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2021 DIGILAW 341 (ORI)

Suresh Munda v. State Of Odisha

2021-08-05

S.K.SAHOO

body2021
JUDGMENT S.K. Sahoo, J. - The appellant Suresh Munda faced trial in the Court of learned Sessions Judge, Sambalpur in S.T. Case No.219 of 2013 for commission of offences punishable under sections 452/307 of the Indian Penal Code on the accusation that on 28.08.2013 at about 9.30 p.m., he entered into the house of Chaitu Munda (P.W.3) and assaulted him by means of an axe with an intention to cause his death. The learned trial Court vide impugned judgment and order dated 05.04.2016, found the appellant guilty of both the charges and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further imprisonment for two months for the offence under section 452 of the Indian Penal Code and rigorous imprisonment for ten years and to pay a fine of Rs.20,000/- (rupees twenty thousand), in default, to undergo further imprisonment for one year for the offence under section 307 of the Indian Penal Code and both the sentences were directed to run concurrently. 2. The prosecution case, in short, as per the first information report (Ext.2) lodged by Balmati Munda (P.W.1), the wife of P.W.3 before the I.I.C. of Burla police station is that, on 28.08.2013 at about 9.30 p.m. while she and her husband (P.W.3) were sleeping in their house, the appellant by committing criminal trespass into their house being armed with an axe assaulted P.W.3 on his head and legs by axe as a result of which, he sustained bleeding injuries. When P.W.1 shouted, other persons of the locality rushed to the spot but the appellant fled away and in spite of frantic search at different places, the appellant could not be traced out. P.W.3 was shifted to V.S.S. Medical College and Hospital, Burla for treatment. On the basis of the first information report, Burla P.S. Case No.251 dated 29.08.2013 was registered against the appellant under sections 307/452 of the Indian Penal Code. The Inspector-in-charge directed Arjun Sethi (P.W.8), A.S.I. of Police attached to Burla police station to take up investigation. During the course of investigation, P.W.8 examined the informant, visited the spot, prepared the spot map, examined the witnesses, seized the bamboo lathi under seizure list Ext.4 and the appellant was arrested on 28.10.2013 and forwarded to the Court on the next day. During the course of investigation, P.W.8 examined the informant, visited the spot, prepared the spot map, examined the witnesses, seized the bamboo lathi under seizure list Ext.4 and the appellant was arrested on 28.10.2013 and forwarded to the Court on the next day. Injury requisition was made to V.S.S. Medical College and Hospital, Burla and P.W.8 received injury report and on completion of investigation, charge sheet was submitted against the appellant on 31.10.2013 under sections 452/307 of the Indian Penal Code. 3. After submission of charge sheet and commitment of the case to the Court of Session, the learned trial Court on 16.04.2014 framed charges against the appellant as already stated and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. The defence plea of the appellant is one of denial and it is pleaded that he had been falsely implicated in the case. 5. During course of trial, in order to prove its case, the prosecution has examined as many as eight witnesses. P.W.1 Balmati Munda is the informant and wife of the injured (P.W.3). She supported the prosecution case and stated about the incident. P.W.2 Sumanta Bhoi is a co-villager, who is a post occurrence witness and did not support the prosecution case. P.W.3 Chaitu Munda is the injured and he supported the prosecution case and stated about the incident. P.W.4 Birendra Pradhan is a co-villager and also a post occurrence witness and did not support the prosecution case. P.W.5 Dr. Malaya Krishna Nayak, who was the Asst. Professor Surgery at V.S.S. Medical College and Hospital examined the injured (P.W.3) on police requisition and proved the medical examination report vide Ext.1. P.W.6 Saroj Kumar Panda is the scribe of the F.I.R. (Ext.2). P.W.7 Goura Bhue is a post-occurrence witness. P.W.8 Arjun Sethi was the A.S.I. of Police of Burla police station and he is the Investigating Officer of the case. The prosecution exhibited four numbers of documents. Ext.1 is the injury report, Ext.2 is the plain paper F.I.R., Ext.3 is the spot map and Ext.4 is the seizure list. No witness was examined on behalf of the defence. 6. P.W.8 Arjun Sethi was the A.S.I. of Police of Burla police station and he is the Investigating Officer of the case. The prosecution exhibited four numbers of documents. Ext.1 is the injury report, Ext.2 is the plain paper F.I.R., Ext.3 is the spot map and Ext.4 is the seizure list. No witness was examined on behalf of the defence. 6. The learned trial Court on analyzing the oral as well as documentary evidence on record, has been pleased to hold that in spite of minor insignificant discrepancy and contradiction, the evidence of P.W.3 and his wife (P.W.1) as eye witness cannot be brushed aside. It is further held that the very act of the appellant by entering upon the house in the night being armed with deadly weapon like an axe itself goes to show his intention and the successive blows dealt by him necessarily further shows his knowledge that such attempt could have gone to the extent of death and the entire act was found to have committed by the appellant to cause death of the injured and accordingly, learned trial Court convicted the appellant under sections 307 and 452 of the Indian Penal Code. 7. Mr. Sangram Keshari Rout, learned Amicus Curiae appearing for the appellant placed the impugned judgment, the evidence of the witnesses and contended that the evidence of the doctor (P.W.5) indicates that injuries sustained by P.W.3 were simple in nature and no bony injury was seen and the injuries were opined to have been caused by hard and blunt weapon, though it is the prosecution case that P.W.3 was assaulted by an axe. It is argued that in view of the discrepancies between the medical evidence and the ocular evidence, benefit of doubt should be extended in favour of the appellant or the conviction of the appellant be altered from under section 307 of the Indian Penal Code to one under section 324 of the Indian Penal Code. Mr. It is argued that in view of the discrepancies between the medical evidence and the ocular evidence, benefit of doubt should be extended in favour of the appellant or the conviction of the appellant be altered from under section 307 of the Indian Penal Code to one under section 324 of the Indian Penal Code. Mr. J.P. Patra, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that P.W.1 is the wife of P.W.3 and they were present in their house when the appellant entered into their house and committed the offence and they are the best persons to say about the occurrence and number of blows were given by the appellant on different parts of the body of P.W.3 and even though the doctor has opined those injuries to be simple in nature and no bony injury was seen but the doctor has clarified that the injuries noticed as per Ext.1 could have been caused by forced impact of the blunt side of an axe and therefore, the appeal should be dismissed. 8. Adverting to the rival contentions raised by the learned counsel for the respective parties, it seems the prosecution case mainly rests on the acceptance or otherwise of the evidence of P.W.1 and P.W.3 and the doctor (P.W.5). P.W.1 has stated that on the date of occurrence in the night, she along with her husband (P.W.3) were sleeping in the room by keeping the door half opened as her son had been to the village to see Janmashtami festival. She further stated that the appellant entered inside the house through the open door and dealt successive blows by means of a sharp cutting weapon like an axe and when she shouted aloud being scared of the situation, some villagers immediately arrived but prior to their arrival, the appellant managed to flee away from the spot with the axe. She further stated that her husband (P.W.3) sustained bleeding injuries on several parts of his body i.e. right hand, cheek, forehead and he was admitted in the hospital. In the cross-examination, P.W.1 has stated that though the wearing apparels of P.W.3 were stained with blood, but those were not produced before the police. She further stated that the appellant was her brother-in-law (Diara) and there was civil dispute between the two families. In the cross-examination, P.W.1 has stated that though the wearing apparels of P.W.3 were stained with blood, but those were not produced before the police. She further stated that the appellant was her brother-in-law (Diara) and there was civil dispute between the two families. She further stated that she was slept at the time of occurrence but woke up when her husband shouted as 'Marigali Marigali' and she immediately chased the appellant, who fled away from the spot. Nothing worth has been elicited in the cross-examination to disbelieve the evidence of P.W.1. Moreover, the evidence of P.W.1 is getting corroboration from the evidence of P.W.3 Chaitu Munda who stated that while he was sleeping in his house on a cot in the night of Janmashtami, the appellant forcibly came inside opening the door of the room and dealt successive blows by an axe on the right hand, head, legs and he was shifted to the hospital by his employer. He further stated that he remained in the hospital for seven days. In the cross-examination, he stated that the appellant gave four to five blows to him by means of the weapon of offence. On a scanning of evidence of those two witnesses i.e. P.W.1 and P.W.3, I find that they have corroborated each other in all material particulars and the discrepancies, if any, are very minor in nature. It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in its entirety. Coming to the evidence of the doctor (P.W.5), it appears that he noticed one lacerated wound on the right fronto temporal region, another lacerated wound on the left cheek and two other lacerated wounds on the right forearm and one abrasion on the left knee joint. He also verified the X-ray plates of different bodily parts of P.W.3 and opined that there was no bony injury and all the injuries were simple in nature and caused by hard and blunt weapon. He has clarified that injuries inflicted on the body of P.W.3 as per Ext.1 could have been caused by forced impact of the blunt side of an axe. He has clarified that injuries inflicted on the body of P.W.3 as per Ext.1 could have been caused by forced impact of the blunt side of an axe. Therefore, the contention raised by the learned counsel for the appellant that there are discrepancies between the medical evidence and the ocular evidence cannot be accepted. The evidence of P.W.3 that he remained in the hospital for seven days is not borne out of the records. Neither P.W.5 says so nor the medical examination report of P.W.3 marked as Ext.1 substantiates the same. No other witnesses have also stated about the stay of P.W.3 in the hospital for seven days. No bed head ticket has been seized from V.S.S. Medical College and Hospital, Burla. Therefore, it is difficult to accept that P.W.3 was hospitalized for seven days. The injuries have been opined to be simple in nature and no bony injuries were seen. In the case of Rekha Mandal and other -Vrs.- State of Bihar reported in 1968 Supreme Court Decisions 208, where there were seventeen injuries consisting of incised and punctured wounds and bruises were noticed but none of the injuries was grievous and only two of them were located on the head and neck and the medical evidence did not disclose any of the injuries were cumulatively dangerous to life of the injured, the Hon'ble Court held that section 307 of the Indian Penal Code 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 Court altered the conviction from one under section 307 of the Indian Penal Code to section 324 of the Indian Penal Code. In view of the evidence adduced by the prosecution, particularly the evidence of the doctor and the nature of injuries sustained by the injured (P.W.3), I am of the humble view that the impugned judgment and order of conviction of the appellant under section 307 of the Indian Penal Code is not sustainable in the eye of law which is altered to one under section 324 of the Indian Penal Code. 9. 9. So far as the charge under section 452 of the Indian Penal Code is concerned, which prescribes punishment for house-trespass after preparation for hurt, assault or wrongful restraint, the manner in which the appellant stated to have entered inside the house of P.W.3 in the night being armed with an axe and also assaulted P.W.3, I am of the humble view that the prosecution has successfully established the charge under section 452 of the Indian Penal Code. In the result, the JCRLA is allowed in part. The conviction of the appellant for the offence under section 307 of the Indian Penal Code is altered to one under section 324 of the Indian Penal Code and the appellant is sentenced to undergo R.I. for two years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for two months. The impugned judgment and order of conviction of the appellant under section 452 of the Indian Penal Code and the sentence imposed by the learned trial Court for such offence remains unaltered. Both the sentences are directed to run concurrently. It appears that the appellant was taken into judicial custody in connection with this case on 29.10.2013 and he was neither released on bail during course of the trial nor during pendency of this appeal. Therefore, he has already remained in judicial custody for seven years and nine months. In view of the sentence imposed on him for his conviction under sections 324 and 452 of the Indian Penal Code, the appellant be set at liberty forthwith, if his detention is not otherwise required in any other case. Trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Mr. Sangram Keshari Rout, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.5,000/- (rupees five thousand only).