Atmananda Kharsel & Another vs State Of Odisha

D.Dash, J

The Appellants, by filing this Appeal, have challenged the judgment of conviction and order of sentence dated 10.12.2014 passed by the learned Sessions Judge, Sambalpur, in Sessions Trial Case No.04 of 2013, arising out of G.R. Case No.1548 of 2012, corresponding to Katarbaga P.S. Case No.41 of 2012 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sambalpur.

These Appellants (accused persons) with their parents namely, Bhaktaram and Urmila standing charged for commission of offence under section- 341/294/302/34 of the Indian Penal Code, 1860 (for short ‘the IPC’) having faced the trial have only been convicted for the commission of offence under section-302/34 of the IPC; whereas their parents as above named have been acquitted of all the charges. Accordingly, these accused persons have been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- each with the default stipulation to undergo rigorous imprisonment for one year each with further stipulation that out of realized fine a sum of Rs.8,000/- would be paid to the Informant (P.W.2) who happens to be the son of the deceased.

Prosecution case is that on 05.09.2012, during evening hour; it was around 5.30 pm, when Khaira Bag (deceased) was going with one Manoj Purohit (P.W.3) being followed by one Ganesh Podh (P.W.6) to the village pond to ease, Urmila @ Undei, the wife of Bhaktaram and Bhaktaram (since acquitted), with their two sons, the present accused persons being armed with spade, suddenly attacked Khaira. Being instigated by their mother-Urmila both the accused persons dealt blows on the blunt side of the spade on the several parts of the body including the vital part i.e. on head of Khaira Bag. There was hue and cry and when the villagers congregated, the accused persons fled from the spot. When the health condition of Khaira become serious, he was shifted to the nearest Hospital at Laida in a vehicle. The Medical Officer present at Laida Hospital, referred the case to VSS Medical College and Hospital, Burla for better treatment on 08.09.2012 around 6.30 pm, the son of Khaira namely, Kartika (P.W.2), then prosecuted a written report scribed by one Amit Kumar Sahu (P.W.1) with the Assistant Sub-Inspector (ASI) of Police of Laida Outpost. The ASI having received the said written report entered the fact in the Station Diary Book maintained in the Police Outpost and then sent it to the Inspector-In-Charge (IIC), Katarbaga Police Station for registration of the case. The IIC (I.O.-P.W.13), registered the case by treating the said written report of P.W.2 as the F.I.R.(Ext.1) and having registered the case, took up investigation. He first of all issued injury requisition of the Medical Officer, Community Health Centre, Laida. He having examined P.W.2 and also other witnesses, visited the spot and prepared spot map (Ext.8). He seized one Napkin stand with blood belonging to Khaira on production of his son P.W.2, which he seized under seizure list, Ext.3. He then seized other incriminating materials in presence of the witnesses under seizure lists. Khaira in course of treatment died on 08.09.2012. He then inquest over the dead body and prepared report, Ext.2 in presence of the witnesses. He also sent the dead body for postmortem examination. The postmortem was conducted over the dead body of the deceased.

On completion of investigation, the I.O. (P.W.13) submitted the Final Form, placing these accused persons with their parents to face the trial for commission of offence under section-302/34 of the IPC.

Learned S.D.J.M, Sambalpur having received the Final Form, took cognizance of the above offence and after observing formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused persons.

In the Trial, the prosecution has examined in total eleven (11) witnesses, P.Ws. 1 to 11. Out of them, P.W.1 is the scribe of the F.I.R, P.W.2 is the Informant (son of the deceased), P.Ws.5 & 6 are the eye witnesses to the occurrence, P.Ws.7 to 10 are the co-villagers of the accused persons and the deceased. The Doctor (Professor), who had conducted the autopsy over the dead body basing upon the police requisition, is P.W.11, P.W.12 is another Doctor, who conducted examination on the injured and referred the injured to VSS Medical College and Hospital, Burla and the Investigation Officer has come to the witness box at the end and examined as P.W.13.

Besides leading the prosecution has also proved several documents which have been admitted in evidence and marked as Exts.1 to 11. Out of those, the important is F.I.R., Ext.1, inquest reports, Exts. 2 & 6, postmortem report Ext.5, spot map, Ext.8, opinion of the Doctor (P.W.12) upon examination of the weapon, Ext.7/1.

The plea of the defence is that of complete denial. However, in support of the same, the accused persons have not tendered any evidence either oral or documentary.

Learned Counsel for the Appellants (accused persons) at the beginning submitted that here is a case where accepting the role of these accused persons as the prosecution witnesses have deposed to have been played, and for their acts as stated by those witnesses in the said incident as against the deceased, at best they could be held guilty for commission of offence under section 304-I of the IPC and not under section-302 of the I.P.C. He submitted that the evidence on record reveal that the prosecution witnesses have for some reason or other have suppressed the genesis of the occurrence, as to how the incident began and what was the cause/ reason for the incident to take place. He submitted that the evidence on record clearly belie a case of any prior planning or designing by these accused persons. He submitted that as per the evidence, at first there was the altercation and in course of that, it is stated that accused-Atmananda assaulted on the middle of the left arm of the deceased and it was by using the blunt side of the spade and accused- Netrananda had then caught hold the deceased from his back and accused- Atmananda is said to have assaulted on head. He submitted that the sole eye witness, P.W.5 is not stating that accused-Atmananda had dealt repeated blows on the head of the deceased and it is also not the evidence of Doctor (P.W.12), who has conducted postmortem over the dead body of the deceased. According to him, the circumstances surrounding the incident as those emerge from evidence being viewed cumulatively, the liability of the accused persons for the acts done would fall within the scope and ambit of section-304-I of the IPC and therefore, he urges for modification of the conviction as also appropriate reduction of the sentence imposed upon the accused persons.

Learned Counsel for the State submitted that the prosecution evidence is not on the score that continuous fall of the abusive words from the mouth of the deceased-Khaira directing at the mother of these accused persons had given rise to altercation of the words between the accused persons on one hand and the deceased on the other and the incident had taken place thereafter. He submitted that it is the consistent evidence of the P.W.5, who is the solitary eye witness for the prosecution that deceased, was shouting at someone and then the mother of these accused persons was standing in front of the house of this deceased-Khaira when P.W.5 was asked by accused-Atmaram as to whom he was scolding and thereafter, when he was going towards the pond, the accused persons assaulted the deceased. He, therefore, submitted that there is no question of suppression of any part of the incident taking place shortly before the assault upon the deceased. Inviting the attention to the evidence of Doctor (P.W.12), his report, Ext.5, he contended that the accused persons have been rightly convicted for commission of offence under section-302 of the IPC and sentenced accordingly.

Keeping in view the submissions made, we have carefully read the judgment of conviction passed by the Trial Court. We have also extensively travelled through the depositions of the witnesses P.W.1 to P.W.13 and have perused the documents admitted in evidence and marked Ext.1 to Ext.11.

As per the evidence of P.W.2, the Informant, who happens to be the son of the deceased, having rushed to the spot, found his father lying senseless in front of the betel shop of One Jayakrushna Majhi (P.W.10) with bleeding injuries. He says that he has seen his father sustaining injuries on the backside of his head and also left leg. It has been said by P.W.1 that Manoj Purohit (P.W.5) then was at this spot and he came to know about the incident from him that the accused persons attacked his father by means of a spade. His evidence is that P.W.5 told him that Netrananda caught hold the neck of his father gave blows by means of spade on his leg; whereas accused-Atmananda snatched the spade from him and dealt another blow on the head of the deceased. The above role of the accused persons being stated by P.W.1 to have been told to him by P.W.5; the evidence of P.W.5 is to the effect that both accused persons attacked the deceased and accused-Atmananda was holding a small spade. He states that accused-Netrananda caught hold the deceased and accused-Atmananda dealt blows by that spade on his left leg and left arm and then when the deceased sat on the ground, accused-Netrananda snatched the spade from accused-Atmananda and dealt a blow on the backside of the head. He has stated that receiving the blows the deceased who are sitting had to lie on the ground.

The evidence of the Doctor (P.W.12) is to the effect that he had noticed four bruises over the body of the deceased which include one such bruise of the size of 3!! X 4!! on the head. This P.W.12 had examined the deceased at the first instance. The Doctor who had conducted postmortem examination over the dead body of the deceased, P.W.11 had stated that the death was due to coma as a result of the injuries on the head and brain and the nature of injuries corresponding to the external injuries that is contusion on the top of the head on the pronto parietal region has been fatal. The prosecution has not brought any material either from the evidence of P.W.11 or P.W.12 that the external injury on the head and the corresponding internal injury has resulted from successive blows and not from one, suggestive of the fact as to the role of accused-Netrananda in dealing one blow or more than one.

The above being the role of the accused persons as against the deceased, we find from the evidence of P.W.5 that he has given a different story to how the incident began that the mother of the accused persons was shouting and for that, the deceased had asked as to whom she was shouting. During cross-examination, this P.W.5 has however, stated that in his previous statement during investigation, he had stated that deceased-Khaira was proceeding towards the pond, scolding mother of the accused persons namely, Urmila @ Kundei, which has been proved through the I.O.(P.W.13), who has said as under:-

“It is fact that he (P.W.5) has stated before (me) that by that time Khaira (deceased) was proceeding towards pond scolding Urmila.”

When P.W.2 states to have heard about all the happenings from P.W.5, the F.I.R. Ext.1 lodged by him is silent. Thus there appears the suppression of some incident which had taken place prior to the assault upon Khaira as stated by P.W.5. None of the prosecution witnesses have stated that the small spade was somewhere kept concealed by the accused persons when they went to the spot. When it is said by P.W.5 that one Janata Majhi, Tinku, Brundaban Nayak, Gouranga Sandha and one Singh as well as others were present and they had seen the occurrence, this Janata Majhi having examined as P.W.9 from the side of the prosecution in order to prove the seizure of a napkin on production by P.W.2 and the prosecution is not at all projecting himself as witness.

Having carefully considered all above circumstances emerging from the evidence, we are of the considered view that the offence can be properly categorized as one punishable under section 304-I of IPC. Therefore, we are inclined to modify the impugned judgment of the Trial Court in convicting these accused persons for the offence punishable under section-302 of IPC and instead the accused persons are convicted for the offence punishable under section 304-I of IPC. Accordingly, the accused persons are sentenced to undergo rigorous imprisonment for a period of ten (10) years with fine of Rs.10,000/- each in default to undergo rigorous imprisonment for a period of six (6) months with further stipulation that fine on being realized, would be paid to the son of the deceased Informant (P.W.2).

The Appeal is accordingly allowed in part. With the above modification of the judgment of conviction and order of sentence dated 10th December, 2014 passed by the learned Sessions Judge, Sambalpur, in Sessions Trial Case No.04 of 2013 arising out of G.R. Case No.1548 of 2012, the Appeal stands disposed of.

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