Ugresen Sahu vs The State

S.K. Ray, J.—The Appellant along with five others were charged under various sections of the Indian Penal Code on account of murder of one Maidhan Suna and were tried by the Sessions Judge of Balangir-Kalahandi. The learned Sessions Judge convicted the Appellant u/s 302, Indian Penal Code and sentenced him to imprisonment for life and also convicted another accused Thakur Sahu u/s 323, Indian Penal Code and sentenced him to six months rigorous imprisonment. He acquitted rest of the accused persons. Thakur Sahu has not appealed and has undergone his sentence. The present appeal has been preferred by the Appellant from his aforesaid conviction and sentence.

The deceased and all the accused persons are co-villagers being residents of village Limpada under Bangomunda Police Station. The Accused persons are also related inter se. The Appellant and Netrananda Sahu alias Muni are sons and the others are brothers of one Dasaratha Sahu. The prosecution story is that the deceased Maidhan had pledged a bell-metal khuri with accused Sana alias Sankar Sahu. On 4-12-1972 at about 4 p. m. the deceased accompanied by p.w. 3 was returning to his village from Mukhapati a long a trodden path. Behind them were coming p. ws. 5 and 6. When the deceased and p.w. 3 reached the land of Sankar Sahu they found the latter reaping paddy in his land. The deceased told p.w. 3 that he had pledged his bell-metal Khuri with Sankar Sahu and he would ask him for 5 rupees more against that pledge. The deceased so saying went to Sankar Sahu and asked him for 5 rupees. Sankar Sahu refused to pay anything to him ultimately denying any pledge of any article by the deceased. In course of this heated altercation the deceased threatened Sankar Sahu to report this matter to the police, upon which Sana alias Sankar Sahu exhorted other accused persons who were present nearby to assault the deceased. Makunda then rushed at the deceased with a lathi and accused Muni, Sane and Rajkumar surrounded him. Subsequently, the Appellant came there with a tangi and dealt five blows in succession to the deceased out of which the second, third and fourth blows were dealt on the neck and head of the deceased.. After the deceased fell down on the ground accused Sana alias Sankar Sahu dealt a blow with a tabli on the left calf of the deceased. In consequence of these assaults the deceased died instantaneously at the spot.

When the assault commenced on the deceased, p.w. 3 raised a haulla that the deceased was being done to death, whereupon accused Thakur Sahu gave a lathi blow on his forehead causing a bleeding injury. Thereafter all the accused persons fled away. This, in essence, is the prosecution story. ''

P.w. 7 being informed by the wife of the deceased about the occurrence came to the spot and found the deceased lying dead on the land of Rajkumar with multiple incised injuries on his person and found the accused persons running away towards the village. He proceeded to Bangomunda Police Station, two lines off from the place of occurrence, and lodged first information report at 6 p. m. on that day, i.e. 4-12-1972. P.w. 8, the A.S.I. being in charge of the Police Station at the time, drew up the formal F.I. R, registered a case and took up investigation by immediately examining the informant. He reached the spot at 8-30 p. m. when it was quite dark and so he made arrangements for guarding the dead body during the night and examined p. ws. 3, 5 and 6. On the following morning he searched the houses of the accused persons and recovered the tangi (M.O. I) from the house of accused Thakur and seized the same. He also recovered two tab lis including M.O. II from the house of accused Rajkumar and seized the same. The Officer-in-charge arrived at the spot at 1.40 a. m. on 5-12-1972. The A.S.I. (p.w.8) handed over charge of investigation to the former (p.w.9) who tested the witnesses already examined by p.w. 8 and held inquest over the dead body of the deceased on 5-12-1972 He seized three pieces of lathis found lying near the dead body. He then sent the dead body, accompanied by Gramarakhi and one Bharat Suna, for post-mortem examination to Kantabanji dispensary. He despatched M. Os. I and II for chemical examination and serological test. He arrested the Appellant on 5.12.1972 and other accused persons on 8.12.1972. Ultimately, he submitted charge-sheet against all the six accused persons including the Appellant.

The defence is one of denial. However, from the trend of cross-examination it appears that the defence is also exercise of right of private defence of property and person. It has been suggested to prosecution witnesses that the deceased and p.w. 3 who were returning to the village found Minimichi, wife of accused Thakur, grazing her sheep. The deceased tried forcibly to take away one ewe and on protest by Minimichi assaulted her. To protect Minimichi from assaults and molestation and the ewe from being forcibly taken away that the deceased was assaulted with the aforesaid fatal consequences.

P.w. 1, medical officer in charge of Kantabanji Government Hospital, conducted post-mortem examination over the dead body at 11 a. m. on 6-12-1972 and found seven external injuries, namely; (1) One incised wound. 6" x 1" x 5" over the left ear extending backwards and cutting through the ear lobe and penetrating the skull bone, brain substance and meninges. (2) One incised wound 4" x i" x i" below injury No. 1 and cutting through the occipital bone, meninges and brain substance and extending backwards. (3) One incised wound on the front of neck 5" x 11/2" x 2" at the level of adam''s circle. The thyroid cartilage had been cut into two in the middle and the trachea and oesophagus, muscles and vessels on the front part of the neck had been cut through and the transverse of the left cervical vertebrae found cut. (4) One lacerated wound 2" x 1/2" x 1/2" to the right eye ball causing a swollen eye looking bluish in colour. (5) One incised wound on the right forearm, 41/2" x 1/2" x 1/2" on the back of the middle forearm and extending towards the elbow. (6) One incised wound 31/2" x 11/2" x 11/2" on the middle of the left thigh. (7) One incised wound 3" x 1" x 1''" on the left calf. An these injuries were ante-mortem in nature. According to the doctor''s opinion, injuries 1, 2 and 3 cumulatively and individually were sufficient in the ordinary course nature to cause death of the deceased. The age of injuries determined by the doctor roughly corresponds to the date and time of occurrence. He has also opined that injuries 1, 2, 3, 5 and 6 could be caused by means of blow with M.O.I. and might also be caused by M.O. II. Injury No. 4, however, could be caused by a fall on hard surface. This medical evidence therefore, clearly establishes that the deceased died a homicidal death.

Next question to consider is whether the prosecution has been able to establish its case against the Appellant beyond all reasonable doubt. Nine witnesses have been examined to bring home the charge. P.w. 1 is the doctor who conducted post-mortem examination. P.w. 2 is the doctor who medically examined accused Thakur Sahu alias Hadu and his wife Minimichi on police requisition. P.w. 3 is the person who was returning to the village along with the deceased and is an eye-witness. He has however, been declared hostile. P.w. 4 is the Chairman of Muribahal Panchayat Samiti and is a seizure witness. P. ws. 5 and 6 are the two other eye-witnesses. p.w. 6 being the brother of the deceased. P.w. 7 is a post-occurrence witness and caste man of the deceased. P.w. 8 is the A.S.I. of Police who conducted preliminary investigation. P.w. 9 is the officer-in-charge who completed investigation and submitted charge-sheet.

Motive proved by the prosecution appears to be intrinsically weak. It is said that the deceased had pledged a bellmetal khuri with accused Sankar Sahu, taken some money and on the date of occurrence he again wanted the latter to pay him a further sum of Rs. 5/ - against that pledge and, on refusal threatened to go to the police. At this threat, accused Sankar called other accused persons to assault the deceased and all of them conjointly assaulted him with various weapons ultimately causing his instantaneous death.

The three eye-witnesses to the occurrence as indicated above, are p. ws. 3. 5 and 6. P.w. 3''s evidence is that in the afternoon on the date of occurrence he and the deceased were returning from village Bijghat to their own village along a trodden path and when they reached the land of accused Sankar, the latter went to Sankar and demanded 5 rupees more against the article pledged with him, and as Sankar refused to oblige, there was a quarrel between them and, on the deceased threatening to go to the police, accused Sankar exhorted the other accused persons present to assault the deceased. On being so urged, accused Makund rushed at the deceased with a lathi but before he could deal a blow, the lathi was caught hold of by the deceased resulting in a tug-of-war between them for its possession. While this struggle was going on, the Appellant came with a tangi and dealt a blow which struck the lathi but then glancing off also struck the hand of the deceased causing an injury. The Appellant then gave four more blows successively on front of the neck of the deceased cutting it to a considerable extent, on the head of the deceased above the left ear, on the back and on the left thigh of the deceased. The Appellant continued to deal his last three blows even though the deceased fell down after the second blow. Seeing this assault he cried out, "Marigala Marigala". At this accused Thakur gave a lathi blow on his head. There is some variance between his statement in committing Court and his evidence in the Sessions Court. His testimony in the committing Court that accused Rajkumar was hiding underneath the Bamurtree with a tangia and that accused Thakur came from Mukhapali with a bunch of wood and a lathi, has not been repeated in Sessions Court. This evidence has been discarded by the Sessions Judge who has found that these two accused persons were nowhere in the picture. The other variation is that while he stated in the committing Court that Sankar exhorted the other accused persons to kill the deceased he stated in the Sessions Court that he exhorted others only to assault him. Further discrepancy is that while in the committing Court he stated that he and the deceased were coming from village Mukhapali, he stated in the Sessions Court that they were coming from village Bijghat. Again, he stated in the committing Court that due to previous enmity the accused persons had assembled there, but denied that tact in the Sessions Court. While implicating accused Sankar in assaulting the deceased with tangi on his left calf he has exonerated him of that overt act completely in the Sessions Court but when confronted admits that his committal Court statement is correct. As regards presence of accused Rajkumar he has made prevaricating statements in the committing Court, in the examination in-chief in the Sessions Court and also in cross-examination. The aforesaid discrepancies, however, do not relate to main substratum of the prosecution and his testimony does not merit wholesale rejection and can be accepted with regard to the part played by the Appellant which, as will be shown later, has received corroboration. He was also declared hostile as he refused to implicate accused Sankar in the crime which he had done in the committing Court. When confronted with his statement in the committing Court he admitted that the previous statement was correct. Merely because a witness is declared hostile his entire testimony is not to be discarded. Such part of his evidence which finds corroboration from other evidence and circumstances would be acceptable. Similarly, as disclosed in prosecution evidence, the fact that p.w. 3 is a suspected law breaker and a person of bad character would not be a sufficient reason for discarding his evidence which, in this case, has received corroboration not only from other eye-witnesses but also from medical evidence.

P.w. 5 is another eye-witness. He has deposed that in the afternoon of the date of occurrence he was returning to his village after visiting his land near village Mukhapali and when he reached the Adi of village tank which lies close to the place of occurrence, he heard accused Sankar shouting "Sala Damke Kuta". At that time he found the deceased inside the land of accused Sankar. On hearing Sankar''s cry accused Makund, Thakur and Rajkumar surrounded the deceased and when accused Makund attempted to deal a blow with his lathi on deceased the latter caught hold of it resulting in a tussle between them for its possession. Just at that time the Appellant came from village side armed with a tangi and assaulted the deceased. He corroborates fully p.w. 3 as regards the manner of assault and the sequence and the number of blows dealt by the Appellant, the weapon used by him t and various parts of the body of the deceased fatally injured. Some discrepancies in his testimony in the committal Court and in the Sessions Court have been brought out. He stated in the committing Court that the accused Sankar shouted, "Salaku Thesh" meaning kill the deceased, while in the Sessions Court he stated that accused Sankar said, "Salaku Kuta" which means only to assault. As to presence of Thakur and Rajkumar at the spot during the occurrence there is variance between his statements in committal Court and in Sessions Court. These discrepancies along with some others which are not necessary to extract in detail are minor in nature and does not affect the essential core of his testimony regarding the overt acts committed by the Appellant.

The third eye-witness is p.w. 6. He has deposed that at a bout 4 p. m. on the date of occurrence he was returning from his atta land to the village along the bundh of the village tank. He found the deceased entering inside accused Sankar''s land and heard him demanding money from the latter. Sankar refused to pay alleging that the deceased had not pledged ''any bell-metal khuri with him. The deceased threatened to lodge information at the police station upon which accused Sankar exhorted others to assault the deceased. Accused Makund then rushed at the deceased with a lathi which was caught hold of by the latter resulting in a tug-of-war between them for possession of the lathi. Just at that juncture, the Appellant came from village side armed with a tangi and gave the first blow which struck the lathi splitting it into pieces and then glancing off and injuring the right hand of the deceased. The Appellant then dealt four more blows in succession first on the front of neck of the deceased almost severing it and felling him and then, after the deceased had fallen down, on his head above the ear, on back of his head and lastly on his left thigh. There are indeed some variations between his statement in the committal Court and in Sessions Court. But those discrepancies are minor and do not, in our opinion affect the core of his evidence regarding the assault committed by the Appellant on the deceased by means of tangi and the number and sequence of blows dealt by him. His evidence corroborates p. ws. 3 and 5 in those essential aspects and all of them are corroborated by medical evidence. It will also be seen that they were examined by p.w. 8 (I. O) in the night of 4. 12. 72 and have remained consistent with regard to the main crux of the prosecution story against the Appellant all through.

Mr. Ray for the Appellant has argued that no reliance should be placed on the aforesaid prosecution eye-witnesses as independent and disinterested witnesses of the occurrence and the wife of the deceased, also an eye-witness, were withheld. For this reference is made to the statement of p.w. 5 in his cross-examination that one Chandal Sahu, Harekrishna Sahu and Budhu Sahu have also seen the occurrence. Of them Chandal Sahu and Harekrishna Sahu were examined by the police as appears from the testimony of p.w. 9, the I.O. No question was put to the I.O. as to whether on examination of these two witnesses he found them to be of the category of eye-witnesses and he has also not been asked to explain as to why they were not examined. A stray statement of p.w. 6 that Chandal, Harekrishna and Budhu have Seen the occurrence is not proof of the fact that they have actually seen the occurrence. There is no reason to presume that the I.O. for any specific reason deliberately withheld Chandal and Harekrishna from the witness box knowing fully well that they were witnesses to the occurrence. If that had been a fact, it could have been established by questioning the I.O. in that regard, and, in that case, the present defence contention that the prosecution story must be viewed with suspicion on account of non-examination of some eye-witnesses would have had some substance. But we do not think, in the aforesaid circumstances, that Chandal and Harekrishna were eye-witnesses to the occurrence and that they have been deliberately withheld from the witness box. Alternatively, assuming that they were eye-witnesses and have not been examined, that factor can have no relevancy in the matter of analysing, testing and accepting the testimony of the three eye, witnesses examined in the case. It also may be noted that when there are a large number of eye-witnesses it is not the bounden duty of the prosecution to examine all of them. It is open to it to pick and choose provided that such picking and choosing was fair. As already stated it has neither been proved nor suggested that the I.O. acted unfairly or with oblique motive in selecting eye-witnesses or with-holding any. Relying upon a stray statement of p.w. 5 in the committing Court that the wife of the deceased had also seen the occurrence, it is contended that the prosecution story should be disbelieved for non-examination of the deceased''s wife. It will be seen that p.w. 5 has not repeated that statement in the Court of Sessions and has also not been cross-examined with reference to that statement in the committing Court to find out as to what he meant by saying that the wife of the deceased has seen the occurrence. In the circumstances, there is no credible evidence of the fact that the wife of the deceased was an eye-witness and, accordingly, there is no merit in the contention that the prosecution should have examined her and the prosecution case should be thrown out due to her non-examination.

It is true, as contended by Mr. Ray, that there is no evidence of the fact that M. Order 1. Tangia and M.O. II. Tabli were stained with blood, far less human blood, as neither the report of the Chemical Examiner nor of the Serologist has been produced in the case. It is true that the prosecution has not proved that the murder weapons were M as. I and II. But the evidence is consistent that the Appellant was wielding a tangi which is a heavier weapon of a different kind than tabli. The nature of the murder weapon used by the Appellant has been specified in the F.I.R. to be a tangi of the kind normally used for killing buffaloes. The witnesses also referred to the Appellant using a tangi not a tabli, though they do not specifically identify M.O.I. to be the tangi used by the Appellant at the time of occurrence. Therefore, even discarding the fact that M.O.I. was used by the Appellant, the residue of unimpeachable evidence is that the Appellant gave the blow as related by the prosecution witnesses with a tangi, a heavier weapon than a tabli.

P.w. 7 lends some corroboration to the testimony [If the eye-witnesses by deposing that on hearing about the occurrence from the wife of the deceased he immediately left for the spot and found that the Appellant was running away with a tangi in his hand. Though not an eye-witness he has proved Appellant''s presence near the place of occurrence armed with a tangi and his conduct in fleeing away therefrom after the occurrence.

Having regard to the number of blows dealt by the Appellant and the weapon with which the assault was committed and having regard to the fact that most of the blows were aimed at his head and neck and that he continued to assault him on head after the deceased fell down, the inference is that the Appellant animated with the intention of causing the death of the deceased or, at any rate, which the intention of causing such bodily injuries as he knew were likely to cause death in ordinary course of nature. In the circumstances if the matter rested there, we could have no hesitation in holding that the conclusion of the learned Sessions Judge that the charge of murder has been established was correct. But before doing so, the defence plea of right of private defence has to be considered.

The plea of right of private defence, it is well known, has to be established by the defence. The story underlying this plea is that at about the time and near the place of occurrence Minimichi, wife of accused Thakur was tending some sheep when the deceased and p.w. 3 came alone. The deceased attempted to forcibly take away one of the sheep of Minimichi when the latter as also her husband, Thakur, protested. Thereupon, the deceased assaulted Minimichi and accused Thakur. Minimichi thus assaulted cried out. Hearing her cry all the other accused persons who are relations of Minimichi came and assaulted the deceased. This defence story appears to be corroborated by the medical evidence of injuries found on accused Thakur Sahu and his wife Minimichi. This evidence is afforded by p.w. 2, the doctor, and his injury report regarding Minimichi (Ext. A). The doctor found a contusion 5 c. m. x 2 c. m. on the middle 3rd, of the left thigh of Minimichi and was of opinion that this injury could be caused by a blow with a lathi. Similarly, on examining accused Thakur, he found a contusion of 4 c. m. x 2 c. m. on the back of his left wrist joint and another contusion of 3 c. m. x 2 c.m. on the lateral aspect of the left knee joint and was of opinion that these injuries could be caused by blow with lathi. His injury report in respect of accused Hadu alias Thakur Sahu is Ext. B. The natural inference from this evidence is that the deceased must have assaulted these two persons before he was done to death. There has been consistent suggestion to the eye-witnesses that before the deceased was assaulted he had attempted to steal a sheep of Minimichi, wife of accused Hadu, and on protest being raised by her and her husband Thakur Sahu, had assaulted them with lathi. It was only thereafter that the deceased was attacked. The suggestion made to p.w. 3 is in the following words:

It is not a fact that on the date of occurrence myself along with deceased, Sankar Chhura and Puma had taken away forcibly the sheep which was being tendered by Minimichi, the wife of Hadu. It is not a fact that on protest by Hadu, the husband of Minimichi, and Minimichi we assaulted them

Similar suggestion is made to p.w. 5 in the following words:

It is not a fact that myself along with p.w. 3. deceased and Puma had been carrying a way the sheep which were being tended by Minimichi, wife of Hadu and on her protest assaulted her and accused Hadu....

The suggestion to p.w. 6 is:

It is not a fact that myself along with p.w. 3 deceased had been carrying away the sheep which were being tended by Minimichi, the wife of Hadu and on her protest we assaulted her and accused Hadu...

The prosecution has obviously omitted to give any explanation as to why and under what circumstances accused Hadu alias Thakur was injured. Minimichi who was a possible eye-witness has not been examined. Thus there was deliberate suppression of a part of the real story preceding the assault on the deceased. It is, therefore, reasonably probable that the defence suggestion to the extent that there was an attempt on the part of the deceased either conjointly with p.w. 3 or without the latter''s assistance to take away a sheep from the custody of accused Hadu''s wife, Minimichi, and on her protest either the deceased alone or he along with p.w. 3 assaulted both Minimichi and accused Hadu Sahu is true. This defence plea is corroborated by the injuries found by the doctor p.w. 2 on them and also by non-examination of a few of the alleged independent and disinterested witnesses as indicated above. It is also natural that when Minimichi and Hadu were assaulted by the deceased who belonged to a lower Doma caste all the family members hearing a bout it would be naturally highly incensed and being so enraged they assaulted the deceased as has been related by the prosecution witnesses. Thus, initially the Appellant and others had a right of private defence of person and property but they exceeded the same by killing the deceased in the manner stated by the prosecution witnesses. So, the Appellant must be held to have committed culpable homicide while being deprived of power of self-control by sudden and grave provocation given by the deceased in assaulting the Appellant''s aunt and uncle (Minimichi and accused Hadu) and in exercise in good faith of his right of private defence of both person and property, which he patently exceeded. So he must be held to have committed culpable homicide not amounting to murder and the act by which the death was caused was caused with the intention of causing death or at least such bodily injuries as were likely to cause death. In the circumstances, the Appellant, would be entitled to the benefit of Exceptions 1 and 2 of Section 300, Indian Penal Code and will be liable to be convicted u/s 304, Part II, Indian Penal Code instead of u/s 302, Indian Penal Code.

Consequently, we set aside the conviction and sentence of the Appellant u/s 302, Indian Penal Code and convict him instead u/s 304, Part II and sentence him to five years'' rigorous imprisonment. With the aforesaid modification in the conviction and sentence of the Appellant, the appeal is dismissed.

K.B. Panda, J.

I agree.