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2019 DIGILAW 126 (ORI)

Durga Soren v. State of Orissa

2019-02-14

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. 1. The appellant Durga Soren has preferred this appeal challenging the judgment and order dated 14.03.2012 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No. 34 of 2010 in convicting him under sections 307 and 448 of the Indian Penal Code and sentencing him to undergo R.I. for a period of ten years and to pay a fine of Rs. 1,000/- (rupees one thousand), in default, to undergo further R.I. for a period of one year under section 307 of the Indian Penal Code and R.I. for a period of one year under section 448 of the Indian Penal Code and directing both the sentences to run concurrently. 2. The prosecution case, in short, is that on 14/15.01.2010 during midnight while the injured PW-9 Sarfa Soren was sleeping with her husband Gujai Soren (PW-8) on the verandah of their house situated in village Bhulupahadi, Kuder Sahi under Rairangpur Rural police station in the district of Mayurbhanj, the appellant came there and dealt a blow by means of a Budia (axe) near the right ear of PW-9 and also dragged her. When PW-9 shouted, her husband (PW-8) got up whereafter the appellant fled away from the spot. PW-9 was shifted to S.D. Hospital, Rairangpur where he was treated by PW-3 Dr. Debendra Nath Tudu, Asst. Surgeon. She was then taken to Baripada Hospital and Cuttack Hospital. On 30.01.2010 PW-8 Gujai Soren lodged the first information report before Hatbadra Outpost which was received by PW-10 Gayadhar Behera, A.S.I. of Police attached to the said Outpost who after making S.D.E. No. 468 dated 30.01.2010, sent the F.I.R. to Rairangpur Rural police station where the Officer in charge of the said police station registered Rairangpur Rural P.S. Case No. 04 of 2010 under sections 448, 307 and 506 of the Indian Penal Code against the appellant and directed PW-10 to take up investigation of the case. PW-10 examined the informant (PW-8), visited the spot and prepared spot map (Ext.4). He examined other witnesses, seized one axe (M.O.I) under seizure list Ext.2. He issued injury requisition to S.D. Hospital where PW-9 was earlier treated and received the injury report. On 02.02.2010 he arrested the appellant and forwarded him to Court. He sought for the opinion from the Medical Officer of S.D. Hospital regarding possibility of injury on PW-9 with the seized axe and received opinion vide Ext.5/2. He issued injury requisition to S.D. Hospital where PW-9 was earlier treated and received the injury report. On 02.02.2010 he arrested the appellant and forwarded him to Court. He sought for the opinion from the Medical Officer of S.D. Hospital regarding possibility of injury on PW-9 with the seized axe and received opinion vide Ext.5/2. After completion of investigation, he submitted charge sheet on 13.04.2010 against the appellant under sections 448, 307 and 506 of the Indian Penal Code. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under sections 448, 307 and 506 of the Indian Penal Code on 05.10.2010 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. In order to prove its case, the prosecution examined ten witnesses: PW-1 Sarat Kumar Giri is the scribe of the first information report and a witness to the seizure of axe under seizure list (Ext.2). PW-3 Dr. Debendra Nath Tudu was the Asst. Surgeon, S.D. Hospital, Rairangpur who examined PW-9 and proved the injury report (Ext.3). PW-8 Gujai Soren is the husband of the injured and he is also the informant in the case. PW-9 Sorfa Soren is the injured eye witness. PW-10 Gayadhar Behera was the A.S.I. of Police, Hatbadra Outpost who is the Investigating Officer. The prosecution exhibited five documents. Ext.1 is the first information report, Ext.2 is the seizure list of the axe, Ext.3 is the injury report of PW-9, Ext.4 is the spot map and Ext.5 is the query report. The prosecution also proved the weapon of offence i.e. axe as M.O.I. 5. The defence plea of the appellant was one of denial. 6. The learned trial Court after assessing the evidence on record though acquitted the appellant of the charge under section 506 of the Indian Penal Code but mainly relying upon the evidence of PW-8 and PW-9 found the appellant guilty under sections 448 and 307 of the Indian Penal Code. 7. Mr. Satyanarayan Mishra, learned counsel for the appellant contended that there is absolutely no material on record to attract the ingredients of both the offences. 7. Mr. Satyanarayan Mishra, learned counsel for the appellant contended that there is absolutely no material on record to attract the ingredients of both the offences. The doctor's evidence indicates that the injured (PW-9) has sustained a simple injury and therefore, the appellant should not have been convicted under section 307 of the Indian Penal Code particularly when no medical reports of any other hospital than S.D. Hospital, Rairangpur has been proved in the case. He further submitted that the injured and her husband were sleeping on the verandah of their house and there is no evidence of any house trespass and therefore, conviction of the appellant under section 448 of the Indian Penal Code is not sustainable in the eye of law. Mr. Purna Chandra Das, learned Additional Standing Counsel on the other hand supported the impugned judgment and contended that the nature of injury sustained by the injured cannot be the sole factor to determine the ingredients of offence under section 307 of the Indian Penal Code. 8. PW-9 is the injured. She stated that on the date of occurrence at 10 p.m. while she was sleeping with her husband (PW-8), the appellant inflicted a blow by means of a Budia (axe) near her right ear and dragged her. When she shouted, her husband got up and found the appellant running away. On the next day, she was taken to Rairangpur Hospital and from Rairangpur, she was taken to Baripada and thereafter to Cuttack for her treatment. She further stated that M.O.I is the axe by which the appellant inflicted injury on her on the night of occurrence. In the cross-examination, she has stated that it was a dark night and she was sleeping on the verandah of her house where the lamp was lighted near the door. She further stated that it was a winter night. PW-8 Gujai Soren stated that when he heard shout of PW-9, he found her in an injured condition and the appellant was running away from the house. He further stated that there was nobody else in that night and on the next day, he took. PW-9 to Rairangpur Hospital and then she was referred to D.H.H. Baripada and then to Cuttack. He further stated that there was nobody else in that night and on the next day, he took. PW-9 to Rairangpur Hospital and then she was referred to D.H.H. Baripada and then to Cuttack. In the cross-examination, he stated that the verandah where they were sleeping was close to the village road and villagers were going on that road as it was a festive day. The doctor (PW-3) who examined PW-9 on 15.01.2010 found one lacerated wound of size 6 c.m. x 2 c.m. x 1 c.m. on the anterior aspect of the right ear vertically. He opined the injury to be simple in nature and further opined that such injury was possible by means of a hard and cutting object. In the cross-examination, he has stated that PW-9 was treated as an outdoor patient and when he asked PW-9 as to how she sustained injury, she did not tell him anything. Even though the injured and her husband have stated that after initial treatment at Rairangpur Hospital, she was taken to Baripada as well as Cuttack for treatment but there is no corresponding medical document in that respect showing her treatment in any other hospital except S.D. Hospital, Rairangpur. PW-3 has also not stated that he referred the patient to any other hospital. The injury report (Ext.3) is also silent that the patient was referred to any other hospital. It was the duty of the prosecution to substantiate in a case of this nature regarding the treatment of the injured in different hospitals, if any, by examining the concerned doctors as well as proving the medical documents. It may be the laches of the investigating officer but if otherwise, the evidence relating to the treatment of the injured in different hospitals as well as nature of treatment provided to her is not clinching, in absence of any oral or documentary evidence, it is difficult to accept the statement of the injured and her husband that the injured was treated either at Baripada Hospital or in any hospital of Cuttack. So far as the blow given by the appellant to PW-9 by means of Budia (axe) is concerned, nothing has been elicited in the cross-examination to disbelieve the same. The evidence of PW-9 in that respect is clear. So far as the blow given by the appellant to PW-9 by means of Budia (axe) is concerned, nothing has been elicited in the cross-examination to disbelieve the same. The evidence of PW-9 in that respect is clear. PW-8 also corroborates the version of the injured that on hearing the shout of his wife, he found the injury on her head and also found the appellant was running away from the spot. The doctor (PW-3) has noticed one injury on the head of PW-9 which has been opined to be simple in nature, however, he stated that the injury was sufficient in ordinary course of nature to cause death. An injury 'sufficient in the ordinary course of nature to cause death' merely means that death would be the 'most probable' result of the injury having regard to ordinary course of nature. In other words, it envisages a high probability of death. The expression does not mean that death must result in which such an injury is caused or the injury should invariably or inevitably lead to death. The expression 'sufficient in the ordinary course of nature' is a species of the genus 'likely'. There is no material on record as to what sort of internal damage it caused or relating to the after effects of the head injury sustained by PW-9. The medical report (Ext.3) proved by PW-3 does not mention that the head injury was sufficient in ordinary course of nature to cause death. A medical expert has a great responsibility in a criminal trial and therefore, he should be careful while making any note in his report. He should consider the pros and cons of the case and draw his conclusions correctly and logically. A hasty and illogic statement made during trial at the instance of the Public Prosecutor or defence counsel may have a serious repercussion on the result of the case. It is the settled principle of law that to justify a conviction under section 307 of the Indian Penal Code, it is not essential that bodily injury capable of causing death should be inflicted. The nature of injury actually caused very often gives considerable assistance in coming to a finding relating to the intention of the accused. However, such intention can also be deduced from other circumstances without even any reference to the actual wounds. The nature of injury actually caused very often gives considerable assistance in coming to a finding relating to the intention of the accused. However, such intention can also be deduced from other circumstances without even any reference to the actual wounds. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. The Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. State of Maharashtra vs. Balaram Bama Patil, (1983) AIR SC 305. In case of Rekha Mandal vs. State of Bihar, (1968) 8 SCC 208 wherein seventeen injuries consisting of incised and punctured wounds were caused on the injured by different weapons such as farsa, spear and lathi and none of the injuries was grievous and only two of them were located on the head and neck, it was held as follows:- "2.......Medical evidence did not disclose that any of the injuries was cumulatively dangerous to life and the question therefore is whether in these circumstances it could be held that the offence disclosed was one under S. 307 of the Indian Penal Code. That section requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge." The Hon'ble Court in that case altered the conviction from section 307 to section 324 of the Indian Penal Code. In view of the nature of evidence available on record, the nature of injury sustained by the injured (PW-9) which has been opined by PW-3 to be simple in nature and absence of any other medical documents from any other hospital or any material to show the after effects of such injury, I am of the considered opinion that the conviction of the appellant under section 307 of the Indian Penal Code is not sustainable in the eye of law. In my humble view, the case squarely falls within the ambit of section 324 of the Indian Penal Code. Accordingly, the conviction of the appellant is altered from section 307 of the Indian Penal Code to one under section 324 of the Indian Penal Code. 9. In my humble view, the case squarely falls within the ambit of section 324 of the Indian Penal Code. Accordingly, the conviction of the appellant is altered from section 307 of the Indian Penal Code to one under section 324 of the Indian Penal Code. 9. So far as the conviction of the appellant under section 448 of the Indian Penal Code is concerned, such section deals with punishment for house trespass. 'House trespass' has been defined under section 442 of the Indian Penal Code. The occurrence stated to have taken place on the outer verandah of the house which was close to the village road. There is no evidence that the appellant has committed any house trespass as defined under section 442 of the Indian Penal Code. Therefore, the conviction of the appellant under section 448 of the Indian Penal Code is not sustainable in the eye of law. 10. Accordingly, the appeal is allowed in part. The conviction of the appellant under section 448 of the Indian Penal Code is set aside. The conviction under section 307 of the Indian Penal Code is altered to one under section 324 of the Indian Penal Code and the sentence is modified from R.I. for ten years and payment of fine of Rs. 1,000/- and in default, to undergo R.I. for one year to R.I. for one year simplicitor. The appellant has remained in custody for more than nine years. He should be released forthwith from custody, if his detention is not required in any other case and if he has not yet been released as per the order of this Court dated 01.02.2019. 11. In the result, the JCRLA is allowed in part.