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2017 DIGILAW 416 (ORI)

Gania @ Ganeswar Sethi v. State of Orissa

2017-04-17

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. PUJAHARI, J. 1. The appellants herein call in question the judgment of conviction and order of sentence passed against them in S.T. No.45-D of 1998 on the file of the Sessions Judge, Dhenkanal. The learned Sessions Judge, Dhenkanal vide the impugned judgment and order while acquitting the present appellants and another accused of the charge under Section 302 of the Indian Penal Code (for short, “the I.P.C.”), held the present appellants guilty of the charge under Section 304, Part-II of I.P.C. and sentenced each of them to undergo R.I. for three years. 2. Prosecution case placed before the trial court is that on 23.11.1987 the deceased, namely, Chhabi Behera, the brother of the informant, had gone for tending cattle to “Bada Taila” of his village along with Akhaya Kumar Behera (P.W.4), Sesan Samal (P.W.7), Satyananda Samal (P.W.8) and one Srinibas Samal. At about noon, when the deceased was taking food, he saw both the appellants along with one Ganeswar Patra (since acquitted) were passing on the road being naked and in a state of inebriation. The deceased when confronted them for their such indecent gesture as women of the village were also passing in that road, all the three culprits rushed towards him and Gania @ Ganeswar Patra first gave him slap and when P.Ws.4, 7 and 8 protested, all the three culprits went near the deceased and gave him fist blows and slaps and when the deceased tried to flee away to save him, they pelted stones at him, as a result, he fell down and all the culprits assaulted him with stones on his head and then fled away. Hearing about the incident, P.W.1, the brother of the deceased went to the spot, found the deceased lying injured in a unconscious state and took him to the Police Station and lodged F.I.R. Then, the deceased was taken to Dhenkanal Headquarters hospital and his condition being serious, he was referred to S.C.B. Medical College & Hospital, Cuttack where he succumbed to the injuries. After completion of investigation, charge-sheet under Section 302/34 of I.P.C. was submitted against three accused persons including the present appellants and the case was committed to the Court of Session. After completion of investigation, charge-sheet under Section 302/34 of I.P.C. was submitted against three accused persons including the present appellants and the case was committed to the Court of Session. The learned Sessions Judge, Dhenkanal placing reliance on such material collected during investigation framed charge under Section 302/34 of IPC against all of them and they having pleaded not guilty to the charge, prosecution examined eleven witnesses and exhibited some documents and Material Objects to bring home the charge. On the other hand, the defence examined only one witness and exhibited some documents in its defence. The plea of accused–Gania @ Ganeswar Sethi was of right to self defence whereas the plea of these appellants was one of complete denial. After conclusion of trial, the learned trial court considering the evidence on record and accepting the plea of right of private defence of accused–Gania @ Ganeswar Sethi, acquitted him, but held these two appellants guilty of the charge under Section 304, Part-II of IPC and sentenced each of them, as stated earlier. 3. During course of hearing of the appeal, the learned counsel for the appellants contended that the impugned judgment is not sustainable inasmuch as the same is based on reliable version of P.Ws.4, 7 & 8, the so called witnesses to the occurrence. 4. On the other hand, the learned Addl. Standing counsel supported the impugned judgment of conviction and order of sentence. 5. Perused the materials on record. P.W.1, the informant stated that he heard from one Uchhab Dehury that all the three accused persons had assaulted his deceased brother. P.W.2 stated that Uchhab Dehury (P.W.3) informed her that the deceased was being assaulted by some persons and being asked by him, she (P.W.2) went to the village and informed P.W.1. P.W.3 (Ucchab Dehury) stated that three culprits were assaulting the deceased and he sent P.W.2 to give the said news in the house of the deceased. P.W.2 stated that Uchhab Dehury (P.W.3) informed her that the deceased was being assaulted by some persons and being asked by him, she (P.W.2) went to the village and informed P.W.1. P.W.3 (Ucchab Dehury) stated that three culprits were assaulting the deceased and he sent P.W.2 to give the said news in the house of the deceased. P.W.4 (Akhaya Kumar Behera) stated that while the deceased was taking food, the three culprits in naked stage were coming from the village and when the deceased confronted with them for their such indecency, the appellant–Gania @ Ganeswar Patra assaulted him with slaps, then all the accused persons assaulted the deceased with fist and slaps and when the deceased raised a bamboo stick to defend himself, accused–Gania Sethi threw a stone at him, as a result the stone hit on his head and he fell down. Thereafter, all the accused persons assaulted the deceased by stone. He further stated that the accused persons ran away towards their village leaving one Towel (M.O.II) and one Gamuchha (M.O.I) at the spot. This witness was extensively cross-examined. P.W.4 specifically stated in his evidence that when he called Ucchab Behera (Dehury) to come, he could not come as he was lame and he sent P.W.2 to give information of the same in the house of the deceased. P.W.4 in his evidence has vividly described the details of the overt act committed by the accused persons. As such, the evidence of P.Ws.3 and 4 corroborates and complements to each other. 6. P.W.5, the Medical Officer, who had examined the deceased on 23.11.1987, stated that he found one multiple lacerated injury over an area of 4” x 2” over occipital and temporal area on the right side which was dangerous and might have been caused by hard and blunt substance. During cross-examination, answering to the Court, P.W.5 has specifically stated that the injuries on the patient cannot be caused by one stone. P.W.6, another Medical Officer, who had conducted postmortem examination over the dead body of the deceased, stated that the injuries over the head of the deceased are sufficient to cause death in ordinary course of nature. He further stated that the head injuries found on the body of the deceased and corresponding internal injuries are possible by stone. P.W.6, another Medical Officer, who had conducted postmortem examination over the dead body of the deceased, stated that the injuries over the head of the deceased are sufficient to cause death in ordinary course of nature. He further stated that the head injuries found on the body of the deceased and corresponding internal injuries are possible by stone. Of course, during cross-examination he stated that the injuries are possible if one stone is thrown at the victim on several occasions causing multiple impact corresponding to the number of injuries. Such version is no way helpful to the appellants as because it is nobody’s case that one stone was thrown to the deceased repeatedly, by which the injuries were caused. On the other hand, evidence on record indicates that all the accused persons assaulted the deceased by stones. 7. P.W.7 (Seson Samal), another eyewitness to the occurrence, stated that all the accused persons rushed towards the deceased, assaulted him by fist and slap and when the deceased whirled his bamboo lathi and tried to run away, accused–Gania Sethi picked up a stone and threw to the deceased which hit on his head, as a result, he fell down. Then all the accused persons assaulted him with stones and ran away. During cross-examination, he stated that he, Uchhab Dehury (P.W.3) and P.W.2 (Kairi alias Ranju Sethi) were tending cows and goats. P.W.8, another eyewitness to the occurrence like P.W.7 also stated that all the accused persons assaulted the deceased with slap, fist and stones. P.W.9 is a witness to the seizure of the lathi. P.W.10 is the Medical Officer who had examined the accused–Ganeswar Sethi on 07.12.1987 and found three scar marks on different parts of his body and he opined that such injuries can be possible if one whirls his lathi in order to save himself from the attack of another man. P.W.11 is the Investigating Officer who had investigated the case and submitted charge-sheet. 8. D.W.1, the Medical Officer, stated that on 23.11.1987 while he was working as Assistant Surgeon, District Headquarters Hospital, Dhenkanal, was in charge of Outdoor. P.W.11 is the Investigating Officer who had investigated the case and submitted charge-sheet. 8. D.W.1, the Medical Officer, stated that on 23.11.1987 while he was working as Assistant Surgeon, District Headquarters Hospital, Dhenkanal, was in charge of Outdoor. At about 4.30 p.m. he examined one Ganeswar Sethi and found multiple injuries on his body and he proved the entry in OPD register vide Ext.A. He further stated that he found three incised bleeding injuries, one bruise and one abrasion on his person, all being simple in nature and probably caused by sharp cutting weapon. 9. It is seen that prosecution mainly relies on the version of P.Ws.4, 7 and 8 who are eyewitnesses to the occurrence. Nothing substantial has been elicited during their cross-examination to disbelieve their testimony. Their evidence gets ample corroboration from the evidence of the surgeon (P.W.5) who conducted autopsy. Nothing is brought on record as to why these witnesses would depose lie against the appellants. P.W. 3 though not eyewitness to the occurrence, but have stated that he had heard about the occurrence immediately thereafter which lends corroboration. The learned trial court vividly analyzing the evidence on record has acquitted Ganeswar Sethi accepting his plea that he had exercised his right of private defence. The said finding of the learned trial court is not under challenge in this appeal. So, the same needs no discussion. But, as regards the present appellants, the learned trial court has given a definite finding that the incident took place all on a sudden without any provocation. P.Ws.7 and 8 are boys of tender age of 12 and 13 years, so naturally it was not possible on their part to intervene in the quarrel. 10. From the evidence on record, as discussed above, it appears to this Court that there is clear, cogent and trustworthy evidence against the appellants to have assaulted the deceased with stone causing the injuries which ultimately proved to be fatal to the deceased. The trial court, however, holding that intention of the appellants being not there to kill but to cause injuries which contributed to the death of the deceased during the course of a quarrel, held them guilty of a charge under Section 304, Part-II of IPC. The trial court, however, holding that intention of the appellants being not there to kill but to cause injuries which contributed to the death of the deceased during the course of a quarrel, held them guilty of a charge under Section 304, Part-II of IPC. While agreeing with the finding of the trial court that the appellants committed an offence under Section 304, Part-II of IPC, this Court does not approve the reasoning given by the trial court that as there was no intention to kill the deceased by the appellants, no charge under Section 302 read with Section 34 of IPC was made out against the appellants, but they are guilty of charge under Section 304-II of IPC. Needless to say that intention to kill is not a sine-qua-non to hold a person guilty of the charge under Section 302 of IPC, but under Section 304, Part-II of IPC. Section 300 IPC describes “culpable homicide” amounts to ‘murder’ if a death is caused with intention to cause death or intention to cause such a bodily injury which offender knows to be likely to cause the death of the person to whom the harm is caused or with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid, but the same is not ‘murder’ even if done in the manner as prescribed above. If said act is done in any of the circumstances as provided in the Exception-5 to Section 300 of IPC and the act then would amount to “culpable homicide” not amounts to ‘murder’. If said act is done in any of the circumstances as provided in the Exception-5 to Section 300 of IPC and the act then would amount to “culpable homicide” not amounts to ‘murder’. The act of the appellants was a “culpable homicide” inasmuch as he intentionally caused a bodily injury which he knows to be likely to cause deadly and also squarely covered by Clause Fourthly of the definition of ‘murder’, but the said culpable homicide have been caused within the Exception 4 to Section 300 of IPC inasmuch as the same was caused without pre-meditation in a sudden fight in the heat of passion, the appellants had not taken undue advantage or acted in a cruel or unusual manner. Therefore, the act of the appellants is squarely covered under Section 304, Part-II of IPC. 11. So far as the quantum of sentence is concerned, though the same appears to this Court to be not commensurate, but the State having remained complacent and not filing any appeal for enhancement of the sentence and this Court also having not given any notice of enhancement of sentence at the time of admission of the appeal, the same also needs no interference by this Court. 12. Hence, this criminal appeal is devoid of merit and, as such, 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.