Purti Jhadia vs State Of Orissa

G. Satapathy, J.

The convict is in an appeal against the judgment passed on 11.02.1993 by the learned Session Judge, Koraput at Jeypore in Sessions Case No. 86 of 1992 convicting the appellant for offence punishable U/S. 304-II of the Indian Penal Code, 1860 (in  short  the  8IPC9)  and sentencing him to undergo Rigorous Imprisonment for three years with benefit of set off U/S. 428 of Cr.P.C. as against the substantive sentence. The learned trial Court by the aforesaid judgment, however, acquitted the co-accused Bhokoda @ Haldhar Jhadia and Ladi Jhadia.

The prosecution case in brief was on 23rd January, 1992 (Thursday) at about 4 P.M., one Linga Jhadia  (hereinafter  referred  to  as  the  ‘deceased’) while dancing in an inebriated condition in Pathar Devi Festival, pushed one Guramani, the sister of the accused Bhokoda @ Haldhar Jhadia and Ladi Jhadia, as a result she fell down and her head struck on a stone resulting in bleeding injury to her for which, the accused Ladi Jhadia slapped the deceased and thereafter, appellant Purti assaulted the deceased by Lathi, whereas co-accused persons assaulted the deceased by giving fist and kick blows. Due to assault, the deceased fell down on the ground sustaining bleeding injuries and he was carried to his house by his sons and others. The deceased, however, succumbed to injuries on Sunday.

On this incident, a Panchayati meeting was convened wherein the accused persons and appellant admitted to have killed the deceased. Accordingly, PW1 (Sitaram Jhadia) orally reported the matter to the O.I.C., Kashipur, who registered P.S. Case No.2 of 1992 and took up investigation, in the course of which, he examined the witnesses, seized the Lathi (MOI), got the autopsy done over the dead body of the deceased. On conclusion of investigation, PW7-O.I.C.(Kashipur), submitted a charge sheet against three accused persons including the appellant resulting in trial in the present case.

In substantiation of its case, the prosecution examined altogether eight witnesses and relied upon documents under Ext.1 to 12 and material object (MOI) as against the oral evidence of four witnesses and two documents under Exts. A and B.

The plea of the accused persons was one of complete denial and false implication of the charge.

After appreciating the evidence on record upon hearing the parties, the learned trial Court by the impugned judgment convicted the appellant and sentenced him to punishment indicated supra, while acquitting the co-accused persons.

A cursory glance of impugned judgment would go to disclose that the learned trial Court convicted the appellant by mainly relying upon the following:

(i) The ocular evidence of PWs. 1 to 3 & 5.

(ii) The extra judicial confession of the accused made in the Panchayati.

(iii) The seizure of MOI on production by appellant.

(iv) The medical evidence.

For attracting the offence U/S. 304-II of the IPC, the prosecution is obliged to establish that even if the accused had no intention to cause such bodily injury as was likely to cause death of the deceased, but he had the knowledge that the injury was likely to cause death of the deceased. Keeping in mind the aforesaid ingredients of the offence, the evidence led by the prosecution has to be scrutinized. Indeed PW1 was projected as eye witness to the occurrence, but his admission in para-10 of the cross-examination relegated him to the post occurrence witness as he was found stated to have not seen the assault on the back of his father (deceased). On the other hand, the evidence of PWs.2 and 5 transpired that the appellant had assaulted the deceased with a Lathi (MOI) on the back of neck of the deceased, but the evidence of Doctor (PW8) transpired no injury on the neck or face of the deceased. The testimonies of PWs. 2 and 3 also revealed that they had not seen the assault on PW1 but PW3 had spoken about the assault made by the appellant with MOI on the deceased. The testimony of PW5 also transpired that the appellant dealt blow on the head of the deceased.

Admittedly, the evidence transpired that the deceased was assaulted on Thursday and he died on Sunday, but during Thursday to Sunday, the deceased was absolutely in his house and he was given one injection by a local Malaria Inspector on Saturday morning and the deceased had not taken any medicine for the injury sustained by him nor was he treated by any Doctor during those days. The cross-examination of PW1 disclosed that his father had taken fermented rice water(Handia). The prosecution evidence also transpired that the deceased had pushed the aunt of the appellant, as a result she fell down and received injury on her head and thereafter, the appellant and co-accused persons assaulted the deceased. It is to be kept in mind that the appellant is a tribal person and no clear knowledge can be attributed to him that any assault by means of a single blow with a Lathi on the deceased would cause death and there appears no dispute that the deceased was in an inebriated condition and was also the aggressor in this case because he had pushed the aunt of the appellant to the ground while dancing in the festival just before the assault on him. However, the evidence on record also transpired that the deceased was not provided with any medical treatment save and except the injection given to him by the Malaria Inspector as noted above and thereby, the negligence in the treatment of the deceased cannot be ruled out, which in the circumstance assumes great significance, particularly failure of the prosecution to come up with convincing evidence that the deceased had not died on account of negligence in treatment.

The testimony of PW8 also transpired that the appellant had also sustained injury on the left side of forehead which was simple. Besides, PW7 had also admitted in the cross-examination “Guramani had made a station diary entry alleging that Linga (deceased) had given a push to her causing head injury and he had also sent her for medical examination, but the allegation made by Guramani did not reveal a cognizable case”. On the other hand, the defence had examined one Government Doctor as DW1, who had proved the injury on Guramani Jhadia.

A careful perusal of the evidence of the PWs.7 & 8 together with DW1, it can never be said that the allegation made by Guramani did not reveal a cognizable case and there appears to this Court that the prosecution had not come up with clean hand by revealing the true genesis of the case. On the next aspect, it appears that after careful and meticulous appreciation of the evidence, the learned trial Court had given the benefit of doubt to co-accused persons on the same set of evidence while convicting the appellant for offence U/S. 304-II of the IPC by taking into account the assault made on the deceased by the appellant with a Lathi, but it has already been found by this Court that the prosecution had withheld some relevant facts in this case by not explaining as to how the appellant sustained injury as well as her aunt, who had reported the matter to the IO-PW7 three days prior to the F.I.R. lodged by PW1 in this case.

It is equally surprising that the learned trial Court after considering the evidence of the Doctor and the eye witnesses had returned with a finding in the impugned judgment that the death of the deceased was neither “natural” nor “accidental”, but was homicidal, despite the Doctor(PW8) having neither opined in Ext.10(PM Report) nor deposed in his evidence the cause of death of the deceased to be “homicidal” in nature. Nonetheless, the learned trial Court had relied upon the extra-judicial confession of the accused persons made before the Panchayati, but it appears from the testimony of the prosecution witnesses that such statement of the accused persons before Panchayati, could not be considered as an extra-judicial confession of the accused persons, which was evident from the evidence of PW2 as he stated “accused persons came to Panchayati and told we killed, do whatever you would like to do, go to the Police Station and report”. The aforesaid piece of evidence by no stretch of imagination can be held voluntary and truthful; rather the same appears to be a statement made by the accused persons on annoyance. The so called extra-judicial confession of the accused persons in the aforesaid situation pales into insignificance.

Albeit, MOI was seized on production by the appellant, but the same was lying near the place of worship as stated by PW4 in his evidence and that apart, it was never sent for chemical examination so as to establish any connection of appellant with the crime. In the aforesaid situation, especially when it did not transpire from the evidence of PW8 that the deceased suffered a homicidal death and the deceased was having found remained in his house without any proper treatment for a period of around four days, except the injection administered to him by the Malaria Inspector just one day before his death, which assumes significance particularly when the Malaria Inspector was not examined by the prosecution, it cannot be considered that the prosecution had established/proved that the deceased suffered homicidal death, which in the circumstances rendered the conviction of the appellant for offence U/S. 304-II of the IPC as unsustainable.

However, the prosecution had established that the appellant had assaulted the deceased by means of a Lathi on his head causing one injury to his head and abrasion to the left knee and the deceased at best can be considered to have died on account of negligence in his treatment, but not by the assault of the appellant which was not established by the prosecution beyond all reasonable doubt. Hence, the act of the appellant falls within the ambit of Section 324 of IPC. Consequently, the prosecution had found to have established the guilt of the accused for offence U/S. 324 of IPC, but as per the record, the appellant had already suffered incarceration for a period of more than one and half years together with the agony and rigmarole of the trial and appeal for near about thirty years, which in the circumstance is considered by this Court to be sufficient punishment to the appellant.

In the result, the appeal is partly allowed on contest, but in the circumstance, there is no order as to costs. The conviction of the appellant is, accordingly, modified to one U/S. 324 of IPC and he is sentenced to the period already undergone by him in this case. The appellant be discharged of his bail bonds in this case.

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