Bainapali Enkma and Others vs The State

K.B. Panda, J.—Out of 13 accused persons facing trial for the murder of the deceased Boinapelli Appana and assault on P.W. 6 T. Rajana under various sections of the Indian Penal Code, the three Appellants only have been convicted by the Additional Sessions Judge, Ganjam-Boudh, Berhampur on 22.6.1973. Appellant No. 1., has been convicted u/s 304, Part II, Indian Penal Code and sentenced to undergo rigorous imprisonment for five years; Appellant No. 2 Bainapali Tataya alias Tataclu has been convicted u/s 323, Indian Penal Code and sentenced to undergo rigorous imprisonment for six months; and Appellant No. 3 Tamada Gurumurty has been convicted u/s 324, Indian Penal Code and sentenced to rigorous imprisonment for one year.

The prosecution case was that on 20.6.1972 at about 8 p. m. the deceased while returning from a betel shop after purchase of certain Beedis was passing in front of the house of accused No. 6, while the three Appellants along with other accused persons (already acquitted) fell upon him and assaulted him. It is alleged that Appellant No. 1 gave a lathi blow on his head in consequence of which he fell down and thereafter other accused persons gave him fist blows and kicks. At this, P.W. 1 is said to have informed P.W. 6 who is the son-in-law of the deceased. Accordingly P.W. 6 came to the rescue of the deceased. But he was also assaulted by Appellant Nos. 2 and 3. Appellant No. 3 gave a lathi blow on his fore-head while Appellant No. 2 dragged him by catching hold of his lock of hair.

The defence is that the prosecution party and the accused party are agnates and that there was, previous to the alleged occurrence, a quarrel amongst the female members arising out of damage to the crops. There ensued a quarrel between the parties over this issue which developed into a farces resulting in injuries on either side. It is specifically said by the defence that accused No. 7 received certain injuries and that the deceased received the head injury on account of a fall.

There are 8 witnesses for the prosecution and none for the defence. The eye-witnesses to the occurrence are PWs. 1, 4 and the injured P.W. 6. P.w. 2 is the doctor who examined the deceased initially for his injuries and the injuries on P.W. 6. P.w. 3 is the doctor who held the post-mortem examination. P.w. 6, as already indicated is the son-in-law of the deceased who came to the rescue of the deceased after the deceased had been assaulted on his head by Appellant No. 1. P. ws. 7 and 8 are the two Investigating Officers. P.w. 7 had made a Station Diary entry (Ext. 8) which was on the basis of the statement made by the deceased regarding the injury on him and on P.W. 6.

The learned Additional Sessions Judge on an assessment of the evidence held that the injuries on the deceased were not disputed that the motive as alleged by the prosecution is not acceptable; that on materials available, there is no justification for drawing the inference that there was any common object of the accused persons to do a way with the deceased. Accordingly he convicted and sentenced the three Appellants as aforesaid, even though Appellant No. 1 had been charged under Sections 148,302, 324/149 and Appellant Nos. 2 and 3 under Sections 148, 324 and 302/149, Indian Penal Code.

It was contended by Mr. Murty on behalf of the Appellants that the learned lower Court having held that the prosecution had failed to bring a complete picture as to how the quarrel started, the conviction is improper; that the finding of the learned Court that the enmity alleged by P.W. 6 is a result of his own fancy or is his innovation has been lost sight of while convicting the Appellants; that the doctor having agreed to the defence suggestion that the injury on the deceased can be the result of a fall should not have been lightly brushed aside by the learned Additional Sessions Judge; and that the prosecution not having explained the 8 in juries on the person of accused No. 7, the learned Court should have held that to be fatal for the prosecution.

The place of occurrence is 28 kilo meters from the Out Post at Gurandi which comes under Parlakhemundi P.S.. The occurrence was at about 8 p. m. and the deceased was removed to the Out Post where a statement was recorded by P.W. 7 and entered in the Station Diary (Ext.8) Therein the deceased has specifically stated how while he was returning after purchase of Beedis, some of the accused persons including the three Appellants fell upon him and Appellant No. 1 assaulted him on the head with a lathi. That statement (Ext. 8) also contains the fact that p w. 5 came to his rescue and he was manhandled by the Appellants. The injured persons were sent for medical treatment and unfortunately the deceased expired on 2-3-6-1972 at about 7 a.m.. Consequently the case that had initially been registered u/s 148/149/323 and 325, Indian Penal Code was converted into a case u/s 302, Indian Penal Code. There is no evidence that the deceased was in a fit state of mind after he had been hospitalised. On the contrary the evidence is that on 23-6-1972 while the Medical Officer sent a requisition for recording his dying declaration, it could not be taken and he expired. Thus, Ext. 8 the last statement of the deceased can very well be taken as one admissible u/s 32(1) of the Evidence Act inasmuch as it is a statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in and much more so when the cause of that person''s death is now in question. The law is clear that even on the uncorroborated testimony of a dying declaration if the same believable a conviction can lie. Although the learned Judge has not dealt with this aspect of the case, yet It is so glaring that it can hardly be ignored. The defence case of an earlier dispute where both the parties indulged in a free fight is not spelt out in this Ext. 8. That apart, as has been rightly dealt with by the learned Additional Sessions Judge in his judgment, the defence case has unfortunately not been consistent. The suggestions given to the two eye-witnesses namely, PWs. 1 and 9 have not been mentioned in the 342-examination of the accused persons. Therefore, the prosecution case has to be accepted and the defence discarded. P. ws. 1 and 4 specifically referred to the assault on the deceased by Appellant No. 1. There was only one head injury and according to the doctor, the head injury is responsible for the death of -the deceased. There is no reason to disbelieve the statements of p.ws.l and 4 and much more so when it is consistent with broad probabilities of the case and is in consonance with the Station Diary entry made by the deceased which has been accepted as the dying declaration in this case. In that view of the matter, the conviction of the Appellant No. 1 u/s 304, Part II can hardly be assailed. However, in view of the fact that there was no pre. meditation and that it was a single blow that was given while maintaining the conviction u/s 304, Part II, I would reduce the sentence from 5 years'' to 4 years'' rigorous imprisonment. The period of sentence already undergone has to be commuted.

So far as Appellants 2 and 3 are concerned, the evidence also rests on PWs. Land 4 as well as P.W. 6. The occurrence had two phases. In the first phase, it is the deceased who was injured resulting in his death three days after. In the second phase, when P.W. 6, his son-in-law came to his rescue it is alleged that Appellant No. 2 dragged him catching hold of his tuft of hair while Appellant No. 3 dealt a lathi blow on the temple. The injuries on P.W. 6 are as follows:

(1) A lacerated wound with blood clot 1" x 1/4" x 1/4" on the fore-head to the left side

(2) Abrasion 3" x 1/5" on the left upper back extending from the fourth thorax spine to the medial angle of left scapula.

(3) Abrasion 2" x 1/5" on the right inter-scapular region.

(4) Abrasion 1" x 1/5" just above injury No. 3. all the injuries were simple in nature and they were likely to have been caused by a blunt hard and rough object (vide Ext. 2/1).

The prosecution case was that after Appellant No. 3 gave the lathi blow, others assaulted on P.W. 6 indiscriminately with kicks and blows. The injuries referred to cannot be attributed to blows and kicks. Be that as it may, the only allegation proved as against Appellant No. 2 is that he caught hold of the tuft of hair of P.W. 6. Thus, I would hold that to be an offence u/s 352, Indian Penal Code and would therefore convert the conviction of Appellant No. 2 from Section 323, Indian Penal Code to one u/s 352, Indian Penal Code and would reduce the sentence to the period of imprisonment already undergone by him.

Coming to Appellant No. 3 it is clear that he is responsible for injury No. 1 on P.W. 6. Apart from the evidence of PWs. 1 and 4, that is also the statement of the injured himself. This aspect of the prosecution case has not been taken nor there are circumstances to disbelieve the same. Accordingly, agreeing with the learned lower Court, I would hold that the charge u/s 324, Indian Penal Code has been established as against Appellant No. 3.

In this context, Mr. Murty vehemently contended that the prosecution is guilty of suppression inasmuch as it has not explained the injuries on accused No. 7. Accused No. 7 was examined by P.W. 2 who detected as many as 8 injuries on his person. Most of them are either simple abrasions or multiple abrasions or scratches. It is only injury No. 7 which was a swelling of normal skin colour on the back of left fore-arm, just below the left elbow joint. In this connection, he drew my attention to the judgment of the learned lower Court where has opined thus:

The prosecution did not advert to these injuries on accused Sekulu but the law is well settled that the prosecution has no duty to explain the injuries on the accused. That apart, the fact that the said accused appeared at the police station 2 days after the occurrence sufficiently shows that the injuries were not sustained in the occurrence. If he was a victim of assault as now contended, it is not explained why the report to the police was delayed by 2 days. This alone militates against the defence theory.

Although the learned lower Court has made a sweeping statement that the prosecution has no duty to explain the injuries which is not the correct law, yet in the circumstances of the case, I do not think the ultimate result would be otherwise even though the law as enunciated by the Supreme Court is otherwise. True whether a burden is. cast on the prosecution to explain the injuries on the accused person or persons, but it all depends on the defence taken by the accused. If the defence is that in course of the same transaction as put up by the prosecution, the accused persons have received the injuries, then a duty is cast on the prosecution to explain the injuries on the accused persons provided they are glaring and manifest. In this regard, Mr. Murty drew my attention to a recent view of the Supreme Court expressed in State of Gujarat Vs. Bai Fatima and Another, . Their Lordships have held therein thus:

In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to, have been proved beyond reasonable doubt.

(3) It does not effect the prosecution case at all. Question is in which category the present case falls? This view has again been reiterated in subsequent decision of the Supreme Court reported in Gajendra Singh v. State of U.P. 1975 (2) S.C.W.R. 246 In that case, finally their Lordships held that the prosecution case is not shaken at all and in their Lordships'' judgment that was a case which fell in the Third category as enumerated above. Applying the same standards to the instant case, I am also of the view that the injuries on accused No. 7 who is nut before me, do not in any way tilt the issue in favour of the Appellant. The learned lower Court has assigned certain reasons as already quoted and I see they are not without any substance. That a part there is nothing on record to show that accused No. 7 received the injuries in course of the events as put up by the prosecution or in exercise of his right of private defence. The statement of the three Appellants u/s 342, Code of Criminal Procedure is not in conformity with the suggestions given to the prosecution witnesses and as such the defence cannot et any benefit for absence of explanation by the prosecution in respect of the injuries on accused No. 7. I would, therefore, up hold the conviction of Appellant No. 3 u/s 324, Indian Penal Code but in view of the minor nature of injury No. 1. I would reduce the sentence to the period of imprisonment already undergone and impose a fine of Rs. 100/ - in default to undergo R.I. for a month.

In the result the conviction of Appellant No. 1 Bainapali Enkana and Appellant No. 3 Tamada Gurumurty is maintained. Appellant No. 1 is sentenced to undergo rigorous imprisonment for four years in place of 5 years as ordered by the lower. Court. He is to surrender to his bail bond forthwith to undergo the unexpired period of sentence. Appellant No. 3 is sentenced to the period of" imprisonment already undergo by him and he is to pay a fine of Rs. 100/. (Rupees one hundred only) forthwith in default to undergo R.I. for one month. Appellant No. 2 Bainapali Tataya alias Tatadu is sentenced for the period of imprisonment already undergone by him. His bail bond be cancelled. Accordingly the judgment modified and the appeal is allowed of the learned lower Court is in part.