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2014 DIGILAW 274 (ORI)

Asman Bindhani v. State of Orissa

2014-04-22

SATRUGHANA PUJARI

body2014
JUDGMENT S. PUJAHARI, J. : The appellant, here in this appeal calls in question the judgment and order of conviction and sentence passed against him in Criminal Trial No.4 of 2004 on the file of the Asst. Sessions Judge-cum-Chief Judicial Magistrate, Nabarangpur. The learned Asst. Sessions Judge, Nabarangpur vide the impugned judgment of conviction and order of sentence held the appellant guilty of the charge under Section 307 of the Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo rigorous imprisonment for eight years and to pay a fine of Rs.1,000/- and in default to undergo rigorous imprisonment for two years more. 2.The prosecution placed before the trial Court a case against the appellant as follows :- The appellant is the brother-in-law being the husband of the sister of the injured-Sitaram Bindhani (P.W.1). On 06.08.2003, on the occasion of “Chittau Amabasya”, the appellant had invited Sitaram Bindhani to his house to have a lunch with him. While the injured was in the house of the appellant, a quarrel ensued between them and during course of a quarrel, the appellant dealt a blow with an iron hammer to the head of the injured, for which he sustained injuries and became unconscious. The co-villagers along with the wife of the injured thereafter, shifted the injured to the hospital and the matter was reported to the police in writing by the injured vide Ext.4. On the basis of the report lodged, Umarkote P.S. Case No.61 of 2003 was registered and case was investigated. On completion of the investigation, police found substance in the said report, Ext.4 and placed charge-sheet against the appellant for the offence alleged under Section 307 of I.P.C. 3.The trial Court basing on the aforesaid materials, framed charge against the appellant under Section 307 of I.P.C. and as he denied the same, asked him to face the trial. On conclusion of the trial, the trial Court basically relying on the evidence of the injured (P.W.1) and also the other corroborative evidence of P.Ws.2 to 7, returned the judgment and order of conviction and sentence, as stated earlier. On conclusion of the trial, the trial Court basically relying on the evidence of the injured (P.W.1) and also the other corroborative evidence of P.Ws.2 to 7, returned the judgment and order of conviction and sentence, as stated earlier. 4.It has been contended by the learned counsel for the appellant that in this case, there being no credible evidence to show that the appellant assaulted the injured, inasmuch as the evidence of the injured (P.W.1) is not convincing, the impugned judgment and order of conviction and sentence as recorded by the trial Court, cannot be sustained scrutiny in the eye of law. It has also been contended that the act of the appellant is otherwise covered by the exception provided in Sections 85 and 86 of I.P.C. 5.In response, learned counsel for the State has supported the judgment and order of conviction and the sentence passed, as according to him, the injured who happens to be a close relation of the appellant, in no uncertain terms, deposed that the appellant assaulted him and the same is not covered by the exception as contended by the learned counsel for the appellant. Furthermore, it is submitted by him that the sentence imposed also appears to be proportionate to the facts and circumstances of the case and need no interference. 6.The evidence available on record would go to show that the injured, P.W.1 in no uncertain terms deposed that he had been to the house of the appellant, who is his brother-in-law being invited and there, a quarrel ensued between him and the appellant and the appellant assaulted him with an iron hammer (locally known as ‘Mutula’) from his backside, as a result of which he sustained injuries on his head and became unconscious. It has been elicited in the cross-examination from the injured that he could not see the appellant assaulting him as he (appellant) assaulted him from his backside and he was also then drunk. Drawing the notice of this Court to the aforesaid fact, the learned counsel for the appellant stated that the version of the P.W.1 in this regard, therefore, should not have been relied upon, more particularly when the injury found on him also possible by accidental fall and he was drunk. Drawing the notice of this Court to the aforesaid fact, the learned counsel for the appellant stated that the version of the P.W.1 in this regard, therefore, should not have been relied upon, more particularly when the injury found on him also possible by accidental fall and he was drunk. But, the evidence on record would go to show that the injured had categorically stated that in the house of the appellant when he and his sister were there, the appellant brought out a hammer and assaulted him. The injured was then in a state of intoxication. But, for that, it cannot be said that he was not in a position to identify the person who dealt him the blow there. Such version of the P.W.1 also gets corroboration from the F.I.R., Ext.4 lodged in this case soon after the occurrence in the Police Station. P.Ws.2 to 6 also stated to have categorically deposed that they shifted the injured from the house of the appellant who was there with the injuries sustained. The medical evidence also corroborates the fact that the injured sustained the injuries. P.W.7- Dr. S.K. Dash in his evidence deposed that he examined the injured, who sustained the injuries and also examined the hammer and stated that the injuries found on the person of the injured were possible by the same. The said evidence of the doctor also gets corroboration from the injury report (Ext.2), a contemporaneous document. It also cannot be lost sight of that the injured being the brother-in-law of the appellant, had no reason to falsely implicate the appellant. If at all the injured sustained any accidental injury, he could not have falsely implicated a person like his brother-in-law attributing that the same was caused to him by the appellant, particularly when both of them had cordial relations, as revealed from the fact that the injured was invited by the appellant for lunch of the date of occurrence to his house. The doctor no doubt, has expressed that the injury sustained is possible by accidental fall, but there being no foundational fact to suggest the injured sustained any accidental injury, such opinion evidence of the doctor cannot belie the prosecution case. Furthermore, the appellant also while being examined as witness has also given different version and not deposed the same. The doctor no doubt, has expressed that the injury sustained is possible by accidental fall, but there being no foundational fact to suggest the injured sustained any accidental injury, such opinion evidence of the doctor cannot belie the prosecution case. Furthermore, the appellant also while being examined as witness has also given different version and not deposed the same. The injured, P.W.1 in his cross-examination has denied that he sustained the injuries on his head on being dashed against doorframe. Thus, the defence case being not in conformity and there being no foundational fact to believe the defence version, the same cannot corrode the credibility of the version of the injured who in no uncertain terms deposed that the sustained the injuries in the house of the appellant as he was assaulted by the appellant. 7.The evidence of the injured, which gets corroboration from the medical evidence and also other contemporaneous evidence as well as his F.I.R. version, Ext.4 being clear, cogent and confidence inspiring, I see no reason to disturb the finding of the trial Court that it is the appellant who assaulted the injured with a hammer on his head. 8.The conviction of the appellant is also assailed on the ground that the same is covered by general exception in Sections 85 and 86 of I.P.C., inasmuch as the appellant being in a State of inebriation when he had no power of judgment allegedly caused the injuries to the injured. Therefore, it cannot be said that he had intended the injuries inflicted, hence entitled to an order of acquittal. Such contention of the learned counsel for the appellant appears to be fallacious, inasmuch as there is no evidence to show that the appellant by reason of intoxication was unable to knowing the nature of the act or that he was doing wrong or an act contrary to the law. There is also no evidence to show that the appellant had intended any other injuries and the injuries caused on the injured, was accidental. Virtually, no evidence has been led in this regard before the trial Court by the defence or no such evidence is forthcoming. There is also no evidence to show that the appellant had intended any other injuries and the injuries caused on the injured, was accidental. Virtually, no evidence has been led in this regard before the trial Court by the defence or no such evidence is forthcoming. Furthermore, even if for a moment, it is accepted that the appellant was incapable of judging by reason of inebriation while committing the act, still such a defence without any evidence to the effect that the intoxicant was a administered to him without his knowledge or against his will by anyone much less by the injured, such an exception is not available to defence. There being absolutely no evidence in this regard, the submission advanced by the counsel for the defence that the case of the appellant is covered by the exception under Sections 85 and 86 of I.P.C., appears to be fallacious. Since the appellant had intentionally caused the injuries by a deadly weapon on the head of the injured, he had the knowledge that the same was likely to cause the death of the injured and if the injured would have died in consequence of such injuries, the appellant could have been convicted for an offence under Section 302 of I.P.C.. The injured, however, having survived such injuries, it can very well be said that the appellant attempted to cause an offence of murder punishable under Section 307 of I.P.C. The trial Court appears to have taking into consideration the in impeachable evidence of the injured and other corroborative evidence and also the law in this regard, recorded the finding of guilt under Section 307 of I.P.C., as noticed by this Court on reappraisal of the evidence on record. Therefore, I see no apparent reasons to interfere with such finding of the trial Court. 9.So far as the sentence under Section 307 of the I.P.C. is concerned, regard being had to the facts and circumstance of the case and the gravity of the offence, I am of the considered opinion that the sentence imposed also appears to be commensurate one, hence needs no interference. 10.For the foregoing reasons, I find no merit in this appeal and, accordingly, dismiss the same. The impugned judgment and order of conviction and sentence recorded by the learned Asst. Sessions Judge-cum-Chief Judicial Magistrate, Nabarangpur are hereby confirmed. Appeal dismissed.