Bholanath Mandodari vs State of Orissa

M.M. Das, J.—The convict-appellant has preferred this appeal against the order dated 4.10.1991 convicting him under Sections 302/323, Indian Penal Code and sentencing to undergo R.I. for life passed by the learned Session Judge, Sambalpur in S.T. Case No. 162 of 1990. The Appellant was the sole accused in this case and is alleged to have committed murder of one Nidhi Jaipuria.

An FIR was lodged by the daughter of the deceased namely, Punyabati Jaipuria (P.W. 10) in Kuchinda Police Station at about 8.20 p.m. on 9.6.1990. It was stated in the said FIR that on the same day during evening hours the informant went to answer the call of nature to Ghusurimal. While easing herself, she saw from a distance that the accused Bholanath was concealing himself behind a fence being armed with a lathi. At that time, the father of the informant passed by that way returning to his house. Suddenly the accused-appellant came out and gave a lathi blow on the head of the father of the informant. On receiving the said blow, the deceased ran for some distance and fell down on the ground. The accused-appellant went near the deceased and gave repeated blows with the lathi on the deceased. On being prevented by the informant, the accused-appellant pushed her and she fell down on the ground. He also gave her two lathi blows on her back. On raising hullah out of fear, the mother, brother, sisters and neighbors of the informant reached at the spot. They saw the accused-appellant assaulting the deceased. On seeing the others coming, the accused-appellant ran away with the lathi. The deceased was thereafter given water by the informant but he could not drink. Thereafter, the deceased was shifted to Kuchinda hospital where he was declared dead.

On receiving the above information it was reduced into writing by the Officer-in-Charge of Kuchinda Police Station and the informant signed the same which was treated as the FIR.

Investigation was made on the above FIR. Finding prima facie case, the police submitted charge-sheet against the accused-appellant under Sections 302/323, Indian Penal Code. In due course, the case was committed to the Court of Session for trial.

The prosecution case is that 6 to 7 years prior to the occurrence, there was a land dispute between the accused-appellant and the deceased. On the date of occurrence, i.e. on 9.6.1990 at around 6.00 p.m. when the deceased Nidhi Jaipuria was returning home, the accused-appellant who was concealing himself behind a fence, being armed with a lathi, came out suddenly and dealt a lathi blow on the head of the deceased. On receiving the said blow, the deceased ran for some distance and fell down on the ground. It is the further case of the prosecution that at that time, the informant (P.W. 10) who is the daughter of the deceased, came to the spot and protested, for which she was also assaulted by the accused-appellant. P.W. 10 raised hullah, hearing which, her brother, mother, sisters and neighbors came to the spot. On seeing them the accused-appellant ran towards his house. P.W. 10 tried to give water to the deceased but he did not drink the same. Thereafter, the deceased was shifted to the Kuchinda Hospital where the doctor declared him dead.

The defense plea is one of complete denial.

The prosecution in order to prove its case examined as many as 13 witnesses, out of whom, statement of P.W. 9 was also previously recorded u/s 164, Code of Criminal Procedure. According to the prosecution, P. Ws. 9 and 10 are eye-witnesses to the occurrence. With regard to the evidence of P.W. 9, the Learned Trial Court after analyzing his statement in detail, came to the following conclusion:

... It is very difficult to place reliance on the testimony of P.W. 9 regarding the assault on the deceased Nidhi when in cross-examination he said that he had no knowledge about the occurrence by the time he was examined by the police.... So for the reasons indicated above, it is unsafe to believe P.W. 9 and it is also not safe to accept his evidence for corroboration of the evidence of P.W. 10.

As we find that the above conclusion of the Learned Sessions Judge has been arrived at on cogent and sound reasons, we accordingly discard the evidence of P.W. 9 while considering the case of the prosecution. The only other eye witness whose statement is required to be considered is the informant (P.W. 10), i.e., Punyabati Jaipuria who is the daughter of the deceased.

It was contended my Mr. H.S. Mishra, Learned Counsel for the accused-appellant that the statement given by P.W. 10 in her examination before the police, materially contradicts the FIR, the said FIR being lodged by P.W. 10 herself. He submitted that in the FIR, P.W. 10 stated that her mother, brother, sisters and neighbors, namely, Chanchala Singh, Tapan Farua, Kumar Farua and Ors. reached the spot on hearing her shout and they have witnessed the accused assaulting the deceased. Except the mother (P.W. 1) and one of the neighbors, namely, Chanchala (P.W. 4), none of the others named in the FIR has been examined by the prosecution. In cross-examination P.W. 1 who is the mother of P.W. 10 and widow of the deceased has specifically stated that she did not see the assault on her husband as by the time she reached the spot it was already over. According to her statement in the cross-examination, before her arrival at the spot, the accused-appellant pushed P.W. 10 and gave two lathi blows. Mr. Mishra further submitted that there are material contradictions between the statements of P.W. 10 given in the Court and her statement recorded u/s 161, Code of Criminal Procedure. and also the story as revealed in the FIR. On analyzing the evidence of P.W. 1, we find the contention of Mr. Mishra to be correct. Therefore, we conclude that P.W. 1 did not witness the alleged assault given by the accused-appellant either on the deceased or on P.W. 10. With regard to the evidence of P.W. 4-Chanchala, Mr. Mishra also submitted that the said witness clearly stated in her examination-in-chief that when she went to the spot she found Nidhi (deceased) lying with bleeding injury on his head and bleeding from his nose, in the field of Bharat Naik. We have examined the statement given by P.W. 4. From the same, it is revealed that this witness is also not an eye-witness to the occurrence. The Learned Sessions Judge has rightly concluded the recovery of four pieces of fire-wood which cannot be admitted in the evidence u/s 27 of the Indian Evidence Act. It is, therefore, clear that the only evidence required to be analyzed in this case in order to see as to whether the prosecution has proved its case beyond reasonable doubt against the accused-appellant is that of P.W. 10.

P.W. 10 in her evidence stated that while returning home after easing herself, she saw the accused sitting with a lathi in his hand close to the boundary wall of Parikhit. When her father (deceased) came near to the accused-appellant, the accused-appellant moved to a distance of 2 to 3 cubits and gave a lathi blow on the head of her father. Thereafter, the accused-appellant started assaulting on the back of her father with the said lathi. She caught-hold of the accused-appellant and challenged him. The accused-appellant pushed her and she fell down on the ground. The accused-appellant also gave two lathi blows on her back. Thereafter she raised hullah, hearing which, her mother came to the spot. The accused-appellant thereafter left the spot with the lathi in his hand. Thereafter others arrived and took the deceased to the hospital that was bleeding from his head and nose and the doctor declared him dead. From there, she went to the police station and lodged the FIR. The statement of this witness has not been shaken in any manner during her cross-examination.

P.W. 12 is the doctor who conducted the post-mortem on the dead body of the deceased. According to his evidence, the following external and internal injuries were found on the body of the deceased:

One lacerated wound over the scalp of size 3" length 1/3rd breadth with scalp depth with blood and blood clot over the meanings.

Leaner depressed fracture of skull bone underneath the lacerated wound tenting half an inch into the brain. The meanings under the fracture bone were congested with blood and tearing of small vassals opposing the fracture.

The laceration of brain matter was there below the fracture.

In the opinion of the doctor, the injuries were ante-mortem in nature and might have been caused by hard and blunt weapon like lathi and the cause of death was due to injury to the vital organ like brain. He also examined P.W. 10 and found that there was a small defused swelling over the left thumb without external bruise or contusion and a small defused swelling over the right lower scapula of size 3" x 2" oval in shape and the injuries were simple in nature and were caused within six hours from the time of his examination. In cross-examination, he stated that all the internal injuries mentioned in the post-mortem report Ext. 8 correspond to the external injury and the external injury was the result of single blow.

Mr. Mishra, Learned Counsel for the Appellant submitted that in view of the injuries found on the deceased and the statement of the doctor (P.W. 12) the story as revealed by the informant (P.W. 10) that the deceased was assaulted repeatedly by the accused-appellant is a subsequent development and from which it can be inferred that the statement of P.W. 10 does not inspire any confidence and should be discarded in toot.

We are unable to accept the contention of Mr. Mishra on this ground as just because the doctor found one injury on the deceased which is contrary to the allegation made by P.W. 10, that the deceased was repeatedly assaulted by the lathi, the entire evidence of P.W. 10 should be thrown out. Except some minor discrepancy in the story as revealed in the FIR and the statement given by P.W. 10 in Court, there is nothing substantial to discard the testimony of P.W. 10. We, however, find on analyzing the evidence of P.W. 12, the doctor, that as one of the injuries found on the body of P.W. 10 is not possible by a lathi and the other injuries which are simple in nature can be caused by striking with a hard substance accidentally, the case against the accused-appellant u/s 323, Indian Penal Code has not been proved by the prosecution. On considering the submissions made and the material available on record, we have no hesitation in concluding that it has been proved that the accused-appellant gave a lathi blow on the head of the deceased which was the fatal injury and therefore, he is responsible for the death of the deceased. Admittedly, it is revealed from the evidence of P.W. 1 and P.W. 10 that there was long standing dispute with regard to right over the landed properties between the family of the deceased and the accused-appellant.

From such materials, however, it cannot be concluded that the act of accused in giving the lathi blow on the head of the deceased was pre-meditated. On the materials available on record, we are of the considered view that the accused-appellant did not give the lathi blow on the head of the deceased with an intention to cause death or to cause such bodily injuries as is likely to cause death. But, however, we have no hesitation in concluding that the Appellant while giving the lathi blow on the vital part of the body, i.e. head of the deceased with such force as is found from the injuries caused, had the knowledge that it is likely to cause death but did not have the intention to cause death or to cause such bodily injuries as is likely to cause death.

We, therefore, find that the Learned Sessions Judge is not correct in convicting and sentencing the accused-appellant to undergo imprisonment for life for the offences under Sections 302/323, Indian Penal Code. While acquitting the accused-appellant from the offence u/s 323, Indian Penal Code, we alter the conviction of the accused-appellant to one u/s 304, Part-II, Indian Penal Code and sentence him to undergo R.I. for five years. The Appellant will, of course, be given the benefit of set off of the period of detention already undergone by him during the course of trial and pendency of this appeal.

Accordingly, the judgment of the Sessions Judge impugned in this appeal is modified and the appeal is partly allowed.

Sujit Barman Roy, C.J.

I agree.

Appeal partly allowed.