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2013 DIGILAW 165 (ORI)

State of Odisha v. Rama Chandra Hansda

2013-06-25

B.R.SARANGI, S.PANDA

body2013
JUDGMENT S. PANDA, J. - This appeal has been filed by the State of Odisha challenging the judgment dtd. 09.12.1998 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 59 of 1997 acquitting the respondent from the charges under Section 302 of IPC. 2. The case of the prosecution is that 12.10.1996 at about 4.00 P.M. there was altercation of words between the deceased Lopsa Soren and the respondent-Rama Chandra Hansda in connection with cutting of Canal water. The accused assaulted the deceased by means of a lathi in the house of the deceased and due to such assault the deceased sustained severe bleeding injuries on his head. The informant, son of the deceased on his return to house in the evening came to know about the incident from his mother and uncle that the accused assaulted the deceased in connection with cutting of Canal water. At about mid night the deceased lost his sense as no doctor was available for his treatment. He was admitted to Udala Hospital for treatment in the morning and succumbed to the injuries at about 8.00 P.M. of 14.10.1996. The informant lodged the FIR Ext. 1 which was registered as Udala P.S. Case No. 85 of 1996 under Section 302 of IPC and the investigation commenced. On completion of the investigation, the Investigation Officer-P.W. submitted the charge sheet and the accused faced trial. 3. The prosecution in support of its case examined as many as nine witnesses and exhibited several documents which were marked as Exts. 1 to 15. Out of the witnesses examined by the prosecution, P.W. 1 is the informant, the son of the deceased. P.Ws. 2, 3 and 4 are the wife, daughter and brother of the deceased respectively. P.W.3 is a co-villager of the accused, before whom the accused made disclosure statement to the police and gave recovery of the weapon of offence. P.W.6 is also a co-villager before whom the accused said to have made the extra judicial confession. P.W.7 is a seizure witness. P.W.9 is the doctor and P.W.8 is the Investigating Officer. 4. The accused taken the plea of denial and stated that the deceased has taken 'Handia' and in state of intoxication he picked up quarrel with him. In course of quarrel the deceased assaulted him by means of a stick causing bleeding injuries on the head of the accused. P.W.9 is the doctor and P.W.8 is the Investigating Officer. 4. The accused taken the plea of denial and stated that the deceased has taken 'Handia' and in state of intoxication he picked up quarrel with him. In course of quarrel the deceased assaulted him by means of a stick causing bleeding injuries on the head of the accused. To save himself the accused caught hold of the stick of the deceased, which was followed by a souffle between the deceased and accused. The deceased fell down near the fence and he left for Kushalda Hospital where he was treated for the head injuries and he was arrested on 15.10.1996. In support of the defence plea the accused has examined two witnesses out of whom D.W.1 is the Doctor, who had treated the accused on police requisition for the head injuries filed the injury report, which was marked as Ext. A. 5. On analyzing the materials on record the Trial Court held that there was mutual assault between the deceased and accused, in course of which both of them assaulted to each other by lathi and stick. The evidence of P.Ws. 1, 2 and 3, who are son, wife and daughter of the deceased indicates that the accused assaulted to the head of the deceased by lathi causing bleeding injuries. However, they do not utter a line in their evidence about the injury sustained by the accused on his head. The injury on the head of the accused though simple in nature but according to the medical report the injury was not minor nor superficial rather it was a bleeding injury on head i.e. a vital part of the body. The prosecution has not explained the injuries sustained by the accused from the very inception of the case. P.W.2, wife of the deceased who said to be eye witnesses to the occurrence, her evidence is weak and unbelievable and create a reasonable doubt against the prosecution case. Therefore, the prosecution suppressed the true story of genesis of the occurrence as such the prosecution becomes vulnerable. This being the position, prosecution witnesses cannot be wholly believed so as to arrive at the conclusion that the accused is the author of the crime. 6. The learned Addl. Therefore, the prosecution suppressed the true story of genesis of the occurrence as such the prosecution becomes vulnerable. This being the position, prosecution witnesses cannot be wholly believed so as to arrive at the conclusion that the accused is the author of the crime. 6. The learned Addl. Standing Counsel appearing for the appellant submits that as per the prosecution case there was altercation of words between the deceased and accused and the accused assaulted the deceased by means of a lathi and due to such assault the deceased sustained severe bleeding injuries on his head. He further submits that assault by the accused was not disposed and as reveals from the evidence of P.Ws. 1, 2 and 3, the death was due to such assault and the prosecution has proved its case beyond all reasonable doubt. Therefore, the accused should not have been acquitted by the Trial Court and the impugned judgment needs to be interfered with. 7. Learned counsel appearing for the respondent in support of the impugned judgment passed by the Trial Court submits that since the Trial Court has vividly discussed the evidence available on record and come to a conclusion that prosecution case is doubtful, the impugned judgment of acquittal needs not to be interfered with. 8. The Supreme Court in the case of State of U.P. v. Atar Singh and others reported in AIR 2008 SC 411 held that : "There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. xxx xxx xxx Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar ( AIR 1972 SC 2593 ) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh and others v. State of Bihar ( AIR 1988 SC 863 ), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise." 9. On perusal of the evidence of P.Ws. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise." 9. On perusal of the evidence of P.Ws. 2 and 3, it appears that they are the post occurrence witnesses. Both of them arrived at the spot after the assault and by that time the accused fled away from the spot. P.Ws. 1, 2 and 3 stated that the deceased has received bleeding injury and they have not stated regarding the assault by the deceased on the head of the accused. P.W. 9, the doctor who has conducted the post mortem over the dead body has stated that he found the following injuries: External injuries : (1) Haematoma 4" x 3" over right parietal region. (2) Haematoma 3" x 2" over vertex (3) Abrasion 1½' x ½' over right parietal region. (4) One bruise 4" x 1½' on right side back. Internal injuries : (1) Fracture of skull bone 4" along front parietal joint (2) Depressed fracture 1" over right parietal region (3) Extra-dural haemotama 4" x 4" x 2" on right parietal region (4) Sub-dural haemotama 1" x 1" over vertex P.W.9 further stated that the injuries are ante mortem in nature and are sufficient in ordinary course of nature to cause death. The cause of death was due to brain injury leading to cardio respiratory failure. From the evidence on record it is clear that the injuries on the head of the deceased were haemotama. Further from the evidence of D.W.1, the Doctor who has examined the accused on police requisition it appears that he found one bruise of size 2" x 2" M.M. x 4 M.M. on the scalp. The injury was simple in nature caused by a stick. The original injury report was sent to the A.S.I. of Police-in-charge of Kushalda Outpost. The carbon copy of injury report was marked as Ext. A. The scalp injury was on the vital part of the body. Police produced a stick stained with blood before him. D.W.2, who is a co-villager, also stated that while he was going to his field, he saw the accused and deceased scuffling among themselves and the deceased was holding a 'badi'. The accused was trying to snatch away the 'badi' from the deceased. Police produced a stick stained with blood before him. D.W.2, who is a co-villager, also stated that while he was going to his field, he saw the accused and deceased scuffling among themselves and the deceased was holding a 'badi'. The accused was trying to snatch away the 'badi' from the deceased. In course of scuffling between them the deceased fell down on stone near the fence of his bari. The rushed to the spot and found bleeding from the head of the accused and also bleeding from the head of the deceased. P.W.1, the informant also admitted in his cross-examination that there are trees inside the courtyard and also stones inside the compound. Hence, in the present case the prosecution has failed to prove guilt of the accused beyond all reasonable doubt. 10. In view of the aforesaid settled position of law and considering the cumulative effect of circumstances which have weighed with the Trial Court to pass an order of acquittal, it cannot be said that the view taken by the Trial Court is not a plausible view. That being so, this Court is not inclined to interfere with the impugned judgment of acquittal. The Government Appeal is accordingly dismissed. Appeal dismissed.