Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 383 (ORI)

Dolamani Pradhan v. State of Orissa

2015-06-29

S.K.SAHOO

body2015
JUDGMENT : S.K. Sahoo, J. 1. The appellant Dolamani Pradhan faced trial in the Court of learned Addl. Sessions Judge (F.T.C.), Bargarh in Criminal Trial No. 151/28 of 2008 for offence punishable under section 307 of Indian Penal Code for attempting to commit murder of Nabin Pradhan (P.W.7) by means of an axe on 15.5.2008 at about 10 p.m. at village Nua Tingipali. The learned trial Court vide impugned judgment and order dated 12.01.2009 found the appellant guilty under section 307 IPC and accordingly convicted him of such offence and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/-, in default, to undergo further R.I. for six months. 2. The prosecution case, as per the First Information Report lodged on 15.5.2008 by one Kanhu Charan Pradhan (P.W.1) before the Officer-in-charge, Barpali Police Station is that on that day at about 8.00 p.m. while the informant was watching IPL Cricket Match on TV along with other co-villagers in front of the house of Pradip Sahu, the appellant who is a co-villager of the informant came there at about 10.00 p.m. holding a tangia and assaulted Nabin Pradhan (P.W.7) on his head and back from his backside due to previous enmity. At that time the persons who were sitting by the side of P.W.7 namely, Debadutta Pradhan (P.W.3), Shayamsundar Pradhan (P.W.4) and the informant caught hold of the appellant for which P.W.7 was rescued. 3. On receipt of the written report from P.W.1, the A.S.I. of police of Barpali Police Station namely, Krupa Bag (P.W.10) registered Barpali P.S. Case No. 47 of 2008 under section 307 IPC in absence of the officer-in-Charge and took up investigation. During course of investigation, P.W.10 examined the informant, issued injury requisition for medical examination of P.W.7 to C.H.C., Barpali. He visited the spot and prepared spot map Ext. 6. He also examined the witnesses and seized one axe from the spot under seizure list Ext. 2. The appellant was arrested on 16.5.2008 and forwarded to the Court. P.W.7 was referred to V.S.S. Medical College and Hospital, Burla from Barpali C.H.C. where he was treated as indoor patient. The I.O. seized blood stained clothes of the injured on his production under seizure list Ext. 4. 2. The appellant was arrested on 16.5.2008 and forwarded to the Court. P.W.7 was referred to V.S.S. Medical College and Hospital, Burla from Barpali C.H.C. where he was treated as indoor patient. The I.O. seized blood stained clothes of the injured on his production under seizure list Ext. 4. He also received the injury report from Burla Hospital and after completion of investigation submitted charge-sheet under section 307 IPC on 8.8.2008. 4. After submission of charge-sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant under section 307 of Indian Penal Code on 18.10.2008 and since the appellant refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 5. During course of trial, in order to prove its case, the prosecution examined ten witnesses. P.W.1 Kanhu Charan Pradhan is the informant and he is also an eye witness to the occurrence. P.W.2 Sanjib Kumar Sahu is an eye witness to the occurrence and he produced the axe before police which was seized under seizure list Ext. 2. P.W.3 Debadutta Pradhan, P.W.4 Shaymasundar Pradhan and P.W.5 Gaura Bisi are the eye witnesses to the occurrence. P.W.6 Dr. Sibabrata Kar was the lecturer attached to the Department of Surgery, V.S.S. Medical College & Hospital, Burla who attended P.W.7 on 16.05.2008 and on receipt of police requisition submitted his report Ext. 3. He further opined that the injuries sustained by P.W.7 are possible by axe blows. P.W.7 Nabin Pradhan is the injured and he is also a witness to the seizure of his blood stained banyan and napkin by police under seizure list Ext. 4. P.W.8 Daktar Pradhan is an eye witness to the occurrence who is also a witness to the seizure of blood stained wearing apparels of the injured under seizure list Ext. 4. P.W.9 Dr. Bighnaraj Pradhan was the specialist, O & G, C.H.C., Barpali who examined P.W.7 on police requisition on 15.5.2008 and proved his report Ext. 5 and he also referred P.W.7 to V.S.S. Medical College & Hospital, Burla as the patient complained of headache. P.W.10 Krupa Bag who was the A.S.I. of Police, Barpali Police Station is the Investigating Officer of the case. The prosecution also exhibited six numbers of documents. Ext. 1 is the F.I.R., Exts. 5 and he also referred P.W.7 to V.S.S. Medical College & Hospital, Burla as the patient complained of headache. P.W.10 Krupa Bag who was the A.S.I. of Police, Barpali Police Station is the Investigating Officer of the case. The prosecution also exhibited six numbers of documents. Ext. 1 is the F.I.R., Exts. 2 and 4 are seizure lists, Exts. 3 and 5 are the medical examination reports of the appellant and Ext. 6 is the spot map. The prosecution also proved some material objects. M.O.I is the axe, M.O.II is the banyan and M.O.III is the napkin. 6. The defence plea of the appellant is one of denial. 7. The learned trial Court vide impugned judgment and order dated 12.01.2009 held that from the evidence on record, it is conclusively established that on the date of occurrence while the injured and others were watching TV in front of the house of P.W.2, the appellant gave two axe blows on P.W.7 which hit on his head and back causing severe bleeding injuries. The learned trial Court further held that the action of the appellant amounts to attempting to cause the death of the injured and in that process the appellant caused severe injuries on the vital part of the injured and accordingly held him liable under section 307 IPC and convicted him of such offence and sentenced him as noted above. 8. Being dissatisfied with the impugned judgment and order of conviction, the instant appeal has been filed by the convicted accused-appellant. Mr. Arunendra Mohanty, learned counsel for the appellant submitted that the judgment and order of conviction of the trial Court is perverse and the learned trial Court has not assessed the evidence on record properly. He further submitted that it sounds improbable that the appellant would assault the injured in presence of others while all of them were watching TV as there was every possibility of his being caught at the spot. He further submitted that no motive has been attributed behind the commission of crime and the medical examination report runs contrary to the ocular evidence. He further submitted that even though the axe was seized from the spot and blood stained wearing apparels of the injured were also seized but those were not sent for chemical examination and accordingly he urged that it is a fit case for grant of benefit of doubt to the appellant. Mr. He further submitted that even though the axe was seized from the spot and blood stained wearing apparels of the injured were also seized but those were not sent for chemical examination and accordingly he urged that it is a fit case for grant of benefit of doubt to the appellant. Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand submitted that when there are number of eye witnesses to the occurrence who have categorically implicated the appellant in the crime, absence of proof of motive by the prosecution is not at all relevant. He further contended that the appellant was apprehended at the spot and was handed over to the police and the weapon of offence was also produced by P.W.2 before police which was seized at the spot. He further contended that the manner in which the appellant came to the spot and assaulted the injured on the head with axe clearly reveals the intention of the appellant and accordingly urged that the impugned judgment is well merited and therefore it be concurred and the appeal being devoid of merits be dismissed. 9. The learned trial Court seems to have elaborately discussed the evidence of all the prosecution witnesses. Coming to the evidence of P.W.7, the injured, it appears that he was watching TV in front of the house of P.W.2 and at that time the appellant came there putting a chadar on his body and keeping something concealed inside the chadar and suddenly he brought out an axe and gave a blow to P.W.7. The axe blow hit on the back of the head near neck of P.W.7 causing severe bleeding injury. The appellant gave another blow on the back of P.W.7 causing bleeding injury for which P.W.7 fell down on the ground. The injured has further stated that P.Ws.1, 3 and 4 and others caught hold of the appellant and snatched away the axe from his hand and thereafter shifted him (injured) to Barpali Hospital for treatment. He has further stated that after preliminary treatment, he was referred to Burla Hospital where he was treated for three days. P.W.7 also proved the seizure of his bloodstained banyan and napkin. He has further stated that after preliminary treatment, he was referred to Burla Hospital where he was treated for three days. P.W.7 also proved the seizure of his bloodstained banyan and napkin. In the cross-examination P.W.7 has stated that while he was sitting on a plastic chair, the appellant stood at a distance of one foot from his side and gave the blows and after receiving the second blow, he fell down and became senseless. He further stated that he came back from Burla Hospital on 18.5.2008. Even though P.W.7 was cross-examined at length but nothing substantial has been elicited to disbelieve his testimony. The evidence of P.W.7 is corroborated by the other eye witnesses who were also watching TV with him on the date of occurrence. P.Ws.1, 2, 3, 4, 5 and 8 have corroborated the evidence of the injured P.W.7 and their evidence has also remained unchallenged. Thus from the ocular testimonies of the injured and other eye witnesses, it is clearly established that the appellant dealt two blows by means of an axe to P.W.7 on the head near the neck as well as on his back. The injured was first treated at Barpali C.H.C. and P.W.9 Dr. Bignaraj Pradhan examined him on 15.5.2008 and noticed the following injuries:-- "i. Laceration of size 3" x 1/4" x 1/4" over occiput. ii. Laceration of size 3" x 1/2" x 1" over right scapula." The doctor P.W.9 opined that both the injuries are simple in nature and might have been caused by hard and blunt objects. He further stated that the injuries might be possible by M.O.I and injury No. 1 might be fatal. In the cross-examination, the doctor P.W.9 stated that the wounds were stitched and the patient was conscious but as he was feeling headache, he was referred to Burla Hospital. P.W.9 has further stated that in normal course of nature, the aforesaid injuries might not cause death. P.W.7 was further examined at V.S.S. Medical College & Hospital, Burla by P.W.6 Dr. Sibabrata Kar who stated that as per record, the injured had sustained the following injuries:-- "(i) Stitched wound of size 8 c.m. over the occiput. P.W.9 has further stated that in normal course of nature, the aforesaid injuries might not cause death. P.W.7 was further examined at V.S.S. Medical College & Hospital, Burla by P.W.6 Dr. Sibabrata Kar who stated that as per record, the injured had sustained the following injuries:-- "(i) Stitched wound of size 8 c.m. over the occiput. (ii) Stitched wound of size 8 c.m. over the right side back, 2 c.m. lateral to the spine of T-4 vertebra." The doctor P.W.6 has further stated that the CT scan was normal and all the injuries are simple in nature and might have been caused by hard and blunt weapon. He has further stated that both the injuries are possible by axe blows and injury on the occiput region, if given with force by axe can cause death, if it causes injury to brain. In the cross-examination the doctor P.W.6 has stated that he has not noted the colour of the injury which is a determinative factor for the age of the injury. He further stated that he has not mentioned the exact position of the injury in the occiput. He has further stated that without referring to bed head ticket, he cannot say for how many days the injured was treated as indoor patient. Analysing the evidence of the doctors P.W.6 and P.W.9, it is noticed that both of them have stated that the injuries sustained by P.W.7 are possible by axe blows. Thus the ocular testimonies of the witnesses including the injured are corroborated by the medical evidence. The learned counsel for the appellant contended that since the axe is a sharp cutting weapon and lacerated wounds were noticed by P.W.9 and both the doctors have stated that the injuries might have been caused by hard and blunt weapon, the assault by an axe as stated by the injured as well as the eye witnesses cannot be accepted. The contention raised cannot be accepted inasmuch as both the doctors have specifically stated that the injuries are possible by axe and they have not been cross examined on that point. There is no evidence as to what the edge of the axe was and which portion of the axe hit the injured. The contention raised cannot be accepted inasmuch as both the doctors have specifically stated that the injuries are possible by axe and they have not been cross examined on that point. There is no evidence as to what the edge of the axe was and which portion of the axe hit the injured. When the eye witnesses have specifically stated that the appellant dealt axe blows on P.W.7 and the doctors have also stated about the possibility of the injuries by axe, the contention raised by the learned counsel for the appellant regarding discrepancies cannot be accepted. 10. Coming to the nature of injuries sustained by the injured P.W.7, it appears that there are two injuries i.e. one over the occiput and the other over the right scapula and both the injuries have been opined to be simple in nature by the doctors. The doctor P.W.9 has stated that in normal course of nature, the injuries might not cause death. Similarly the doctor P.W.6 has stated that a patient with similar nature of injury might not die. Though P.W.7 has stated that he was discharged on 18.5.2005 from Burla Hospital but there is no documentary evidence to that effect. The doctor P.W.6 has stated that without referring to bed head ticket, he cannot say for how many days the patient was treated as indoor patient. The bed head ticket has not been proved. The injury report Ext. 3 proved by doctor P.W.6 indicates that the injured was examined that V.S.S. Medical College & Hospital, Burla on 16.5.2008. P.W.6 has further stated that the CT scan of the injured was normal. Thus there is no evidence on record that the injured was treated for three days in Burla Hospital and what was his condition on those days. In absence of any documentary evidence, the statement of the injured that he was treated at Burla Hospital for three days and came back on 18.05.2008 cannot be accepted. 11. No doubt it is not essential that bodily injury capable of causing death should be inflicted to justify conviction under section 307 IPC. In absence of any documentary evidence, the statement of the injured that he was treated at Burla Hospital for three days and came back on 18.05.2008 cannot be accepted. 11. No doubt it is not essential that bodily injury capable of causing death should be inflicted to justify conviction under section 307 IPC. If the intention coupled with some overt act in execution thereof is present and such act is proximate to the crime intended and the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated the consummation, an accused can be held guilty under section 307 IPC. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of section 307 IPC, there can be no offence 'of attempt to murder'. Intent is a state of mind. It cannot be proved by precise direct evidence. It can only be detected or inferred from other factors. Some of the relevant factors are the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. Considering the nature of injuries sustained by the injured P.W.7 and the attending circumstances, I am of the view that the prosecution has failed to establish that the appellant assaulted P.W.7 with such intention or knowledge and under such circumstances that if he by that act caused death, he would have been guilty of murder. Not only the injuries were simple in nature but only one of them was over the occiput. The depth of the injury over the occiput was very minimal. It also appears that perhaps the sharp side of the axe has not been used by the appellant at the time of assault. In view of such materials available on record, I am of the view that the offence would come squarely under section 324 Indian Penal Code. 12. The depth of the injury over the occiput was very minimal. It also appears that perhaps the sharp side of the axe has not been used by the appellant at the time of assault. In view of such materials available on record, I am of the view that the offence would come squarely under section 324 Indian Penal Code. 12. The contention raised by the learned counsel for the appellant that there is absence of motive on the part of the appellant to commit the crime for which the prosecution case should be viewed with suspicion deserves to be rejected outright as it is the settled principle of law that where an assault has been established by clear ocular evidence and the same is supported by medical evidence, motive pales into insignificance. So far the contention regarding non-sending of axe as well as blood stained wearing apparels of the injured for chemical examination is concerned, no doubt it was the duty of the investigating officer to send those articles for chemical examination which would have lend further corroboration to the evidence of the eye witnesses and strengthened the prosecution case and it is apparent that the investigating officer has failed in his duty and responsibility but since the prosecution case has otherwise been established, no adverse inference can be drawn against the prosecution for the laches of the investigating officer. 13. Accordingly, the appeal partly succeeds. The impugned judgment and order of conviction of the appellant under section 307 IPC and sentence of rigorous imprisonment for five years and payment of fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for six months as was imposed by the learned trial Court is hereby set aside and instead the appellant is convicted under section 324 IPC and sentenced to undergo rigorous imprisonment for two years. It appears from the record that the appellant has already undergone the period of sentence as he was neither on bail during trial or during pendency of the appeal. The appellant, if he is still in jail should be released forthwith, if his detention is not required in any other case. The Jail Criminal Appeal is allowed in part.