Champe Konhar And Others vs State Of Orissa

S.S. Mishra, J

The present Criminal Appeal, filed by the appellants under Sections 374(2) of the Cr.P.C., is directed against the judgment and order dated 12.05.1995 passed by the learned District & Sessions Judge, Phulbani in S.T. No.74 of 1994. The learned trial Court while acquitting the co-accused person, namely, Pinaka Konhar by extending the benefit of doubt, convicted the present appellants for the offences under Sections 304 Part-I and Section 452/34 of I.P.C. and on that count, they have been sentenced to undergo R.I. for five years each with a fine of Rs.1,000/- each, in default, to undergo R.I. for four months for the offence under Section 304 Part-I of I.P.C. However, no separate sentence has been imposed on the accused-appellants for the offence under Section 452/34 of I.P.C.

Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the appellants and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State.

The prosecution case, in brief, is that the deceased, Sima Konhar, and his wife, Smt. Mane Konhar (P.W.1), were originally residents of village Drasseru. Owing to a land dispute with their agnatic relations, Sima Konhar had earlier deserted village Drasseru and was residing at village Glot. It is alleged that on 27.09.1993 at about 11.00 P.M., the accused persons, namely, Champe Konhar (appellant No.1), Biswe Konhar (appellant No.2), and Pinaka Konhar, all sons of late Sinara Konhar and residents of village Drasseru, committed criminal trespass into the dwelling house of the deceased, Sima Konhar.

It is further alleged that Pinaka Konhar forcibly caught hold of the tuft of hair of Smt. Mane Konhar (P.W.1) and dragged her outside the house. Simultaneously, Biswe Konhar dragged the deceased Sima Konhar from inside the house to the frontage thereof, forced him to fall on the ground, and caught hold of his throat. While the deceased was thus restrained, Champe Konhar allegedly dealt indiscriminate blows on the person of Sima Konhar with a “Tangia Fasa” (axe). On hearing the cries and alarm raised by the deceased and his wife, Lamba Konhar (P.W.2) and Kenei Konhar (P.W.3), who were sahi-men of the locality, arrived at the spot, whereupon the accused persons fled from the place of occurrence. The injured Sima Konhar was thereafter taken inside the house.

On 28.09.1993 at about 2.40 P.M., Smt. Mane Konhar (P.W.1), wife of the deceased, lodged a written report at Balandapada Police Outpost, pursuant to which the investigation was set into motion. In course of investigation, the Investigating Officer seized blood-stained earth and sample earth from the floor inside the house of the deceased. The blood-stained wearing napkin of the deceased was seized under seizure list marked as Ext.6. The thenga was seized at Balandapada Hospital on its production by P.W.1. The axe was seized on being produced by the accused Champe Konhar. The police also seized the bed-head tickets from Balandapada Hospital and Phulbani Hospital reflecting the medical treatment of the deceased.

The police conducted inquest over the dead body of Sima Konhar and sent the same for post-mortem examination. After the post-mortem, the wearing apparels of the deceased were also seized. During the course of investigation, the statement of the deceased Sima Konhar under Section 161 Cr.P.C. was recorded, which has been relied upon by the prosecution as a “dying declaration”. All seized material objects were sent for chemical examination, and the Chemical Examiner’s report was obtained. Upon completion of investigation, the police submitted the charge-sheet against the accused persons for the offences under Sections 452/34 of I.P.C. and Section 302/34 of I.P.C. On the stance of complete denial and claim of trial, the appellants were put to trial after framing of charges.

In order to substantiate the charges, the prosecution has examined as many as fourteen witnesses. P.W.1 is the wife of the deceased Sima Konhar and the informant of the case. P.Ws.2 and 3 were the F.I.R.-named witnesses and sahi-men of the informant. P.W.4 was a witness to the seizure of the bed-head ticket of Phulbani Hospital. P.W.5 was a witness to the alleged dying declaration of the deceased Sima Konhar and was also a witness to the seizure lists prepared under Exts.4, 5, 6, and 7/1. P.Ws.6 and 7 were witnesses to the seizure of the axe allegedly produced by accused Champe Konhar. P.W.8 was the uncle of the accused persons. P.W.9 was a witness to the seizure of the bed-head ticket of Balandapada Hospital. P.W.10 was the doctor who treated the deceased at Phulbani Hospital. P.W.11 was the doctor who conducted the post-mortem examination over the dead body of the deceased. P.W.12 was proved Exts.18 and 19. P.W.13 was the initial Investigating Officer, while P.W.14 was the subsequent Investigating Officer who completed the investigation.

Initially, three accused persons including the present appellants were put to trial on the charges of offence under Sections 304 Part-I/452/34 of I.P.C. However, the co-accused Pinaka Konhar has been acquitted of all the charges whereas the present appellants have been convicted for the offences under Sections 304 Part-I/452/34 of I.P.C. and accordingly, they were sentenced on each count. The learned trial Court heavily placed reliance upon the evidence of P.Ws.1, 5, and Ext.21. Ext.21 is the statement recorded by the police under Section 161 Cr.P.C. of the deceased, who alleged to have succumbed to the injury sustained by him subsequent to reducing of his statement. Therefore, the said exhibit was given the status of “dying declaration”.

P.W.1 is the informant in the present case, who has deposed that the accused persons are the son of the elder brother of her husband. They had a dispute regarding their ancestral property. She further deposed that the occurrence took place at night. While she was sleeping, one of the miscreants came and caught hold of her hair; however, she could not identify the person. Her husband (the deceased) told that the accused persons in the dock, besides Champe Konhar (the appellant No.1) assaulted him by axe and thenga outside the house. She had not seen the occurrence. She has narrated the incident on the basis of the knowledge of the incident gained from her husband (the deceased). In the cross- examination, she has very categorically stated that her husband was regularly drinking alcohol and after consumption of alcohol, he used to have encounters/quarrels with several villagers. However, she stated that on the date of incident, her husband has not taken liquor.

P.W.5 is the star witness of the prosecution before whom the deceased has disclosed the name of the assailants i.e. the accused persons. The said witness has stated in his testimony that Sima Kohnar (the deceased) told him that the accused Biswe Konhar (appellant No.2), Pinaka Konhar (acquitted) and Champa Konhar (appellant No.1) assaulted him on the previous night. However, in the cross-examination, he has stated as under:-

“4. On the next day morning of occurrence night Sime Konhar told me that he had been assaulted by the persons. By then it was 7 A.M. Sime Konhar told me in feeble voice. Sima Konhar was in semi-conscious go. On my query to Sima Konhar, Sima Konhar disclosed in feable voice.

I put my signature in Ext.6 at Balandapada police out post. By the time Sima Konhar was taking to me Sima Konhar had consumed liquor. I was alone present while blood stained earth and sample earth were seized by the police babu. It is not a fact that I am deposing falsehood. By the time Sima Konhar told me, his wife P.W.1 was also present besides her husband.

All the roads which has gone out from our village are stoney roads.”

This evidence was utilized by the prosecution to establish that the deceased had disclosed before P.W.5 the entire incident and had also narrated the entire occurrence that took place on the previous night, disclosing the names of the accused persons. Incidentally, there was no eyewitness to the occurrence. Therefore, the evidence of P.W.1 and P.W.5 required strong corroboration from the other materials on record.

The prosecution has relied upon the evidence of P.W.10 and P.W.11 for drawing corroboration with the evidence of P.W.1 and P.W.5. P.W.10 in his testimony has deposed as under:-

“2. On 1-10-93 at 6.00 P.M. I was under incharge of Male surgical ward of Phulbani D.H. Hospital. On that day, at 6 P.M. I examined Sima Konhar son of Rima Konhar of village Gloto P.S. Gochhapada.

On examination I found Sima Konhar was in semi-compose, delirious, pupil-both sides equal and reaction to like present. So, I suspected head injury of the type laceration. His pulse was 78 per minute. His blood pressure was 80/50 MM of mercury. I advised x-ray of the skull, which could not be done. Sima Konhar died on the next day at 1.40 P.M. Sima Konhar was able to talk. This is that bed headed ticket of Phublani hospital marked Ext.11. Ext.11/1 is my endorsement with my signature.”

P.W.10 has also deposed that although he received the requisition from the police marked as Ext.12 and treated the patient but he did not record the “dying declaration” even knowing the case to be a medico legal case.

P.W.11 is another doctor, who conducted the post-mortem of the deceased. He found as many as fourteen injuries in the body of the deceased, which reads as under:-

“(i) Contused abrasion 4" x 3" on left popletel fossa (back side of the knee)

(ii) Contused abrasion 4" x 4" on mideal size of right knee.

(iii) Fracture deformity of left knee.

(iv) Contused abrasion 4" x 3" on left elbow on cubital fossa (portion in between arm and forearm).

(v) Contused abrasion 2" x 3" on left side or left elbow.

(vi) Dislocation of left elbow.

(vii) Lacerated wound 2" x 3" on base of left thump

(viii) Abrasion 2" x 3" on left out buttock.

(ix) Bruise 6" in length on left iliac crest under dissection.

(x) The issue underneath left knee ecchymosed and badly inflicted,

(xi) Puss oozing from the tissue.

(xii) There is fracture of the lower end of femur and upper end of tipea.

(xiii) Patela communitted fracture (left patela)

(xiv) Fat particles oozing from the fracture end of the bones.”

The doctor (P.W.11) opined that the cause of death is due to fat emboli-son arising from multiple fractures. In the cross-examination he deposed that if proper treatment could have been given to the patient, the patient could have survived.

The incident alleged to have happened on 27.09.1993. The doctor (P.W.10) examined the deceased on 01.10.1993. The testimony of P.W.11 reveals that on 03.10.1993, Sima Konhar expired. The other independent witnesses have not supported the case of the prosecution. Therefore, the prosecution case basically rests upon the ocular testimony of P.Ws.2, 5, 10 and 11 along with the documentary evidence like postmortem report, the statement of the deceased recorded under Section 161 Cr.P.C. etc. The statement of the deceased was recorded by the police on 28.09.1993, which has been exhibited as Ext.21. In the said statement, the deceased stated that on 27.09.1993, the sons of his elder brothers have entered his house at 1100 P.M. and dragged his wife by holding her hair. The appellants have assaulted him when he intervened.

The larger part of the narration made by the deceased in his statement under Section 161 Cr.P.C. stands corroborated with the evidence of P.W.1. The aforementioned evidence have been analysed by the learned trial Court. The analysis of the evidence made by the learned trial Court is relevantly reflecting in paragraphs-10 and 11, which reads as under:-

"10. It is apparent that neither P.W.13 nor P.W.14 came in contact with deceased Sima konhar after 7 to 8 A.M. of 29.9.93 Ext. 22 has been received in the Court on 2.10.93. P.W.10 has said that Sima Konhar became serious on 1.10.93 at 6.00 PM, he found Sima Konhar was in semi-calmapose with alarming condition and thereafter the recording of dying declaration could not be possible since Sima Konhar was unable to talk. The F.I.R. having been lodged on 28.9.93 at 2.40 P.M. at Balandapada Out Post was received at Gochhapada P.S. at 9.00 A.M. of 29.9.93. Ext. 21 can be said to have been received at the Court before the death of deceased. Ext. 21 has absolutely corroborated the F.I.R. version. The injuries mentioned in Ext. 21 has corroborated the external injuries found on the dead body of Sima Konhar by P.W. 11. Thus, this Court is of the view that the statement of Sima Konhar seem to be true and voluntary statement. There is no evidence that the statement has come into light at the instance of anyone or that Ext. 21 is outcome being a tutored one. Ext. 21 can be believed to have originated from Sima Konhar in the course of investigation. In A.I.R. 1987 S.C. 1328 (Dalbir Singh Vs. State of Punjab) the dying declaration of the injured came up for consideration on being recorded by the police officer. The recording of the dying declaration by police has not been said to be a nullity. Pinaka konhar not being shown to have contributed endeavor in the deadly assault to Sima Konhar in the frontage of his house cannot be fastened with criminal liability for the death of Sima Konhar.

The evidence of P.W.1 read with Ext. 21 besides the F.I.R story go to show that the deceased Sima Konhar was selling away the lands and had in fact sold away two BILAS to the protest of the accused persons. It seems from the evidence of P.W.1 that on the previous day of the occurrence deceased had gone to Dressaru and had quarreled with the accused persons. This fact is suggestive that the accused persons motivated themselves to take vengeance came in that night hours to the house of Sima Konhar. This fact is also relevant and go to show the motive behind the occurrence. All the three accused persons are related as brothers. The joint contribution in the criminal overt act is suggestive of sharing of common intention within themselves.

The axe (M.O.-II) was seized vide Ext.13 by P.W.13 from Champe Konhar has been sent for chemical examination vide Ext.25. Ext.26 go to show that “A” group of human species of blood was found contaminated in the axe. “A” group of blood can be said to be of deceased Sima Konhar as evidenced from Ext.26 with regard to the blood stained napkins seized vide Ext.6 and 15. Champe Konhar has not explained the contamination of “A” group of human species of blood found on his axe. This silence of accused Champe Konhar is an additional link for the prosecution. Though P.Ws.6 and 7 have not supported the seizure of axe, according to the ratio of cited reported in para-5 of 1987 (1) Crimes 692 (Brijmohan Goswami vrs State of M.P.) seizure by P.W.13 can well be said to have been proved by the prosecution. ”

It appears from the record that in the instant case, there is no eye witness to the occurrence. The testimony of P.W.5 before whom the deceased has disclosed the name of the accused persons has been strongly relied upon by the learned trial Court. The wife of the deceased (P.W.1) has not supported the prosecution case in toto. Therefore, she was declared hostile. It is also came on record that the deceased was a habitual drinker/alcoholic. When P.W.5 went to the house of the deceased, at that time, the deceased was already drunk and was semi- conscious. If this evidence is evaluated in the light of the evidence of the doctors i.e. P.Ws.10 and 11, it is evidently clear that the death of the deceased has not directly reasoned to be out of the injuries. P.W.11 has very categorically stated in his testimony that if proper treatment would have been given, the deceased would have survived. It has also come on record that the deceased was not timely taken for treatment, which is the apparent cause of his death. It also appears from the record that although the deceased has directly implicated three of the accused persons, however, the learned trial Court acquitted the accused Pinaka Konhar by not believing Ext.21 to that extent.

Upon a careful analysis of the entire evidence on record, particularly the evidence of P.Ws.1, 5, 10 and 11 read with Ext.21 and the nature of evidence as discussed above would lead to the only conclusion that this is not a case of culpable homicide of the deceased Sima Konhar, rather the appellants have assaulted him indiscriminately, which caused grievous hurt. The deceased was in an inebriated condition and was not given required medical attention in time, which led to his death. Therefore, the present case would not come under the mischief of Section 304 Part-I of I.P.C., rather it is a case of Section 325 of I.P.C. Hence, the conviction of the appellant recorded by the learned trial Court under Section 304 Part-I of I.P.C. is liable to be altered and stands modified accordingly.

In view of the foregoing reasons, the appellants are convicted for the offences under Section 325/452/34 of I.P.C.

At this stage, Mr. Dhal, learned Senior Counsel appearing for the appellants submitted that the incident relates back to the year 1993, at which point the appellant No.1 was about 30 years of age and the appellant No.2 was 28 years of age. At present, they are about more than 65 years of age. He also submitted that the appellants have already undergone incarceration for a period of three months. Over the years, they have led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating them after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon them but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of the situation, a lenient view should be taken while imposing the sentence.

The contention raised by Mr. Dhal, learned Senior Counsel for the appellants, is not seriously controverted by the learned counsel for the State. Otherwise, the submission made by Mr. Dhal, deserves attention in view of the fact that the present appeal itself has been pending since last more than three decades.

Taking into account the entire circumstances of the case, and the gravity of the offence, the age of the appellants, I consider it an appropriate case to modify the sentence. Hence, the sentence of five years is accordingly modified. The appellants are sentenced to undergo R.I. for a period of one year each and to pay a fine of Rs.7,000/- (Rupees senen thousand) each, in default of payment of the fine amount, to undergo R.I. for a further period of three months each. No separate sentence is imposed on the count of their conviction under Section 452/34 of I.P.C. The fine amount to be deposited by the appellants within a month shall be disbursed to the informant or the L.Rs. of the deceased in accordance with the provisions of Section 357 Cr.P.C. The undergone period shall be set off.

Accordingly, the CRA is partly allowed.