Rameswar Patra and Others vs The State

S. Acharya, J.—The Appellants stand convicted u/s 302/34, Indian Penal Code for intentionally causing the death of Makru Patra in furtherance of their common intention by assaulting him on the village road on 21-9-1973 at about 3 P.M. in Badepotka village.

The prosecution case in short is that at about 3 P.M. on the date of occurrence, while Makru Patra (the deceased) was passing on the village road, the 3 accused persons attacked him from behind. Accused Jiban with the Lathi in his hand at first dealt a blow on the right leg of Makru, and then he dealt blows on Makru''s head and chest, as a result of which Makru fell down on the ground. Thereafter the Lathi, which was in the hand of Jiban, was broken to two pieces, and with one of the broken pieces of that Lathi accused Rameswar indiscriminately assaulted the deceased when the latter was lying on the ground. Accused Jayaram also indiscriminately assaulted the deceased with the Begunia twig (M.O. II) which was in his hand. After assaulting the deceased the accused persons ran away from that place with the Lathis and sticks in their hands. On being assaulted in the aforesaid manner by the accused persons the deceased died at the spot.

The occurrence took place in front of the house of P.W. 4. He, on witnessing the occurrence, informed some of the villagers including Gobra Patra (P.W. 6), the son of the deceased. On receiving the said information P.W. 6 came to the place of occurrence and saw that his father was lying dead at the place of occurrence with bleeding injuries on his person. Thereafter P.W. 6 went to the Tiring P. S. and lodged information about the occurrence. After investigation and commitment proceeding, charge u/s 302/34, Indian Penal Code was framed against the accused persons of which they were tried and convicted by the trial Court.

All the three accused persons pleaded not guilty of the charge.

P.Ws. 4, 8, 9 and 10 are the eye witnesses to the occurrence. P.W. 1 is the Medical Officer who conducted the autopsy on the dead body of the deceased. P.W. 3 is the wife of the deceased. P.Ws. 2, 3 and 7 are the 3 witnesses who just prior to the occurrence saw some of the accused persons going towards the place of occurrence. After the occurrence they also saw the dead body lying at the place of occurrence. P.W. 15 is the first Investigating Officer who investigated the case almost to its conclusion, and P.W. 11 is the second Investigating Officer who submitted the charge sheet in this case. The other witnesses are formal witnesses.

P.Ws. 4, 8, 9 and 10 in a very consistent and convincing manner have stated that accused Jiban with the Lathi in his hand at first dealt a blow on the right leg of the deceased, and thereafter he dealt a blow on the head of the deceased. P.W. 4 has further stated that accused Jiban, apart from giving the aforesaid two blows, also dealt a blow with his Lathi on the right chest of the deceased. An the above mentioned witnesses have also stated that on being assaulted by Jiban the deceased fell down on the ground and thereafter accused Rameswar with one of the broken pieces of Jiban''s Lathi and accused Jayaram with the Begunia twig in his hand assaulted the deceased indiscriminately. Their evidence, so far as regards the Lathi blow given by accused Jiban on the head of the deceased, is quite consistent and the same gets support from the head injury found on the deceased by P.W. 1 at the time of his preparing the inquest report (Ext. 8) and by P.W. 1 when he held autopsy on the dead body.

The evidence of P.W. 4 that accused Jiban dealt a Lathi blow on the chest of the deceased gets support from the medical evidence and the inquest report, as the Medical Officer (P.W. 1) and the I.O. (P.W. 15) both found injuries on the deceased''s chest. The evidence of all the witnesses that accused Jiban at first assaulted the deceased on his right leg gets support from the leg injury seen by P.W. 15 at the time he held inquest over the dead body.

The defence comment, that the statements made in the inquest report (Ext. 8) were inadmissible in evidence being hit by Section 162, Code of Criminal Procedure, is not correct. The statement made by the Investigating Officer in the inquest report regarding injuries on the dead body is not a statement made by any witness before the police during investigation, but it is a record of what the Investigating Officer himself observed and found when he himself saw the dead body.

In this case the I.O. (P.W. 15) has testified to the fact that he visited the spot, made inquest over the dead body and prepared the inquest report (Ext. 8). Therefore, the injuries mentioned in column 5 of the said inquest report were the injuries which were found and observed by P.W. 15 at the time of his inquest over the dead body. P.W. 15 has proved the inquest report and has supported the statements made therein. So the statements to that effect in Ext. 8 are admissible in evidence u/s 60 or 61 of the Evidence Act, and the statements to that effect do not fall within Section 162, Code of Criminal Procedure. It has not even been suggested to P.W. 15 that the injuries mentioned by him in column 5 of the inquest report are not correct. So one can place reliance on the statements made about the existence of injuries on the deceased in the inquest report. My above view gets support from the latest decision of the Supreme Court (Rameswar Dayal v. State of U.P. AIR 1978 S.C. 1558), and the decision of the Rajasthan High Court reported in Mukanda and Others Vs. State, .

Mr. Mohapatra, the learned Counsel for the Appellants, however states that, in view of the fact that most of the eye witnesses do not state about the infliction of any blow on the chest of the deceased by accused Jiban and that the infliction of the leg injury on the deceased stated by all the p. ws. does not get any support from the medical evidence, the evidence of the eye witnesses should be discarded as unworthy of credit. As stated above, infliction of a blow on the chest of the deceased has been testified to by P.W. 4 and that gets support from the evidence of P.W. 1 and the inquest report Ext. 8. All the eye witnesses have consistently stated about the infliction of a Lathi blow by accused Jiban on the leg of the deceased. Their evidence gets support from the injury on the leg of the deceased as found by P.W. 15 during his inquest on the dead body. Merely because of the omissions mentioned above and because of the above mentioned facts, we are not inclined to brand the eye witnesses as unreliable. However, in any view of the matter, the consistent evidence of the eye witnesses, that the deceased dealt a Lathi blow on the head of the deceased, which gets corroboration from the injury seen at that place by P.W. 1 and P.W. 15, has not been assailed in any manner and we do not see any reason to discard the consistent testimony of the eye witnesses to that effect.

P.W. 1 has stated that the bone, periosteum and dura meter were torn and the brain matter was compressed and ragged below'' the head injury and the bone was fractured into four pieces. The injury on the head was individually sufficient in the ordinary course of nature to cause the death of the deceased, as opined by P.W. 1. Therefore, on the consistent evidence of the eye witnesses and on the above findings of P.W. 1, Appellant Jiban individually is liable for murdering the deceased.

In this case, accused Jiban was charged along with the other two accused persons for an offence u/s 302/34, Indian Penal Code. At the trial, in the presence of this accused all the witnesses directly ascribed the head injury to accused Jiban. That injury was sufficient in the ordinary course of nature to cause the death of the deceased. Questions ascribing this injury to accused Jiban were asked to him in his examination in the trial Court. This accused was defended by a lawyer. Therefore, he (accused Jiban) knew fully well that the head injury was directly ascribed to him only, and that he individually could be held liable for .causing that injury. So, on the facts of this case though a charge u/s 302/34, Indian Penal Code was framed against the accused persons, accused Jiban can legally and justly be convicted of the substantive offence u/s 302, Indian Penal Code.

The evidence against the other two Appellants, namely Rameswar and Jayaram, is not consistent, satisfactory or convincing. P.W. 8 has stated that on being assaulted by accused Jiban the deceased fell down on the ground facing downwards. The eye witnesses state that accused Rameswar and Jayaram indiscriminately assaulted the deceased after he fell down on the ground. If that was so, one would have expected some injuries on the back of the deceased. But neither the inquest report (Ext. 8) nor the post-mortem report (Ext. 1) shows any injury on the back of the deceased. Moreover, P.W. 1 in his deposition also does not speak about any injury on the back of the deceased. According to P.W. 2, he before the occurrence saw accused Jiban and Rameswar coming to the place of occurrence, and at that time each of them was holding a stick in his hand. But the eye witnesses state that the stick in the hand of accused Jiban was broken in to two pieces and one of the said two pieces was handed over to accused Rameswar and with that broken stick he assaulted the deceased. If Rameswar already had a stick in his hand, what was the necessity of breaking the stick in accused Jiban''s hand as stated above. While P.W. 2 states that accused Rameswar and accused Jiban went together towards the place of occurrence. P.W. 7 states that accused Jayaram only went along with Jiban to the place of occurrence. P.W. 8. In cross-examination could not state on which part of the deceased''s body accused Jayaram assaulted him. It has been elicited from the prosecution witnesses that the deceased and some of the villagers were in litigating terms with accused Rameswar and that the latter used to harass the villagers.

The evidence regarding the complicity of accused Rameswar and Jayaram with the occurrence is not of convincing nature, and on the evidence on record it becomes difficult for us to hold them guilty, beyond reasonable doubt, of the charge framed against them. We, therefore, are inclined to give them the benefit of doubt and acquit them on that score of the said charge.

In the result, Appellant Jiban is convicted u/s 302, Indian Penal Code and the sentence of R. I. for life passed against him is upheld. The conviction of the other two Appellants, namely accused Rameswar and Jayaram, and the sentence passed against them are set aside and they are acquitted of the charge ''framed against them. If in custody they be set at liberty forthwith.

The appeal accordingly is partly allowed.

J. K. Mohanty, J.

I agree.

Appeal partly allowed.