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2017 DIGILAW 145 (ORI)

Bikuna Sahu v. State of Orissa

2017-02-03

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioners Bikuna Sahu and Bikram Panda have filed this criminal revision petition challenging the impugned order dated 29.07.2016 passed by the learned Addl. Sessions Judge, Phulbani in Sessions Trial No. 135 of 2015 in framing charges under sections 302, 323, 294, 506 and 354 read with section 34 of Indian Penal Code against them. The said case arises out of Phulbani Sadar P.S. Case No.66 of 2014. 2. The prosecution case, as per the first information report lodged by one Smt. Meera Mohapatra, wife of Srinibash Mishra (hereafter ‘the deceased’) of Nayagarh before the Officer in Charge, Sadar Police Station, Phulbani on 23.06.2014 is that, the informant was working as Sikhya Sahayak in Pradipadar P.U.P. School and on 23.06.2014 at about 10.00 a.m., she came with her husband (deceased) to the school who left her near the school. The deceased went inside the school to meet the headmaster on a courtesy visit. At that point of time, the headmaster was sitting on the verandah in front of the office. The informant entered inside the office and while she was signing the attendance register, she heard noise from outside. She came out and found that the petitioner Bikram Panda along with another were assaulting her deceased husband and the petitioner Bikram Panda was giving repeated forceful blows on the pinna of the ear of her husband. The deceased all on a sudden fell down on the ground. The informant went there and resisted the accused persons against their activities but the accused who was accompanying the petitioner Bikram Panda caught hold of her, pulled her saree and abused her in filthy language. The petitioner Bikram Panda trampled over the belly of the deceased again and again and pressed the neck and nose of the deceased with his boot. When the informant requested the accused persons not to assault her husband, petitioner Bikram Panda assaulted her by fist and kick blows. The deceased was fighting for death but the petitioner Bikram Panda was telling him to die and went on giving kick blows to him. He also abused the informant in filthy language and again gave four to five kick blows and slaps to the informant. The other persons who were present at the spot were almost dumbfounded. The deceased was fighting for death but the petitioner Bikram Panda was telling him to die and went on giving kick blows to him. He also abused the informant in filthy language and again gave four to five kick blows and slaps to the informant. The other persons who were present at the spot were almost dumbfounded. After the accused persons left the spot, the headmaster of the school contacted ambulance for which the deceased was shifted to Gumagarh PHC first and then to District Headquarters Hospital, Phulbani where he was declared dead. On the basis of such first information report, Phulbani Sadar P.S. Case No.66 of 2014 was registered under sections 302, 354, 323, 294, 506 read with section 34 of the Indian Penal Code. During course of investigation, the Investigating Officer examined number of eye witnesses, held inquest over the dead body, sent the dead body for post-mortem examination, sent the exhibits to SFSL, Rasulgarh, Bhubaneswar for chemical examination and after completion of investigation, charge sheet was submitted on 26.11.2014 under sections 302, 447, 323, 354, 506/34 of the Indian Penal Code against the two petitioners. 3. After submission of charge sheet, the case was committed to the Court of Session after complying the necessary committal procedure where the petitioners filed a petition under section 227 Cr.P.C. for discharge and the same was rejected vide order dated 10.05.2016 and subsequently on 29.07.2016, the learned Trial Court framed charges under sections 302, 323, 294, 506, 354 read with section 34 of the Indian Penal Code which is challenged in this revision petition. 4. The learned counsel for the petitioner Miss. Deepali Mohapatra challenging the impugned order contended that even though number of eye witnesses have stated about the assault on the deceased but the post mortem report indicates that no external injury was noticed and the internal organs were intact and there was no bruise or hemorrhage. She further contended that no weapon was used to assault the deceased and the witnesses have stated that petitioner Bikram Panda gave slaps on the left cheek for which the deceased fell down on the ground. She further submitted that no specific overtact has been attributed against the petitioner no.1 to have assaulted the deceased. She further contended that no weapon was used to assault the deceased and the witnesses have stated that petitioner Bikram Panda gave slaps on the left cheek for which the deceased fell down on the ground. She further submitted that no specific overtact has been attributed against the petitioner no.1 to have assaulted the deceased. She further contended that the cause of death as per the post mortem report was kept reserved awaiting the finding of chemical analysis of viscera and no viscera report was obtained by the learned Trial Court and even though there is no material under section 302 of the Indian Penal Code, charge was framed in a mechanical manner without application of mind. She further contended that even accepting the prosecution case for the sake of argument, the ingredients of offence under section 302 of the Indian Penal Code are not attracted and therefore, the impugned order so far as framing of charge under section 302 of the Indian Penal Code should be set aside. The learned counsel for the State Mr. Jyoti Prakash Patra on the other hand contended that final opinion regarding the cause of death was obtained from the Medical Officer of District Headquarters Hospital, Phulbani which indicated that death was due to vagal inhibition leading to syncope subsequent to assault by forcible slapping on the base of the ear. The learned counsel for the State placed the first information report, 161 Cr.P.C. statements of the informant and other eye witnesses Panchanan Behera, Santosh Kanhar, Prakash Kanhar, Arjun Kanhar. He also placed the chemical analysis report of the viscera which indicates that ethyl alcohol, methyl alcohol, barbiturates, benzodiazepine group of drugs, insecticidal, alkaloidal, rhodenticidal and metallic poison could not be detected in the viscera of the deceased. He contended that the surrounding circumstances clearly indicate the assault on the deceased was committed in furtherance of common intention of the petitioners and there is also motive behind commission of the offence and therefore, the revision petition should be dismissed. 5. Trial commences on the charges being framed. He contended that the surrounding circumstances clearly indicate the assault on the deceased was committed in furtherance of common intention of the petitioners and there is also motive behind commission of the offence and therefore, the revision petition should be dismissed. 5. Trial commences on the charges being framed. Considering the provisions under sections 227 and 228 of Cr.P.C., it is apparent that the Judge concerned has to consider all the records of the case, the documents placed, hear the submissions of the accused and the prosecution and if there is ‘no sufficient ground’ for proceeding against the accused, he shall discharge the accused by recording reasons. If after such consideration and hearing, as mentioned in section 227 of Cr.P.C., the Judge is of the opinion that ‘there is ground for presuming’ that the accused has committed an offence, he is free to direct the accused to appear and try the offence in accordance with the procedure after framing charge in writing against the accused. The probative value of the materials collected by the prosecution cannot be gone into at the stage of framing of charge and the materials are to be accepted as true at that stage. Whether the accused in fact committed the offence or not, can only be decided in the trial. A mini trial at the stage of framing of charge is not permissible. In case of Sajjan Kumar Vs. Central Bureau of Investigation reported in (2010) 47 OriCrR (SC) 650, it is held as follows:- “17. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 6. Looking at the statements of the eye witnesses, the participation of the petitioners Bikram Panda and Bikuna Sahu in the occurrence is apparent. Looking at the statements of the eye witnesses, the participation of the petitioners Bikram Panda and Bikuna Sahu in the occurrence is apparent. The witnesses have stated that both the petitioners came and asked the deceased regarding payment of the outstanding dues towards supply of cement and rod and then they participated in the assault of the deceased and the informant. The petitioner Bikram Panda gave forceful slaps on the left ear pinna of the deceased as a result of which he fell down. The informant has not only stated about the forceful blows given by the petitioner Bikram Panda on the pinna of the ear of the deceased but further stated that after the deceased fell down on the ground, the petitioner Bikram Panda trampled over the deceased. The informant was assaulted by the petitioners when she came to save her husband and protested the accused persons. The nature of discrepancies pointed out by the learned counsel for the petitioners in the statements of the witnesses cannot be adjudicated at this stage and it is for the Trial Court to consider the same at appropriate stage. So far as the common intention is concerned, it has to be gathered from the facts and circumstances of the case. Proof of overtact is not essential but showing of common intention is necessary. The essence of section 34 of the Indian Penal Code is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot. In every case, it is not possible to have direct evidence of a common intention. Similarly, the ‘intention’ and ‘knowledge’ are the factors which have to be gathered from the facts and circumstances of each case and there cannot be a yardstick uniformly provided for application of such principle. Even though there is no external injury noticed on the deceased as per the post mortem report and the internal organs were intact and no bruise or hemorrhage was noticed but the doctor has given the final opinion relating to the cause of death as “vagal inhibition leading to syncope”. In medical science, vagal inhibition is a condition that causes sudden death to occur within seconds or a minute or two due to minor trauma or relatively simple and harmless peripheral stimulation. In medical science, vagal inhibition is a condition that causes sudden death to occur within seconds or a minute or two due to minor trauma or relatively simple and harmless peripheral stimulation. Pressure on the baroreceptors situated in the carotid sinuses, carotid sheaths, and the carotid body (located in the internal carotid artery just above the bifurcation of common carotid artery, and situated about the level of angle of mandible) causes an increase in blood pressure in these sinuses with resultant slowing of the heart rate, dilatation of blood vessels and a fall in blood pressure. The vagal inhibition leaves the person dead instantly. In normal persons, pressure on the carotid sinus causes minimal effects with a decrease in heart rate of less than six beats per minute, and only a slight reduction (less than 10 mm. Hg) in blood pressure. Some individuals show marked hypersensitivity to stimulation of the carotid sinuses, characterized by bradycardia and cardiac arrhythmia ranging from ventricular arrhythmias to cardiac arrest. Stimulation of the corotid sinus baroreceptors causes impulses to pass via Herring nerve to the afferent fibers of the glossopharyngeal nerve (9th cranial nerve); these in turn link in the brain stem to the nucleus of the vagus nerve (10th cranial nerve) causing the vagal inhibition. Parasympathetic efferent impulses then pass to the heart via the cardiac branches of the vagus nerve. Stimulation of these fibers causes a profound bradycardia. This reflex arc is independent of the main motor and sensory nerve pathways. There is wide network of sensory nerves in the skin, pharynx, glottis, pleura, pentoneum covering viscerr or extending into the spermatic cord, cervix, urethra, perineum and coeliac plexus. Afferent fibers from these tissues pass into the lateral tracts of the spinal cord, effect local reflex connections over several segments and also pass to the brain. The vagal nucleus is controlled by the synaptic connections in the spinal cord, which may be facilitated from both the sensory central cortex and from the thalamic centres. The latter may be responsible for emotional tone noted in the vagal reflex. Parasympathetic stimulation of the heart can be initiated by high neck compression, pressure on carotid sinus or sometimes by direct pressure over the trunk of the vagus nerve. The latter may be responsible for emotional tone noted in the vagal reflex. Parasympathetic stimulation of the heart can be initiated by high neck compression, pressure on carotid sinus or sometimes by direct pressure over the trunk of the vagus nerve. According to the medical science, causes of vagal inhibition are as follows:- (i) The commonest cause of such vagal inhibition is pressure on the neck particularly on the carotid sinuses as in hanging or strangulation. (ii) Unexpected blows to the larynx, chest, abdomen and genital organs. (iii) Extensive injuries to the spine or other parts of the body. (iv) Impaction of food in larynx or unexpected inhalation of fluid into the upper respiratory tract. (v) Sudden immersion of body in cold water. (vi) The insertion of an instrument into the bronchus, uterus, bladder or rectum. (vii) Puncture of a pleural cavity usually for producing a pneumothorax. (viii) Sudden evacuation of pathological fluids, e.g., ascitic or pleural. (ix) Sudden distension of hollow muscular organs, e.g., during attempts at criminal abortion, when instruments are passed through the cervix or fluids are injected into the uterus. (x) In degenerative diseases of the heart, e.g., sinus bradycardia and partial or complete A-V block; parasympathetic stimulation further depress the heart rate and may induce a Stokes-Adams attack which may be fatal. There is great variation in individual susceptibility. Death from vagal inhibition is accidental and caused by microtrauma. The stimulus should be sudden and abnormal for the reflex to occur. The reflex is exaggerated by a high state of emotional tension, and also any condition which lowers voluntary cerebral control of reflex responses, such as a mild alcoholic intoxication, a degree of hypoxia or partial narcosis due to incomplete anesthesia. So far as autopsy is concerned, when death results from vagal inhibition, there are no characteristic postmortem appearances. The cause of death can be inferred only by exclusion of other pathological conditions, and from the accurate observations by reliable witnesses, concerning the circumstance of death. 7. In view of the available materials on record, the statements of the eye witnesses, the reports of the doctors, the chemical examination report and the circumstances under which the deceased died, I am of the humble view that the learned Trial Court has not committed any illegality in framing charge under section 302 of the Indian Penal Code against the petitioners apart from other offences. The framing of the charges against the petitioners vide impugned order dated 29.07.2016 under sections 302, 323, 294, 506, 354 read with section 34 of the Indian Penal Code is quite justified and need not be interfered with. Accordingly, the revision petition being devoid of merit stands dismissed. Since the occurrence is of the year 2014 and charge has already been framed, the learned Trial Court shall do well to conclude the trial within a period of three months from the date of receipt of the order. It is made clear that any observation made while adjudicating this revision petition challenging the legality of framing of charge should not influence the learned Trial Court and he has to strictly proceed to decide the case on the basis of the evidence to be adduced by both the sides at the time of trial.