Pandu Gagrai vs State of Orissa

Laxmikanta Mohapatra, J.—This appeal is directed against the judgment of conviction and sentence passed by the learned Sessions Judge, Keonjhar convicting the Appellant for commission of offence under Sections 452/302/307 of the Penal code.

As it appears from the record FIR was lodged by P.W. 2 alleging therein that while he was sitting in the house of his elder brother Sukura Ho, his middle sister-in-law rushed to him and informed that Pandu (appellant) was assaulting his family members by entering into his house. Hearing the news the informant along with his elder brother rushed to the spot in a bicycle and on the way found the informant''s daughter Champa and youngest son coming towards them with bleeding injuries and also informed that the Appellant was assaulting wife of the informant. Thereafter the informant handed over the injured child to his sister and came to the house along with his elder brother Sukuru. By the time they reached the house they found the door was bolted from outside and heard some sound coming from the house. Thereafter, they opened the door and found that the informant''s wife was lying in a pool of blood. There were several bleeding injuries on her neck and shoulder and the wife of the informant stated that the Appellant assaulted her as well as the youngest son by opening the door of the house. Thereafter they carried the deceased in a cot to the police station and lodged information.

Investigation was taken up and charge-sheet was filed for commission of offence under Sections 452/302/307 of the Penal Code. In order to bring home the charges eleven witnesses were examined on behalf of the prosecution, but no witness was examined on behalf of the defence. The accused in his statement u/s 313, Code of Criminal Procedure denied the occurrence.

The trial court on consideration of the evidence of the eye witnesses, P. Ws. 3, 4, 5, and 8 as well as injuries found by doctor conducting post-mortem examination found the Appellant guilty of the charges and convicted him there under.

Learned Counsel for the Appellant submitted that the P.W. 3 who is not only the injured but also eye-witness to the occurrence cannot be believed so far assault on the deceased is concerned. He also submitted that other witnesses cannot be relied upon as there is variation in the statement made before the court during trial as well as statement recorded u/s 164, Code of Criminal Procedure before the Magistrate. On the above grounds the learned Counsel for the Appellant prayed for setting aside the judgment of the trial court.

P.W. 3 who is the injured and claims to be an eye-witness to the occurrence in her evidence has stated that while she was on her way to the house of Mana Ho (P.W. 2) she was assaulted by the Appellant by means of an axe and sustained bleeding injuries. She has stated that thereafter the Appellant rushed inside the house of P.W. 2, broke open the doors and assaulted the deceased by means of the axe causing serious injuries. However, this witness in cross-examination has admitted that after she was assaulted she lost her senses and re-gained senses in the hospital. In view of such admission in the cross-examination evidence of this witness so far it relates to assault on the deceased is concerned, cannot be believed. However, her evidence so far assault on self is concerned stands unchallenged. P.W. 4 who is the son of the deceased in his deposition has stated that he was inside the house when the Appellant assaulted his mother by means of an axe. He has also stated that one of the blows struck on the hands of his sister Sita. This witness also claims to have seen the assault on P.W. 3. Nothing has been brought out in cross-examination to disbelieve statement of this witness. P.W. 5 is a co-villager who has stated in his evidence that he saw the Appellant assaulting the deceased and when he arrived at the spot the Appellant started running after him but he managed to escape. Nothing has also been brought out in cross-examination to disbelieve this witness. P.W. 8 is another witness who saw the incident while he was tending cattle. Referring to the statements of these witnesses recorded u/s 164, Code of Criminal Procedure the learned Counsel for the Appellant submitted that there are variation in both the statements. On careful examination of the statements recorded u/s 164, Code of Criminal Procedure as well as the statements made before the Court during trial, we find that the contradiction/ variation pointed out by the learned Counsel for the Appellant are not at all material for the purpose of deciding the case and there is no variation in the statements so far material parts are concerned. We, therefore, do not find any reason to disbelieve the eye-witnesses to the occurrence except P.W. 3. Apart from the above, from the evidence of P.W. 2 it appears that when he reached home he found his wife lying on the floor in a pool of blood and she was seriously injured. This witness has further stated that he deceased told him that she was assaulted by the Appellant and she would not live long. This part of the evidence of P.W. 2 has not been challenged at all in cross-examination. Therefore, there is an oral dying declaration of the deceased before P.W. 2 which remained unchallenged. Injuries found during post-mortem examination also get corroboration from the evidence of the eye witnesses. In view of such materials available on record even if P.W. 3 disbelieved to be an eye-witness to the occurrence on the basis of evidence of other eye-witnesses as well as medical evidence available before us, we are of the view that there is no reason for us to take a different view than what has been held by the trial Court.

Accordingly, we do not find any merit in the appeal and the same stands dismissed.

Sujit Barman Roy,C. J.

I agree.