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2017 DIGILAW 524 (ORI)

Bhagaban Das v. State of Orissa

2017-05-04

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. Pujahari, J. The appellant has assailed the judgment of the learned Addl. Sessions Judge, Balasore, recorded in S.T. No.12/81 of 1991 holding the appellant guilty of charge under Section 326 of IPC simplicitor and sentencing him to undergo punishment of 6 years rigorous imprisonment on that count. 2. According to prosecution case, the appellant along with others formed an unlawful assembly armed with deadly weapons in the village-Kundisasan on 01.02.1990 at 3 p.m. and caused death of Babaji Das (hereinafter referred to as “the deceased”) by inflicting simple and grievous injuries. According to prosecution, the offences under Sections 148, 302 read with Section 149 of IPC were committed by the appellant and his associates. The defence of the appellant and his associates was denial of the occurrence in the manner as alleged by the prosecution. According to the accused persons, the prosecution case was false. They examined defence witnesses and also proved documentary evidence. The defence witnesses were examined to support of the defence that prosecution party was aggressor and the appellant was assaulted by them. The injury sustained by the appellant was proved by Dr. Srikanta Mohanty (D.W.1) as Ext.G. The trial court while acquitting the appellant and his associates of the charge under Sections 148, 149 and Section 302 of IPC, returned the judgment of conviction and order of sentence against the appellant, as stated earlier. 3. Analyzing the evidence brought on record, the learned counsel for the appellant contended that the prosecution having failed to explain the multiple injuries sustained by the appellant where the genesis and origin of the occurrence shrouded in deep mystery erroneously held the appellant guilty under Section 326 of IPC. The learned counsel also contended that once the learned trial court observed that the appellant while wielding the stick in course of that occurrence where he sustained multiple injuries accidentally came in contact with the head of the deceased, but unfortunately held him guilty under Section 326 of IPC for voluntarily having caused grievous hurt which is neither sustained in fact nor in law. 4. 4. Assailing the aforesaid contention, the learned counsel for the State submitted that non-examination of the injuries on the appellant was lost in wilderness when the prosecution evidence about the participation of the appellant was clear, cogent and credit worthy and where the learned trial court had distinguished truth from falsehood and chaff from the grain. 5. Before I delve into the question raised, I would like to say that the effect of non-explanation of injuries on the person of the appellant is a question of fact and not a question of law. In a murder case, the non-explanation of the injuries sustained by the appellant at about the time of occurrence or in course of incident is very important circumstances from which the Court can draw the following inferences; i. that the prosecution has suppressed the genesis and origin of the occurrence and has thus not presented the true version of the prosecution; ii. that the witnesses who have denied the presence of injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unbelievable; iii. that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case ; The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance when the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case. Of course, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case where the injuries sustained by the accused are minor and superficial and where the evidence is not only clear and cogent but also so independent and disinterested, so probable, consistent and creditworthy that the same out wits the effect of the omission on the part of the prosecution to explain the injuries. 6. Reverting back, Ext.G, the injury report of the appellant reveals the followings as emanating from the evidence of D.W.1 – Dr. Srikanta Mohanty. “3. On that day I also examined Bhagaban Das, son of Gopal Das of Kundi and found as under :- (i) One bleeding incised wound, 1” x ¼” x ¼” over the front surface of the scalp. Reverting back, Ext.G, the injury report of the appellant reveals the followings as emanating from the evidence of D.W.1 – Dr. Srikanta Mohanty. “3. On that day I also examined Bhagaban Das, son of Gopal Das of Kundi and found as under :- (i) One bleeding incised wound, 1” x ¼” x ¼” over the front surface of the scalp. (ii) One incised wound with bleeding 1” x ¼” x ¼”, ½” lateral to the injury No.(i). (iii) One bleeding incised wound, 1.1/2” x ½” x ½” over the right side of the scalp. (iv) One bruise red in colour, 1.1/2” x 1.1/2” over the back of the scalp. (v) One abrasion, ½” x ¼” over front surface of left thigh. (vi) One abrasion, ½” x ½” on the front surface of left knee. (vii) One bleeding incised wound with tail towards exilla, 2” x ½” x ¼” over the left side of the back, 6” below the shoulder. 6. Injured Bhagaban Das and Chakradhar Das were referred to Bhadrak hospital for better treatment and x-ray. I also received the discharge certificate of Chakradhar Das issued by the SCB Medical College, Cuttack.” 7. In this backdrop, the evidence revealed that the parties were under loggerheads over a disputed plot where one Gajendra had erected a fence encroaching upon the disputed land and there was case and counter case over the issue. The learned trial court has dissected the evidence of 15 prosecution witnesses and observed that the deceased had sustained one lacerated injury on the right side of the head on the middle and another lacerated injury having size of 1” x ½” x ½” on the left side of the chin. Red bruise was present throughout the head extending to both sides of the ears, in front to the hair line and back up to occiput. In cross-examination, the Doctor, P.W.8 has stated that injury no.(i) is possible if the head comes in contact with electric pole and injury no.(ii) is also possible if the chin comes in contact with stone by fall. The doctor has further stated that by lathi blow ordinarily contusion and swelling are caused. So far injury no.(iii) is concerned, the doctor has stated that it was not possible by one single blow by hard and blunt weapon. The doctor has further stated that by lathi blow ordinarily contusion and swelling are caused. So far injury no.(iii) is concerned, the doctor has stated that it was not possible by one single blow by hard and blunt weapon. In this backdrop, the learned trial court in paragraph-8 of its judgment has observed that four witnesses, who are independent of the two rival groups, had seen the occurrence, they are Manoranjan Patri and Pramod Behari Patri, but none of them have been examined by the prosecution. The I.O. had also neither examined those four independent and disinterested witnesses presented at the spot of occurrence and nor cited them as prosecution witnesses. In paragraph-9 of the judgment the trial court has held that all the witnesses chosen by the prosecution are all interested witnesses having in one way or the others inimically deposed towards the accused persons. The matter does not end there. In the said paragraph of the judgment the learned trial court has held that the prosecution in this case has also suppressed material facts as apparent from the record. In paragraph-10 it is also held that the name of the principal witness (P.W.2) does not find place in the F.I.R. (Ext.7) and while the name of such material witness was omitted from the F.I.R. remained unexplained by the prosecution. However, analyzing the merits of other prosecution witnesses, the trial court in paragraph-15 of the judgment has observed “the evidence of these witnesses, therefore, clearly indicates that they have not only suppressed the truth but also have exaggerated the fact by implicating the persons who were not named by them before the I.O. in their statement under Section 161 Cr.P.C. It is clearly apparent that they have exaggerated their part of the case and suppressed the part played by the villagers of Kundisasan in the assault.” Adding the evidence of P.W.1, the learned trial court in paragraph-16 of the judgment has further observed that evidence of P.W.1 clearly shows that all the witnesses were partisan witnesses and their sole aim is not only to conceal their part in the occurrence but also build up the case of the prosecution in an exaggerated manner to show that the accused persons had a motive to kill Babaji. In the said paragraph, the trial court has also taken note that “No explanation is given as to how accused Bhagaban and Chakradhar also received injuries though the I.O. has started a counter case in that regard”. The judgment further reveals in paragraph-16 that the injury reports of the accused persons (Exts.F and G) show that Chakradhar and Bhagaban (appellant) also received injuries and out of them, one of the injuries of Chakradhar (accused) was grievous and cause by sharp cutting weapon. Furthermore, in paragraph-18 of the judgment the learned trial court has held that the I.O. in this case has not fairly investigated into the case and even has not examined the witnesses shown to be the eyewitnesses in Ext.7 (F.I.R.). Considering the nature of evidence brought on record and where material witnesses have been withheld, the learned trial court has observed that non-examination of Bhagaban Barik has adversely affected the prosecution case. In such premises, on considering the nature of the evidence adduced by the prosecution, the learned trial court has observed that all the prosecution witnesses are neither wholly reliable nor wholly unreliable, particularly when the learned trial court disbelieved the prosecution evidence that all the 7 accused persons had assaulted the deceased. The finding of the learned trial court is quoted hereunder :- “Though I disbelieve the fact that the other accused persons also assaulted Babaji, it being the emphatic evidence of them all that Bhagaban gave the only blow on the head of Babaji and this has also been supported by Bhagaban Barik whose non-examination is highly lamented by the defence, I fell that accused Bhagaban cannot escape the responsibility of being the assailant. Barring the written report (Ext.7), it is no where indicated that accused Bhagaban aimed the blow at the head of Babaji. While he himself was under assault, he could not have aimed the blow at the head of Babaji. So while taking part in the assault he used the stick and it accidentally came in contact with the head of Babaji. In the circumstances, therefore, it cannot be said that he had the intention to kill nor had the knowledge that his blow would hit the head of Babaji. In the circumstances, I can hold him guilty neither under Section 302 nor 304-Part-II of the Indian Penal Code. He cannot, however, escape the offence under Section 326 of I.P.C. 8. In the circumstances, therefore, it cannot be said that he had the intention to kill nor had the knowledge that his blow would hit the head of Babaji. In the circumstances, I can hold him guilty neither under Section 302 nor 304-Part-II of the Indian Penal Code. He cannot, however, escape the offence under Section 326 of I.P.C. 8. Cumulatively, the findings of the learned trial court revealed that prosecution witnesses suppressed the injuries sustained by the appellant and one Chakradhar had sustained a grievous injuries in course of the same occurrence, the witnesses were neither wholly reliable nor wholly unreliable, all the prosecution witnesses are highly partisan and interested witnesses and prosecution is guilty of suppression of material facts. In essence, the learned trial court has observed that prosecution has suppressed the genesis and origin of the occurrence and has not thus presented the true version which resulted in the death of the deceased and where the appellant had sustained multiple injuries including three bleeding wounds. It assumes much greater importance when the evidence consists of interested or inimical witnesses where material witnesses have been withheld. It is a case where a defence presented a version which competes in probability to show that the prosecution party are aggressor. That apart, when the learned trial court was convinced from the proved fact that the stick held by the appellant accidentally came in contact with head of Babaji holding him guilty under Section 326 of IPC is also unsustainable in law in view of the fact that the hurt caused cannot said to be voluntarily. 9. That apart, when the learned trial court was convinced from the proved fact that the stick held by the appellant accidentally came in contact with head of Babaji holding him guilty under Section 326 of IPC is also unsustainable in law in view of the fact that the hurt caused cannot said to be voluntarily. 9. Section 326 of IPC provides as follows :- “Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 10. The word “Voluntarily” has been defined in Section 39 of IPC which is as under :- “Voluntarily” – A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.” Unless the grievous injury is caused voluntarily, no conviction under Section 326 of IPC is permissible. When the learned trial court has held the stick held by the appellant accidentally came in contact with the head of the deceased, his conviction under Section 326 of IPC is fallacious. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 11. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 11. Cumulatively, the prosecution is required to explain the injuries on the body of the accused persons when it is established that the same were caused in that very incident, injuries were large in number and one of them is superficial in nature, it gives an impression that the true genesis of the occurrence of the incident was devilishly suppressed. The learned trial court once being of the considered opinion that the prosecution witnesses are not deposing the truth the whole truth particularly where material witnesses have been deliberately withheld and where the principal witness (P.W.2) was not named in the F.I.R., the learned trial court should not have convicted the appellant inasmuch as the truth and falsehood are so inextricably mingled together here in this case where it is not possible to separate the chaff from the grain. It is indeed difficult in fact to separate the truth from falsehood. If an attempt is made to separate the same, the third case would come out on the surface which it is not permissible in law. Therefore, the benefit thereof is to be extended in favour of the defence and against the prosecution for the reasons held by the learned trial court in its judgment. Hence, I have no hesitation in allowing the criminal appeal by acquitting the appellant of the charge under Section 326 of IPC. 12. Therefore, I would allow this criminal appeal and set-aside the impugned judgment of conviction and order of sentence passed against the appellant. Consequently, the appellant is acquitted of the charge. The appellant being already on bail, the bail bonds shall stand cancelled and surety discharged. L.C.R. received be sent back forthwith along with a copy of this Judgment.