Bhramar Patra and Another vs State of Orissa

B. Panigrahi, J.—This appeal challenges the order dated 19.6.1993 passed by the learned Sessions Judge, Keonjhar in S. T. Case No. 122 of 1991, whereby the appellants have been convicted u/s 302, read with Section 34, of the Indian Penal Code (for short "IPC"), for having committed the murder of the deceased Siropani Patra in furtherance of their common intention, and sentenced to undergo imprisonment for life.

The skeletal picture of the prosecution case, as unravelled during the course of trial is as follows :

On 20.8.1991 between 6.30 and 7.00 P.M., a cow belonging to appellant Bhramar, who is the brother of the deceased, entered into the pulse field (Harada Kiari) of the deceased and damaged the crop. Seeing this, the deceased Siropani Patra along with his wife Gitarani Patra (P.W. 1) rushed to the field and tried to drive the cow out. While they were doing so, the appellants came being armed with Lathis. There was some altercation whereupon the appellants assaulted the deceased, as a result of which he fell down on the ground with bleeding injuries. In course assault, P.W. 2, another brother of the deceased, arrived at the spot. Both P.Ws. 1 and 2 tried to protest against the high handed action of the appellants, who paid no heed to the same. After brutally assaulting the deceased, the appellants left the spot. Siropani was shifted to Ukhunda P.H.C. in an injured state. But, when the condition of the patient started deteriorating, the treating physician advised to shift him to the District Headquarters Hospital, Keonjhar, Siropani remained in an unconscious state continuously for thirteen days and ultimately succumbed to the injuries. P.W. 1, the wife of the deceased, had lodged a written report at Baria P.S., on the basis of which a case u/s 307/34, IPC had been registered against the appellants. Consequent upon the death of Siropani, the case was converted to one u/s 302/34, IPC.

The appellants took the plea that a false case was foisted against them on account of previous land dispute between them and the deceased.

The prosecution, in order to bring home the charge to the appellants, had mainly relied upon the evidence of P.Ws. 1 and 2, who were the wife and brother respectively of the deceased, apart from other official witnesses. On seeing the testimony of P.W. 1, it has appeared that on the date of occurrence, a cow belonging to appellant Bhramar entered into their field and damaged the crop. So, she along with her deceased husband drove the cow away from the field. At that time, the appellants, who were armed with Lathis, challenged the action of Siropani. It has been further deposed that the appellant Bhramar gave a push to the deceased, as a reason whereof, the latter fell down on the ground. Thereafter, Bhramar gave a blow on his head, followed by appellant Chakradhar. As a result of such assault, her husband became unconscious. So, she made an outcry in order to prevent the appellants from assaulting her husband any further. At this juncture, P.W. 2 reached at the spot and noticed appellant Chakradhar giving a Lathi blow on the head of Siropani. P.W. 2, Banchhanidhi Patra, who has claimed to be an eye-witness, corroborated the evidence of P.W. 1 to the extent that he saw appellant Chakradhar assaulting the deceased on the head. On a combined reading of the evidence of P.Ws. 1 and 2, it has been firmly established that the appellant Chakradhar had assaulted the deceased on his head.

Miss Mohapatra, learned counsel appearing for the appellants, has highlighted that since there are too many infirmities, contradictions and omissions in the evidence of P.Ws. 1 and 2, their evidence is not trustworthy. Therefore, the appellants should be acquitted of the charge. She has invited our attention to the fact that P.W. 2 has clearly stated not to have seen any assault given by appellant Bhramar. !t was brought to our notice that when P.W. 1 made an outcry, P.W. 2 rushed to the spot. By the time he reached there, he only found appellant Chakradhar assaulting the deceased. On a careful reading of the evidence of P.W. 1 it is found that she had witnessed both the appellants assaulting on the head of the deceased. When she raised an outcry, P.W. 2 reached there and saw the appellant Chakradhar assaulting the deceased. Therefore, complicity of the appellant Bhramar cannot be ruled out.

Now, coming to the evidence of the Medical Officer (P.W. 6} who had treated the deceased Siropani, it is seen that the deceased had received for injuries, which are as follows :

(i) Lacerated bleeding injury over the right side of the scalp 3" x 1" x 1" in size, 4" above the right ear with fracture of underlying skull bone.

(ii) Lacerated injury over the back side of the right ram 1" x 1/2" x 1/2" in size 1" above the right elbow joint.

(iii) Bruise 4" x 1 -1/2" over the right lateral side of the chest extending from above downwards.

(iv) Bruise 5" x 1-1/2" over the left side of the back extending from left scapular region to downwards.

Out of the above injuries, injury Nos. (ii) to (iv) were simple in nature and injury No. (i) was grievous. All the injuries could be possible by Lathi. The deceased was treated for twelve days as an indoor patient. He was referred to the Neuro-Surgery Department of S.C.B. Medical College, Cuttack, but the relations of the deceased declined to bring him to Cuttack and allowed him to be treated in the District Headquarters Hospital, Keonjhar. Had he been brought to Cuttack for better treatment, possibly he might have survived.

After the death of Siropani, his dead-body was subjected to post-mortem examination, which was conducted by P.W. 8. According to P.W. 8, the cause of death was on account of haemorrhage in the brain due to fracture of the skull.

P.W. 6 has opined that had there been better treatment, there was chances of survival of the deceased. In view of such evidence, it cannot be held that the appellants had any intention to kill the deceased. But, at the same time, it cannot be denied that they had the knowledge that the injuries inflicted by them in furtherance of their common intention could cause death. In such background, we are of the considered opinion that the appellants are guilty of the offence punishable u/s 304, Part-I, read with Section 34, IPC. Therefore, their conviction u/s 302/34, IPC, as recorded by the trial Court, is set aside. Instead, they are convicted u/s 304, Part-I/34, IPC. In order to meet the ends of justice, we sentence them to the period of imprisonment already suffered.

In the result, the appeal is allowed in part. The conviction of the appellants u/s 302/34, IPC is altered to that u/s 304, Part-1/34, IPC and they are sentenced to the period of imprisonment already suffered by them.

P.K. Misra, J.

I agree.