Bhubaneswar Sahu vs State of Orissa

Sujit Barman Roy,C. J.

This appeal at the instance of the Appellant Bhubaneswar Sahu is directed against the judgment dated 18.3.1994 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in Sessions Case No. 48 of 1993 convicting the Appellant u/s 302, Indian Penal Code and sentencing him thereunder to suffer imprisonment for life.

Deceased Jasoda Sahu is the wife of the younger brother of the Appellant. P.W. 2 Padmamukha Sahu is the informant. He is the son of the deceased. On 25.3.1993 at Kuturu Police Out Post P.W. 2 Padmamukha Sahu lodged a written complaint stating that on the previous day at about 11 A.M. in the morning the deceased was returning home from the mugdal field. At that time the Appellant Bhubaneswar Sahu was standing near the thrashing field of ''Gauntiaghar'' with a lathi in his hand. On seeing the deceased being the mother of the informant, the Appellant rushed towards her and assaulted her with the said lathi on her head and other parts of the body. After the Appellant left the place on assaulting her, the deceased returned home and narrated the incident to the informant. On learning about the incident, the informant reported the matter to the "Yubak Sangha". Initial impression of the informant was that the injuries sustained by the deceased were not very serious. But, on the next day after the incident he found that the deceased was lying down and was unable to stand up and also could not talk properly. Being instructed by co-villager Hari Sabar, the informant lodged a complaint at the aforesaid Police Out Post. He apprehended that there was no chance of survival of the deceased and for this reason the informant took the deceased to the Doctor at Ratamamala. It was further complained in the said report that on an earlier occasion about 3 to 4 years prior to that the Appellant had assaulted the deceased and he was ultimately acquitted from the charge in connection with the earlier incident. Said complaint was forwarded to the Police Station where at about 9 A.M. on 27.3.1993 it was registered as a first information report u/s 302, Indian Penal Code against the Appellant. Some days thereafter on 28.3.1993 the deceased succumbed to her injuries while in the hospital.

After usual investigation, the Police submitted charge sheet u/s 302, Indian Penal Code against the Appellant. In usual course the case was committed to the learned trial court. On perusal of the materials on record, the learned trial court framed charge u/s 302, Indian Penal Code against the Appellant to which he pleaded not guilty. In course of the trial, in all ten witnesses were examined on behalf of the prosecution. On behalf of the Appellant one defence witness was examined. From the evidence of the defence witness, it appears that the defence of the Appellant was that the injuries found on the person of the deceased were self-inflicted. However, on conclusion of trial the Appellant was convicted and sentenced as already stated.

As already stated, P.W. 2 Padmamukha Sahu is the informant. He stated in the FIR about the oral dying declaration made before him by the deceased. However, from the FIR it appears that the oral dying declaration was made by the deceased when she was returning to her house from the place of occurrence. In his deposition before the trial court, P.W. 2 repeated in the same way, but there was little departure. In his evidence before the trial court P.W. 2 stated that having learnt about the assault on his mother from P.W. 4, he rushed to the place of occurrence and found that the Appellant was running away from the field with a lathi in his hand after assaulting the deceased, whereupon the deceased narrated the whole incident to this witness. This part of the story that he went to the place of occurrence and saw the Appellant running away with a lathi in his hand after assaulting the deceased or that thereafter the deceased reported this incident to this witness at the place of occurrence itself was not stated in the FIR. Rather in the FIR it was clearly stated that after being assaulted by the Appellant the deceased returned home and in her home narrated the incident to him.

However, we find that there were two eye witnesses to the occurrence. They are P.W. 3 Jagatananda Punji and P.W. 4 Sanjukta Sahu. P.W. 4 happens to be the grand-daughter of the deceased.

P.W. 3 Jagatananda Punji stated in his deposition before the trial court that on the date of occurrence at about 11 A.M. he was returning from the site of the thrashing floor of the gauntia with a pair of bullocks and at that time he could see the Appellant giving 3/4 blows on the deceased with a lathi near the thrashing floor of the gantia from a distance of about 40/50 feet. The grand-daughter of the deceased was following her. However, this witness could not go near the place of occurrence as he was holding a pair of bullocks. From the site of the incident the grand-daughter went home to call P.W. 2. However, this witness also came back to home with the bullocks. This, in brief, is the evidence of this witness during his examination-in-chief. During cross-examination of this witness, we find that no material at all could be elicited so as to discard his testimony as unreliable. Being a truthful witness P.W. 3 honestly conceded during cross-examination that he had good relationship with the family of the informant. That apart, we find nothing to disbelieve this witness.

Next important witness is P.W. 4 Sanjukta Sahu. At that time she was aged about 10 years. However, the trial court left a note in the deposition sheet of this witness from which it appears that the learned trial court put appropriate questions to her and found her to have given answers to such questions rationally. In her evidence P.W. 4 stated that the Appellant is her grand-uncle. The deceased was her grand-mother. The incident in question occurred at about noon time on one Wednesday. After harvesting the mung crop, she was returning home along with her grand-mother. At that time the Appellant assaulted her grand-mother being the deceased with a lathi near the said thrashing floor of the gauntia. She saw the Appellant giving about five blows with a lathi. On seeing this, she rushed towards home to call P.W. 2. P.W. 2 came to the scene of occurrence. The date of occurrence was a holiday and therefore, her school was closed on that day. She further stated during her cross-examination that this witness along with her grand-mother and the sister of her father had been to the mung field. When those three were returning home, the Appellant assaulted her grand-mother on her head, belly and hand. About four blows were given on the belly, and two blows were inflicted on the head. Another blow was given on her hand. There was quarrel between her grand-mother and the Appellant previously. This is, in brief, what this witness had stated in her examination in chief and thereafter during her cross-examination. We have no reason to discard the testimony of this witness. of course, it needs to be mentioned here that there are some deviations here and there in the deposition of this witness from what P.W. 2 stated. However, P.W. 2 being not an eye-witness, his evidence cannot be pitted against the evidence of this witness to disbelieve her if her evidence inspires our confidence and appears to be trustworthy. Their testimony is further corroborated in material particulars by what was stated by P.W. 7 Hari Sabar. He stated in his evidence that on the date of occurrence at about 11 A.M. in the morning the deceased came to him and reported that the Appellant had assaulted her with a lathi. It needs to be mentioned here that P.W. 7 was a Ward Member of the village and therefore, he was an important person of the village. On 25th March, 1993, this witness convened a meeting and decided that in view of the deteriorating condition of the deceased, the matter should be immediately reported to the Police. Some days thereafter, the deceased expired and the Police came and held inquest over the deadbody. From the evidence of this witness it appears that this witness heard the dying declaration made by the deceased just two to three days before she had succumbed to her injuries. In the dying declaration orally made to P.W. 7, the deceased implicated the Appellant for assaulting her with the lathi. Therefore, the oral dying declaration as was heard by this witness from the deceased herself lends ample corroboration/support to what has been stated by the two eye witnesses apart from the dying declaration heard by the informant himself though there are some departures/inconsistencies found in the evidence of the informant. But, the dying declaration was heard not only by P.W. 2 but by this witness apart from others also. In these circumstances, we are unable to reject the testimony of P.W. 2 on the question of oral dying declaration as it has been substantially corroborated by other witnesses. After all, these witnesses are rustic villagers. Some omissions/contradictions are natural with the witnesses of this type. They are not tutored parrots to give evidence without any contradictions/omissions. This kind of omissions/contradictions are sometimes treated to be the hallmark of truthful witnesses. In these circumstances, we are unable to disbelieve this witness. Apart from these witnesses, the medical evidence is also equally important in so far as the nature of the injuries is concerned. The medical evidence also lends some corroboration to the testimony of the eye-witnesses and the oral dying declaration heard by the witnesses. P.W. 1 Dr. Gunasagar Saha held post-mortem over the dead-body of the deceased. During such examination he could detect the following injuries on the person of the deceased:

(i) One bruise 2" x 1" on left temporal area

(ii) There was a haematoma on the scalp under the bruise with fracture of temporal bone

(iii) Extradural haematoma of 2" diameter was found pressing the brain matter.

(iv) Heart and large vessels filled with blood. Other internal organs pale, stomach empty.

P.W. 1 opined that the cause of death was compression of brain by extradural haematoma due to head injury. The injuries were found to be ante-mortem in nature. One lathi which was produced by the Appellant in course of the investigation and accordingly seized by the Police was marked as an M.O. in this case. The said lathi was shown to this witness (P.W. 1) and according to him, it was possible to inflict the aforesaid injuries with this lathi. It is of course true that P.W. 1 no where has expressed any opinion as to whether the injuries found on the deceased were sufficient in ordinary course of nature to cause death. In view of the nature of the injuries, we reject the testimony of D.W. 1 that the injuries were self-inflicted in the manner as claimed by D.W. 1.

The medical evidence also lends some corroboration to the testimony of the two eye-witnesses and the evidence of those witnesses who heard the oral dying declaration made by the deceased so far as the nature of the weapon of offence is concerned. In these circumstance, we have no doubt in our mind that the prosecution established its case beyond all reasonable doubt that the Appellant himself had inflicted the injuries found on the deceased.

But the important question which arises in this case for our decision is whether in view of the nature of the injuries found on the deceased the charge of murder against the Appellant can be said to have been proved ? Even the son of the deceased and her other relations were not sure about the seriousness of the injuries found on the deceased at the initial stage. Only when on the next day the condition of the deceased deteriorated, she was shifted to the hospital. From these circumstances, it seems to us that in view of the injuries found on the deceased it is not possible for us to attribute any such intention to the Appellant to bring the case u/s 302, Indian Penal Code. We are unable to conclude that the Appellant had any intention to commit the murder of the deceased. At the most, what is possible to be inferred in view of the nature of the medical evidence on record is that the Appellant inflicted the injuries in question on the deceased without any intention to commit the murder though knowledge that such injuries which were inflicted were likely to cause death of the deceased could be attributed to the Appellant.

In view of our aforesaid conclusion, we are further of the view that the charge u/s 302, Indian Penal Code has not been proved, but it has been proved that the Appellant committed an offence of culpable homicide not amounting to murder within the meaning of Section 304, Part II, Indian Penal Code. Accordingly, we alter the conviction of the Appellant from Section 302, Indian Penal Code to Section 304, Part II, Indian Penal Code and sentence him to undergo seven years'' rigorous imprisonment and to pay a fine of Rs. 2,000/- (Rupees two thousand) and in default to undergo rigorous imprisonment for further six months with a direction that both the sentences shall run concurrently.

We, therefore, allow this appeal partly. Office is directed to transmit the trial court records along with a copy of this judgment immediately to the trial Court. The trial court shall take all necessary steps for arrest and production of the Appellant before it and for committing him to prison for serving out the remaining part of the aforesaid sentence.

The appeal is thus disposed of.