Umesh Chandra Rath vs State of Orissa

B. Panigrahi, J.—This appeal is directed against an order of conviction passed by the learned Sessions Judge, Dhenkanal in S.T. No. 18-D of 1989 u/s 302, Indian Penal Code whereby and whereunder the Appellant was directed to undergo imprisonment for life.

Skeletal picture of the prosecution story as unravelled in course of trial is as follows:

Deceased Sesadeva Sahu was working as the Secretary of Kantio-Puttasahi Gram Panchayat. The Appellant was the brother of Dibyananda Sidha Brahmachari Rath who was the Mahanta of Kantio Math. There was an allegation of mismanagement of the properties of the Math by the villagers and the public at large. Therefore, local Panchayat was said to have passed a resolution on 7.6.1987 and sent a copy of such resolution to different authorities namely the S.D.O and B.D.O of Kamakhyanagar. They also sent a copy of the said resolution to the Commissioner of Endowment of appropriate action. There were serious allegations against the Mahant for unlawfully alienating the properties of the Math for his own benefit and his family members. On one previous occasion the Appellant interfered with the appointment of dealership, but his request was turned down by the Panchayat members. It is said that he bore a grudge against the deceased. The prosecution story revealed that there was an ill-feeling and enmity among the Appellant and his companions on one hand and the deceased and other members of the Panchayat on the other.

On 24.9.1988 while Sesadeva Sahu went for repairing his bicycle to the shop of P.W. 6, Nityananda Sahu, at about 7.00 A.M. the Appellant came in front of the shop of P.W. 6 and picked up a wooden plank, (A size wood used in bullock cart), M.O. III, and dealt a severe blow on the back side head of Sesadeva Sahu as a result of which he fell down and became unconscious. The cycle had also fallen upon the injured Sesadeva Sahu. The Appellant was alleged to have thrown the wooden plank and ran away towards his house. P.W. 6 and his wife and niece immediately reached at the place of occurrence and provided some water to the injured. Following such assault, P.W. 6 and the other co-villagers arranged a bullock cart to shift the injured to Analabereni P.H.C. P.W. 1 the local Sarpanch of the Panchayat was informed about the incident and he also accompanied the injured to the hospital. Thereafter, P.W.1 went to Khatuahata Dak Bungalow, where P.W. 16, the O.I.C. of Tumusinga Police Station was camping, and lodged a written report vide Ext. 1 before P.W. 16. He thereafter, sent the FIR for registration to the Police Station and simultaneously proceeded with the investigation of the case. P.W. 16 immediately rushed to the hospital, examined some witnesses and gave an injury requisition in respect of injured Sesadeva Sahu to the Medical Officer, Analabereni P.H. C. Thereafter, he came to the spot, seized the cycle, M.O. VI, a pair of chappals, one napkin vide seizure list Ext. 8. He also seized a piece of wood (M.O. III) vide seizure list Ext. 7. On the following day i. e. 25.9.1988 the injured Sesadeva Sahu collapsed whereafter P.W. 16 held inquest over the deadbody of Sesadeva Sahu, prepared the inquest report vide Ext. 15 and sent the deadbody to Kamakhyanagar Hospital for post-mortem examination. In course of investigation he seized the Resolution book of the Panchayat (Ext. 2), under the seizure list Ext. 17. The Appellant surrendered in Court.

The plea of the defence was one of denial of occurrence and it was claimed that he has been falsely implicated in this case.

The prosecution in order to sustain the conviction against the Appellant has relied upon 17 witnesses out of whom P. Ws. 2, 6, 10 and 15 are said to be eye witnesses to the occurrence. P.W. 1 was the informant in this case. P.W. 3 was the widow of the deceased, P.W. 5 was a post occurrence witness, P. Ws. 7 and 8 were seizure witnesses, P.W. 11, the Medical Officer who noted down the injuries on the deceased. P.W. 13 was another Medical Officer who conducted post-mortem examination over the deadbody of the deceased, P.W. 14 proved the inquest report, P.W. 17 proved the seizure of the cycle and P.W. 16 was the I.O. in this case.

The learned trial court on an elaborate consideration of evidence placed before him, however, convicted the Appellant u/s 302, Indian Penal Code for having committed murder of Sesadeva Sahu and sentenced him as aforesaid.

Mr. Mishra, learned Advocate appearing for the Appellant has strenuously urged that the learned trial court had laid undue emphasis on the evidence of so-called eye witnesses namely, P.W. 2, 6, 10 and 15, but had taken little pain in examining the details about the evidentiary value of their testimony and having relied on their testimony he must not have held the Appellant guilty of having committed the offence. It is true that from the fact situation it has emerged in this case that there was enmity between the Appellant''s party and the prosecution party and that shall not be a decisive factor while judging the complicity of the Appellant in the crime. The trial court, however, should have over-looked the evidence of P.W. 2, who stated that while he was returning from the field after agricultural operation he witnessed the occurrence for about an hour which is unbelievable and also untrustworthy inasmuch as, his evidence if examined along with the evidence of P.W. 6, it is seen that the incident had continued only for a few minutes. Therefore, the learned trial court should not have placed much reliance on the evidence of P.W. 2. We have closely examined the contention raised before the trial court. From the evidence of P.W. 2 it is gathered that the repairing of the cycle took place about an hour which has been elicited during his cross-examination. From the prosecution case it has emerged that after the repairing of the cycle was over, the incident had taken place. P.W. 2 claimed in his chief-examination to have witnessed the incident while he was returning after finishing his agricultural operation towards his house at about 10.00 A.M. At that juncture he found the Appellant coming from the western side of the village and parking his cycle, went to the house of P.W. 6, picked up a wooden plank and assaulted on the head of the deceased. His testimony also revealed that after assault he threw away the wooden plank and proceeded towards his house. In cross-examination it has been brought out that the cycle repairing work of Sesadeva Sahu continued for an hour. It is unnatural to expect a person to wait near the house of P.W. 6 for an hour to witness the occurrence. Moreover he did not narrate the incident to anybody for about 5 to 6 days. Thus, the evidence of P.W. 2 appears to be unrealistic, unnatural and incredible. Even if we exclude the evidence of P.W. 2, there are also other ocular evidence placed in this case. P.W. 3 is the widow of the deceased. But she did not claim to have been present at the spot. But, from her evidence it has revealed that on the date of occurrence in the morning hours the Appellant came to their house and enquired about the deceased. From this it cannot be gathered that the Appellant was enquiring about the deceased only to commit the offence of murder. P.W. 6 is the king-pin for the case of prosecution. He has claimed that the incident had taken place in front of his house on the village danda. His testimony also revealed that at about 7.00 A.M., the deceased Sesadeva Sahu came to his house and requested for repairing of his cycle. Usually his son was doing cycle repairing work. But in his evidence he has stated that he took up the job for repairing the cycle of the deceased for about 2 hours and thereafter the deceased gave Rs. 5/- towards the labour charges for the repairing of the cycle. After collecting money he went inside the house. At that juncture he heard a banging sound in front of his house. While rushing towards the outer verandah he noticed the Appellant standing with a wooden plank. He also found Sesadeva Sahu falling down with face downwards. He made an outcry by uttering at the Appellant "what did you do"? He also called out the inmates of the house for fetching some water and after his wife brought some water he sprinkled some water on the head of the deceased who was lying unconscious. Within a short time other villagers reached there and the Appellant left the place throwing the wooden plank which was subsequently seized by the police. The injured Sesadeva Sahu was shifted to the hospital. He also identified the wooden plank, M.O. III.

Mr. Mishra critically placed his evidence and contended that no reliance should be placed on his testimony. It is true that there may be minor variations in course of investigation. But such variations or omissions did not shake the main fabric of the prosecution story since he has indicated that he was not sure where the wooden plank was kept by the Appellant immediately before the occurrence which he threw at the spot. We found the wooden plank was seized in course of investigation, which he had also identified to be the wooden plank which was lying at the place of incident immediately after the incident. Such contradiction cannot be taken to be a major contradiction so as to impeach his testimony. Although he had claimed to have seen the Appellant assaulting the deceased, but he stated that after hearing a banging sound he reached at the spot and found the Appellant standing with the wooden plank, M.O. III and dissuaded him from further assaulting the deceased. This part of evidence has been corroborated by P. Ws. 10 and 15.

Learned Counsel appearing for the Appellant has invited our attention to the testimony of P. Ws.10 and 15 which seems to be incredible inasmuch as they are chance witnesses. But in this case we find, they belong to the same village and while returning to their houses they noticed the incident. Therefore, they cannot be said to be chance witnesses. Another criticism has been made that the eye witnesses, P. Ws. 10 and 15, were examined after more than 10 days of the incident. It is true that their statement was recorded 10 days after the incident. But from the evidence of the I.O. (P.W. 16) it appears that the witnesses were not available in the village and, therefore, their statement could not be recorded immediately after the incident. No general principle can be laid down to throw out the evidence of a witness if his statement was recorded after causing a little delay after the incident. The fact of each case has to be taken into consideration on its own background. In a criminal case most of the witnesses become panic and they feel shirk to come forward to depose about the prosecution story. What weighed with him not to disclose the incident to police or to any other villagers has to be considered in the light of his own feeling. That apart we found that the evidence of P.W. 6 is credible, trustworthy and also beyond reproach. Now coming to the evidence of Medical Officer, P.W. 11, we found that he treated the deceased and noted down his injury. But the condition of deceased gradually deteriorated and he succumbed to those injuries on the following day. Thereafter the deadbody was sent for post-mortem examination to the Subdivisional Medical, Kamakhyanagar where P.W. 13 conducted post-mortem examination and found the following injuries:

Lacerated wound of 3 1/2" x 1/2" scalp depth over the occipital region on the right side above and lateral to occipital protubarant.

2.On dissection blood clots present below the side of injury No. 1.

3.Depressed fracture of 2" in length on the right side of the occipital bone just below the injury No. 1.

4.There is also depressed fracture of 4" length over the right side of the parietal bone.

5.Fracture of right parietal bone on the right side connected over the side of injury No. 1.

6.Rupture of membrance below the fractured sides and blood clots present there.

7.Blood clots present over the parietal occupital bone below the injury site.

According to the doctor all the injuries were antemortem in nature and the cause of death was due to haemorrhage, shock and due to injury on the vital organ like brain.

Mr. Mishra while winding up his argument submitted that the prosecution has failed to prove that the Appellant had any intention to cause death. The intention of an accused can be gathered from the facts and circumstances of each case. In this case it is true that there was enmity between the deceased and the Appellant but from such enmity it cannot be assumed that he had an intention to cause the death of the deceased. From the fact situation it has emerged that he had given only one blow on the head of the deceased. Even one blow would have been sufficient to cause death of the injured and the accused could have been convicted u/s 300, Indian Penal Code. had he intended to cause death. But in this case the Appellant did not repeat the second blow after P.W. 6 interfered in course of the incident. Therefore, it cannot be assumed that the Appellant had intended to cause death. It has further revealed that the Appellant was not armed while proceeding to the scene of occurrence. If there was any motive he could have given second blow on the deceased, resultant cause would have been instantaneous death. The Appellant left the spot after being interfered with by P.W.6 and thereafter he went back to his house. Therefore, it is difficult to impute the accused for having any intention to do away with the life of the deceased. The intention to cause severe bodily injury has to be necessarily inferred against the Appellant. But then the objective text that the injuries were sufficient in course of nature to cause death has to be satisfied to bring home the charge under Clause IV to Section 300, Indian Penal Code. From the post-mortem report it reveals that the death was not on account of injury No. 1. Therefore, taking the facts and circumstances of the case into consideration, we hereby convict the Appellant u/s 304, Part I, Indian Penal Code., and sentence him to undergo R.I. for 7 years and a fine of Rs. 1000/- in default to undergo R.I. for 6 months.

The appeal is dismissed with the modification of sentence.