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2019 DIGILAW 318 (ORI)

Lava Patel v. State of Orissa

2019-04-12

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. Since both the above noted Appeals under Item No. 1 and II arise out of the common judgment of conviction and order of sentence dated 31.8.1989 passed by the learned Addl. Sessions Judge, Bargarh in Sessions Trial No. 122/20 of 1988 and Sessions Trial No. 123/19, of 1988. 2. The Trial Court in the Sessions Trial which concern with the Appeal under Item No. 1 has convicted the sole accused namely, Lava Patel who had faced the trial therein and who is now the appellant before this Court for offence under section 354 IPC. He has been sentenced to undergo rigorous imprisonment for a period of six months with payment of Rs. 1,000/- in default to undergo rigorous imprisonment for one month. 3. In the Sessions Trial which concerns with the Appeal under Item No. II, the trial court has convicted the accused namely Gherau Patel who is the sole appellant before this Court for offence under section 304-II IPC. He has been sentenced to undergo rigorous imprisonment for a period of four year and to pay fine of Rs. 1,000/- with the default stipulation to undergo rigorous imprisonment/for one month. 4. It is pertinent to mention here that in the above trial, three accused persons had faced the trial. The trial; court when convicted accused Gherau (Appellant of the Appeal under Item No. II) has acquitted the other two accused persons namely, Lava Patel and Jaikrishna Patel who are the sons of Gherau Patel who is the Appellant of the Appeal under Item No. II This Lava Patel is the Appellant under Item No. 1. 5. Facts giving rise to the Sessions Trial which concerns with the Appeal under Item No. I are as under: On 22.10.1987 in the afternoon around 3.00 P.M., the victim, P.W. 4 had been to the land of her father namely, Ratan Singh Patel to pluck 'Jhulnga' which had been raised over the land, with her sister Girija. During that time, her father Ratan Singh and his brother Dasarathn (P.W. 1) i.e. uncles of P.W. 4 were engaged in cutting paddy in the nearby field. It is alleged that seeing Rangabati and Girija inside that Jhulnga Bari, accused Lava asked Girija to look after the cattle intending those, so that he would be able to assist P.W. 4 in plucking Jhulnga. It is alleged that seeing Rangabati and Girija inside that Jhulnga Bari, accused Lava asked Girija to look after the cattle intending those, so that he would be able to assist P.W. 4 in plucking Jhulnga. In obedience to the direction of accused, Girija left the place. It is alleged that accused Lava Patel caught hold of P.W. 4 and pushed her with force which made her lie on the ground. It is further alleged that then accused having undressed himself by removing his lungi attempted to push his penis into vagina of P.W. 4 raised cry when her father and uncle P.W. 1 rushed to the spot. The accused seeing them escaped therefrom leaving his lungi and an axe which he had been carrying while coming there. P.W. 4 then returned to her house carrying that lungi belonging to the accused. The matter was then discussed at home. 6. At this stage, let us take note of the facts leading to the other Session Trial which concerns with the Appeal under Item No. II as the facts are in continuity with one another although the offences i.e. first one committed by accused Lava, the Appellant of the Appeal under Item No. 1 and the next committed by accused Gherao, the father of accused Lava are at two different places and for that reason, one trial has taken place despite registration of two cases and commitment of those as such. On return of P.W. 4, the matter being discussed, father of P.W. 4 who is the deceased of the case with others went to the house of accused Gherau, the father of accused Lava so as to protest the said action and behavior of accused Lava towards his daughter, P.W. 4. It is stated that at that time accused Lava and his brother Jaikrishna came out of his house with lathi and shouted that they would assault Ratan Singh Patel, the deceased. When Ratan Singh Patel out of fear was about to return, those two accused persons restrained him by appearing in front of him and during then accused Gherau coming with a piece of wood (Geda) dealt a blow on his head resulting fall with bleeding injuries. Ratan Singh Patel immediately was taken to Padampur Hospital and then again removed to the Hospital at Burla where he succumbed to the injuries after a day. Ratan Singh Patel immediately was taken to Padampur Hospital and then again removed to the Hospital at Burla where he succumbed to the injuries after a day. The police had already been informed as regards the above incidents through a written report lodged by P.W. 1, the brother of the deceased, which has been treated by v. FIR admitted in evidence and marked as Ext. 11. Ratan Singh Patel has died after the lodging of the FIR, Ext. 11. This FIR being lodged on 22.10.1987, the case was registered against three accused persons, namely, Gherau, Lava and Jaikrishna for offence under section 341/325 IPC which in view of death of Ratan Singh Patel has turned to one under section 302 IPC. On completion of investigation, charge sheet was submitted for offence under section 302/34 IPC. In so far as the incident that had happened on the land of the father of P.W. 4 is concerned, another FIR being lodged on 24.10.1987 by P.W. 4, the investigation of the case being made, charge sheet was submitted for offence under section 376/511, IPC against accused Lava. Both the above cases being committed to the court of sessions For trial, those have been clubbed together in view of the facts and circumstances giving rise to those. Trial having taken place, the result has come out as aforestated. In the trial, the defence plea was that of complete denial. 7. Prosecution in total has examined ten witnesses; of whom the important are P.W. 1 who is the informant of the case concerning appeal under Item No. II, P.W. 4 who is the victim and the informant of the case which concern with the appeal under Item No. 1. P.W. 2 is the doctor who had conducted the autopsy over the dead body of the Ratan Singh. P.W. 6 is the doctor who had the occasion to treat the deceased at the first instance. Wife of P.W. 1 has been examined as P.W. 3. P.W. 5 and 7 have been examined being projected as eye witnesses to the second part of the occurrence. The Investigating Officer of both the cases has been examined P.W. 10. P.Ws. 8 and 9 are two other police officials who had played some role in course of investigation of the case. P.W. 5 and 7 have been examined being projected as eye witnesses to the second part of the occurrence. The Investigating Officer of both the cases has been examined P.W. 10. P.Ws. 8 and 9 are two other police officials who had played some role in course of investigation of the case. Besides leading the oral evidence through the lips of the above witnesses, the prosecution has proved the FIR in relation to the appeal under Item No. I as Ext. 12 and that of the appeal under Item No. II as Ext. 11. Post Mortem Report has been admitted in evidence and marked Ext. 1 through P.W. 2, the doctor conducting autopsy. The inquest report has been marked as Ext 8 and the Chemical Examiner's report is Ext. 14. The seized lungi said to have worn by accused Lava and the axe said to have been left by him on the field during the first part of occurrence have been marked as material objects i.e. M.Os. I and II. The wearing apparels of the P.W. 4 being produced during trial have been marked as material objects i.e. M.Os. III and IV and V. 8. As the learned counsel through whom the appellants had filed the appeals did not appear despite several opportunity, keeping in view the fact that the appeal is lying on board for more than 29 years, this Court has appointed Miss. Neha Sharma as the Amicus Curie for the accused-appellant of the appeal under Item No. I awl Mr. Ashutosh Mohanta as the Amicus Curie for the accused-appellant in so far as the appeal under Item No. II is concerned. They have been heard. I have also heard Mr. K.K. Nayak, learned Addl.. Standing Counsel on behalf of the State in opposing the appeals. 9. Miss Sharma, Amicus Curie, attacking the judgment of conviction recorded against accused Lava Patel submits that the evidence of P.W. 4 ought not to have been relied upon by the trial court to record a finding of guilt against him for commission of offence under section 354 IPC. Standing Counsel on behalf of the State in opposing the appeals. 9. Miss Sharma, Amicus Curie, attacking the judgment of conviction recorded against accused Lava Patel submits that the evidence of P.W. 4 ought not to have been relied upon by the trial court to record a finding of guilt against him for commission of offence under section 354 IPC. Accord mg to her, the age of the victim being 19 years at the time of the incident, when her evidence is seen with the evidence of P.W. 1, the uncle of P.W. 4 who is said to have arrived at the spot, no sooner did P.W. 4 raise cry in resisting the action of accused Lava Patel when the sister of P.W. 4 Girija has not been examined in the trial to depose about the prosecution case that the accused having arrived there asked her to leave and engage in tending the cattle so as to create a smooth passage for him to satisfy his sexual last, do not inspire confidence in the mind that the accused Lava had applied any force upon P.W. 4 with an intention to outrage her modesty. According to her, admittedly, the parties were not pulling on well and therefore in the absence of corroboration to the evidence of P.W. 4 touching the material parts of the incident i.e. the scenario prior to that objectionable act of accused Lava and after the commission of the act, the finding of guilt against accused Lava ought not to have been recorded. She submits that on a plain reading of the deposition of P.Ws. 1 and 4 and then coming to glace at the FIR Ext. 12 so also Ext. 11, the FIR which has been lodged prior to the lodging of Ext. 12, it would be dear that the prosecution has to share the blame that it has failed to establish the case against accused Lava beyond reasonable doubt. 10. Mr. Mohanta, the Amicus Curie contends that the evidence of P.Ws. 5 and 7 from the very beginning are required to be removed from arena of consideration as their name do not find mention in the FIR lodged by P.W. 1 in so far as the second part of the occurrence is concerned. 10. Mr. Mohanta, the Amicus Curie contends that the evidence of P.Ws. 5 and 7 from the very beginning are required to be removed from arena of consideration as their name do not find mention in the FIR lodged by P.W. 1 in so far as the second part of the occurrence is concerned. He submits that when the trial court has given much Emphasis upon the absence of the names of accused Lava and Jaikrishna in the FIR lodged by the P.W. 1 while considering their involvement in restraining and assaulting the deceased, double standard has been adopted when it has ignored that absence of the name of P.Ws. 5 and 7 in the FIR saying that in the given fact situation, it is of no such significance to be noted. He thus submits that the trial court ought not to have held the evidence of P.Ws. 5 and 7 as standing to corroborate the evidence of P.W. 1. He highlights that the trial court when for the same reason has not recorded conviction against two accused persons that it is not believable on anybody's part to say that P.W. 1 has not so mentioned inadvertently being under that mental condition after the assault on his brother; has committed error in holding the presence of P.Ws. 5 and 7 and to have seen the second part of the occurrence when their names do not find place in the FIR Ext. 11 saying that such a mistake is not noteworthy. He submits that the evidence of P.Ws. 5 and 7 being eschewed from consideration, there arises the need to examine and analyze the evidence of P.W. 1 and to evaluate the same as to conclude as to how far it is acceptable to fashion the guilt upon accused Gherau to say that it is he who had given that blow on the head of the deceased by means or piece of wood (Geda) which has ultimately led to death of Ratan Singh. According to him, since the evidence of P.W. 1 and his wife P.W. 3 come from interested source, the same ought not to have been Put under stricter and deeper examination and it is more so when admittedly, the parties were having animosity if not for any earlier incident or dispute but at least for the first part of the occurrence as has been alleged since culprit of the first part of the occurrence is none other than the son of the accused who has been convicted in the second part of the occurrence. 11. Mr. Nayak, learned Addl. Standing Counsel submits all in favour, of the finding of guilt recorded by the trial court in respect of accused Lava in so far as the first part of the occurrence is concerned and accused Gherau as to the second part of the occurrence. At this stage, he submits that the State has not preferred any appeal challenging the order of acquittal of accused Lava and his brother Jaikrishna in so far as the second part of the occurrence from the charge under section 302/34 IPC. It is his submission that the evidence of P.Ws. 5 and 7 in view of the explanation given by the prosecution have been rightly relied upon by the trial court and therefore, their evidence taken together with the evidence of P.Ws. 1 and 3 in his estimate are sufficient enough to hold accused Gherau liable for offence under section 304-II IPC. He also submits that there being no such apparent reason to disbelieve P.W. 1 and 4 is to the narration made by them regarding the first part of the occurrence the trial court has rightly convicted the accused Lava for the offence under Section 354, IPC for outraging the modesty of P.W. 1 by applying force, making her fall and then doing other objectionable acts. 12. Keeping the rival submission in mind, this Court, let us first examine the evidence of P.Ws. 1 and 4 as regards the first part of the occurrence with which accused Lava alone is concerned and for which he has been convicted and sentenced. P.W. 4 is none other than the informant and has lodged the FIR Ext. 12. 12. Keeping the rival submission in mind, this Court, let us first examine the evidence of P.Ws. 1 and 4 as regards the first part of the occurrence with which accused Lava alone is concerned and for which he has been convicted and sentenced. P.W. 4 is none other than the informant and has lodged the FIR Ext. 12. This FIR has not been lodged promptly although, the FIR giving rise to the case for the second part of the occurrence has been lodged on the very day of the incident even before the death of Ratan Singh Patel. So for the purpose both the FIRs have to be read simultaneously. In Ext. 11,- it has been stated that P.W. 4 when had been to pluck Jhulnga, accused Lava arrived. Just after she was given the push resulting fall on the ground, it is stated in at this P.W. 1 who was near the place arrived. The manner of narration in the FIR goes to show that no sooner did the victim, P.W. 4 raise cry, the P.W. 1 has arrived there. Nothing is stated in the FIR that he found accused Lava either in a naked condition or wearing any undergarment when in evidence, it is so stated that accused Lava leaving lungi ran away at the sight of P.W. 1 as also her father and had arrived hearing the cry of P.W. 4 who by then had married. The evidence of P.W. 4 is also on the score that after giving the push with force when she fell on the ground, accused Lava undressed himself and attempted to push his penis into her vagina that is being naked or by opening the undergarment in part. Such an important fact being found missing in the FIR Ext. 11 cannot be so lightly brushed aside especially in view of the admitted animosity between the members of the two families. Coming to Ext. 12, the other FIR relating to the first part of the occurrence lodged by P.W. 4, it is seen that she has narrated that accused Lava coming there caught hold of her hand and forcibly made her sit on the ground and then attempted to sexually assault her which she resisted for quite some time when accused Lava was also making hard attempts to fulfill his sexual lust, in countering and silencing P.W. 4. It is not her FIR narration that P.W. 1 arrived at that place. On the other hand, it is stated that her father arrived there and scolded accused Lava who happens to be a relation. Now when the evidence of P.W. 1 is gone through, his version is seen to the effect that when he arrived by hearing the shout of P.W. 4 who had been shouting by naming accused Lava to have been indulging in such, objectionable act, he saw P.W. 4 crying and lying on the ground when accused Lava was catching hold of her and then he ran away leaving his lungi and the axe. P.W. 4 in her evidence has come to straight way to say that soon after her sister left the place as advised by accused Lava, said accused Lava undressed himself and made her lie flat on the ground and then attempted to go for sexual intercourse which was resisted. It is not her evidence that P.W. 1 had arrived at the spot by hearing her cry buther father Ratan Singh had arrived there and he scolded. The court below has rightly viewed her statement of catching hold of penis of accused Lava and preventing him thereby from committing rape as an afterthought as to have been intended to fulfill the requirement of a case of attempt to commit rape. This can be well taken as exaggeration and the tendency of the witness is to be taken note of as to place the incident with extra prints. Thus there appear discrepancies on material particulars in the evidence of those three witnesses. Thus doubt arises in the mind in order to the accept the prosecution case for first part of the occurrence. The evidence let in by the prosecution, on that score of the first part of the occurrence is felt unsafe to be relied upon in holding accused Lava guilty for having applied force, assaulted P.W. 4 and outraged her modesty; thereby to have committed offence under section 354 IPC. This decides the fate of the appeal under Item No. I that the judgment of conviction and order of sentence recorded against accused, Lava Patel cannot be sustained. 13. This decides the fate of the appeal under Item No. I that the judgment of conviction and order of sentence recorded against accused, Lava Patel cannot be sustained. 13. Coming to the second part of the occurrence, it is seen that the trial court having accepted the prosecution case with regard to the solitary blow given by the accused Gherau on the head of the deceased namely, Ratan Singh and keeping in view the attending circumstances, instead of convicting him for offence under section 302 IPC for which he was facing the trial, has convicted him for offence under section 304-II IPC. 14. The important witness for the prosecution here is P.W. 1. It is his evidence that when his brother Ratan Singh Patel went to the house of Gherau and told about his sons, i.e., Lava's misbehavior towards his daughter, two sons, i.e., the accused namely Lava and Jaikrishna came out of their house with lathi and threatened Ratan Singh to assault. The trial court disbelieved the version of this witness, the other witnesses in so far as the role of accused Lava and Jaikrishna in the said incident is concerned. In view of such conclusion arrived at by the trial court, it can be well inferred that this witness and other had the tendency to rope in along with Ghei au. It is true that the principle of "falsies in uno, falsus in omnibus" has no applicability hut when one part of the incident is so much so connected with the other part, in that case for non-acceptance of evidence of a witness as to the first part, the evidence as to the second parts and to be tested with a pinch of salt. It is the rule of evidence that in such situation, the evidence of those witnesses are to pass through the test of reliability with a good scoring so as to say that they are wholly reliable witnesses. The evidence of P.W. 1 is that accused Gherau came and assaulted the deceased by a lathi backside of his head resulting his fall on the ground with bleeding injuries. None has stated as to from which place he brought that lathi. The P.W. 1 has stated that when Ratan Singh first asked accused Gherao, he was not holding anything. The evidence of P.W. 1 is that accused Gherau came and assaulted the deceased by a lathi backside of his head resulting his fall on the ground with bleeding injuries. None has stated as to from which place he brought that lathi. The P.W. 1 has stated that when Ratan Singh first asked accused Gherao, he was not holding anything. It appears from the evidence that the house of the accused persons as also the deceased are nearby. It is the evidence of the doctor P.W. 2 that besides head injury which has resulted the death, some other injuries were noticed and it has not stated by these witnesses as to how those injuries could appear on the person of the deceased. The evidence of P.W. 2, the doctor is to the effect that he had noticed a fracture of scalp on the left temporal region and left parietal region of the deceased. In clear terms, he has stated that on receipt of the blow like one as has been stated by P.W. 1, the injured if would fall lying down backward, the question of sustaining injuries like those he noticed on dissection i.e. fracture of scalp on left temporal region and left parietal region length subdural haematoma left temporal region and laceration left temporal region, would not normally appear, unless the head of the deceased gets struck himself against a hard and projective substance like wood, bricks, stones etc. In such state, of affair in evidence, as to how all those injuries could appear remains shrouded with mystery. 15. P.W. 3 who happens to be the wife of P.W. 1 has stated that the moment there was a protest, Ratan Singh assaulted. She states that accused Gherau coming with a wooden 'medha' assaulted Ratan Singh from his backside resulting fall and loss of sense, this witness states to, have seen the incident from a distance of 13 feet by remaining the her House when P.W. 1 has not stated to have gone with Ratan to the house of accused Gherau, She is unable to, say as, to if receiving the blow Ratan Singh sat down or he fell; down on the ground. P.W. 4 has also stated in the same vein that accused Gherau assaulted her father by that 'medh' on his head. P.W. 4 has also stated in the same vein that accused Gherau assaulted her father by that 'medh' on his head. Her evidence is to the effect that said 'medha' was just little less than a main's height and the very moment blow was given, her father fell on the ground with profuse bleeding from, head. She states that while her father was coming out accused Lava and Jaikrishna restrained and accused assaulted. Her version before Investigation Officer was not to the effect that when her father was coming away both accused Lava and Jaikrishna restrained which has been disbelieved by the trial court with good reasons which is also concurred by this Court, When she states that many persons had arrived at the place of occurrence, she has not been able to name. Thus the evidence of P.Ws. 1, 3 and 4 come within the category of 'neither wholly reliable nor wholly unreliable strict corroboration from independence source thus stands as the need. As already stated P.Ws. 5 and 7 who have been examined in the trial as eye witnesses have not been so named in the FIR lodged by P.W. 1 whereas name of two others i.e. Khetra and Abhi find mention in that FIR Ext.-11. It is the evidence of P.W. 5 that both accused Jaikrishna and Lava were armed with lathi whereas it is not the evidence of P.W. 4. She says that they came with 'a lathi'. Interestingly, this P.W. 5 has stated that accused Gherau was just standing, holding nothing in his hand and they were quarreling. Accepting it for a moment that this witness arrived just after the blow had been given, he is not saying that any such 'medha' or 'geda' was lying nearby to support the case that accused Gherau just after giving the blow seeing the consequence put it on the ground. Next comes from the evidence of P.W. 7. His narration of the incident appears to be little bit different that he saw accused Lava and Jaikrishna standing on the road holding a stick each and quarreling with Ratan Singh which is not stated by P.Ws. 1, 4 or 5 that these ever ensued any quarrel between Ratan Singh on hand and accused Lava and Jaikrishna on the other. His narration of the incident appears to be little bit different that he saw accused Lava and Jaikrishna standing on the road holding a stick each and quarreling with Ratan Singh which is not stated by P.Ws. 1, 4 or 5 that these ever ensued any quarrel between Ratan Singh on hand and accused Lava and Jaikrishna on the other. It is his further evidence that Parbati, the wife of Ratan Singh was standing near her house and she asked her to come back which being listened, Ratan Singh was coming back when he was obstructed by accused Jaikrishna and Lava. This part of evidence does not derive support from the evidence of any other witnesses. P.W. 7 further states that accused Gherau fetching 'medha' from his house gave the blow on the head of Ratan Singh which shows that initially accused Gherau was very much there and subsequently went to the house in fetching that 'medha' which is not the evidence of other witnesses. Thus there appears inconsistencies in the evidence of all these witnesses and they differ in narrating the incident on material aspects. With the above discussion of evidence, I find that the evidence of those witnesses as referred to being taken into consideration in proper prospective and viewed cumulatively, those do not pass through the test of absolute reliability and trustworthiness for recording a finding that the prosecution has established its case against accused Gherau with the attributed role that it is he who assaulted the deceased by giving solitary blow on the back of the head of Ratan Singh Patel. 16. In the wake of aforesaid, the judgment of conviction and order of sentence dated 21.8.1989 passed by the trial court against both the appellants are set aside. Resultantly, the appeals stand allowed.