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2014 DIGILAW 447 (ORI)

Debananda Bhoi v. State of Orissa

2014-07-25

D.DASH

body2014
JUDGMENT : The present appeal has been directed against the Judgment of conviction & order of sentence passed by the Learned Sessions Judge, Bolangir in Sessions Case No. 88 of 1990 convicting the Appellant for offence under Section 304 (II) IPC & sentencing him to undergo rigorous imprisonment for two years with payment of fine of Rs. 1000 in default to undergo simple imprisonment of three months. 2. Prosecution case in short is that on 30.06.1990 around 11.00 AM Sarkaru Bhoi had been to his land situated near canal, locally known as 'Khaliaduli'. It is stated that Appellant had raised ridge over his land & in doing so, some earth had got staked on the land of Sarkaru. So, Sarkaru asked the Appellant for not putting earth on his land in that way. It is next stated that the Appellant suddenly became angry & chased to assault Sarkaru with a spade. It is alleged that the Appellant dealt a blow with that spade on the back of the head of Sarkaru resulting his fall. It is said that the Appellant fled away from the spot. Sarkaru was liftted from the place by Nuakhau Behera & others who carried him first to his house & then to Rampur Police Station where he lodged a written report of the incident. Police registered the case on that basis & the investigation commenced. Injured Sarkaru was taken to Rampur hospital for medical examination & Appellant in the meantime was arrested & released on bail as the offence by then was one under Section 323 IPC. On 05.07.1990 information came to be received by poi ice that Sarkaru who was being finally treated at Burla hospital met his death. Accordingly the case got converted to graver offence & the Appellant ultimately being charge-sheeted faced the trial being charged for offence under Section 302 IPC. The defence of the Appellant is of complete denial that he never assaulted Sarkaru with spade & that he has been falsely implicated 3. Prosecution has examined 12 witnesses, when no witness has been examined from the side of the defence. F.I.R. & other documents h8.ve also been admitted in evidence from the side of the prosecution during trial. 4 The Trial Court on going through the evidence first of all has gone, to answer that Sarkaru met homicidal death. Prosecution has examined 12 witnesses, when no witness has been examined from the side of the defence. F.I.R. & other documents h8.ve also been admitted in evidence from the side of the prosecution during trial. 4 The Trial Court on going through the evidence first of all has gone, to answer that Sarkaru met homicidal death. Next on the point of complicity of the Appellant, the Court below having analyzed & evaluated the evidence on record has arrived at a finding that the prosecution has been able to establish the factual aspect of the case that it is the Appellant who had given one blow by spade on the back of the head of the Sarkaru on the spur of the moment in course of quarrel without pre-mediation or prior enmity or without any previous ill will. In view of the above, the Trial Court has found the Appellant guilty for commission of off, nee under Section 304 (II) IPC & accordingly, the Appellant has, been convicted & sentenced as stated above. 5. Learned Counsel for the Appellant (amicus curie) submits that in this case, the appreciation of evidence as done by the Trial Court is improper. According to him, the Trial Court ought not to have relied upon the evidence of P.W.3 & 4 for fastening the guilt upon the Appellant. He further submits that the Trial Court has ignored the fact that the prosecution has adopted pick & choose method in examining the eye witnesses & only the relation & interested witnesses have been selected for being examined while leaving others. So according to him, non-examination of other eye witnesses is fatal to the case of the prosecution & the 'version of the case as presented ought not to have been accepted. He further submits that eyen accepting the case of• prosecution as laid, the case is one for conviction for offence under Section 325 IPC & not for offence under Section 302 (II) IPC as done. In order to butress his submission, he has placed the evidence of P.W. 3 & 4 to the effect that evidence as developed during trial that the blow as given with the blunt side of the iron portion of the axe is not believable & it is to be held that the blow was with the handle of the spade. In order to butress his submission, he has placed the evidence of P.W. 3 & 4 to the effect that evidence as developed during trial that the blow as given with the blunt side of the iron portion of the axe is not believable & it is to be held that the blow was with the handle of the spade. So the Trial Court having accepted that by giving a clear finding in para 9 (nine) of the Judgment has erred in the law by going to convict the Appellant for offence under Section 304 (II) IPC & that is not keeping in view all other relevant circumstances as those emanate from evidence on record. Thus, he contends that in the alternative, the Appellant may be held liable for offence under Section 325 IPC & the order of sentence in that event is also liable to be modified. Last but not the least, he contends that considering all the relevant factors, even in the event of confirmation of conviction under Section 304-11 IPC, the substantive sentence if reduced to the period undergone would be just & proper & would meet the ends of justice. 6. Learned Counsel' for the Respondent-State, on the other hand, supports the finding of the Trial Court which according to him is based on proper appreciation of evidence. According to him, the Trial Court has taken all the circumstances as those emerge out of the evidence on record & has accordingly proceeded to appreciate the evidence of P.W. 3 & 4 as well as the other evidence. He contends that the finding rendered by the Trial Court holding the Appellant liable for offence under Section 304 (II) IPC is unassailable. According to him, when P.W. 3 & 4 have deposed in clear terms as regards the role of the Appellant as the assailant, & their evidence is clear, cogent & trustworthy, the prosecution cannot be blamed for non-examination of other eye-witnesses as the prosecution is not bound to examine all witnesses & particularly when their non-examination does not call for any inference in the absence of any material to suggest even that they attempted to suppress the truth. He also contends that interestedness or relationship of witnesses with the deceased itself is no ground to suspect the evidence of those witnesses & approach those with distrust. So, he submits that the appeal bears no merit. 7. He also contends that interestedness or relationship of witnesses with the deceased itself is no ground to suspect the evidence of those witnesses & approach those with distrust. So, he submits that the appeal bears no merit. 7. Keeping in view all the above submissions this Court is now called upon to examine the evidence let in by the prosecution in order to judge the defensibility of the finding of guilty rendered by the Trial Court against the Appellant. The question first required to be answered is as to whether Sarkaru has meet homicidal death. He was first treated by the doctor who has been examined as P.W. 6. It is his evidence that he found two swellings of 2" diameter on the occipital reason & one abrasion of 1" diameter over the left zygomatic region. His further evidence is that the injuries were simple in nature. Ultimately on Sarkaru's death, P.W. 9 has conducted the autopsy over the dead body. He has gone to depose that on dissection he found contusions on scalp on occipital region of the size of 4"x 3"; with linear fracture on scalp on right temporal region of 2" long with sub-dural blood clot on the left temporal region & laceration of brain matter. His further evidence is that all of these injuries are ante-mortem in nature & sufficient in ordinary cause of nature to cause death. He has specifically deposed that the death was homicidal. This evidence marches over the evidence of P.W.6. Absolutely no challenge is levelled to said evidence by the defence. Therefore, irresistible conclusion stands that Sarkaru met homicidal death & the Trial Court finding on that score is found to be correct. 8. Now coming to the important point for determination as regards the complicity of the Appellant in causing such death of Sarkaru. the entire prosecution case as it appears rests on the evidence of two eye witnesses who are P.W. 3 & 4. P.W. 3 has stated that during noon hours, when he was going for bath, he heard hullah near the 'Duli' of the Appellant & saw the Appellant assaulting Sarkaru with a spade with its blunt side oil the back of his head. He has further come forward to say that the said incident has been seen by Dakhila Bhoi, P.W. 4. He has further come forward to say that the said incident has been seen by Dakhila Bhoi, P.W. 4. It is his evidence that both of them lifted Sarkaru, took him to the ridge & carried him to the police station in a basket & then to the hospital, wherefrom they took him back Jo his house. This witness was examined in course of investigation under Section 164 Cr. P.C. & said statement has been marked through this witness as Ext. 4. He is none other than the nephew of the deceased Sarkaru. This witness appears to have withstood the cross-examination successfully. He has further deposed that the Appellant fled away from the scene of occurrence after the blow & that he had dealt the blow by means of spade on the back of the head of Sarkaru resulting some swelling. Nothing surfaces in his evidence so as to discard his version with regard to the tact that he had witnessed the occurrence & as regards the role played by the present Appellant therein giving blow by means of spade on the head of Sarkaru on its back. However, his evidence remains on the score that prior to the dealing of the blow by the Appellant & infliction of the injury he had heard hulla which in commonsense leads to an inference that there was hot exchange of words between the two. 9. Let us now turn attention now to the evidence of P.W.4. He has stated that when he at the relevant time was on his land, he saw that the Appellant & Sarkaru were engaged in hurling abuses to each other & quarrelling. He has further deposed that during the quarrel the Appellant dealt a spade blow with the blunt side on the back of the head of Sarkaru & then fled away & as a result of the said blow. Sarkaru fell on the ground. Next he has gone to depose about his immediate reaction in going near the place & lifting of Sarkaru with P.W, 3; carrying him in a basket to the police station. This witness has also been cross-examined at length & during then he has reiterated to have seen the assault & again has stated as regards the manner of assault by the Appellant in further clear terms. This witness has also been cross-examined at length & during then he has reiterated to have seen the assault & again has stated as regards the manner of assault by the Appellant in further clear terms. Both these above witnesses when during trial have deposed that the blow was given on the blunt side of the spade by the Appellant on the head' of the deceased on its back; their earlier version during investigation of course are otherwise & not to the effect that the blow was given by the Appellant using blunt portion of the spade. It has been proved through P.W. 8, the Investigating officer who had recorded their statements. But this cannot be said to be a material discrepancy so as to discard their version all together as regards their witnessing the incident & more particularly the role of the Appellant therein. Both of them have stated that blow was given .by the Appellant with spade on the back of the head of the deceased. Admittedly, they were not close to Sarkaru & came near on seeing the assault when Respondent took to his heels. Under the circumstance, it is but natural on their part not to have exactly witnessed as to which part of the spade ultimately came in contact with the head & was hit. Such discrepancy thus, here does not appear to be material one & rather is bound to occur & is very natural. True it is there in evidence that there were other eye witnesses but in the absence of anything being brought out in cross- examination that these two witnesses examined had any axe to grind against the Appellant, non-examination of other eye witnesses cannot be said to be fatal to the case of the prosecution in the absence of evidence to show that it was purposeful & to suppress truth. The relationship of P.W. 3 also cannot be taken to be the sole ground to discard his testimony when it otherwise appears to be natural & no such doubtful or suspicious circumstance emanate to discredit their evidence to suspect their version as regards their presence at the relevant time near the place of occurrence. The relationship of P.W. 3 also cannot be taken to be the sole ground to discard his testimony when it otherwise appears to be natural & no such doubtful or suspicious circumstance emanate to discredit their evidence to suspect their version as regards their presence at the relevant time near the place of occurrence. Therefore, the prosecution case that the Appellant had dealt blow on the back of the head of the deceased has been established beyond reasonable doubt & also that the blow was given with the handle of the spade M.O.I, resulting the ultimate death of Sarkaru. In view of above, the Trial Court's finding of this score is found to be impregnable. 10. Next question arises as to whether the Trial Court was right in recording the conviction for offence under Section 304 (II) IPC or not. It is there in the evidence as already discussed that in the F.I.R. it finds mention that quarrel ensued first between the Appellant & the deceased & they remained engaged for sometime in exchanging words between them. It is also the evidence of P.W. 3 & 4 that the blow was given by the Appellant in course of the said quarrel. The evidence of P.W. 4 is that the blow was given with the' blunt portion of the iron of the spade is not believable & it remains the evidence that the blow was by means of handle of the spade. It is true that the head injury caused thereby has ultimately led to the death of the Sarkaru. It has also been brought out in evidence that after some first aid treatment in the Rampur PHC, Sarkaru was taken back home & then after 3-4 days he was taken to Burla hospital. So, there appears that had there been some promptness in the treatment the death would not have been hastened but that lack can not be attributed as the sole cause for the death. It is the evidence that the solitary blow was given & most importantly it is stated by P.W. 6 that injury was sufficient in ordinary case of nature to cause death when it also appears in evidence that the blow was given by means of handle of the spade on vital part. It is the evidence that the solitary blow was given & most importantly it is stated by P.W. 6 that injury was sufficient in ordinary case of nature to cause death when it also appears in evidence that the blow was given by means of handle of the spade on vital part. Cumulatively viewing all these, it can only be said that the Appellant has caused the .injury with the knowledge that it is likely to cause death. The submission of Learned Counsel for the Appellant on this score cannot be countenanced. Therefore, the finding of the Trial Court holding Appellant guilty of offence under Section 304 (II) IPC is not liable to be interfered with & the same is hereby affirmed. 11. In view of above, when the Appellant has been held liable for commission of offence under Section 304 (II) IPC, the last submission of Learned Counsel for the Appellant as regards reduction of term of substantive sentence needs consideration. The present age of the Appellant is around 45 years & when the incident had taken place, he was aged about 22 years. It is true that for a long period he is enjoying liberty when now he must be having his family members as his dependants who would suffer in the event of his detention & they will be ruined. These factors put forth by the Learned Counsel for the Appellant are meant to invite mercy but this Court is disposed to think that the factual matrix with the conclusion arrived at cannot allow the rainbow of mercy to magistrate. In that view of the matter, this Court considers it just & proper to maintain the sentence of rigorous imprisonment for a period of two years & also the sentence of fine with all other stipulations as ordained by the Trial Court. In the wake of aforesaid, the Judgment of conviction & order of sentence are hereby confirmed. 12. Resultantly the appeal, being sans merit, stands dismissed.