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2012 DIGILAW 417 (ORI)

Gopal Tandi v. State of Orissa

2012-09-21

PRADIP MOHANTY, S.K.MISHRA

body2012
JUDGMENT PRADIP MOHANTY, J. - This appeal is directed against the order of the learned Addl. Sessions Judge, Titilagarh convicting the appellant Gopal Tandi for commission of offence, under Sections 302 and 307 of the Indian, Penal Code and sentencing him to undergo imprisonment for life under Section 302 of the IPC and to undergo rigorous imprisonment for five years and to pay fine of Rs. 2,000/-, in default, to undergo rigorous imprisonment for a further period of one year for the offence under Section 307 of the IPC in Sessions Case No. 76(B)/24 of 2002 2. Case of the prosecution is that the accused appellant is the nephew of injured Udu Suna, P.W.4 and the deceased is the wife of Udu Suna. The accused had married Kutulu Suna, who is daughter of the brother of Udu Suna. After his marriage, the accused had enticed away the daughter of Udu Suna to Raipur and had kept her there for one month. Thereafter, the accused brought her to his house and kept her in his house for six months. When he kept the daughter of P.W.4 in his house, his wife left his house and for this a village meeting was convened by the villagers on 19.02.2002 at about 12 noon and in the said meeting the accused-appellant complained that P.W.4 Udu Suna was practising witch-craft on him for which he was ill. Udu Suna protested against this and the meeting had dispersed. After the meeting was over, Udu Suna took his sheeps for grazing and went near the village Bandh along with P.W.5, Shyam Sundar Suna. At that time the appellant appeared there being armed with a knife and stabbed Udu on his abdomen, as a result of which, intestine of Udu came out. After stabbing him the accused went towards the village. Hearing the hullah raised by Udu, his wife Jhima and grandson Mithun came towards him to help him. Seeing them on the way, the accused also stabbed Jhima Suna on her abdomen with the same knife, as a result of which, she fell down with severe injury. Thereafter, the accused also stabbed Mithun on his chest causing laceration wound. After stabbing both of them on the way, the accused again ran to Udu Suna and stabbed him on right side of the chest with the same knife and thereafter the appellant fled away with the knife. Thereafter, the accused also stabbed Mithun on his chest causing laceration wound. After stabbing both of them on the way, the accused again ran to Udu Suna and stabbed him on right side of the chest with the same knife and thereafter the appellant fled away with the knife. Thereafter, P.W.4 managed to go to the village and with that injury he called some villagers, narrated the incident before one Nischala Rana and requested him to inform the police and to take them to hospital for treatment. Accordingly, Nischala Rana went to the Muribahal Outpost. After receiving VHF information, the I.I.C., Kahtabanji Police Station went to the Outpost and received the FIR and registered the same. At that time, the accused arrived at the outpost with the knife and admitted that he had stabbed Udu, Jhima and Mithun Tandi with the said knife. Then he produced the knife before the I.I.C., which was seized and the accused was arrested. Then the I.I.C. proceeded to the spot and sent the injured persons to the hospital for treatment, where Jhima Succumbed to the injuries. The IIC sent the dead body for post mortem examination. The I.I.C. seized the bloodstained knife and wearing apparels of the deceased and the injured persons, collected blood-stained earth from the spot of occurrence and sent them for chemical examination and after receiving the chemical examination report, submitted charge-sheet against the appellant under Sections 302 and 307 of the IPC. 3. In order to prove its case, prosecution has examined fifteen witnesses and exhibited fifteen documents, but the defence has examined none. The appellant took the plea of complete denial and further pleaded that he has been falsely implicated in this case due to poverty. 4. The learned Addl. Sessions Judge, Titilagarh after examining evidence of all the witnesses and perusing all the exhibited documents adduced on behalf of the prosecution, came to the conclusion that the appellant has committed the murder of Jhima Suna and held him guilty under Section 302 of the IPC and sentenced him to undergo imprisonment for life. The learned Addl. Sessions Judge has also found him guilty under Section 307 of the IPC for attempting to commit murder of Udu Suna and assaulting Mithun Tandi and sentenced him to undergo rigorous imprisonment for five years and further to pay fine of Rs. The learned Addl. Sessions Judge has also found him guilty under Section 307 of the IPC for attempting to commit murder of Udu Suna and assaulting Mithun Tandi and sentenced him to undergo rigorous imprisonment for five years and further to pay fine of Rs. 2,000/- and in default of payment thereof to undergo rigorous imprisonment for a further period of one year. 5. Learned counsel for the appellant assails the judgment of the trial Court on the ground that there is no direct materials as against the appellant for committing the offence under Section 302 of the IPC. She submits that P.W.5, who is an eye witness to the occurrence, is not supporting the prosecution case and there are major contradictions in the evidence of the injured ocular witness, P.W.4. The learned counsel argued that since the appellant is an illiterate Adivasi and poor, he has been falsely implicated in this case learned Addl. Standing Counsel, on the other hand, mostly relied on the evidence of P.W.4-Udu Suna, who was injured and an eye witness to the occurrence. 6. Perused the lower Court records and have gone through the evidence minutely. Out of the witnesses examined, P.W.1 Nischal Rana is the informant and a co-villager. He has stated in his examination-in-chief that on 19.02.2002 at about 4 P.M., when he was returning to his village from Bangomunda, he saw the deceased Jhima and her husband Udu lying near the village Nala with injuries. Their intestines had come out and on his asking Udu Suna told that accused Gopal Tandi stabbed them. On the way, he met Murlidhar Seth, P.W 10 and with him he went to Muribahal outpost. Murali scribed the FIR on his instruction and he put his signature on it. Police sent the injured persons to the hospital for their treatment, but Jhim? died in the hospital. In cross-examination, P.W1 has admitted that when he saw the injured persons at the spot there was none else than the boy. From there he went to the Police Station. He sent Murali at village-Dumarpada as he was going to Muribahal. Nothing has been brought out from the, mouth of this witness in favour of the defence. P.Ws. 2 and 3 are witnesses to the seizure. P.W.4 is the injured eyewitness to the occurrence and husband of the deceased. From there he went to the Police Station. He sent Murali at village-Dumarpada as he was going to Muribahal. Nothing has been brought out from the, mouth of this witness in favour of the defence. P.Ws. 2 and 3 are witnesses to the seizure. P.W.4 is the injured eyewitness to the occurrence and husband of the deceased. In examination-in-chief he has stated that while he and Shyamasundar Suna (P.W.5) were grazing sheeps, all on a sudden the accused came there and stabbed him with a knife on his belly and he sustained severed bleeding injury and intestine came out and at the time Shyamasundar was present. After stabbing the accused went towards village and the persons working there raised hulla and hearing it, his wife and his grandson were coming. Near a culvert, the accused also stabbed her with the said knife at a distance of about 50 yards from P.W.4 The accused also stabbed his grandson with the said knife on his chest. Then the accused also came back and gave another blow to his right side chest. Thereafter, the accused fled away. When his wife was lying there, he went to the village and asked Sitaram Rana for some water to drink and on being asked he narrated the incident to Nilanchal and Sitaram. Thereafter, he and his wife were shifted to the hospital where his wife succumbed to the injuries. 7. In cross-examination, he also admitted that Shankar Rana had tied his belly with a cloth. Shyamsundar was frightened seeing his injuries. P.W.5 is a child witness and grandson of P.W.4. This witness was testified by the trial Court by putting some rational questions, and on being satisfied with his answer, he was examined as P.W.5. This witness was declared hostile and on confrontation with his previous statement before police, nothing substantial came out from his evidence. P.W.6 is a co-villager of P.W.4 before whom P.W.4 has disclosed the fact of stabbing. P.W.6 in his examination-in-chief has stated that at about 4.30 P.M., P.W.4 came to his house with bleeding injury on his belly. He had kept the belly pressed with cloth as the intestine came out Arjun died the belly of Udu with cloth. He told that the injury was caused due to stabbing by the accused. In cross-examination nothing has been elicited from this witness. P.Ws. 7 and 8 are witnesses to the inquest. He had kept the belly pressed with cloth as the intestine came out Arjun died the belly of Udu with cloth. He told that the injury was caused due to stabbing by the accused. In cross-examination nothing has been elicited from this witness. P.Ws. 7 and 8 are witnesses to the inquest. P.W.9 is the Medical Officer, who conducted autopsy of the deceased and found the following injuries: "1. There is a penetrating wound on the abdomen just above the navel through which loops of intestine and bloody fluid coming out. 2. An incised wound on the right fore-arm 4 cm x 2 cm x 1 cm deep, There was no ligature mark on the neck," He opined that the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause the death. He further opined that the knife, which was produced by the Investigating Officer, could cause the injuries on the person of the deceased. P.W.1 a is a co-villager, who shifted the injured-deceased to the hospital and also accompanied the dead body to the Kantabanji Hospital for postmortem examination. He has also proved the Inquest report, Ext. 3. P.Ws. 11 and 12 are examined as witnesses to the seizure of the wearing apparels of the injured, deceased and knife of the accused. P.W.13 is a Police Constable, who received the FIR and handed over it to the IIC, Kantabanji Police Station. P.W.14 is a Medical Officer, who treated the injured in the hospital and found following injuries on the body of the injured Udu Suna, P.W.4. "1. One lacerated wound, red in colour-size 2 cm x ½ cm size on the right side of the front of the chest. 2. One lacerated wound, red in colour, 1 cm x ½ cm on the medical side of distal phalanges of left little finger. It is simple in nature. 3. One stab wound on the left side of abdomen, 5" & ½” above the anterior-superior iliac spile. There was protrusion of the viscera (intestine) visible." He has opined that stab injuries are sufficient in ordinary course of nature to cause death, if not attended medically soon. He has also examined the knife-the weapon of offence produced by the IIC, Kantabanji P.S. and opined that the injuries were possible by the said weapon. There was protrusion of the viscera (intestine) visible." He has opined that stab injuries are sufficient in ordinary course of nature to cause death, if not attended medically soon. He has also examined the knife-the weapon of offence produced by the IIC, Kantabanji P.S. and opined that the injuries were possible by the said weapon. P.W.15 is the Inspector-in-charge, Kantabanji Police Station, who registered the FIR, arrested the accused, thereafter proceeded to the spot, investigated into the matter, seized the wearing apparels of the injured persons and prepared the seizure list and finally submitted the charge-sheet. In examination in-chief, he has stated that he conducted inquest over the dead body of Jhima Suna in presence of the witnesses and prepared the inquest report. He sent the dead body for post mortem examination to the C.H.C., Kantabanji and issued dead body challan, Ext. 5, it is admitted that on 19.02.2002 Udu Suna was sent to the Sub-Divisional Hospital, Titilagarh from Muribahal P.H.C. 8. As discussed above, it is crystal clear from the sustaining evidence of P.W.4, the seized knife and the injuries on the body of the deceased and the injured, chemical examination report and post mortem report that the appellant is the author of the injuries. Immediately after the occurrence, P.W.4 also disclosed the above fact to P.W.1, who has immediately lodged the FIR before the Police Station and shifted the three injured persons to the Hospital. There is no material to disbelieve the evidence of the prosecution witnesses. The Chemical Examiner has reported that the wearing apparels are stained with human blood and there is no explanation from the side of the defence, how human blood has come to the wearing apparels of the accused and the deceased and other injured persons. The motive of the case had also been proved by the prosecution. P. W.5, who was a hostile witness has been examined and cross-examined by the prosecution and had deposed very material part of the evidence. 9. In view of the above discussion, there is no material in the judgment of the trial Court requiring interference by this Court or the conviction and sentence of the appellant. The Jail Criminal Appeal is accordingly dismissed. I agree. Appeal dismissed.