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2014 DIGILAW 77 (ORI)

Laxmi Pradhan v. State of Orissa

2014-01-30

D.DASH

body2014
JUDGMENT D. Dash, J. 1. The Appellant in this jail criminal appeal has called in question, the Judgment of conviction & sentence passed in S.T. Case No. 22/199 of 2000 convincing him for offence under Section 304-II, Indian Penal Code & sentencing to undergo rigorous imprisonment for a period of seven years. There is no appeal at the behest of the State challenging the Judgment for not convicting the Appellant for offence under Section 302 of Indian Penal Code with which the Appellant stood charged & faced the trial. The prosecution case is that deceased Bandhua Naik, Fagua Naik & the Appellant are residents of hamlet Kolahsahi of village Kulurukumpa under Dasapalla Police Station & are relations. The Appellant is the sister of P.W. 4's son in law, namely, Ratra Naikk & P.W. 4, Fagu Naik is the maternal uncle of the deceased Bandhua. The allegation stands that some dispute arose between P.W. 1 & Ratra Naik in the house of P.W. 4 & it was around 11.00 P.M. on 09.06.2000. So, there was exchange of words between the P.W. 4 & Ratra which ultimately led to a scuffle between two. Such incident drew the attention of the deceased Bandhua & other neighbours who out of anxiety came running to the place. When Bandhua came there his wife P.W. 2 followed. On their arrival, they intervened in the matter to subside the dispute by physically separating the two. At that time, lungi worn by deceased Bandhua was just started slipping from his waist, so he was properly tying the same & that gave rise to an apprehension in the mind of the Appellant that Bandhua was getting ready to attack her brother Ratra. So, the Appellant picked up a piece of round shaped wood locally called 'medha' lying nearby & dealt a blow on the occipital region of the scalp of Bandhua resulting his gudden fall leading to unconscious. When sprinkling of water did not yield any result, Health Worker of the village, P.W. 13 was called who could not help in any way in that situation. So, on 10.06.2000, Bandhua was taken to Dasapalla Government hospital & then to Nayagarh District headquarters Hospital. There it was further advised that Bandhua be shifted to SCB Medical College & Hospital, Cuttack. So, on 10.06.2000, Bandhua was taken to Dasapalla Government hospital & then to Nayagarh District headquarters Hospital. There it was further advised that Bandhua be shifted to SCB Medical College & Hospital, Cuttack. As this was not possible, Bandhua was taken back to the village on 11.06.2000 & there, he finally succumbed to the said injury on his head. The widow of the deceased (P.W. 2) being accompanied by her parent in laws, lodged the F.I.R. (Ext. 3) at Dasapalla P.S. which triggered registration of the case & the commencement of investigation. On completion of investigation, the Appellant was placed for trial in the Court of law. During trial the accused took the plea of the denial feigning total ignorance. 2. Prosecution in order to bring home, the charge under section 302 of Indian Penal Code against the Appellant, examined 15 witnesses out of whom P.Ws. 1, 2, 4, 8 & 9 are the relations of the deceased being father, widow, maternal uncle in taw & younger brother respectively. Except P.W. 1, all others have been cited as the eye witnesses to the incident. P.W. 1 is an immediate post occurrence witness. Two other eye witnesses have also been examined & they are P.W. 3 & P.W. 7. The doctor who had conducted the autopsy has been examined as P.W. 14 & the Investigating Officer is P.W. 15. Rest of the witnesses are in respect of the seizure & in support of other formalities observed in course of investigation. Despite the opportunity being given, defence has declined to examine any one in support of his case. Prosecution besides leading the oral evidence from the lips of the above witnesses most importantly have proved the F.I.R., Ext. 3 inquest report Ext. 1, seizure lists Ext. 2 & Ext. 4 & post mortem report along with queries & replies marked as Ext. 5, Ext. 6 & Ext. 7 respectively. 3. Learned Additional Sessions Judge on analysis of evidence & upon critical examination of the same has arrived at a conclusion that the prosecution has established that it is the Appellant who is the author of the injury that has finally led to the death of the deceased Bandhua. 5, Ext. 6 & Ext. 7 respectively. 3. Learned Additional Sessions Judge on analysis of evidence & upon critical examination of the same has arrived at a conclusion that the prosecution has established that it is the Appellant who is the author of the injury that has finally led to the death of the deceased Bandhua. Next coming to the point raised as to whether such injury was caused with an intention to cause death of Bandhua, the Learned Additional Sessions Judge in the facts & circumstances of the case as have emanated from the evidence during trial has held the case to be one inviting culpability for commission of offence under Section 304-II, Indian Penal Code. With such finding the Appellant has been convicted for the said offence under Section 304-II, Indian Penal Code & sentenced as stated above. 4. Learned Counsel appearing for the Appellant submits that the finding of the Trial Court with regard to the authorship of the injury upon the deceased resting with the Appellant is not based on proper appreciation of the evidence. According to him on careful analysis of the same, the prosecution cannot be said to have established the factum that it is the Appellant who caused injury on the occipital region of the head of the deceased & that according to him has not been established beyond reasonable doubt. Therefore, he urges that it is a fit case to upset the conviction & the sentence. 5. Learned Additional Government Advocate placing para-7 of the Judgment of the Court below & further placing the evidence of the eye witnesses, vehemently resists the submission of the Learned Counsel for the Appellant. He contends that here the prosecution has established the said factum of causation of injury on the deceased by the Appellant by leading clear, cogent, trustworthy & acceptable evidence & according to him under no circumstances said finding can be said to be the out-come of improper appreciation of evidence. Therefore, he urges that the appeal merits no acceptance. 6. On such rival submission, let us now scan the prosecution evidence in order to find out as to how far the submission of the Learned Counsel for the Appellant with regard to the finding of the authorship of the injury on the deceased to be not resting with the Appellant is acceptable. 6. On such rival submission, let us now scan the prosecution evidence in order to find out as to how far the submission of the Learned Counsel for the Appellant with regard to the finding of the authorship of the injury on the deceased to be not resting with the Appellant is acceptable. It is a case where the prosecution alleges that Appellant had dealt a blow by 'medha' on the occipital region of the head of the deceased. It is not disputed that the death was not the result of the said injury. The evidence of the doctor (P.W. 14) is very clear that it is that intracranial haemorrhage occurring on account of such injury has resulted the death & he has also deposed that said injury is sufficient in ordinary course of nature to cause death with the possibility of the same being caused by hard & blunt weapon like 'medha' which he had examined on requisition of the Investigating Officer. Thus the death in the present case as homicidal stands firmly established. 7. Now coming to the authorship of injury & culpability of Appellant, it is seen that P.W. 2 the widow of the deceased claims to have followed her husband, Bandhua. It is her evidence that around 11.00 P.M. hearing shout in the house of her maternal uncle in law, Fagua (P.W. 4), her husband & Bandhua went there & she followed him. On their arrival, they found Ratra, Fagua's son-in-law & his brother Madhu assaulting Fagua. So Bandhua intervened to subside when his lungi slipped from his waist & then when he was just tying the same, it is Appellant who dealt a blow on the back side of his head by means of 'medha' which resulted sudden fall on the floor. So shout being raised by P.W. 4, other witnesses rushed. The evidence of P.W. 2 is attacked as unbelievable on the ground that she in her previous statement recorded under Section 161, Criminal Procedure Code during investigation had not stated the material facts about Bandhua asking Ratra & other not to go ahead with the situation & also the Appellant to have dealt blow on the head by means of medha. The Trial Court of course despite the evidence of P.W. 15, Investigating Officer appears to have rightly exercised it's power in having a glance at the statement under Section 161, Criminal Procedure Code for better appreciation placing reliance & deriving support from the decision in case of "Khetri Bewa v. State", 17 (1951) CLT 220 & "Ramanath v. Union of India" (1993) OCR 386 & has ascertained the absence of any such contradiction in the version of P.W. 2 & in her previous statement recorded in course of investigation. P.W. 2 is appears to be a natural witness & it appears that she in a very simple way has described the incident as had witnessed having reached there following her husband. There is no material on record to entertain doubt with regard to her presence at the time of incident. There also arises absolutely no reason that P.W. 2 had any axe to grind against the Appellant in falsely implicating him. In such circumstance, I do not find any illegality on the part of the Trial Court in accepting the evidence of P.W. 2 with which I concur. Though P.W. 3, P.W. 4 & P.W. 8 who had taken the deceased to hospital have not supported the prosecution & thus said evidence of witnesses do not come to the aid of the prosecution, its of no such significance so as to discard evidence of P.W. 2 & that is not enough to outweigh the evidence of P.W. 2 which is found otherwise worthy of acceptance. As it appears the Trial Court has accepted the evidence of P.W. 2, P.W. 7 & P.W. 9. It is seen that P.W. 7 & P.W. 9 have also deposed that the Appellant had dealt blow by means of 'medha' at the relevant time on the back of the head of the Bandhua. It is contended that by the time, P.W. 7 reached when he states that P.W. 2 was crying & Bandhua was rolling, he cannot be said to have seen the incident of actual assault which is not acceptable. The Trial Court with very good reasons having mentioned the ground reality has declined to accept such challenge to eschew the evidence of P.W. 7 from consideration. The Trial Court with very good reasons having mentioned the ground reality has declined to accept such challenge to eschew the evidence of P.W. 7 from consideration. The reason given is that they are close door neighbours & when he arrived just at the place where the incident took place, he having seen Bandhua lying on the ground does not mean that he had not seen the incident particularly when there is no evidence that the place was not visible at all to out-side. That evidence goes to show that the incident was not seen from close proximity but it cannot be definitely said that it was totally not seen from the place wherefrom witness claims to have seen as it was not visible from the place of crime for which there remains no evidence. Evidence of P.W. 9 has also been rightly accepted for the purpose as there surfaces no such features to disbelieve. Thus I do not find any fault on the part of the Court below in accepting the evidence of P.W. 2 receiving due corroboration from the evidence of P.W. 7 & 9. The Court below has also considered the submission with regard to the visibility in properly witnessing the incident by P.W. 2, P.W. 7 & P.W. 9 with reference to the evidence of P.W. 4. The evidence of the post occurrence witnesses as regards seizure of the 'Medha' etc. has to be also given due weight & an adding circumstance when seen along with the evidence of P.W. 14 about the possibility of the said injury being caused by the said 'Medha'. Thus, I find no justifiable reason to discard the evidence of the above noted witnesses & accordingly the finding of fact with regard to the authorship of the injury on the back of the head of the deceased as resting with the Appellant is found to be sustainable & so also the conviction recorded for offence under Section 304-II, Indian Penal Code. The sentence awarded is also found to be just & proper in the facts & circumstances of the case. In the result the appeal stands dismissed.