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2016 DIGILAW 1079 (ORI)

Upendra Magar v. State of Orissa

2016-11-09

SATRUGHANA PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - The appellants herein call in question the judgment of conviction and order of sentence dated 27.08.1992 passed against them in Sessions Case No.37 of 1992 on the file of the Sessions Judge, Balangir, Camp at Patnagarh. By the impugned judgment, the learned trial Court while acquitting the appellants of the charge under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short “the IPC”), held them guilty of the charge under Section 304, Part-I of IPC and sentenced each of them to undergo R.I. for three years. 2. Prosecution case as placed before the trial Court is that on 26.07.1991 at about 4 p.m. the appellants in one side and some of the prosecution witnesses on the other side fought each other on village ‘Danda’ of Lachhimal over land dispute. In course of that, one Raisingh Khandhapani (hereinafter referred to as “the deceased”) arrived at the scene of occurrence and made an attempt to dissuade the wearing party from fighting each other. The appellants mistook him to be a tout and immediately attacked him with lathis. In course of such attack and counter attack, the appellant – Bisal @ Harihar Padhan inflicted a blow on the head of the deceased by a thick lathi causing profuse bleeding and the deceased fell down on the road. While he was still lying, other appellants also inflicted lathi blows over his body indiscriminately, for which he sustained multiple injuries. In a precarious condition he was shifted to hospital where in course of medical treatment he succumbed to the injuries sustained. The matter was reported at Khaprakhol Police Station vide Khaprakhol P.S. Case No.36 of 1991 whereafter investigation was taken up. On completion thereof, charge-sheet was laid against the appellants under Section 302 read with Section 34 of IPC. The S.D.J.M., Patnagarh committed the case to the Court of Sessions. The trial Court on the basis of material placed by the police framed charge under Section 302 read with Section 34 of IPC against all the appellants who pleaded not guilty to the charge and claimed to be tried. Prosecution examined 8 witnesses, exhibited 15 documents and 15 M.Os. to substantiate its allegation against the appellants. The trial Court on the basis of material placed by the police framed charge under Section 302 read with Section 34 of IPC against all the appellants who pleaded not guilty to the charge and claimed to be tried. Prosecution examined 8 witnesses, exhibited 15 documents and 15 M.Os. to substantiate its allegation against the appellants. The appellants who had taken a plea of denial and false implication examined one Sara Banda as a defence witness and exhibited 5 documents in support of their plea to show that it is the appellants and not the prosecution witnesses who had sustained injuries in course of that occurrence. On conclusion of the trial, while acquitting the appellants of the charge under Section 302 of IPC, the learned trial Court held all the appellants guilty under Section 304, Part-I read with Section 34 of IPC and sentenced them as aforesaid. 3. Heard the learned counsel for the parties at length and perused the materials placed on record with care and caution. 4. Learned counsel for the appellants contend that the impugned judgment of conviction and order of sentence as rendered by the trial Court is unsustainable since prosecution relied upon interested and partisan witnesses leaving aside independent and disinterested witnesses available at the spot. It is specifically contended that P.Ws.2 and 3, who are said to be the eyewitnesses to the occurrence, have strong animus against the appellants being partisan and highly interested to see success of the prosecution and, therefore, the trial Court should not have acted on their uncorroborated and tainted version. Moreover, it is also contended that in this case there being no “common intention” formed at the alleged spot of occurrence, all the appellants cannot be held guilty under Section 304, Part-I of IPC. When the allegation revealed a mutual street fight between the parties and where the deceased sustained injuries by chance, criminality cannot be fastened on all the appellants with the aid of Section 34 of IPC. Alternatively, it is also contended that there being no intention to cause the death of the deceased, conviction of the appellants in the peculiar facts and circumstances may be altered to one Section 325 of IPC. 5. Alternatively, it is also contended that there being no intention to cause the death of the deceased, conviction of the appellants in the peculiar facts and circumstances may be altered to one Section 325 of IPC. 5. Per contra, the learned counsel for the State submits that in this case the version of P.Ws.2 and 3 being clear, cogent and nothing being there indicating the fact that the version suffers from any legal infirmity even if they had animus with the appellants, there is no impediment to rely upon their version. The other contention of the learned counsel is that even if P.Ws.2 and 3 are associated with rival contentions opposed to that of the appellants that by itself is no ground for discarding their testimony there being no hard and fast rule that evidence of the partisan witnesses cannot be acted upon without corroboration by independent source. The other contention of the learned counsel is that the evidence of P.Ws.2 and 3 being clear and cogent with regard to the assault on the deceased by the appellants and when such injuries cumulatively caused the death of the deceased, it was outcome of furtherance of their “common intention” to cause such injuries which in ordinary course of nature likely to cause death of the deceased, it cannot be said that the conviction under Section 304, Part-I of IPC was not sustainable in the eye of law. 6. On perusal of the materials on record, it would go to show that the P.Ws.2 and 3 have deposed to have found the appellants were sitting in front of the shop of Harihar Padhan and when P.W.3 questioned appellant no.3 – Bisal @ Harihar Padhan as to why he was instigating Laldhar to interfere with his peaceful possession over his land a street brawling ensued in between P.W.3 and the appellant no.1 – Upendra Magar where Upendra grappled P.W.3, dragged him upto the road and inflicted fist blows. At that juncture, when the deceased arrived at the scene of occurrence, intervened and tried to dissuade the parties, appellant no.4 – Raja @ Ramji Padan incited others to assault him charging the deceased to be a tout. Armed with MERHA (lathi), appellant no.3 – Bisal @ Harihar Padhan dealt a lathi blow on the head of the deceased, for which he fell down. Armed with MERHA (lathi), appellant no.3 – Bisal @ Harihar Padhan dealt a lathi blow on the head of the deceased, for which he fell down. Harihar also assaulted P.W.2 by a lathi and thereafter all of them assaulted the deceased while he was still lying on the ground. On arrival of several other persons of that locality, the appellant left the place en masse. Such evidence of P.W.3 stood unshaken in cross-examination. The evidence of the doctor (P.W.5) who conducted postmortem examination over the dead body of the deceased lend absolute assurance to such evidence as to the number of blows and possible weapon of offence used. Nothing has been brought on record to hold that P.Ws.2 and 3 who initially had an altercation with the appellants have a strong animus to falsely implicate them. A witness can be called interested only when he or she derives some benefit from the results of the litigation. Presence of P.W.2 at the spot of occurrence is not disputed but proved he having sustained injuries on his person as observed by the doctor (P.W.6). He cannot be dubbed as interested witness. P.W.3’s presence at the spot is also not disputed in the trial. He is also an natural witness whose presence at the spot is not countermanded but also admitted by the defence witness. Evidence when not studded with discrepancies and infirmities can be safely relied upon in a case of this nature. Moreover, the defence witness (D.W.1) admitted the presence of P.Ws.2 and 3 at the spot of occurrence. His evidence also revealed that during course of such assault when appellant – Raja @ Ramji Padhan aimed a blow at the P.W.3 the blow however landed on the hand of the deceased and he fell down at the spot. However, such version of the occurrence as deposed by D.W.1 was not suggested to principal prosecution witnesses and to the I.O. to place any reliance on such belated testimony. Such fragile evidence cannot outwit the prosecution evidence, particularly the evidence of P.Ws.2 and 3 in any manner when their presence at the spot is overboard. Due credence needs to be accorded to the evidence of an injured witness. Here, P.W.2 is also an injured witness. When eyewitness is also an injured witness much weight is given to such testimony. [See – Abdul Sayed vrs. State of M.P., (2010) 10 SCC 259 ]. Due credence needs to be accorded to the evidence of an injured witness. Here, P.W.2 is also an injured witness. When eyewitness is also an injured witness much weight is given to such testimony. [See – Abdul Sayed vrs. State of M.P., (2010) 10 SCC 259 ]. 7. Therefore, from the evidence of P.Ws.2 and 3, it goes without saying that it is the appellants who on the date of occurrence assaulted the deceased and caused injuries on his person which ultimately proved fatal and caused the death of the deceased. There is also no contradictions between the medical and ocular evidence in this case to create any doubt on the testimony of eyewitnesses. 8. The contention of the learned counsel for the appellants that the appellants cannot be attributed with the “common intention” as nothing brought on record indicating the fact that there was premeditation in mind of the appellants to cause the injuries on the person of the deceased and in pursuance of that “common intention” and sharing such, one of them caused death of the deceased even though the appellants participated in the offence. Such contention of the appellants has no peg to hang as “common intention” can very well develop at the spot and at the spur of moment. When a group of persons assembled at the place of occurrence differently armed with, their intention and purpose would be more apparent. Such person cannot argue that the incident occurred at the spur of moment and there was no point of time to share any “common intention”. Further, such land dispute between the fraction only shows previous enmity. Here, the evidence revealed that all the appellants participated in that street brawling and in course of that they caused multiple injuries on the deceased which cumulatively caused his death. Hence, their “common intention” to cause the injuries on the deceased is well established. [See: Baleshwar Mahto and another vrs. State of Bihar and another, 2017 (66) OCR (SC) 737]. 9. In this legal scenario, the contention of the defence that there being no material indicating the fact which of the injuries was fatal in nature and which blow caused the death of the deceased caused, sharing of common intention to cause death of the deceased cannot be ascertained is fallacious. 9. In this legal scenario, the contention of the defence that there being no material indicating the fact which of the injuries was fatal in nature and which blow caused the death of the deceased caused, sharing of common intention to cause death of the deceased cannot be ascertained is fallacious. The prosecution is not oblige to prove who dealt the fatal blow and which injury contributed to the death of the deceased in a case of this nature. Where a person is facing trial under Section 34 of IPC in whose blows the death of the deceased occurred, is immaterial, the crux of the matter is the appellants shared a “common intention” to teach a lesson to the deceased and the appellants attacked him in the manner described by the prosecution which is in furtherance of their common intention in participating in the offence that being the fact, the contention has no bearing not even necessary to discuss them again. The aforesaid analysis is sufficient to reject the contention advanced by the appellant. 10. On a careful reappraisal of the evidence, it emanates that the appellants inflicted lathi blows causing bleeding injuries on the deceased in course of mutual fighting which proved to be an act without any premeditation. Only when the deceased intervened between two parties intending to subside the fighting, the appellants assaulted the deceased suspecting him to be a village tout and which injuries ultimately found fatal. In a thread bare discussion, the learned trial Court held that by their act the appellants committed “culpable homicide” not amounting to murder under exception 4 of Section 300 of IPC punishable under Section 304, Part-I of IPC. The contention of the appellants that they are liable under their individual acts and the provision of Section 304, Part-I of IPC is not applicable, is found to be without any basis as misconceived. The record reveals that in a sudden fight and in the heat of passion upon a sudden quarrel without premeditation the appellants inflicted injuries without taking undue advantage of the situation nor they acted in a cruel or unusual manner. The record reveals that in a sudden fight and in the heat of passion upon a sudden quarrel without premeditation the appellants inflicted injuries without taking undue advantage of the situation nor they acted in a cruel or unusual manner. The learned trial Court has determined whether the acts proved by the prosecution bring the case within the ambit of any of the four clauses of definition of ‘murder’ contained in Section 300 of IPC and when it is affirmatively held in the negative, the offence automatically attracted the mischief of “culpable homicide” not amounting to ‘murder’ under the First part of Section 304 of IPC. Necessary ingredients of exception 4 to Section 300 of IPC are: (a) a sudden fight; (b) absence of premeditation; (c) no undue advantage or cruelty, but the occasion must be sudden and not as a cloak for pre-existing malice. 11. From the materials available on record, it would go to show that the deceased was inflicted with the injuries by the appellants as brought on record through P.Ws.2 and 3 who have attributed the appellants with such injuries. No material has been placed before the Court indicating the fact that the injuries were accidentally caused. When the prosecution has proved that the appellants had caused the injuries it can very well be said that they intended to cause such bodily injuries in course of that fight or assault and it was not accidental or unintentional. I would repeat that the assault was without pre-meditation in a sudden fight in a heat of passion upon sudden quarrel and without taking undue advantage of the helplessness of the deceased and not acted in a cruel manner and such action of the appellants as noted earlier squarely fall within the definition of “culpable homicide” within exception 4 to Section 300 of IPC. 12. In a similar situation, the Apex Court in the case of Laxman Singh vrs. State of Haryana, 1990 Cri.L.J. 4041 (SC), have held that when accused-party and the victim had worked themselves into a fury on account of verbal altercation it was held that the accused was guilty under Section 304, Part-I of IPC. 13. Therefore, the judgment of conviction under Section 304, Part-I of I.P.C. as rendered by the trial Court in this case recording a finding of guilt against the appellants needs no interference. 13. Therefore, the judgment of conviction under Section 304, Part-I of I.P.C. as rendered by the trial Court in this case recording a finding of guilt against the appellants needs no interference. So far as the sentence is concerned, since the same appears to be lenient one, the same also needs no interference by this Court. 14. Hence, this criminal appeal being devoid of merit stands dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal dismissed.