Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 742 (ORI)

Kuna Dehury v. State of Orissa

2016-09-06

B.K.NAYAK, K.R.MOHAPATRA

body2016
JUDGMENT : B.K. NAYAK, J. 1. These Appeals have been filed from Jail by the Appellants challenging the judgment dated 13.08.2004 passed by the learned Additional Sessions Judge (I), Dhenkanal in Criminal Trial (Sessions) No. 129 of 2003/11 of 2003 convicting the appellants under Section 302/34 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentencing each of them to undergo R.I. for life and to pay fine of Rs.1,000/- each, in default, to undergo R.I. for a further period of one month. Hence, both the appeals are heard analogously and this common judgment is passed. 2. Prosecution case in brief runs as under:— On 02.11.2002 at 1.00 PM, the accused-appellants picked up quarrel with Anand Pradhan (the deceased) and assaulted him with wooden dengis in front of the shop of Nilamani Sahu. On being assaulted, the deceased fell down with bleeding injuries on his head and other parts of the body and succumbed to the injuries on the spot. Smt. Rama Pradhan, wife of the deceased, being informed by her daughter, lodged an FIR at Bhapur Outpost at about 5.00 PM on the same day. The Sub-Inspector of Police of the Outpost entered the case in the Station Diary of the Outpost and sent the original report to the Sadar Police Station, where the Officer in-charge registered PS Case on the basis of the FIR and took up investigation. In course of investigation, the I.O. visited the spot; examined the prosecution witnesses and held inquest over the dead body of the deceased and sent the same for postmortem examination. The IO also seized the weapons of offence, i.e., wooden Dangis (MOs.I and II), wearing apparels of the accused persons and the deceased, as well. He sent the MOs and seized clothes to S.F.S.L., Bhubaneswar for examination and opinion. The IO also produced M.Os. I and II before the Medical Officer for his opinion, as to whether the injuries sustained by the deceased were possible by M.Os. I and II. On completion of investigation, the IO submitted charge sheet against the accused-appellants for commission of offence under Section 302/34 of IPC. Accordingly, the appellants faced the prosecution. 3. The defence plea is one of complete denial of the occurrence and false implication of the accused persons. 4. I and II. On completion of investigation, the IO submitted charge sheet against the accused-appellants for commission of offence under Section 302/34 of IPC. Accordingly, the appellants faced the prosecution. 3. The defence plea is one of complete denial of the occurrence and false implication of the accused persons. 4. In order to prove its case, the prosecution examined as many as ten witnesses and also relied upon certain documents and material objects. PW-2, the informant is the wife of the deceased; PW-4, the daughter of the deceased is the eyewitness to the occurrence. PWs 6 and 7, claimed to be eyewitnesses to the occurrence by the prosecution, turned hostile. PW-1 is the person who accompanied the informant to the Outpost for lodging of the FIR. PW-3 is the witness to the seizure. PW-5 is a witness to the inquest. PW-8 is the Scientific Officer of the D.F.S.L., Dhenkanal, who on police requisition, collected the bloodstained earth from the spot marked as Ext.A, bloodstained sand from the village road, saline extract of bloodstains collected from the wooden Dangis found lying on the spot and bloodstained clothes of the accused persons. He also took photographs of the scene of crime. PW-9, the S.I. of Police, Bhapur Outpost who received the complaint of the informant and took up investigation after registration of the case at the PS and PW-10 is the Medical Officer attached to the District Headquarters Hospital, Dhenkanal, who conducted autopsy over the dead body of the deceased. The accused persons did not lead any evidence in defence. 5. In course of argument, learned counsel for the appellants fairly submits that she would not challenge the finding of the trial Court to the effect that the deceased sustained a homicidal death in view of the large number of lacerated wounds causing fractures of the skull bones and wounds found on other parts of the body of the deceased on postmortem examination. She however, submits that PW-6 and PW-7, the so-called eyewitnesses to the occurrence turned hostile and the solitary evidence of PW-4, the daughter of the deceased, cannot be accepted with regard to fact that the appellants were the authors of the crime since PW-4 is a partisan and interested witness. She however, submits that PW-6 and PW-7, the so-called eyewitnesses to the occurrence turned hostile and the solitary evidence of PW-4, the daughter of the deceased, cannot be accepted with regard to fact that the appellants were the authors of the crime since PW-4 is a partisan and interested witness. Alternatively she submits that even if it is accepted that the appellants assaulted the deceased, in view of the prosecution case and evidence that the deceased and the appellants together took liquor and a quarrel started between them and that in course of such quarrel, the appellants assaulted the deceased by means of wooden Dangis, which were lying on the spot, the case squarely falls within Exception-4 of Section 300 of the Penal Code and further intention on the part of the appellants to kill the deceased being absent, they can be at best said to have committed offence punishable under Part two of Section 304 of the Penal Code. Learned Additional Government Advocate submits that the eyewitness-PW-4, who is none other than the daughter of the deceased, has no reason to implicate the appellants falsely and her evidence is quite clear, cogent and trustworthy and hence is sufficient to prove the guilt of the appellants, even though PWs-6 and 7, the other two eyewitnesses turned hostile during the trial. Learned Additional Government Advocate further submits that there is no sufficient evidence to show that the case falls under Section 300 (Exception-4) or Section 300 (Exception-2) of the IPC. 6. There is no dispute that the deceased suffered homicidal death as has been conceded by the learned counsel for the appellants and also borne out from the evidence of the Doctor, PW-10 and his postmortem report (Ext.12). The injuries sustained on the body of the deceased were lacerated injuries causing fractures of the skull, which are possible by wooden Dangis or planks, M.Os.-I and II, as per medical opinion. 7. With regard to the complicity of the appellants, apart from other circumstances, the evidence of PW-4 is the most relevant. PW-4 is none other than the daughter of the deceased. 7. With regard to the complicity of the appellants, apart from other circumstances, the evidence of PW-4 is the most relevant. PW-4 is none other than the daughter of the deceased. She has clearly stated in her evidence that at the time of occurrence, i.e., 1.00 PM, she had gone to the tube well situated near the shop of PW-6 to fetch water and found both the accused persons quarreling with her father in front of shop of PW-6 and that PW-6 tried to persuade them not to quarrel, but they did not listen and then accused Kuna Dehury assaulted the deceased, who fell down on the ground and thereafter both the accused persons further assaulted the deceased by means of wooden Dangis (planks) on his head causing bleeding injuries, as a result of which the deceased died on the spot. It further appears from her evidence that after assaulting the deceased, accused persons took away the dead body of the deceased to a distance and left the same on the road near the house of one Fagua Dehury of the same village. PW-4, thereafter came to her house and sent her younger sister, Sarujini and younger brother, Nakula to inform the incident to their mother, the informant, who was then cutting paddy crops in the land of one Tila. It further appears from her evidence that on getting information, her mother came to the house when PW-4 informed her about the incident in detail. On a scanty cross-examination of PW-4 nothing has been brought out to doubt her veracity or truthfulness. She has however stated that at the time of occurrence, except her, the only other person present was PW-6, who has turned hostile. It also transpires from her cross-examination that both the accused persons picked up wooden Dangis from the shop of PW-6 which were kept for fuel purpose. She has denied the suggestion by the defence that she has not seen the occurrence. She also identified the wooden Dangis (MOs. I and II) as the weapons of offence. Merely because PW-4 is the daughter of the deceased she cannot be branded as a partisan or interested witness. A partisan or interested witness is one who is interested in securing conviction of a person out of vengeance, enmity or dispute [See : Ram Bharosey vs. State of U.P. (2010) 1 SCC 722 ]. Merely because PW-4 is the daughter of the deceased she cannot be branded as a partisan or interested witness. A partisan or interested witness is one who is interested in securing conviction of a person out of vengeance, enmity or dispute [See : Ram Bharosey vs. State of U.P. (2010) 1 SCC 722 ]. There is nothing on record to show that the deceased and PW-4 are either inimical to the accused persons, or that PW-4 had any reason to falsely implicate the accused persons. Her evidence is quite clear, cogent and unimpeachable, which unerringly prove the fact that the accused persons were the assailants of the deceased. The testimony of PWs 6 and 7, the other two eyewitnesses to the occurrence resiling from their statements made before the IO cannot have any adverse impact on the credibility and acceptability of the evidence of PW-4. 8. Now it remains to be seen whether the accused persons can be held guilty for commission of the offence of murder punishable under section 302 IPC or of culpable homicide not amounting to murder under Section 304, IPC. It appears from the prosecution evidence, particularly that of PW-4, that there was a quarrel between the deceased and the accused persons in course of which the occurrence took place. However, there is nothing on record to show as to who initiated the quarrel and what was the reason for it. It also appears from the evidence of PW-4 that in course of such quarrel, both the accused persons picked up two wooden planks (wooden Dangis), which were lying in front of shop of PW6 and assaulted the deceased by means of the same. It is, thus clear that the accused persons had no pre-mediation and they did not come to the spot with any arms. The assault by them on the deceased was on the heat of passion during the sudden quarrel and finding the wooden planks lying on the spot they picked up the same and assaulted the deceased therewith. Therefore, the case squarely falls within Exception-4 of Section 300 of the Penal Code and hence the appellants can be said to have committed offence of culpable homicide not amounting to murder. 9. Therefore, the case squarely falls within Exception-4 of Section 300 of the Penal Code and hence the appellants can be said to have committed offence of culpable homicide not amounting to murder. 9. The next question that remains to be seen as to whether accused persons had the intention to cause death of the deceased or had only the knowledge that the assault by them was likely to cause death without having any intention. Having regard to the number and nature of injuries sustained by the deceased, particularly a large number of fractures on the skull bones and removal of brain materials, it must be held that the assault by means of the wooden planks by the appellants was quite merciless and forceful and therefore it cannot be said that they had mere knowledge that their assault might lead to death of the deceased. Keeping in view the nature, number and the seat of injuries on the deceased it must be held that the appellants intended to cause the death of the deceased. Hence, we are of the view that the case falls under first Part of Section 304 of IPC. Further, since both the accused persons jointly assaulted the deceased by identical weapons and it cannot be said as to who dealt how many blows, we are of the view that they had developed common intention to cause death of the deceased. 10. In the aforesaid analysis, we set aside the conviction and sentence of the appellants under Section 302/34 of IPC and acquit them of the said charge, and instead, convict them under the first part of Section 304 read with Section-34, IPC and sentence each of them to undergo RI for 10 years and pay fine of Rs.1,000/- each, in default of payment of fine, to undergo RI for further period of one month. It is stated by the learned counsel for the appellants that both the appellants are in jail custody for over 13 years. If it is so, we direct that the appellants be released forthwith, or else, they have to be released after serving the sentence imposed hereby The order be communicated to the learned trial Court immediately.