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2019 DIGILAW 193 (ORI)

Rama Chandra Gouda v. State Of Orissa

2019-03-07

D.DASH

body2019
JUDGMENT D. Dash, J. - This appeal has been filed against the judgment of conviction and order of sentence dated 29.06.1991 by the learned 1st Addl. Sessions Judge, Berhampur in S.C. No. 12/91/S.C. No. 71/91 GDC). The appellants being arraigned as accused in Khallikote P.S. Case No. 278/90 giving rise to GR Case No. 318 of 1990 on the file of learned JMFC, Khallikote finally faced the trial for commission of offence under section 304II read with Section 34 IPC. In the trial, the appellants having been found guilty for committing offence under Section 323 IPC, have been convicted there under and sentenced to undergo rigorous imprisonment for a period of one year. 2. Prosecution case in short is that on 1.10.90 around 10P.M., Sanatan Gouda (deceased) was sitting on the verandah of his house when Ranjita Gouda (P.W.3), the daughter of younger brother of Sanatan was also sitting there. It is said that the accused persons at that time came there, abused Sanatan in filthy language and then assaulted him by lathis (thenga). Receiving the assault, when Sanatan went to a distance and was urinating, another culprit (Juvenile) threw a stone which hit at his abdomen resulting his fall. It is stated that Sanatan receiving the hit by that stone on his abdomen went to unconsciousness. Although, he was taken to the nearest hospital at Khallikote and then to MKCG Medical College and Hospital, Berhampur for treatment, he died on 3.10.90. 3. A written report presented by Surendra Gouda (P.W. 1), the brother of the deceased, Khallikote P S. Case No. 278/90 was registered and investigation commenced. The informant and other witnesses were examined, post-mortem examination over the dead body of Sanatan Gouda was made and the incriminating materials were also seized. Finally, on completion of investigation, charge sheet was submitted against the accused persons for their trial for offence under section 302/34 IPC. The case being committed to the Court of Sessions, the accused persons faced trial for offence under Section 304 II IPC. The trial being concluded, the accused persons have been convicted under Section 323 IPC followed by imposition of sentence as aforesaid. Hence the appeal. The plea of the accused persons during the trial is that of denial and false implication on account of prior enmity for the land dispute. 4. Prosecution in the trial has examined eight witnesses. The trial being concluded, the accused persons have been convicted under Section 323 IPC followed by imposition of sentence as aforesaid. Hence the appeal. The plea of the accused persons during the trial is that of denial and false implication on account of prior enmity for the land dispute. 4. Prosecution in the trial has examined eight witnesses. The FIR (Ext.1), Post mortem report (Ext.2), Injury report (Ext.3), Chemical Examination report (Ext. 10/1), Seizure lists etc. have also been admitted in evidence from the side of prosecution. The defence being called upon to tender evidence, that opportunity has not been availed of. The trial Court on analysis of evidence has found the prosecution to have established its case beyond reasonable doubt that these appellants have assaulted the deceased Sanatan by lathis (then-gas) and had caused voluntary; hurt and therefore, each of the accused has been held guilty for commission of offence under section 323 IPC. 5. Learned counsel for the petitioners (accused persons) submitted that the trial Court's finding that the accused persons had assaulted Sanatan Gouda by means of lath is (then-gas) is not based on sound appreciation of evidence of those witnesses who have been examined by the prosecution to establish the said role of the accused persons. 6. It was submitted that the evidence of P.W,3 who is stated to be an eye witness ought not to have been accepted at all since her very claim as a witness to the occurrence is not believable when considered with the circumstances which have emanated during cross-examination. It was also submitted that the evidence of P.W.4 ought not to have been relied upon by the trial Court on his own saying that when he reached the spot hearing hallah, he found three to five persons standing in front of the house of the deceased and all the accused persons were then assaulting Sanatan It was his submission that the conduct of this witness who claims to have seen the accused persons to have assaulted the deceased in remaining silent and standing as a statute is against ordinary human conduct that on seeing the accused persons assaulting, he being close man of the deceased would not at all be reacting in any manner. So he submitted that his evidence ought to have been viewed with suspicion. So he submitted that his evidence ought to have been viewed with suspicion. In view of the above, he submitted that the finding of the guilt recorded by the learned trial Court against the accused persons is not sustainable. 7. Learned counsel for the State refuting the submission contends that the trial Court upon due analysis of evidence has rightly arrived at the finding regarding the complicity of the accused persons and merely, because another view emerges, it is not for the appellate Court to interfere. 8. The instant adjudication belong one to examine the tenability of the conviction of the appellants, an independent assessment of evidence on record is indispensable in the interest of justice. 9. On the above rival submission, further keeping in view the position as noted above, let us now have a look at the evidence of the witnesses examined on behalf of the prosecution and analyse the same particularly as to the role of the accused persons in assaulting said Sanatan by means of lath is (then-gas) causing the injuries on his person as has been deposed to by the doctor (P.W.6). 10. It is not denied that Sanatan had sustained one lacerated wound on the lower one-third front of right arm, one abrasion on the lateral aspect of second meta-carpal bone of left index finger and abrasion with bruise on the lumber region of back side towards left. The nature of injuries have been found to be simple. The death of the deceased as per the prosecution case has resulted from the abdominal injury with consequential complications which is said to have been caused on account of hitting of the stone stated to have been pelted/thrown by the juvenile. 11. P.W. 1 is a not a witness to the occurrence and that he has clearly admitted during his examination in-chief that the occurrence has not taken place in his absence. It is his evidence that one Govinda Gouda informed as regards the assault upon Sanatan by these accused persons. His evidence is that he had carried Sanatan who happens to be his elder brother to the hospital and then had reported the matter at the police station in writing under Ext. 1, treated as FIR. It is his evidence that one Govinda Gouda informed as regards the assault upon Sanatan by these accused persons. His evidence is that he had carried Sanatan who happens to be his elder brother to the hospital and then had reported the matter at the police station in writing under Ext. 1, treated as FIR. When he states to have been looking after the treatment of the deceased in the hospitals, he has never stated as to any such disclosure being made by the deceased regarding the incident more particularly the role of the accused persons either to him or to anyone else in his presence. 12. P.W. 3 claims to be an eye witness whose evidence has been relied upon by the trial Court. It has been stated by her that Sanatan who is her elder brother was at the relevant time sitting on the outer verandah of her house. But her evidence is specific that she with her sister-in-law Kamala were then in the adjacent room when her elder sisters namely Basanti and Kishori were in another adjoining room. Her evidence then comes that accused persons came there, abused her brother in filthy language and when her brother left the place and went in front of their house to urinate, the accused persons assaulted him It has nowhere been stated by her that hearing the abusive words hurled at the deceased, she had come out of the room and witnessed the incident. It is also not clarified by the prosecution through this witnesses that the outer verandah where the occurrence took place is visible from the room, where the witness was there at the relevant time and that the doors were then open having clear visibility. The incident is said to have been taken place at night around 10 PM. The witness has further stated that it was a dark night and she has expressed her ignorance as to who assaulted first. As per her evidence and if it is accepted, the place of assault is at a distance of seven to eight cubits from that verandah. During cross-examination it appears that she has gone to develop the case that then she was sitting at the threshold of their house. 13. As per her evidence and if it is accepted, the place of assault is at a distance of seven to eight cubits from that verandah. During cross-examination it appears that she has gone to develop the case that then she was sitting at the threshold of their house. 13. When in examination in-chief she states that all the accused persons assaulted her brother by means of then-gas, she has only gone to state later, as regards the role of accused Rama Gouda indicating as to on which part of the body of the deceased, the then-gas blow had been given. The conduct of this witness is relevant to appreciate the trustworthiness of her evidence, that even seeing the accused persons coming to their house abusing the deceased in filthy language and then running to assault him at a little distance, this witness has not attempted to prevent the accused persons either physically or by speaking to them or asking them the reason, more so when she was not alone so as to be afraid of but with her sister-in-law and two other sisters. Thus, the evidence of this witness as to have witnessed the incident and more so, the role played by these accused persons gets pushed into suspicious arena. Those persons as above named who were present at the time according to this witness having not been examined, the evidence of P.W. 3 has gone uncorroborated. The prosecution having not examined Basanti, Kishore and Kamala who would have been in a position to further clarify the above doubtful features, I am of the considered view that no such reliance can be placed upon the evidence of this witnesses. 14. When the evidence of P.W.4 is gone through, it is seen that he was not present at the beginning of the said incident and only on hearing hue and cry, he came near the house of Sanatan which is in another Sahi as per his own sworn testimony that his house situates in Andua Sahi, whereas the house of Sanatan is in Karji Sahi. The witnes has also not stated as to the distance that one has to travel from his house in order to come to the house of Sanatan or the time that it normally takes, even when one comes in a hurry. The witnes has also not stated as to the distance that one has to travel from his house in order to come to the house of Sanatan or the time that it normally takes, even when one comes in a hurry. He is not stating as to the exact place where the accused persons were found to be assaulting Sanatan, whether it is on the verandah or close thereto or at a little distance. He has further stated that on his arrival at the place, three to five persons were present in front of the house of Sanatan and he has expressed his ignorance to state their name as also the name of the persons who arrived later. Again the conduct of this witness that even some others arrived there soon after the incident, he had not disclosed before them as to the role of these accused persons tends to point finger as to the acceptability of his evidence about his presence as he claims as also or the truthfulness of his evidence. 15. When it is stated by the witness that all the accused persons were assaulting Sanatan indiscriminately, the number of injuries are found to be only three. This witness has also not raised any hallah nor has stated to have done anything in preventing the accused persons. When P.W.1 arrived, this witness has also not gone to state anything about the incident to him. These conduct of the witness run against the ordinary human behavior and tendency and thus stands to be explained which has not been done here. 16. The evidence of doctor (P.W.6) is to the effect that he had recorded the dying declaration of Sanatan under Ext. 4. But interestingly this witness is totally silent and has not deposed during his examination in chief as to what Sanatan had stated before him and as to who were the other witnesses present then. More particularly, on being asked, he has not been able to say that if any of the attendants of the injured were nearby, when he recorded said statement. None of the staff of the hospital is a signatory to Ext. 4. The doctor has not given any certificate as regards the fact that Sanatan then was a fit condition to state all those. None of the staff of the hospital is a signatory to Ext. 4. The doctor has not given any certificate as regards the fact that Sanatan then was a fit condition to state all those. When he has stated to have recorded the dying declaration at 2.25 PM on 2.10.90, the Investigating Officer examined as P.W.7 is not stating to have got any information about such recording soon thereafter. In his entire evidence, he has not stated as to when he seized that bed-head ticket containing the so called dying declaration. The trial Court as it appears has not considered these aspects concerning the so called dying declaration. 17. In the .FIR the name of one accused, i.e., Sudam Gouda does not find mention though the narration of the FIR goes to show that the informant having collected all the information had gone to lodge the same. In this regard the trial Court has gone to find and accept an explanation that he being a post occurrence witnesses, such omission does not have any adverse impact on the case of the prosecution which in my considered view is not acceptable and thus it stands as a doubtful feature in relation to the description of the role of the accused persons. 18. In the above state of affair in the evidence let in by the prosecution, the view taken by the trial Court that the prosecution has proved it case against the accused persons as regards their role in assaulting Sanatan by lath is causing simple hurt beyond reasonable doubt, does not appear to be the outcome of just and proper appreciation of the evidence. In that view of the matter, the finding of guilt of the accused persons as has been recorded by the trial Court is indefensible and thus is liable to be set aside, which is hereby done. In the result, the appeal stands allowed. The conviction and order of sentence are set aside. The bail bonds executed by the accused persons stand discharged.