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2014 DIGILAW 236 (ORI)

Akam Bhoi v. State of Orissa

2014-04-09

BISWAJIT MOHANTY, PRADIP MOHANTY

body2014
JUDGMENT : BISWAJIT MOHANTY, J. In Jail Criminal Appeal No. 57 of 2004, one Akam Bhoi is the appellant. He has been convicted for commission of offence under Section 302 of IPC and has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-and in default of such payment to undergo R.I. for further three months by the learned Sessions Judge, Dhenkanal in S.T. Case No. 355 of 2001. The other appellant-Daya Bhoi, who is the father of Akam Bhoi has filed Criminal Appeal No. 160 of 2004 challenging his conviction under Section 354 of IPC in the above noted S.T. Case. The learned Sessions Judge, Dhenkanal has sentenced him to undergo rigorous imprisonment for a period of one year under Section 354 of IPC. 2. Since both the above noted appeals arise out of a single judgment and order dated 13.05.2004 of the learned Sessions Judge, Dhenkanal in S.T. Case No. 355 of 2001, the same have been heard together and are being disposed of by this common judgment. 3. The prosecution case in brief is that the deceased-Ganeswar, the father of P.W.1 was a carpenter by profession. P.W.8 had supplied him a piece of wood for preparation of one yoke for him, which the deceased had assured to deliver within ten days. Prior to the date of occurrence, appellant-Akam wanted to take that yoke, but the deceased refused his request. Thereafter, P.W.8 came and took away his yoke after giving Rs. 50/- to the deceased. After one day of delivery of yoke to P.W.8, appellant-Daya came near the house of the deceased on 16.05.2001 and started abusing the members of his family in filthy language. When P.W.1, the daughter of the deceased came out from her house and protested as to why he was abusing, the appellant-Daya gave one kick to her left thigh and also dragged her saree and made her naked. Further, appellant-Daya gave a push to P.W.1, as a result of which, P.W.1 fell on the ground. At that point of time, appellant-Daya gave kicks to the belly of P.W.1. Hearing the shouts of P.W.1, the deceased came there and protested the action of appellant-Daya. At that point of time, appellant-Daya called Akam to come to the spot with a Gainti in order to kill the deceased. At that point of time, appellant-Daya gave kicks to the belly of P.W.1. Hearing the shouts of P.W.1, the deceased came there and protested the action of appellant-Daya. At that point of time, appellant-Daya called Akam to come to the spot with a Gainti in order to kill the deceased. Accordingly, Akam came with Gainti and dealt a blow to the deceased on his head. Consequently, the deceased sustained serious head injury and succumbed to the same. 4. P.W.1 lodged a written report alleging the murder in Sanda Police Outpost under Parjang P.S. As it revealed a cognizable offence, P.W.11, who was attached to the Out Post as A.S.I. of Police treated that as an F.I.R. (Ext. 17) and sent it to Parjang P.S. for registration of a case. He took up preliminary investigation examining the informant (P.W.1) and deputed one Constable to guard the dead body. He also examined other witnesses. On that date, i.e., 16.05.2001 by 4.00 P.M., P.W.10 took over the charge of investigation from P.W.11 as directed by O.I.C. P.W.11 also seized the articles for sending the same to S.F.S.L., Bhubaneswar for their chemical examination. After P.W.10 took up the investigation, he held inquest over the dead body of the deceased-Ganeswar and prepared the inquest report (Ext. 7). He also examined the witnesses and despatched the dead body for post mortem examination vide dead body challan Ext. 10, conducted raid, arrested the appellants and seized the weapon of offence, i.e., Gainti (M.O.I) from the house of Akam in presence of P.W.6 and P.W.9. During course of investigation, P.W.10 examined P.Ws. 2 and 8. He (P.W.10) also sent requisition for opinion of the doctor on weapon of offence, i.e., Gainti. On completion of investigation, police submitted charge sheet against the appellants. The plea of the appellants is one of complete denial. 5. The prosecution in order to bring home the charges, examined 11 witnesses including the doctor and the investigating officer and also exhibited 16 documents. The defence examined none. In the examination under Section 313 of Cr.P.C., the appellants denied all the questions put to them. On completion of trial, the appellant-Akam was found guilty under Section 302 of IPC and the appellant-Daya was found guilty for commission of offence punishable under Section 354 of IPC. 6. Mr. The defence examined none. In the examination under Section 313 of Cr.P.C., the appellants denied all the questions put to them. On completion of trial, the appellant-Akam was found guilty under Section 302 of IPC and the appellant-Daya was found guilty for commission of offence punishable under Section 354 of IPC. 6. Mr. G.S. Pani, learned counsel appearing for the appellant-Akam submitted that the learned Court below has gone wrong in convicting the appellant under Section 302 of IPC as according to him scanning of the entire evidence would show that testimonies of eyewitnesses are replete with material contradictions and in such background the learned Court below has gone wrong in convicting the appellant-Akam under Section 302 of IPC. Alternatively, he contended that even if it is held that the prosecution has made out a case against appellant-Akam, according to him, the same maybe a case under Section 304 IPC and not Section 302 of IPC. However, ultimately, he reiterated that prosecution has not been able to prove charges against his client-Akam beyond reasonable doubt and accordingly Akam should be acquitted of all the charges and be set at liberty. 7. Learned counsel appearing for appellant-Daya submitted that only material against his client flows from the evidence of P.W.1 and no other witness has supported P.W.1 on her version, which has ultimately resulted in conviction of the appellant under Section 354 of IPC. Further, according to him, learned Court below has completely ignored the plea of alibi relating to appellant-Daya as has come out clearly from the evidence of D.W.1. For all these reasons, he prays that the appeal filed by the appellant-Daya, namely, Criminal Appeal No. 160 of 2004 be allowed and his client, who is an old man of 75 years be set at liberty. 8. Mr. Agarwalla learned Addl. Standing Counsel for the State, vehemently defended the impugned judgment and contended that the appellants have been rightly convicted on the version of eye-witnesses like P.Ws. 1, 2, 3 and 4 and that the core prosecution story as emanated from the mouth of P.Ws. 1, 2, 3 and 4 has been corroborated by P.Ws. 5, 6 and 9. Therefore, according to him the impugned judgment requires no interference. Further, he submitted that the version of D.W.1 is not believable because appellant-Daya never took the plea of alibi even when he was examined under Section 313 of Cr.P.C. 9. 1, 2, 3 and 4 has been corroborated by P.Ws. 5, 6 and 9. Therefore, according to him the impugned judgment requires no interference. Further, he submitted that the version of D.W.1 is not believable because appellant-Daya never took the plea of alibi even when he was examined under Section 313 of Cr.P.C. 9. Perused the LCR. At the outset it may be noted here that there is no challenge to the fact that death of the deceased was homicidal in nature. Scanning of evidence of P.W.1 would make it clear that she is an eye-witness to the occurrence of murder of her father (deceased). In her examination-in-chief she has stated that her deceased-father was a carpenter and P.W.8 had given him a piece of wood for preparation of a yoke for him. One day prior to the occurrence the appellant-Akam asked the deceased to give that yoke to him to which the deceased-father refused. Thereafter, P.W.8 came and took away his yoke after making necessary payments. After delivery of yoke to P.W.8, the appellant-Daya came to the house of the deceased and started abusing the members of his family in filthy language. When P.W.1 came out from her house and protested to the same, appellant-Daya gave a kick on her left thigh and thereafter dragged her saree and made her naked. Appellant-Daya also gave her a push resulting her to fall down on the ground. Thereafter, according to P.W.1, appellant-Daya gave kicks to her belly. Hearing her shouts, her deceased father came there and protested the action of appellant-Daya. By that time appellant-Daya caught hold of the neck of the deceased-father and called his son appellant-Akam to come to the spot with Gainti to kill the deceased. Immediately, appellant-Akam came with one Gainti and gave a blow on the head of her deceased-father with the same. After sustaining the Gainti blow, her deceased-father lost his sense and fell down. Due to such blow, there was a hole on the head of the deceased and brain matters along with blood came out from the head of the deceased. This incident was witnessed by P.Ws. 2, 3 and 4. According to P.W.1, after all these, she and her husband proceeded to Sanda Out Post to report the matter and on the way they saw P.W.6 and got one report written through him. This incident was witnessed by P.Ws. 2, 3 and 4. According to P.W.1, after all these, she and her husband proceeded to Sanda Out Post to report the matter and on the way they saw P.W.6 and got one report written through him. P.W.6 wrote the report as per their version and ultimately P.W.1 submitted this report to the police at Sanda Out Post under parjang P.S. In her cross-examination, P.W.1 denied a suggestion that she did not state before the police that on the date of occurrence, appellant-Daya came near her house and abused her. She also denied a suggestion that she had not stated before the police nor mentioned in the FIR that appellant-Daya gave one kick to her left thigh and that she did not state before the police that appellant-Daya caught hold of the neck of her father and called Akam to come with a Gainti to kill her father. She also stated that they shifted the injured father to Kusumi hospital and later on to Parjang hospital. She also denied suggestions to the effect that appellant-Daya did not try to remove her cloth and that she was not made naked by Daya. Further, in her cross-examination, she stated that she heard from her father that there was a dispute between P.W.8 and appellant-Akam regarding the piece of wood, which P.W.8 had given to her deceased father for preparation of a yoke. She also made it clear that appellant-Akam gave a Gainti blow on the head of the deceased and, thereafter he rushed to his house with said Gainti. P.W.11 in cross-examination has stated that P.W.1 had not stated before him specifically the abusive words "GEHI BEDHEI MAIPA". But P.W.11 admitted that P.W.1 stated before him that appellant-Daya had abused her. P.W.2 in his examination-in-chief has stated that on the date of occurrence, when he was going to the pond along with another villager, he saw there was exchange of words between P.W.1 and appellant Daya and by that time P.W.1 was found lying on the ground and deceased was there at the spot. Immediately appellant-Akam rushed to the spot with a Gainti and gave one Gainti blow on the head of the deceased and due to such assault, a hold was made on the head of the deceased and the brain matters came out with blood and the deceased fell down on the ground. Immediately appellant-Akam rushed to the spot with a Gainti and gave one Gainti blow on the head of the deceased and due to such assault, a hold was made on the head of the deceased and the brain matters came out with blood and the deceased fell down on the ground. In the cross-examination he has stated that there was a fight between P.W.1 and appellant-Daya. Thereafter, being afraid he left the spot. On the next date of occurrence, he was examined by the police. He also admitted that he was in no way related to P.W.1. He denied a suggestion that he did not state before the police that he saw P.W.1 lying on the ground. But P.W.1 in cross-examination has stated that P.W.2 never stated before him that he saw P.W.1 lying on the ground. P.W.2 in cross-examination has denied a suggestion that there was no quarrel between P.W.1 and the deceased on one hand and appellant-Daya on the other hand. P.W.3 in his examination-in-Chief has stated that hearing hullah, he came to the spot and saw P.W.1 and appellant-Daya holding one lathi from both the ends and P.W.1 was lying on the ground. At that point of time, appellant-Akam came to the spot with a Gainti and gave one blow by means of that Gainti on the head of the deceased and the sharp portion of the Gainti entered into the head of the deceased, for which he fell down on the ground, In his cross-examination he stated that appellant-Akam gave one Gainti blow on the head of the deceased and that the deceased was not his relation. He denied suggestions to the effect that he did not state before the police that P.W.1 and appellant-Daya had caught hold of both the sides of one lathi and P.W.1 was lying on the ground. However, P.W.11 in cross-examination has stated that P.W.3 has never stated before him that P.W.1 and Daya had caught hold of both the sides of one lathi and P.W.1 was lying on the ground. P.W.4 in his examination-in-chief has stated that after hearing hullah when he came out from his house, he saw appellant-Daya and P.W.1 being surrounded by the villagers and at that time appellant-Akam came with a Gainti and gave one Gainti blow on the head of the deceased. P.W.4 in his examination-in-chief has stated that after hearing hullah when he came out from his house, he saw appellant-Daya and P.W.1 being surrounded by the villagers and at that time appellant-Akam came with a Gainti and gave one Gainti blow on the head of the deceased. The sharp age of the Gainti entered into the head of the deceased and he fell down on the ground. He stated that he could identify the Gainti by which appellant-Akam assaulted the deceased and accordingly he identified that Gainti as M.O.I. In cross-examination, he reiterated that appellant-Akam gave one Gainti blow on the head of the deceased. He also admitted that P.W.1 is in no way related to him. He denied a suggestion that M.O.I did not belong to appellant-Akam and that police had not shown M.O.I to him at any time. P.W.5, the Medical Officer, who examined P.W.1 and deceased in his examination-in-chief has stated that on 16.05.2001, while working as Medical Officer, CHC, Parjang, he examined P.W.1 and found no external injury on P.W.2. On 7.5.2001, he conducted post mortem examination over the dead body of the deceased and found the following injuries. "External Injury : 1. Stout body, length of body, eyes open, mouth closed, no rigor mortis in both extremities and neck. Rigor mortis present in lower extremity and feet. 2. Lacerated injury 3 cm x 2 cm x bone deep on the scalp in middle part of the head (pariecto-parietol junction) 3 cm. behind the forehead. Internal Injury : On dissection I found as follows : 1. Depressed fracture, on both parietal bones 2.5 cm. x 2 cm. x 3 cm just below the injury of the scalp noted above. 2. Lacerated injury 2 cm. x 1 cm. x 1 cm. of the cerebrum just below the fracture of the parietal bone." He further opined that cause of death of the deceased was due to shock and due to head injury and both the fractured injuries were sufficient in ordinary course of nature to cause death of a person and that the injuries were ante mortem in nature and might have been caused by one Gainti. He also made it clear that the death of the deceased was homicidal in nature. He also made it clear that the death of the deceased was homicidal in nature. In his examination-in-chief he further stated that police had sent one Gainti (M.O.I) and he has opined that injuries found on the dead body of the deceased can be possible by the said Gainti. He proved postmortem examination report as Ext. 4 and query made by the police as Ext. 5 and Ext. 5/1 as his reply to the query. In the cross-examination, P.W.5 has stated that measurement given in his report tallies with the measurement of M.O.I and that M.O.I is the said Gainti which was sent to him for his opinion. Thus, nothing has been elicited in the cross-examination to disbelieve his version. P.W.6 in his examination-in-chief has stated that as per the version of P.W.1, he scribed the FIR (Ext. 1) and that the contents of the said FIR were read over and explained to P.W.1, who after finding the facts in the FIR to be correct, put her signature. He further submitted that in his presence one Gainti was recovered from the house of appellant-Akam by the police and the police seized the same in his presence. Ext. 6 is that seizure list. He also proved the inquest report under Ext. 7. In cross-examination, he made it clear that the contents of the FIR were read over and explained to the informant and finding the contents to be true, the informant has signed the same. However, he has stated in the cross-examination that he cannot say if M.O.I is Gainti that has been recovered from the house of accused-Akam and that Gainti like M.O.I is available in the local market. P.W.7 is the Constable who proved the command certificate (Ext. 9) and dead body challan under Ext. 10. He identified the dead body to the doctor for conducting postmortem examination. He was not cross-examined by the appellants. P.W.8 in his examination-in-chief has stated that he had taken a piece of wood from Akam for Rs. 10/- and gave that piece of wood to the deceased to prepare a yoke for him but he stated that he did not know about the occurrence between appellant-Akam and deceased-Ganeswar. In cross-examination, he stated that appellant-Akam was regularly assaulting appellant-Daya and they were not pulling on well. 10/- and gave that piece of wood to the deceased to prepare a yoke for him but he stated that he did not know about the occurrence between appellant-Akam and deceased-Ganeswar. In cross-examination, he stated that appellant-Akam was regularly assaulting appellant-Daya and they were not pulling on well. P.W.9 in his examination-in-chief has stated that in his presence appellant-Akam produced one Gainti from his house which was seized by the police. He also stated that at the time of seizure P.W.6 was present at the spot, who has signed the seizure list under Exts. 6 and 8. In cross-examination, he stated that he cannot say who brought the Gainti from which place but he denied a suggestion that nothing was seized in his presence. P.W.10, the I.O. held inquest over the dead body, despatched the dead body for postmortem examination, arrested the accused persons and seized M.O.I vide seizure list (Ext. 6). He sent requisition for opinion of the doctor on the weapon of offence. He also seized the wearing apparels of appellant-Akam. In cross-examination, he stated that he did not find any mark of violence at the spot and he did not seize an blood stained earth or sample earth. He has also stated that if he could have seen any bloodstain earth, he would have seized the same. In cross-examination, he admitted that he had examined. P.W.2 and P.W.8. He denied a suggestion that he did not seize any Gainti. The other I.O., P.W.11 took up preliminary investigation prior to P.W.10. As per his examination-in-chief he deputed one Constable to guard the dead body at the spot. He also prepared the spot map and examined the witnesses. As per his examination-in-chief he had sent the seized articles to S.F.S.L., Bhubaneswar for their chemical examination. In cross-examination, he stated that P.W.1 did not state before him specifically the abusive words "GEHI BEDHEI MAIPA" though she stated that appellant-Daya was abusing her. He also made it clear that P.W.2 has not stated before him that he saw P.W.1 lying on the ground. According to him P.W.3 never stated before him that P.W.1 and appellant-Daya had caught hold of both the sides of one lathi and P.W.1 was lying on the ground. He also made it clear that P.W.2 has not stated before him that he saw P.W.1 lying on the ground. According to him P.W.3 never stated before him that P.W.1 and appellant-Daya had caught hold of both the sides of one lathi and P.W.1 was lying on the ground. He also stated to have examined P.W.4, but he denied a suggestion that he had not gone to the spot and without examining the witnesses, he had submitted the case diary. D.W.1 in his examination-in-chief stated that on the date of occurrence around 11.30 A.M. to 12.30 P.M. appellant-Daya was in his house and was feeding the cattle. He further stated that appellant-Daya was working as field servant in his house. In his cross-examination he stated that after hearing about the occurrence he had been to the spot and found that the deceased had already been shifted to the hospital. He further admitted in cross-examination that for the first time he was making the statement in this regard and that he was deposing the fact which he had seen and as asked by appellant-Daya. 10. From the analysis of above evidence, it is clear that with regard to core story of assault on the deceased by the appellant-Akam by using a Gainti on his head remains un-demolished. Evidence of P.Ws. 1, 2, 3 and 4 on this aspect corroborates one another and such evidence is also supported by the evidence of P.Ws. 5 and 6. P.W.5 makes it clear that injuries suffered by the deceased are possible by Gainti under M.O.I and such injuries were sufficient in ordinary course of nature to cause death of a person. P.W.6 is a witness to the seizure of Gainti from the house of the appellant-Akam. It was in his (P.W.6) presence the Gainti was seized from the house of appellant-Akam. In such background, we cannot accept the contention of learned counsel for the appellant-Akam that the learned Court below has gone wrong in accepting the testimonies of eye-witnesses like P.Ws. 1, 2, 3 and 4 in convicting the appellant-Akam under Section 302 of IPC. Further, a scanning of evidence makes it clear that no case is made out under Section 304 IPC. The present is not a case which falls under any of the exception to Section 300 IPC. 1, 2, 3 and 4 in convicting the appellant-Akam under Section 302 of IPC. Further, a scanning of evidence makes it clear that no case is made out under Section 304 IPC. The present is not a case which falls under any of the exception to Section 300 IPC. The learned Court below has correctly held that the act of appellant-Akam squarely falls under the third clause of Section 300 of IPC amounting to commission of murder. P.W.5 in his examination-in-chief has clearly stated that the fractured injury was sufficient in ordinary cause of nature to cause death and such injuries were all ante mortem in nature. Thus, the JCRLA No. 57 of 2004 filed by appellant-Akam has no merit. 11. So far as conviction of appellant-Daya under Section 354 of IPC is concerned, according to us, no infirmity can also be found on that. Counsel for the appellant-Daya contended that evidence of P.W.1 with regard to outraging of her modesty has not been corroborated by other eye-witnesses like P.Ws. 2, 3 and 4. But, it appears from the evidence of P.Ws. 2, 3 and 4 that they arrived at the spot at a later stage on hearing hullah. But, there is nothing to disbelieve the version of P.W.1 with regard to the acts of the appellant-Daya vis-a-vis her relating to outraging of her modesty. The statement of P.W.1 that appellant-Daya abused her, gave kick to her left, thigh, pulled her saree and kicked her belly etc. remains un-demolished in the cross-examination. Only there exists some dispute on her lying on the ground as P.W.11 in cross-examination has stated that P.Ws. 2 and 3 never stated before him that P.W.1 was lying on the ground. Even if we ignore that part of the evidence of P.Ws. 1, 2 and 3 with regard to P.W.1 lying on the ground, however, other statement of P.W.1 in her examination-in-chief relating to outraging of her modesty remains un-demolished. Therefore, no wrong has been committed by the learned Court below in convicting the appellant-Daya under Section 354 of IPC. It is nowhere a requirement of law that in order to make out a case under Section 354 of IPC, a corroboration of the statement of victim is a must. Therefore, no wrong has been committed by the learned Court below in convicting the appellant-Daya under Section 354 of IPC. It is nowhere a requirement of law that in order to make out a case under Section 354 of IPC, a corroboration of the statement of victim is a must. It must not be forgotten that a statement by a victim whose modesty has been outraged stands in the same footing as that of an injured witness and her version is entitled to get much weight. 12. Learned counsel for the appellant-Daya puts much stress on the evidence of D.W.1. However, evidence of D.W.1 cannot be accepted for the following reasons: 1. Appellant-Daya himself never took the plea of alibi while being examined under Section 313 of Cr.P.C. 2. While cross-examining P.W.1, defence never-gave any suggestion that appellant-Daya was never at the spot and was in the house of D.W.1 when the alleged occurrence took place. 3. D.W.1 in his cross-examination has admitted that he is making all these statements for the first time in the Court and that he was deposing the facts as asked by appellant-Daya. 13. All these demolish the version of D.W.1 and rather the same strengthen the prosecution story. However, considering the fact that the appellant-Daya is an old man, while confirming his conviction under Section 354 of IPC, we reduce his sentence to the period he has already undergone in the judicial custody. According to learned counsel for the appellant-Daya, appellant-Daya has suffered incarceration from 16.05.2001 to 20.09.2001. However, he is directed to pay a fine of Rs. 3,000/- and in default of such payment, he has to undergo rigorous imprisonment for three months more. In case of realization of fine, the same be paid to the victim (P.W.1). 14. For all these reasons, the judgment and order dated 13.05.2004 passed by the learned Sessions Judge, Dhenkanal in S.T. Case No. 355 of 2001 convicting the appellants are confirmed with the above noted modifications. Accordingly, both the appeals are disposed of. PRADIP MOHANTY, J. I agree. Appeals disposed of.