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2017 DIGILAW 1275 (ORI)

Gobardhan Naik v. State of Odisha

2017-11-07

J.P.DAS

body2017
JUDGMENT J.P.DAS, J. - The appellant stood convicted under Sections 304-I/294/506 of the Indian Penal Code along with Sections 25 and 27 of the Arms act and sentenced to undergo R.I. for ten years and to pay a fine of Rs.5000/- in default to undergo R.I. for six months for the offence under Section 304, Part-I of the I.P.C.; R.I. for one months without any fine for the offence under Section 294 of the I.P.C.; R.I. for one year and to pay a fine of Rs.1000/-, in default, to undergo R.I. for one month for the offence under Section 506 of the I.P.C. and R.I. for one year and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for one month on each count for the offences under Sections 25 (1-B) and 27 (1) of the Arms Act with a direction for concurrent running of all substantive sentences by the leaned Sessions Judge in S.T. Case No.80 of 2011. 2. The case of the prosecution is that the informant and the accused are neighbours and on 16.06.2010 at about 9 A.M. the accused passed some filthy comments on the grand daughter of the informant to which the daughter of the informant objected. Thereafter, the accused abused the daughter of the informant using obscene words and when she protested, the accused gave out threats to eliminate her by gun and bombs. The informant and his daughter being scared of such threat immediately proceeded to the Police Station for help. The wife of the informant was alone at home and at about 1.30 P.M. the accused had a quarrel with the wife of the informant and fired at her from a gun which resulted in death of the victim at the spot. The villagers present at the spot, tried to give water to victim but she was dead. The informant getting the news from one Grama Rakhi, came back to the village and found the dead body of his wife lying on his house verandah. A report was lodged at the Police Station and the investigation was taken up. In course of investigation, inquest and post-mortem were conducted over the dead body, witnesses were examined, one pellet along with some blood stained earth was seized from the spot of occurrence and were sent to S.F.S.L. for chemical examination. A report was lodged at the Police Station and the investigation was taken up. In course of investigation, inquest and post-mortem were conducted over the dead body, witnesses were examined, one pellet along with some blood stained earth was seized from the spot of occurrence and were sent to S.F.S.L. for chemical examination. After completion of all examinations and obtainment of reports, the charge sheet was submitted against the accused under Sections 302/294/506 of the Indian Penal Code along with Sections 25 and 27 of the Arms Act. Charges were framed as per allegations made in the charge sheet to which the accused pleaded not guilty and faced the trial. In course of trial, prosecution has examined twelve witnesses including the eye witnesses to the occurrence, the doctor who conducted post-mortem examination besides the Police Officers who took part in the investigation. No evidence was adduced on behalf of the accused in defence. 3. Analysing the evidence placed on record, the learned Sessions Judge held the accused guilty and convicted him under Section 304, Part-I of the I.P.C. so also for the other offences as charged and passed the impugned judgment of conviction and sentences as aforesaid. 4. In course of hearing of the appeal, which was registered on a petition of the convict-appellant from jail, learned Counsel engaged on behalf of the High Court Legal Services committee mainly contended that the medical evidence placed on behalf of the prosecution was not sufficient to establish that the victim died out of gun shot injury and further the alleged weapon of offence was also not recovered or seized in course of investigation apart from the fact that the pellet which was allegedly seized from the spot of occurrence, did not contain any stain of blood. It was also submitted that the conviction under Sections 25 and 27 of the Arms Act is not sustainable since there was no sanction order obtained from the District Magistrate on behalf of the prosecution prior to submission of charge sheet. 5. In order to prove its case, the prosecution has mainly relied on the evidence of two independent eye witnesses namely, P.Ws. 4 and 7 who have categorically stated that during the morning hours there was a disturbance between the accused and the informant and his daughter whereafter the informant and his daughter went to the Police Station. 5. In order to prove its case, the prosecution has mainly relied on the evidence of two independent eye witnesses namely, P.Ws. 4 and 7 who have categorically stated that during the morning hours there was a disturbance between the accused and the informant and his daughter whereafter the informant and his daughter went to the Police Station. Thereafter, the accused had an altercation with the wife of the informant and the accused fired from a gun at the victim who died at the spot sustaining bleeding injuries. Both the witnesses have stated that the pellet hit on the right hand and right chest of the victim who fell down sustaining bleeding injuries. Some persons administered water to her and brought her to her verandah but she died. It was submitted by the learned Counsel for the appellant that out of said two witnesses, the P.W. 7 was again recalled for further examination and in course of his such examination, he has stated that he has not seen the accused firing at the spot. Learned trial court has discussed the material evidence in detail on record and has observed that both the eye witnesses have categorically stated about the alleged incident and firing by the accused at the victim and their such evidence could not be demolished in course of their cross-examination at the first instance, but after framing of further charge under Sections 25 and 27 of the Arms Act, which was left out inadvertently at the time of framing of charges at the first instance, the said eye witnesses were recalled for further cross-examination and the P.W. 4 stood to his earlier statement whereas the P.W. 7 stated that he was not a direct witness to the occurrence and had not seen the firing by the accused. Learned Sessions Judge has observed that P.W. 7 might have been gained over during the period of two years between the first and second examination and I do not find any acceptable reason to discard the evidence of P.W. 7 who had categorically stated about the occurrence at the first instance. 6. Learned Sessions Judge has observed that P.W. 7 might have been gained over during the period of two years between the first and second examination and I do not find any acceptable reason to discard the evidence of P.W. 7 who had categorically stated about the occurrence at the first instance. 6. Now coming to the medical evidence, it was submitted by the learned Counsel for the petitioner that although the allegation was gun short injury still there was no exit wound on the body of the victim found out by the doctor and the pellet found and seized from the spot did not contain any blood stain as opined by the chemical examiner. It was further stated that the doctor P.W. 8 in his evidence has stated that the injury as found was not possible if one fires from front to front and the injury may be possible if one falls downward. Stressing on this statement of the doctor it was submitted by the learned Counsel for the petitioner that the allegation of prosecution that the death of the deceased was due to the gun shot fired by the accused, has not been proved beyond all reasonable doubt. Learned trial Court has also discussed this aspect in detail and has observed that the eye witness have categorically stated that the gun shot fired by the accused hit on the right hand and right chest of the victim and the doctor has stated to have found injuries to the right lung and liver and the cause of death was due to huge bleeding from abdominal cavity for the aforesaid injuries. Of course, no pellet was found inside the body of the victim and there was no exit wound but the materials placed by the prosecution and the circumstances under which the death of the deceased was caused immediately at the spot, I am not inclined to accept the contention raised on behalf of the appellant that the cause of death was not due to gun shot injuries. 7. It was submitted by the learned Counsel for the appellant that the alleged weapon of offence has not been recovered in course of investigation. 7. It was submitted by the learned Counsel for the appellant that the alleged weapon of offence has not been recovered in course of investigation. In this regard, it was submitted by the learned Counsel for the State that non-recovery of the weapon of offence is not always fatal to the prosecution case and further the appellant while in police custody confessing his guilt had led the Police to a river where he had thrown the gun but it could not be recovered since it was a flowing river. I find sufficient force in the contentions made on behalf of the State. It was further submitted on behalf of the appellant that the learned Sessions Judge has discussed at length the ingredients of offences under Sections 302/304 of the I.P.C. and has reached a conclusion that the alleged incident was a culpable homicide not amounting to murder. It was further submitted that although the learned Sessions Judge has observed repeatedly, considering the circumstances as found out, especially that there was quarrel and disturbance between the accused and the informant during the morning hours and the accused was not in a normal state of mind, being provoked, that the accused did not have an intention to cause death of the victim, still he has convicted the accused under Section 304-I of the I.P.C., which should have been under Section 304, Part-II of the I.P.C. 8. Going through the impugned judgment, it is seen that the learned Sessions Judge has discussed at length the circumstances under which the alleged occurrence took place and the preceding exchange of hot words between the informant with his daughter and the accused and has categorically observed that considering the evidence on record it can be clearly deduced that the accused though killed the victim, he had not come to the spot with an intention to kill her. But after a lengthy discussion, he has again held that the accused was liable for the offence under Section 304-I of the I.P.C. Considering the materials evidence available on record, I am not in agreement with the findings of the learned Sessions Judge that the accused had the intention to cause death of the victim and hence, the conviction of the appellant under Section 304-I is modified to be under the Section 304-II of the I.P.C. 9. The conviction of the appellant under Sections 294/506, I.P.C. was fairly conceded to. But so far as the conviction under Sections 25 and 27 of the Arms Act is concerned, learned Counsel for the appellant submitted that the learned Sessions Judge has categorically held in the Paragraph-14 of the impugned judgment that the accused at the relevant point of time was having a gun without license as required under Section 3 of the Arms Act and used the said gun for committing the offence as alleged. Thus, it was submitted that as per settled proposition of law prior sanction of the District Magistrate is necessary in respect of any offence under Section 3 of the Arms Act and that having not been procured in this case, the conviction of the appellant under Sections 25 and 27 of the Arms Act is liable to be set-aside. As found from the record, charge sheet was submitted for the offence under Section 25 and 27 of the Arms Act but no sanction order was filed in this case. The charge has also been specifically framed for violation of Section 3 of the Arms Act. In such circumstances, the conviction under Sections 25 and 27 of the Arms Act is not sustainable and is liable to be set aside. 10. Lastly, it was submitted by the learned Counsel for the appellant that the appellant is in custody since 15.04.2011 and has thus undergone sentence for more than six and half years. 11. Considering the submissions, the materials placed before the Court and the circumstances of the case, the appeal is allowed in part. The conviction and sentence passed under Section 25 (1-B) and 27 (1) of the Arms Act is set-aside. The conviction of the appellant under Section 304, Part-I of the Indian Penal Code is modified to be Section 304, Part-II of the Indian Penal Code. The sentence of R.I. for ten years and to pay a fine of Rs.5000/-, in default, R.I. for six months under Section 304, Part-I of the I.P.C. is modified to be R.I. for seven years. The conviction and sentences passed against the appellant for the offences under Sections 294/506, I.P.C. stand confirmed. The substantive sentences are to run concurrently. 12. The Jail Criminal Appeal is disposed of accordingly. JCRLA disposed of.