Pradeep Kumar Sahoo vs State of Orissa

I.M. Quddusi, J.—This criminal appeal has been filed against the judgment passed on 13th July, 1987 in Sessions Case No. 13 of 1985 (S.C. No. 34 of 1985 G.D.C.) by the 1st Addl. Sessions Judge, Berhampur, convicting the Appellant for the offences punishable under Sections 148 and Sections 326/149, Indian Penal Code and sentencing him to three years R.I. for the offence punishable under Sections 326/149, Indian Penal Code and to undergo two years R.I. convicting for the offence u/s 148, Indian Penal Code both the sentences are to run concurrently.

At the very outset it is to be noticed that the Appellant was initially charged for the offences under Sections 148 and 302 read with Section 149, Indian Penal Code on the allegation that he along with 11 others (the accused persons in S.C. Nos. 14 and 16 of 1984) whose trial was split and decided by a separate judgment and Order dtd. 2.2.1985 by the then Addl. Sessions Judge, Ganjam, formed an unlawful assembly with the common object of assaulting the deceased Bhagaban Panigrahi to death and on 26.4.1983 morning, committed the offence of rioting being armed with deadly weapons like Lathi, Kati and Gun and severely wounded Bhagaban Panigrahi near a culvert on the eastern out skirts of village Dhoyakona.

The co-accused in those sessions trials were convicted as mentioned above and resulting which the accused Simachala Sahu and Brundaban Sahu were sentenced to undergo three years R.I. on the count of the offence punishable under Sections 326/149, Indian Penal Code and further two years R.I. on the count of Section 148, Indian Penal Code. Rest of the accused in those sessions trials were also convicted under the aforesaid sections and sentenced to two years R.I. on each of the counts with the direction that the sentences to run concurrently. Those accused persons after their conviction filed an appeal before this Court which was registered as CRA No. 29 of 1985 which was dismissed vide judgment and Order dated 11th July 1990. Thereafter it was registered as Criminal Appeal No. 998 of 1995 Simachala Sahu and Ors. v. State of Orissa and vide judgment and Order dated 18th February, 1999 their Lordships have upheld the convictions of the Appellants both under Sections 326/149 and 148, Indian Penal Code but reduced the sentences to one year on each count with the direction that the sentences to run concurrently. Conviction was upheld and reduced sentences in respect of Appellants-Trilochan Pradhan and Banchha Behera but in respect of other Appellants the sentences awarded by the Learned Sessions Judge were affirmed. It is also necessary to mention that during pendency of the appeal before the Hon''ble Apex Court out of seven Appellants two, namely, Bijay Nayak and Debaraj Sahu were no more. Thus the appeal against those two Appellants abated.

The brief facts of the case is that on 26.4.1983 at about 8 A.M. while the deceased Bhagaban Panigrahi was returning to his house from a tea stall the Appellant alone with above mentioned co-accused persons whose cases were split up having formed an unlawful assembly and being armed with Lathi, Kati and Gun etc. attacked the deceased and caused him severe injuries. The role of the Appellant in the instant appeal was that he gave several blows by means of lathi and kati and when the first informant (P.W. 5) and other persons tried to intervene, the other associate Debaraj who was having a gun with him threatened them that if anybody would interfere, he would be shot dead. When the culprits left the place of occurrence the deceased was taken by P.W. 5 and other persons to Boirani which is also known as Kabisuryanagar by a bullock cart and from that place to Berhampur Medical College Hospital through a jeep. The deceased was admitted to the said hospital but after eight days he died. After the death of the deceased the case was converted into one u/s 302, Indian Penal Code and after conclusion of the investigation charge-sheet was filed against the Appellant as well as other culprits for the offence punishable under Sections 147, 148, 149, 341 & 302, Indian Penal Code. Since the Appellant was an absconder, his case was split up and case of others was committed to the Court of Session. As mentioned above, other culprits were convicted by judgment and order made separately in S.C. Case Nos. 14 and 16 of 1984 by the 1st Addl. Sessions Judge upheld by this Court and the Hon''ble Apex Court but the trial of the present Appellant was commenced later on after his arrest.

It is the statement of P.W. 1 - Basudev Panda and P.W. 6 - Bhima Jena that the deceased died in hospital and according to the statement of P.W. 3 - Dr. Anil Kumar Sarangi who conducted the post-mortem examination on the dead body of deceased and prepared post-mortem report the death was due to septicemia and peritonitis. P.W. 1 - Subash Ch. Sahu, P.W. 2 - Basudev Panda, P.W. 5 - Mahendra Kumar, P.W. 6 - Bhima Jena and P.W. 7 - Maheswar Sahu were all eye-witnesses who have given their statements on oath describing the incident of occurrence and supporting the prosecution story wherein no material contradiction has been found in their statements. All the witnesses have stated that the Appellant dealt blows on the person of deceased along with other culprits as a member of an unlawful assembly causing grievous as well as simple injuries.

According to P.W. 3 - Dr. Anil Kumar Sarangi on post-mortem examination the following external injuries on the dead body of the deceased:

Stitched wound (11 stitches) curved in shape as shown in picture on the right force arm on posterior medical aspect. On opening the stitches, the wound was infected and muscle deep.

Stitched wound (7 stitches) 2 1/2 length on the right palm thinner eminence situated vertically. On opening the attaches the wound was found muscle deep.

Linear cut abrasion 2" length horizontally oblique situated on the right fore arm 2" below the elbow. The wound was covered with brown scab.

Linear cut abrasion 2" vertically on the lateral aspect of right knee. The wound was covered with brown scab.

Right ankle swollen.

Stitched wound (6 stitches) 2" in length on the left palm near base of digits extending from index finger to right finger situated horizontally. On opening the stitches the wound was found muscle deep.

Stitched wound (4 stitches) 2" in length obliquely horizontal between thumb and index of left hand. On opening the stitches, the wound was found muscle deep and infected.

Stitched wound (3 stitches) 2" in length on the left fore arm on its literal aspect situated horizontally. On opening the stitches, the wound was found muscle deep and infected.

A linear cut 11/2 X skin deep on the left leg below the knee situated horizontally on its front part. The wound was covered with brown scab at places.

Infected wound 7" X 4" area on the left leg above ankle with a cut fracture of tibia and fibula. The muscles were lacerated and inflamed. Puss was found on the base and margins of the wound. The margins were eroded due to infection.

He further found the following internal injuries:

Contusions were found on the walls of the small intestine at places with presence of altered blood inside the lumen.

Peritoneal cavity full with bilious fluid and peritoneum was inflamed.

P.W. 3 further stated in his statement that external and internal injuries were homicidal in nature and collectively, all the injuries are fatal and can result in the death of a person in ordinary course of nature. This medical opinion corroborated the statement of the eye-witnesses P. Ws. 1, 2, 5, 6 and 7. However, from the statements of the eye-witnesses no inference can be drawn that the Appellant or other culprits were members of unlawful assembly to kill the deceased at the place of incident. None of the witnesses had come with the story that the Appellant and other culprits had any intention to kill the deceased. It is necessary to remember that one of the culprits and members of the unlawful assembly, namely, Debaraj Sahu was having with him a gun but he did not use that gun even which shows that the intention of the members of the unlawful assembly including the Appellant was not to commit the murder of the deceased and according to the medical opinion of the Medical Officer the injuries found on the person of the deceased were individually not fatal so as to cause death. Therefore the learned Addl. Sessions Judge has rightly held that the prosecution has failed to prove the charge u/s 302 read with Section 149, Indian Penal Code against the Appellant. Similarly in the absence of any intention to cause murder, the offence cannot be brought under the purview of Section 307, Indian Penal Code also and thus the Learned Addl. Sessions Judge found the Appellant guilty of having committed offences under Sections 148 & 326 read with Section 149, Indian Penal Code.

Learned Addl. Sessions Judge has dealt with the case of the Appellant from every corner and probabilities and ultimately found the Appellant being a member of unlawful assembly armed with deadly weapons having committed offences under Sections 148 & 326 read with Section 149, Indian Penal Code which is liable to be approved beyond any doubt.

In view of the above mentioned facts and circumstances of the case, the judgment and order passed by Learned 1st Addl. Sessions Judge, Berhampur convicting the Appellant are affirmed.

In the result the appeal is dismissed.

Appeal dismissed.