. P.W.1 is an injured eye-witness to the occurrence. She deposed that on the date of occurrence at about 2 P.M. the accused Ghana and her husband P.W.6 quarrelled regarding the dispute for putting fence. Accused Ghana thereafter called other accused persons who came to the spot being armed. P.W.1 is an injured eye-witness to the occurrence. She deposed that on the date of occurrence at about 2 P.M. the accused Ghana and her husband P.W.6 quarrelled regarding the dispute for putting fence. Accused Ghana thereafter called other accused persons who came to the spot being armed. Accused Kulia, Puria and Deba caught hold of the deceased and the appellant assaulted by means of a tangia as a result of which the deceased sustained injury on his neck and fell down on the ground. Thereafter, the appellant and accused Jaga assaulted P.W.6 by means of katuri and tangia as a result of which he also sustained injuries. In course of the incident, she herself also sustained injury on her head. Thereafter, she went to the Out-Post and lodged a written F.I.R. scribed by P.W.15. In course of her cross-examination, she stated that there was exchange of blows near the spot between her husband P.W.6 and accused Ghana and thereafter Ghana called other accused persons. P.W.2 is the widow of Nitei who sustained injury in course of incident. She deposed that on the date of occurrence she had seen accused Ghana and the deceased quarrelling. She also saw that the accused Deba, Kulia and Puria caught hold of the deceased and the appellant assaulted the deceased by means of a tangia on the neck. She also deposed to have seen the appellant and the accused Jaga assaulting P.W.6 by means of katuri and tangia and that she had seen the appellant assaulting her husband Nitei by means of the said tangia. Similarly, P.W.3 an eye-witness stated that while she was standing on the Danda of her house she saw the appellant assaulting the deceased with a tangia on his head and back. The deceased fell down and died. Thereafter, the appellant along with accused Jaga assaulted P.W.6 by means of tangia and katuri. She also deposed that the appellant assaulted Nitei by means of a tangia. P.W.6 is the husband of P.W.1 and is an injured eye-witness to the occurrence. He stated that on the date of occurrence while he was putting fence in his bari, the accused persons came there and the appellant assaulted the deceased by means of a tangia on his neck causing bleeding injury. The deceased fell down and died. P.W.6 is the husband of P.W.1 and is an injured eye-witness to the occurrence. He stated that on the date of occurrence while he was putting fence in his bari, the accused persons came there and the appellant assaulted the deceased by means of a tangia on his neck causing bleeding injury. The deceased fell down and died. Thereafter, the appellant and accused Jaga assaulted him on his head and right hand by means of tangia and katuri respectively. He sustained bleeding injury and became unconscious. P.W.1 was medically examined on police requisition by P.W.14 and one abrasion was found above the right eye. Similarly, P.W.6 was examined on police requisition by P.W.19 and three incised wounds were found on P.W.6 on the right arm, one over frontal bone and one over the occipital bone. P.W.11 who conducted the post-mortem examination found one incised injury present on the back of the neck of the deceased and that was the only injury found by him. He was of the view that the injury could be caused by heavy cutting weapon and cause of death was due to profuse bleeding and injury to spinal cord. Therefore, evidence of all the four eye-witnesses get corroboration from the evidence of three doctors as stated above. The evidence placed before this Court as stated clearly prove involvement of the appellant in assaulting the deceased by means of a tangia and injuries caused by him to P.W.6 by means of the said tangia. Coming to the question raised by the learned counsel for the appellant as to whether the conviction should be one under Section 302 of the I.P.C. or under Section 304, Part-I of the said code, it is necessary to look into the conduct on the part of the appellant prior to or at the time of the incident. Admittedly, before the assault, there was a quarrel between accused Ghana and P.W.6 in relation to raising fence. As per the evidence of P.W.1 immediately after the said quarrel, there was exchange of blows between them. Thereafter the injured persons and accused persons came to the spot. The appellant who came to the spot suddenly assaulted the deceased by means of a tangia on his back. He dealt one blow which unfortunately caused death of the deceased. As per the evidence of P.W.1 immediately after the said quarrel, there was exchange of blows between them. Thereafter the injured persons and accused persons came to the spot. The appellant who came to the spot suddenly assaulted the deceased by means of a tangia on his back. He dealt one blow which unfortunately caused death of the deceased. There was no pre-meditation and the incident took place following a quarrel and exchange of blows between accused Ghana and P.W.6. In the case of Sununga Mallik v. State : (1994) 7 OCR 711, this Court observed that the ingredient necessary for applicability of Section 304 is that the act must have been committed not only without pre-mediation but in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the present case, there was a quarrel followed by exchanged of blows between P.W.6 and accused Ghana. Immediately thereafter the supporters of both the groups came to the spot and fight ensued. The appellant suddenly in the heat of passion assaulted the deceased by means of a tangia and he had only assaulted once. Unfortunately, the injury caused due to such assault resulted in death of the deceased. We are, therefore, of the view that the submission of the learned counsel appearing for the appellant in this regard has sustainable force. 8.For the reasons stated above, we are also of the view that the appellant’s involvement in assaulting the deceased having proved by the prosecution, considering the circumstances, in which the incident took place and the appellant assaulted the deceased, the appellant is guilty for commission of offence under Section 304, Part-I of the I.P.C. So far as his conviction under Section 324 of the I.P.C. is concerned, we find no reason to differ with the findings of the trial Court, in view of the nature of injury sustained by P.W.6 and the evidence available on record with regard to the appellant’s conduct in assaulting P.W.6. 9.We, therefore, allow the appeal in part, set aside the impugned judgment and order dated 17.5.2003 passed by the learned Addl.Sessions Judge (I), Dhenkanal in S.T. Case No.44 of 2002 (16 of 2002) convicting the appellant for commission of offence under Section 302 of the I.P.C. and sentencing him to undergo imprisonment for life. 9.We, therefore, allow the appeal in part, set aside the impugned judgment and order dated 17.5.2003 passed by the learned Addl.Sessions Judge (I), Dhenkanal in S.T. Case No.44 of 2002 (16 of 2002) convicting the appellant for commission of offence under Section 302 of the I.P.C. and sentencing him to undergo imprisonment for life. Instead, we convict the appellant for commission of offence under Section 304, Part-I of the I.P.C. and sentence him to undergo imprisonment for 10 years. His conviction and sentence under Section 324 of the I.P.C. are maintained. Since both the sentences were directed to be run concurrently and it is brought to the notice of the Court that the appellant has already been served more than 11 years, the appellant-Akhila Dehury be set at liberty forthwith, unless his detention is required in connection with any other case. B.K. PATEL, J.I agree. Appeal allowed in part.