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2012 DIGILAW 349 (ORI)

Rama Krishna Sahu v. State of Orissa

2012-08-14

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT B.K. MISRA, J. : This jail criminal appeal is directed against the judgment and order of conviction dated 03.09.2003 passed by the learned Additional Sessions Judge, Bhanjanagar in S.C. No.20 of 2002/S.C. No.22 of 2002-GDC for commission of an offence under Section 302, I.P.C. and sentencing him to undergo imprisonment for life. 2.The prosecution case in brief is that on 22.06.2001 afternoon the deceased closed a portion of the ‘Khalabari’ on its northern side by means of thorny Bamboo twigs (BAUNSA KANTA) as the same was lying open. As the said “BAUNSA KANTA” was uprooted by accused Jamuna Sahu, the mother of the deceased when protested a quarrel ensued in between her and accused-Jamuna Sahu. It is alleged that on the next day around 9.30 A.M. the deceased came for ploughing his “khalabadi” to grow some vegetable plants and while arranging to plough the same, the appellant and his son Kanhu Sahu came and challenged as to why he had closed the gate of the said “Khalabari” by encroaching their “Bari”. The appellant directed his wife to bring the ‘Pharsa-Tangia’ and accordingly his wife Jamuna handed over the ‘Pharsa-Tangia’ to him. The appellant gave a blow with that ‘Pharsa-Tangia’ on the head of the deceased causing bleeding injury as a result of which he fell down on the ground. Thereafter the appellant gave another ‘Pharsa-Tangia’ blow on the neck of the deceased as a result he died at the spot. The prosecution further alleges that when the appellant attacked the deceased, Kanhu and Jamuna were instigating the appellant to finish him. On the basis of the oral report police registered the case and investigated into the matter. During investigation the I.O. visited the spot, examined the witnesses, sent the dead body for post-mortem examination, arrested the accused, recorded his disclosure statement and seized the ‘Pharsa-Tangia’ from the house of the appellant. On completion of investigation charge-sheet was placed against the appellant and two others to stand the trial under Section 302/34 IPC. 3.The plea of the appellant is complete denial of the prosecution case. He further pleaded that his ‘Khalabadi’ was closed by the deceased and on his protest the deceased gave a ‘Tangia-Pharsa’ blow to him, but he caught hold the tangia and brandished the same, during which the deceased might have sustained the injuries. Hence he left the tangia at that spot and returned to his house. He further pleaded that his ‘Khalabadi’ was closed by the deceased and on his protest the deceased gave a ‘Tangia-Pharsa’ blow to him, but he caught hold the tangia and brandished the same, during which the deceased might have sustained the injuries. Hence he left the tangia at that spot and returned to his house. His son accused Kanhu Sahu took the plea of alibi and wife Jamuna speaks that a false case has been foisted against her. 4.The prosecution, in order to prove the charge, examined as many as 13 witnesses including the I.O. and two doctors and exhibited 18 documents. Defence examined none. 5.The learned Additional Sessions Judge, who tried the case convicted the appellant under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and acquitted the other two accused persons, namely, Jamuna and Kanhu basing upon the evidence of P.Ws.1, 4, 5, 6, who are the eye-witnesses to the occurrence and the doctor P.Ws.11 and 12. 6.Mr. Nayak, learned counsel for the appellant assails the impugned judgment on the following grounds : (i)There are major discrepancies in the evidence of the P.Ws.1, 4, 5 and 6, who are the so-called eye-witnesses regarding the assault as well as they are interested witnesses for the prosecution. (ii)The injuries sustained by the accused-appellant have not been explained by the prosecution. Therefore, non-explanation of the injuries is fatal to the prosecution case as the prosecution has suppressed material facts before the Court. (iii)Admittedly, there was inimical relationship between the parties, and when the entire incident took place without any premeditation or preconcert and on a spur of moment the appellant could have been convicted under Section 304 Part-II of the IPC but not under Section 302 of the IPC. 7.Mr. Sk. Zafarullah, learned Additional Standing Counsel vehemently contended that the evidence of the eye-witnesses P.Ws. 1, 4, 5 and 6 are trust-worthy and there is no contradiction in their evidence with regard to the part of the assault and the role played by the appellant and other accused persons. Admittedly some injuries were there on the person of the appellant which were superficial in nature and therefore the prosecution is not duty bound to explain the same. Admittedly there was a quarrel between the parties but the appellant instructed his wife to bring the ‘Pharsa-Tangi’ and when she handed over the same, he assaulted the deceased. Admittedly some injuries were there on the person of the appellant which were superficial in nature and therefore the prosecution is not duty bound to explain the same. Admittedly there was a quarrel between the parties but the appellant instructed his wife to bring the ‘Pharsa-Tangi’ and when she handed over the same, he assaulted the deceased. Therefore, the case is not coming under the purview of Section 304-Part II I.P.C. and rightly the learned Additional Sessions Judge convicted the appellant under Section 302 of the I.P.C. 8.Perused the record. P.Ws.1, 4, 5 and 6 are the ocular witnesses. P.W.1, a witness to the inquest is the neighbour of both the deceased and the appellant. He specifically stated in his examination in chief that he was present in the bari of one Mochiram Gouda and found the appellant to have uprooted the green fence of the deceased in order to enter inside to plough his land for which a quarrel ensued in between the deceased and the appellant. The appellant dealt a pharsa blow to the deceased for which he sustained bleeding injury on his head and shoulder causing his instantaneous death. Thereafter, the appellant ran away inside his house. In cross-examination he admitted that he is related to the deceased. The distance between his house and the house of the deceased is about 500 cubits. Nothing has been elicited during the cross-examination of P.W.1 to demolish his evidence. P.W.2 is a co-villager of both the appellant and the deceased and a witness to the seizure of blood stained earth, sample earth, kendu badi, pharsa-tangia, plough and yoke and the wearing apparels of the appellant. The defence has cross-examined this witness at length but nothing has been elicited from his cross-examination to demolish his evidence. P.W.3 is a post-occurrence witness and a witness to the seizure. He stated in his examination in chief that in his presence police seized the wearing apparels of the appellant and the appellant pursuant to his disclosure statement led the police to the place of concealment and gave recovery of the weapon of offence. There is no material to disbelieve his evidence. P.W.4 is an ocular witness. He stated in his examination in chief that in his presence police seized the wearing apparels of the appellant and the appellant pursuant to his disclosure statement led the police to the place of concealment and gave recovery of the weapon of offence. There is no material to disbelieve his evidence. P.W.4 is an ocular witness. He specifically stated in his examination in chief that on the date of occurrence at about 9 A.M. The deceased returned from the field with plough and bullocks when the appellant and his son Kanhu came and threatened the deceased and to that when the deceased protested, the appellant asked his wife to bring the axe. Accordingly, his wife went and brought the axe and handed it over to him. The appellant dealt a tangia blow on the head of the deceased for which he fell down on the ground and thereafter he have a second blow on his neck as a result, the deceased died at the spot. Nothing has been elicited in his cross-examination to demolish his evidence. 9.P.W.5 is a very vital witness for the prosecution as he is a direct eye-witness to the entire occurrence. From his evidence it is seen that at the time of occurrence he was present in the bari of one Mochiram Gouda and heard appellant-Rama Sahu abusing the deceased whereafter the deceased came to his ‘Khala’ with his plough and bullocks and at that time he found Jamuna Sahu, the wife of the appellant quarrelling with his mother and ‘Bhaibohu’ (Sister-in-law) over putting of fence in the ‘Khala’ and at that time when the deceased came to the ‘Khala’ and wanted to know as to who uprooted the spikes from the fence, the wife of the appellant handed over the ‘Pharsa’ (tangi) to the appellant saying “OONCHEICHO KAANA, RAIJALAKU HANIDIA” and thereafter the appellant dealt a blow with the pharsa to the head of the deceased for which the deceased fell down and thereafter the appellant dealt another blow with that pharsa to the neck of the deceased for which the deceased died within five minutes and the appellant left the spot along with his wife and son whereafter the villagers came and confined the appellant, his son and wife who were inside the house. P.W.5 further stated that he proceeded to the Belaguntha Out-post to report the matter and when police came to the spot, P.W.4 orally lodged the F.I.R. The evidence of P.W.5 that it was the appellant, who gave murderous blows to the head and neck of the deceased by means of a pharsa (tangi) has remained unshaken though he has been cross-examined at length by the defence. There is nothing on the record to disbelieve the evidence of P.W.5, who is a disinterested person. The manner in which P.W.5 has spoken about the ghastly incident we are inclined to place reliance on his testimony as there is nothing on record to show if he had any axe to grind against the appellant. P.W.6 is the mother of the deceased who has also categorically deposed on oath that it was the appellant who dealt tangia blows to the head and neck of her son (deceased) for which he (deceased) died at the spot. It is also P.W.6 who deposed that the informant (P.W.4) was present and had seen the entire occurrence. This evidence of P.W.6 that it was the appellant, who perpetrated the ghastly crime and it was the appellant who dealt blows with the tangia to the head and neck of her son has totally gone un-challenged and there is nothing on record to disbelieve the evidence of P.W.6. The contention of the learned counsel for the appellant that P.W.6 is a highly interested person and, therefore, her evidence cannot be accepted, is not tenable in the eye of law as the settled position of law is that when the witness appears to be truthful his or her evidence cannot be thrown out or discarded merely because he or she happens to be a close relation of the deceased, as a close relative would always want that the real perpetrator of the crime be brought to justice than to make false accusation against an innocent person whereby the real culprits would be moving scot free. (2010 (45) OCR S.C. 290, Sukhdeep Singh @ Deep Singh v. State of Utter Pradesh and another, 2010 (45) OCR 770, *Somanath @ Jogi Gouda and others v. State of Orissa and 2008 (40) OCR (SC) 551, Mahesh v. State of Maharashtra). (2010 (45) OCR S.C. 290, Sukhdeep Singh @ Deep Singh v. State of Utter Pradesh and another, 2010 (45) OCR 770, *Somanath @ Jogi Gouda and others v. State of Orissa and 2008 (40) OCR (SC) 551, Mahesh v. State of Maharashtra). The evidence of P.W.12, the medical officer who conducted post-mortem over the dead body of the deceased reveals that there was an incised wound of size 5” x 1” x 2½” on the right side of neck 1 ½” lateral of the midline extending to 1 ½” back to right ear. Besides that P.W.12 also found another incised wound of size 1 ½” x 1” on scalp 1” lateral to midline on left side with fracture of parietal bone on left side of size 1” x 1”. There was laceration of parietal lobe disruption of six 2” x 1” x 3”. According to P.W.12 the death of the deceased was because of the shock due to excessive haemorrhage and the deceased might have died within 24 hours from the time of the post-mortem examination. The Post-mortem report has been marked as Ext.15 on being proved by P.W.12. In the instant case, it is seen that the weapon of offence i.e., M.O.-I, which was seized by P.W.10, the I.O. pursuant t the disclosure statement of the appellant vide Ext.6, was sent to P.W.12 for her opinion vide Ext.16/2. P.W.12 on examining the said weapon of offence, namely, M.O.-I opined that the injuries which she found on the person of the deceased and mentioned in the post-mortem report could have been inflicted by the sharp edge of the weapon of offence sent to her for her opinion. Such opinion of the medical officer has been marked as Ext.16. 10.The learned counsel appearing for the appellant very strenuously urged that the prosecution has not come with a clean hand to the Court as not only the injuries on the person of the appellant has not been explained but also serious doubts arise about the lodging of F.I.R. as well as the veracity of the eye-witnesses and therefore, the accused is entitled to get the benefit of doubt and the order of conviction be set aside. We have critically analysed the entire evidence on record so also we have taken into account the materials placed before us but hardly we can disbelieve the evidence of P.Ws.1, 3, 4, 5 and 6 who have given a graphic narration about the ghastly murder committed by the appellant. It is to be remembered that while analyzing the evidence on record it is to be borne in mind that the witnesses are rustic villagers and are from interior parts of Orissa and while narrating the occurrence there may be some discrepancies in their evidence which only shows that they have not been tutored and they cannot be branded as unbelievable and unreliable witnesses. Thus, there is nothing on record to disbelieve the evidence of P.Ws.1, 3, 4, 5 and 6. 11.Thus, from the aforesaid analysis of the evidence on record, we find that when the appellant has dealt tangia blows to the vital parts of the body, namely, head and neck and after the first blow on the head when the deceased fell down there was another blow given by the appellant to his neck causing his death, that shows the intention of the appellant and it is a clear case of man slaughter and the plea of right to private defence cannot be attracted as the appellant in his examination under Section 313 Cr.P.C. has clearly stated that he had snatched away the ‘Pharsa’ from the hand of the deceased and brandished the same and after throwing the same left the spot. So, if we believe the plea of the appellant that he had snatched away the weapon of offence from the hand of the deceased then the fear of death or injury to his person was not there and the evidence on record shows that the appellant with a determination to take away the life of the deceased had dealt blows by the ‘Pharsa’ (tangia) to the head and neck of the deceased causing his death and the medical evidence of P.W.12 and the post mortem report Ext.15 speak about the serious injuries which the deceased had sustained which resulted in his death. 12.Accordingly, from the aforesaid discussion of the evidence on record, we find no merit in this appeal and accordingly the same stands dismissed and the order of conviction and sentence recorded by the learned Additional Sessions Judge, Bhanjanagar is hereby confirmed. PRADIP MOHANTY, J.I agree. 12.Accordingly, from the aforesaid discussion of the evidence on record, we find no merit in this appeal and accordingly the same stands dismissed and the order of conviction and sentence recorded by the learned Additional Sessions Judge, Bhanjanagar is hereby confirmed. PRADIP MOHANTY, J.I agree. Appeal dismissed.