State of Orissa vs Goti Lachhumu Dora

J.K. Mohanti, J.—This is an appeal u/s 378, Code of Criminal Procedure by the State of Orissa against God Lachhumu Dora, who has been acquitted of the charge u/s 302, Indian Penal Code by the Sessions Judge, Koraput, Jeypore.

The case of the prosecution is that on 24-12-1974 at about 6 p.m. the accused-Respondent called the deceased Manjee Karkaria to the threshing floor of one Malifula of village Domb Baraguda and demanded Rs. 30/- being the price of the bullock which was sold to him (deceased) earlier. As the deceased expressed his inability to pay the amount, the accused was annoyed and assaulted him with slaps, fist blows and kicks. P.W. 2 Karkaria Moni, the son of the deceased who happened to be present at the place of occurrence, on seeing the incident, shouted. On hearing the shout, P.Ws. 3 to 5 came there. It is alleged that on receiving slaps, fist blows and kicks from the accused, the deceased fell down and died at the spot. P.W. 9 and others, who came to the spot some time after, held a panchayat where the accused confessed his guilt. On the following day P.W. 2 went to Ambadala Police Station and lodged information. The Assistant Sub-Inspector of Police (P.W. 10) drew up F.I.R. (Ext. 2) and took up investigation. The dead body was sent for post-mortem examination and P.W. 6. the Medical Officer, held the post-mortem examination. After completion of investigation, P.W. 11, the Officer-in-charge of the Police Station, who took over charge of the investigation from P.W. 10, submitted charge-sheet.

The plea of the accused-Respondent was a denial and his further plea was that a false case has been started against him.

The prosecution has examined 11 witnesses of whom P.Ws. 2 to 5 are said to be eye witnesses to the occurrence. P.W. 9 was examined to state that the accused confessed his guilt in the panchayat, but he has deposed in Court that the accused never confessed his guilt. P.W. 6 is the Medical Officer, who conducted the post-mortem examination and submitted his report (Ext. 1). P.W. 7 spoke a bout the sale of the bullock by the accused to the deceased for Rs. 30/-. P.W. 1 is the constable, who accompanied the dead-body and identified the deceased to the Medical Officer, P.W. 6. P.Ws. 10 and 11 are the Investigating Officers. The accused has not examined any witness in his defence.

The learned Sessions Judge after considering the evidence of the eye witnesses (P.Ws. 2 to 5), the evidence of the doctor (P.W. 6) and of P.W. 9 came to the following finding:

Thus it would be seen from the above that the evidence of P.Ws. 2 to 5 is contradictory and inconsistent too. P.W. 9 is said to be the panchayat witness. He is examined to say that the accused confessed his guilt in the panchayat. But in evidence the witness did not support the story of the prosecution and so the learned Public Prosecutor declared him hostile and cross-examined him with the permission of the Court. But nothing material has been elicited to show that he is suppressing the truth. This apart, P.Ws. 2 to 5 do not say that any panchayat was held and in that panchayat the accused confessed his guilt. In such circumstances, it cannot be said that P.W. 9 is not telling the truth. To sum up, medical evidence is not positive on the point that the rupture of the spleen was due to fist blows and kicks. Oral evidence on the point is also far from satisfactory. P.W. 2 says that the deceased was assaulted by the accused and his two brothers by fist blows and kicks, but he is not certain as to by whom the deceased was assaulted. P.W. 4 does not support the story of the prosecution, on the other hand, he makes contradictory statements and denies the presence of the accused at the spot. P.Ws. 3 and 5 also make contradictory statements, and hence it is not safe to rely on them. If the evidence of p.Ws. 2 to 5 is rejected as unworthy of credit, there is no other evidence worth the name on record to conclude that the deceased died as a result of assault on him and that it was a case of homicide. The evidence also falls short of the required proof that the accused was responsible for the death of the deceased.

He, therefore, acquitted the accused of the charge u/s 302. Indian Penal Code.

The above findings are challenged in this appeal by the learned Additional Standing Counsel. He argues - (1) that from the evidence on record it is clear that the accused has committed an offence of culpable homicide amounting to murder under Clause 2 of Section 300, Indian Penal Code and he is liable to be punished u/s 302. Indian Penal Code, (2) that even assuming for the sake of argument that a case or murder punishable u/s 302. Indian Penal Code has not been made out against the accused, the accused should be held guilty of committing an offence punishable u/s 325. Indian Penal Code or at least u/s 323. Indian Penal Code on the evidence on record.

It is argued that from the evidence of P.W. 6. the Medical Officer, it is clearly established that the cause of death of the deceased was due to rupture of spleen as a result of blows, kicks or hard substance striking against the spleen area and the deceased died of shock and haemorrhage on account of rupture of the spleen. The doctor (P.W. 6) has opined:

On dissection, I found that the spleen was ruptured from the lower border towards upper. Size of the spleen was 6" long 4" breadth and H" thick, and the weight was 1 Lb. 4 oz. Cause of death is due to rupture of spleen as a result of blows, kicks or hard substance striking against the spleen area. The injuries were ante-mortem. Time of death to P.M. examination is within 36 hours. The deceased died of shock and haemorrhage on account of rupture of spleen. The death must have been instantaneous.

The evidence of the doctor shows that the deceased had an enlarged spleen and the death was on account of rupture of spleen. Learned Additional Standing Counsel argued that the accused had full knowledge of peculiar physical condition of the deceased and he had knowledge that the injury intended to be caused will most likely result in the death of the deceased on account of his peculiar physical condition. The accused having assaulted the deceased knowing fully well about the physical condition of the deceased and further having knowledge that the injury intended to be caused will most likely result in that person''s death on account of his peculiar physical condition, the offence is covered u/s 300(2). Indian Penal Code and hence it is to be held that the accused has committed murder punishable u/s 302, Indian Penal Code. Section 300. Indian Penal Code provides:

Murder. - Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention causing death, or -

2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the hard is caused, or

3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or .

4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

In order to bring the case under the purview of Clause 2 of Section 300, it must be shown that the accused having full knowledge of the peculiar physical condition of the deceased and further having knowledge that the injury intended to be caused would most likely result in his death on account of his peculiar physical condition, caused the injury to him and death ensued.

When the injury which would not be sufficient to cause the death of an ordinary grown up human being, is sufficient to cause the death of a person in a subnormal state of health, that is, by reason of age, disease or weakness or previous injuries, it is spoken of as an injury ''likely to cause the death of the person to whom the harm is caused'', bearing in mind that person''s special physical condition. This is further clear from the illustration (b) of Section 300, Indian Penal Code which is quoted below:

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of ,the blow. A is guilty of murder, although'' the blow might not have been ''sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature-kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death.

So it is to be examined whether in this case the prosecution has been able to establish that the accused-Respondent had full knowledge of the peculiar physical condition of the deceased and further having knowledge that the injury intended to be caused will most likely result in'' the death of the deceased on account of his peculiar physical condition, he caused the injuries to the deceased which resulted in his death.

The only evidence on behalf of the prosecution about the physical condition of the deceased was that of P.W. 9 who has stated:

Manjee Domb (deceased) was a drunkard. He was also very weak due to his disease. He had just returned from Bissam Cuttack Hospital after treatment. I do not know the nature of the disease.

This is all the evidence on behalf of the prosecution about physical condition of the deceased. It is not in the evidence that the spleen of the deceased was enlarged and that his physical condition was such that the injuries that were inflicted on him were likely to cause the death of the deceased and this fact was known to the accused-Respondent. In the absence of such evidence and in the absence of the intention of causing such bodily injury as the accused knew to be likely to cause the death, it cannot be said that the office committed by the accused-Respondent would come within the ambit of Section 300(2), Indian Penal Code. Since there is no direct evidence of knowledge of the accused about the physical condition of the deceased and the knowledge of a normal human being is imputed to all and when the injuries inflicted would not be sufficient to cause death of an ordinary grown up human being, it is difficult to hold that the accused intended to cause such bodily injury that he knew to be likely to cause death of the deceased.

The evidence of the prosecution regarding assault is that of P.Ws. 2 to 5.

P.W. 2 has stated:

Thereafter the accused gave a kick on the throat of my father who fell down. After the fall the accused gave two more kicks, one on the right side of the abdomen and the other on the Tight cheek of mv father. Then Nooka gave a kick to my father on the back side near the waist. Then Murali gave kick blows to my father who was rolling as a result of the kicks. My father died at the spot.

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Cross-examination: When I made hulla ''Bapa Morigola, Bapa Morigola'' Sardhana and others came to the spot. None of them has seen the actual assault on my father. Then says, white the assault was going on I was making hulla and the aforesaid witnesses had seen the assault on my father. It is not a fact that I stated before the police that after the death of my father Sardhana and then the Challan and Lasku came. I got nervous (Gabhra Haigoli) at the time of assault of my father and so I cannot say who assaulted my father on which part.

P.W. 3 has stated:

Immediately I rushed to the spot which is the Khola of Maliful and found the accused giving one slap on the left side cheek of the deceased. I also found him lifting his leg but I did not see him giving any kick blow to the deceased.

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I did not see his brother at that place. Murali and Nooka alias Balaram are brothers of the accused and they came to the Khola after my arrival to that place.

P.W. 4 has stated:

P.W. 2 told me that his father Mianjee Domb was assaulted by the accused. The accused was present at that place.

P.W. 5 has stated:

I rushed to the spot which is the Khola of Maliful and found that Manjee had fallen down. Further I found the accused giving one slap to the deceased on his right side cheek. I also saw him moving his leg, but I cannot say whether he kicked the deceased.

Thus it is seen that P.W. 2 has stated that the accused and his two brothers Nooka and Murali gave kicks to the deceased, hut he is unable to say as to who assaulted his father on which part. Nooka and Murali, the brothers of the accused had not been charge-sheeted., P.Ws. 3 and 5 only speak about the fact that accused gave a slap on the cheek of the deceased. P.W. 4 has stated that P.W. 2 told him about the assault by the accused on the deceased. He denied having seen the accused assaulting the deceased. The above evidence even if taken at the face value, cannot establish a case against, the accused that he intentionally caused the injuries on the deceased which he knew to be likely to cause the death of Manjee Domb (deceased). P.W. 6, the doctor says that the death was due to rupture of spleen as a result of blows, kicks or hard substance striking against the spleen area. The evidence of P.W. 2 shows that apart from the accused, his brothers Nooka and Murali (who have not been charge-sheeted also gave kicks to the deceased. Therefore, it cannot be said for certain that the blows given by the accused caused the rupture of the spleen. As has already been discussed, there is no evidence that the accused knowing the physical condition of the deceased has dealt the kicks. In the absence of any positive evidence that the accused had the intention of causing such bodily injury which he know to be likely to cause death of the deceased, it is difficult to hold that the accused had committed murder punishable u/s 302, Indian Penal Code. The learned Sessions Judge after discussing the evidence of these witnesses, namely, P.Ws. 2 to 5, has also come to the conclusion that the evidence also fans short of the required proof that the accused was responsible for the death of the deceased and, therefore, held that the accused is not guilty u/s 302. Indian Penal Code and we do not see any reason to differ from the findings of the learned Sessions Judge.

The learned Counsel for the State next contended that there is ample evidence on record on behalf of the prosecution that the accused assaulted the deceased with kicks and slaps. He referred to the evidence of P.W. 2, who has stated that the accused gave a kick on the throat of his father (deceased), who fell down and after the fall, the accused gave two more kicks. P.Ws. 3 and 5 have stated that they have seen the accused giving slaps on the cheek of the deceased. They have also stated that they have not seen the accused giving kicks. P.W. 4 has stated that after hearing the hulla, he reached the spot and found that the accused was present there. Learned Counsel for the State also submits that the doctor (P.W. 6) found two bruises - one on the back left side below scapula and another on back right side from middle of the scapula downwards. Hence the evidence of P.W. 2 corroborated by the evidence of the doctor, (P.W. 6) and his presence at the spot is spoken to by P.Ws. 3 to 5. According to him, the above evidence is sufficient for punishing the accused u/s 323, Indian Penal Code.

Mr. Panda, learned Counsel appearing for the accused-Respondent, submits that unless it is found that the view taken by the trial Court is perverse and unreasonable, the appellate Court should not interfere with the order of the trial Court. We ate fully conscious of the position of law that in an appeal against acquittal the High Court should not ordinarily interfere with the order of acquittal passed by the trial Court unless there are compelling reasons to do so, inter alia, on account of manifest errors of law or of fact resulting in miscarriage of justice.

But in this case as the findings quoted in paragraph 4 (supra) would show that the trial Court has only come to the conclusion that the prosecution has failed to establish a case u/s 302. Indian Penal Code against the accused. The learned trial Court has not applied its mind to find out as to whether the Respondent has committed any other offence on the facts proved in this case.

11 The evidence of P.W. 2 clearly shows that the accused-Respondent gave some kicks on the throat of the deceased and this has been substantiated by the evidence of the doctor, P.W. 6. P.Ws. 3 and 5 on hearing the hulla reached the spot and also found the accused there. So after considering the evidence of P.Ws. 2 to 5 coupled with the evidence of P.W. 6, the doctor" we are satisfied that the prosecution has been able to establish beyond reasonable doubt that the accused-Respondent has voluntarily caused hurt to the deceased and is guilty of an offence punishable u/s 323, Indian Penal Code.

In the result, therefore, we agree with the finding of the learned Sessions Judge that the accused is not guilty u/s 302, Indian Penal Code. He is however held guilty u/s 323, Indian Penal Code and sentenced to undergo R.I. for one year.

The appea1 is allowed in part.

We understand that the accused-Respondent is in custody for more than a year. Therefore, he be set at liberty forthwith.

S. Acharya, J.

l agree.

Appeal party allowed.