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2014 DIGILAW 715 (ORI)

Anam Pagal v. State of Orissa

2014-10-30

D.DASH

body2014
JUDGMENT The appellants in this appeal challenge the judgment of conviction and order of sentence in S.T. Case No.58 of 1990 passed by the learned Sessions Judge, Keonjhar convicting them for offence punishable under Section 304 (Part-I) of I.P.C. and sentencing each of them to undergo rigorous imprisonment for a period of seven years. 2.Case of the prosecution is that the appellants No.4 the nephews (son of elder brother) of one Mani Ch. Pagal (deceased) where as the other appellants are the brothers of Mani Charan’s wife. There was civil litigation between Mani Charan and respondent No.4 sub-judice in the Court of Munsif, Anandapur (as it was then) at the time of the incident. The other respondents had also the dissension with said Mani Charan concerning a strip of homestead land which was alienated by Mani Charan to one Arun Pagal. It is the further case of the prosecution that on 15.03.1990, Mani Charan was going on his cycle on Tampo village road to attend the Court work in connection with that civil suit i.e., T.S. No. 31 of 1987. It is alleged that the respondent No.4, Bira came on a cycle from behind and assaulted Mani Charan with a lathi, when the other three respondents who were lying in wait in a deserted house nearby suddenly arrived and assaulted Mani Charan with the help of bamboo lathies. The respondents fled away leaving the cycle and lathies when Jogi (P.W.4), Laxmidhar (P.W.5) and other villagers rushed to the spot. The villagers saw Mani Charan lying with injuries on his person. So, they sent the said information to his house through a drummer whereafter Srikanta (P.W.3), Mani Charan’s son P.W.3 arrived. He then sprinkled water on his father and on his asking Mani Charan implicated the respondents to be the author of the injuries on his person. On the rickshaw of one Madha Jena, Mani Charan was taken to Bato hospital. The O.I.C., Ramchandrapur police station being seen on the way was orally informed by Srikanta Pagal (P.W.3) about the incident. The oral version of P.W.3 was reduced into writing and the case being registered, investigation commenced. The injured. Mani Charan was then taken to Sainkul Community Health Centre and also to Anandapur. For better treatment, he was finally shifted to SCB Medical College and Hospital, Cuttack. The oral version of P.W.3 was reduced into writing and the case being registered, investigation commenced. The injured. Mani Charan was then taken to Sainkul Community Health Centre and also to Anandapur. For better treatment, he was finally shifted to SCB Medical College and Hospital, Cuttack. Despite all these efforts in treating Mani Charan, he could not be saved and finally met his death on 05.04.1990. On completion of investigation charge-sheet was submitted placing the appellants for trial for commission of offence punishable under Section 302/34 I.P.C. and that is how the appellants faced the trial. 3.The plea of the defence is one of the complete denial and false implication. From the side of the prosecution in total eight witnesses have been examined, P.W.4 and 5 have been cited as eyewitnesses. Son of the deceased is P.W.3 who having known about the incident from the drummer had come to the place where his father was lying in an injured condition and it is said that he ascertained about the complicity of the appellants from his father. The Medical officer of Sainkul Community Health Centre has been examined as P.W.6 and he has proved the certificate marked Ext.6. P.W.1 is the doctor who had conducted autopsy over the dead body. The bed head ticket of the deceased has been proved through P.W.1 whereas the P.W.7 and 8 are the police officials and they have proved the seizure of said bed head ticket and have deposed as regards the part played by them in course of investigation. 4.The defence has examined one witness to show that the deceased had sustained injuries due to fall from cycle. 5.The trial Court on analysis of evidence of the prosecution witnesses and upon their evaluation has arrived at a finding that the appellants are the assailants causing injury on the person of deceased and that they had simultaneously assaulted the deceased by lathi in furtherance of their common intention. Further, taking note of the cause of the death as the developed septicemia and bedsore and that having taken place after 20 days of the occurrence and in view of the evidence of the doctor P.W.1, has recorded the conviction for offence punishable under Section 304 Part-I IPC and the appellants have been accordingly sentenced. Further, taking note of the cause of the death as the developed septicemia and bedsore and that having taken place after 20 days of the occurrence and in view of the evidence of the doctor P.W.1, has recorded the conviction for offence punishable under Section 304 Part-I IPC and the appellants have been accordingly sentenced. 6.Learned counsel for the appellants submits that the evidence of P.W.3, the son of the deceased ought not to have been relied upon as admittedly they were having enmity and thus the tendency with him to falsely implicate the respondent is not ruled out. Next he contends that and it is when P.W.4 implicates all the appellants; P.W.5 implicates only three of them which according to him cannot be lightly brushed aside, as it shows the definite tendency on the part of the P.W.4 to rope in the appellants No.4 in the case and that is sufficient to doubt his testimony. He further submits that the evidence of P.W.3 with regard to the disclosure as regards the authorship of the injuries on his person said to have been made by the deceased on his arrival there hearing from the drummer is not acceptable because of the fact that other witnesses have specifically stated as regards the impossibility on the part of the deceased to make any declaration as he was by then lying unconscious. In view of all these, he urges that learned Sessions Judge ought to have acquitted the appellants holding prosecution to have not been able to prove the accusations against the appellants beyond reasonable doubt. So, he urges for allowing the appeal by setting aside the judgment of conviction and sentence. 7.Learned Standing Counsel submits that the analysis of evidence done by the trial Court more particularly the evidence of P.W.4 and 5 are wholly just and proper being alive to the ground reality and taking the same into consideration. He further submits that the trial Court has rightly held the evidence of P.W.3 and declaration of his father as true and voluntary since it has been found from the doctor’s evidence that the deceased at the time of examination was in a conscious state. He further submits that the trial Court has rightly held the evidence of P.W.3 and declaration of his father as true and voluntary since it has been found from the doctor’s evidence that the deceased at the time of examination was in a conscious state. Therefore, he contends that the conviction of the appellants under Section 304 Part-I of I.P.C. in the proven facts and circumstances of this case has to be confirmed and so also the order of sentence which is in order. 8.On the anvil of such rival submission, the exercise that the Court is called upon to take up is to have the analysis of evidence and evaluate the same to conclude in deposing the appeal as to whether the finding of the trial Court with regard to the authorship of the injuries on the person of the deceased i.e. the complicity of the appellants is in order or not and thus to test the sustainability of the judgment of conviction. It is the evidence of P.W.3, the son of the deceased that when he came near his father initially he found him in a semiconscious state, saying something not understandable. It is stated by him that after he sprinkled water on his face, he disclosed the appellants to have assaulted him by means of lathi when he was coming on cycle. On this score, P.W.4 has stated that he with other went to attend the deceased only after arrival of P.W.3 and in fact they were waiting for somebody to arrive. He has categorically stated that the deceased was then lying unconscious. The witness has not breadthed a word that the P.W.3 on arrival sprinkled water on the face of his father and then his father told even something to him. It is also his evidence that when P.W.3 arrived, one Atul and his son also arrived. Neither Atul nor his son has been examined. The evidence of P.W.5 on that socre is that he went first near the deceased, found him graoning. He has not stated anything supporting the version of P.W.3. Rather he states that when he chased the appellants, he could caught hold the appellant Rangu. It is his further evidence that he had taken appellant, Rangu to the deceased before handing him over to the police and then deceased told him that appellant Rangu had assaulted. He has not stated anything supporting the version of P.W.3. Rather he states that when he chased the appellants, he could caught hold the appellant Rangu. It is his further evidence that he had taken appellant, Rangu to the deceased before handing him over to the police and then deceased told him that appellant Rangu had assaulted. This witness is not stating as to where such conversation between them took place whether at the spot and at some other place. If the evidence of this witness is believed that it is seen that deceased before him had disclosed about the complicity of only appellant, Rangu and none else. This also contradicts the evidence of P.W.3 who has stated that the deceased had implicated all the respondents. The trial Court has accepted the evidence of P.W.3 as regards the disclosure by the deceased implicating the appellants to be the author in causing the injury on his person by pacing reliance on the evidence of P.W.6, the medical officer of CHC who has stated that the deceased was complaining pain and was in sense. This view does not find favour of this Court. We are concerned with the consciousness of the deceased and he being in possession to speak or not at the spot when P.W.3 arrived and not thereafter. If P.W.6 found him to be conscious, his evidence is silent on the score as regards the assailants and that can’t lead to infer that the deceased was conscious all through. He is also not stating to have asked anything about that. His further evidence is that the deceased was complaining pain and due to such acute pain, he could not take his consent. He is not stating as to what prevented him to ask anything to the deceased as regards the authorship of injuries. In such state of affairs, the evidence of P.W.3 does not inspire confidence so as to accept that the deceased had disclosed before him as regards the authorship of the injuries pointing fingers at all the appellants. Next remains the evidence of P.W.4 and 5. Admittedly the appellants and the deceased were in litigating terms as it has been stated by P.W.3. Now P.W.4 states that he had seen appellant Bira with lathi and other appellants with bamboo lathies assaulting a man who was shouting and whom he later on identified to be Mani Charan Pagal. Next remains the evidence of P.W.4 and 5. Admittedly the appellants and the deceased were in litigating terms as it has been stated by P.W.3. Now P.W.4 states that he had seen appellant Bira with lathi and other appellants with bamboo lathies assaulting a man who was shouting and whom he later on identified to be Mani Charan Pagal. He has further stated that when he proceeded towards the deceased, assailants left the place. The evidence of P.W.5 is that he saw one man being assaulted by three persons with lathies and when he went near, the three assailants ran away who are namely, Raghu, Rangu and Anama. He is not stating about the presence of appellant Bira. When it is seen that P.W.3 wanted to implicate all the four including appellant Bira, it is stated by P.W.5 that he chased appellants and caught hold of the appellant Rangu, but it is not the evidence of P.W.4 that there was any chase by the P.W.5 and that he ultimately could restrain the appellant Rangu. Though the death of Mani Charan took place 20 days after the incident, no steps has been taken for recording of his statement and I.O. has not stated any reason for not doing so. Thus, the evidence of these two witnesses P.W.4 and 5 are not found to be trustworthy so as to be relied upon to answer the question of authorship of injury upon the deceased pointing finger at the appellants. In view of above discussion, I find that the prosecution has failed to prove by leading, clear, cogent and reliable evidence in establishing the fact that it is the appellants who had assaulted deceased on the relevant date, time and place and were the authors of the injuries upon the deceased. Therefore, the finding as regards the complicity of the appellants as rendered by the trial Court is found to be unsustainable. The conviction and sentence are thus liable to be set aside. 9.In the result, the appeal stands allowed. The judgment of conviction and order of sentence impugned in this appeal are hereby set aside. Appeal allowed.