Orissa High Court
Purna Padhi And Anr. vs State Of Orissa on 17 July, 1990
Equivalent citations: 1992CRILJ687
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. The two appellants having been convicted Under Section 302/34, IPC and each of them having been sentenced to undergo R.I. for life have preferred this appeal.
2. The occurrence which had seen the death of Chaitan Kar had taken place on 22-11-1984 at about 8 a.m. at Marichkote Chhak of Puri town. At the relevant time deceased Chaitan had come to take tea in the shop of P. W. 6 Gangadhar Panda. After having taken tea, Chaitan proceeded towards the pan shop of Arakhit, father of P.W. 10. At that point of time, accused Purna arrived at the spot putting on a napkin on his left shoulder. He was then accompanied by the co-accused Braja who had covered himself with a Chadar. So coming, Purna brought out a Farsa from his armpit and dealt a blow by means of the said Farsa on the left side of the neck of Chaitan. At this point of time accused Braja brought out a Bhujali from underneath his Chadar and dealt a cut blow on the left leg of Chaitan who was lying on the ground. Accused Purna then dealt a further blow with the Farsa on the right foot of Chaitan. This blow was so severe that the right foot was almost severed from the leg. Chaitan started profusely bleeding. The two accused then came to the main road and Purna started threatening the bystanders saying that anybody who would be a witness would be cut dead. This threatened the neighbouring shopkeepers who closed their shops and went away out of fear. The two accused then left the place of occurrence carrying their weapons. Chaitan remained lying at the place of occurrence in agony till his son P.W. 1 Suresh was informed about the occurrence by P.W. 5 which led the former to come to the spot. Chaitan then stated to P.W. 1 that the cut injuries had been caused on his person by accused Purna and Braja. Soon thereafter, Chaitan was removed to the hospital in a rickshaw wherein he was admitted, and on arrival of the police there Suresh, P.W. 1, narrated the occurrence to the police officer who recorded the First Information Report which set the police in action. Initially, a case Under Sections 326 and 327 read with Section 34, IPC was registered which was converted into one Under Section 302/34, IPC after Chaitan breathed his last in the hospital on 10-12-1984 around 3-30 p.m. After completion of the investigation, the two accused were booked for trial under the aforesaid sections of law.
In course of the trial, the prosecution examined 19 witnesses of whom ultimately P.Ws. 4 and 16 stood with the prosecution and deposed as eye witnesses to the occurrence. Most of the other unofficial witnesses, except P.W. 1, were declared hostile.
The learned trial court placing reliance mainly on the evidence of P.Ws. 4 and 16, apart from the dying declaration which was recorded in the hospital by the Investigating Officer, convicted and sentenced the two appellants as aforesaid.
3. As the conviction is primarily based on the evidence of P.W. 4 Ramachandra and P.W. 16 Bibhudatta who claimed to have seen the occurrence, it would be in the fitness of things to see what the two witnesses deposed in the court.
4. P.W. 4, who at the relevant time was the Jatri Gumasta, was taking his tiffin at a distance of about 15 cubits from the shop of Gangadhar. This was at about 6-30 or 7 a.m. The witness then deposed about the arrival of the two accused and the assault by them on the person of Chaitan as noted in the first part of the judgment. The witness also testified about the threats to the witnesses by accused Purna and the closing of shops by the neighbouring people and removal of Ghaitan in a rickshaw from the spot to the hospital.
5. Mr. Mohanty would not like us to accept P. W. 4 as a witness to the occurrence inasmuch as he was standing at the relevant time facing the shop of Gangadhar as admitted by the witness in cross-examination whereas the assault had taken place in front of the shop of Arakhita. This submission has been advanced after drawing our attention to the spot map, Ext. 13, wherein the shop of Gandhar has been marked with figure "4" and that of Arakhita with figure "2", the two shops being placed back to back, with the result that if somebody stands in front of the shop of Gangadhar, one would not see what is happening just in front of the shop of Arakhita. But then the spot map further shows that if one would be a few yards away from the front of the shop of Gangadhar towards east, the happenings towards the front of the shop of Arakhita would be visible. This being the position, we are not persuaded to agree with Mr. Mohanty that P.W. 4 could not have seen what was taking place towards the front of the shop of Arakhita, standing as the witness was towards the front of the shop of Gangadhar.
6. Another submission made by Mr. Mohanty in demolishing the evidence of P.W. 4 is that according to P.W. 6 Gangadhar, his shop was closed at the relevant time; so, there was no question of Chaitan having taken tea in the shop of Gangadhar. A similar submission has been made by drawing our attention to the evidence of P.W. 10, son of Arakhita, according to whom the shop had been opened at about 9-30 a.m. on the date of occurrence which shows that the shop was closed around 8 a.m. at the time of the occurrence. As to the evidence of P.Ws. 6 and 10, it is worthwhile to point out that both of them had to be declared hostile as they had fallen back from the statements they had made to the police in the course of investigation. As such, we are not prepared to disbelieve. P.W. 4 because of the aforesaid statements of P.Ws. 6 and 10.
7. The aforesaid being the position relating to the evidence of P.W. 4, we would not feel hesitant to rely on what has been deposed by this witness. This takes us to the evidence of P.W. 16 who being a resident of Jutta Tota of Puri town was coming to have Darshan of Lord Jagannath. On his way, he reached Marichkote Chhak where he took tea in the shop of Gangadhar Panda. At that point of time, the witness saw an elderly man with a cup of tea waiting for a piece of Pan from a nearby Pan shop. Just then, two persons came near the elderly man and suddenly one of them (accused Purna as identified in the dock) brought out a Farsa from under his armpit and dealt a stroke by means of that Farsa on the neck of that elderly man who sustained a bleeding injury. Other person (accused Braja as identified in the dock) who was covering his body with a Chadar brought out a Bhujali and dealt a blow with that on the left foot of the elderly man immediately whereafter the first accused dealt another blow by means of a Farsa on the right foot of the elderly man. The victim fell to the ground. The accused left the place of occurrence threatening the witnesses. The witness know afterwards the name of the two assailants as Purna and Braja from the persons who had collected at the spot and also the name of the victim as Chaitan.
8. The aforesaid evidence of P.W. 16 has been mainly assailed by Mr. Mohanty on the grounds he had advanced in his effort to demolish the testimony of P.W. 4. As we have not accepted his contentions to disbelieve the testimony of P.W. 4, we would take a similar view as regards his attack on the evidence of P.W. 16. The only additional contention advanced by Mr. Mohanty in assailing the evidence of P.W. 16 is that he has deposed nothing about the removal of Chaitan from the scene of occurrence which would go to show, according to the learned counsel, that this witness was not present at the relevant time at the spot. As the removal had, however, taken place after P.W. 1 had come to the spot on being reported about the matter by P.W. 5 and as there is nothing to show that this witness had lingered his stay at the spot till the arrival of P.W. 1, his claim of being an ocular witness cannot be disbelieved merely because he has not deposed anything about the removal of the victim from the place of occurrence.
9. From what is stated above, we are prepared to repose our confidence on the evidence of P.Ws. 4 and 16 as the submissions advanced by Mr. Mohanty in discrediting their evidence has not cut ice with us. But then the learned counsel for the appellants has another submission to make to demolish the evidence of these two witnesses and the same is that as per P.W. 17 Dr. Banamali Rath who was first among the three medical experts to examine Ghaitan he had found 7 injuries on the person of Chaitan which must have been caused by 5 blows, whereas, according to these two witnesses, the two accused had combinedly dealt 3 blows. That the deceased had on his person not only 3 injuries about which the two witnesses deposed also transpires from the evidence of P.W. 18 Dr. D. C. Mohanty. Though there is thus some discrepancy in the evidence of the aforesaid two eye witnesses relating to the number of blows and injuries as compared to what had been found by the two doctors on their examination and deposed by them, it is worth pointing out that both the aforesaid doctors as well as P.W. 13, Dr. S. Acharya, who had held the autopsy, had found 3 major injuries, these being : (1) a sharp cutting injury on the middle of the left side of the neck 5" x 1" x 1/2", (2) a cut injury, oblique in shape, on the right foot which had cut the meta-tarsal bones, measuring 5" x 11/2" and (3) an incised wound, 31/2" x 1" x bone deep on the left ankle. This tallies with the evidence of P.Ws. 4 and 16. This apart, P.Ws. 17 and 18 had noted 3/4 cut injureies on the right little finger, right ring finger and right middle finger. These injuries measured 1" x 1/2" x 1/4""; 11/2" x 1/4" x 1/4" and 1/2" x 1/4" X 1/4". The injuries being insignificant, it may be that the two witnesses missed as to how these were caused. Because of this, we would not be justified in regarding the evidence of P.Ws. 4 and 16 as tainted or untrustworthy. In this context, it may be pointed out that ordinarily the value of medical evidence is only corroborative inasmuch as it proves that the injuries could have been caused in the manner alleged and nothing more. This is what has been stated in Solanki Chimanbhai v. State of Gujarat, AIR 1983 SC 484 : (1983 Cri LJ 822). Mr. Mohanty, however, draws our attention to a recent decision of the Apex Court in Bejoy Singh v. State of West Bengal, AIR 1990 SC 814 : (1990 Cri LJ 901), wherein the conviction was set aside because there was difference between the medical evidence and the prosecution story. A perusal of the judgment, however, shows that this view was taken because the prosecution case was that some of the accused had caught hold of the deceased and one had stabbed the deceased which was belied by the medical evidence as according to the doctor there were a number of injuries on the hands, fore-arms and fingers of the deceased which were defensive in nature. The facts of the case at hand are, however, entirely different inasmuch as there is nothing to show that the medical evidence in any way belies the manner in which the injuries were caused on the person of Chaitan. We may also refer with profit in this connection to State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, in which it was stated that in a criminal trial, the eye witness account if found credible and trustworthy cannot be demolished by medical opinion pointing to alternative possibilities.
10. The aforesaid analysis of the evidence of P. Ws. 4 and 16 leaves no manner of doubt in our mind that they had seen the assault on the person of Chaitan by the two appellants before us. To bolster up the prosecution story, reliance has, however, been placed on the dying declaration of the deceased as made to P.W. 1, his son, and as recorded by the Investigating Officer, P.W. 19. In so far as the dying declaration about which P.W. 1 has deposed is concerned, we have not felt inclined to accept the same for the simple reason that nothing has been said about this by P.W. 1 in his FIR and also because nobody has come forward to depose that while Chaitan was lying near the pan shop of Arakhita he had told to anybody else about the two accused being his assailants. In this connection, Mr. Mohanty has relied on Ram Kumar v. State of M.P., AIR 1975 SC 1026 : (1975 Cri LJ 870) wherein the facts of non-mentioning of the dying declaration in the First Information Report was regarded as a circumstance to disblieve the dying declaration.
11. Coming to the dying declaration as recorded by the Investing Officer, it is contended by Mr. Mohanty that the same, having been recorded around 10-30 to 11 a.m. as deposed by P.W. 19, must be disbelieved inasmuch as when Chaitan was brought to the hospital around 8-30 a.m. he was not in a position to talk as deposed by P.W. 17. To counter this submission, the learned Additional Public Prosecutor has, however, drawn our attention to the evidence of P.W. 18 who has stated that the injured was conscious while being taken to the operation theatre and was mentally alert when he was brought to the ward from the operation theatre and was in a fit condition to make a statement, but then, even this witness stated further that the injured was not in a position to give an elaborate statement. Despite the fact that the injured Chaitan was at the relevant time in a position to speak, we would entertain reasonable doubt as to the veracity and complete truthfulness of the statement of the injured as recorded by P.W. 19 and as it finds place in Ext. 12. We have said so because a perusal of this Exhibit shows that this contains a detailed statement and the handwriting is so chaste and clean that one would doubt whether this was really recorded at the heat of the moment. The elaborateness of this statement is by itself sufficient to cast doubt on the authenticity of this document. It is worth pointing out that no steps were taken by P.W. 19 either to press into service the help of a doctor to record the dying declaration or even to make him as a witness to the dying declaration. This apart, no signature of the injured finds place in the declaration, not even of P.W. 1 who was present at the relevant time in the hospital premises. A declaration giving a detailed account of the occurrence made in a serious condition was viewed with suspicion in Mohar Singh v. State of Punjab, AIR 1981 SC 1578: (1981 Cri LJ 998).
12. Despite the above infirmity in the dying declaration, we are convinced about the veracity of the prosecution case because, of what has been deposed by P.Ws. 4 and 16. The evidence about the enmity between Purna (the co-accused being his employee) and Chaitan about which P.W. 1 has deposed lends assurance to the prosecution case inasmuch as it may well be that, to feed fat the ancient grudge Chaitan had been assaulted by the two accused as is the prosecution case. Another circumstance which goes to lend further support to the prosecution story is the finding of human blood of Group 'A' (which was the blood group of the deceased) in the wearing apparels of the two accused which were seized from their possession. There is no dispute to the fact that human blood of Group 'A' was found in the wearing apparels of the accused also, but what Mr. Mohanty contends in this connection is that there is no clinching evidence in so far as the seizure of the wearing apparels from the possession of the two accused is concerned. In this connection, Mr. Mohanty refers us to the evidence of the two seizure witnesses, they being P. Ws. 8 and 14 who deposed that nothing was seized in their presence. Both these witnesses having been declared hostile in the course of the trial, we are not pinning our faith in what they deposed before the learned Sessions Judge in contradiction to what they had stated earlier before the Investing Officer and had done by way of signing the seizure memos as witnesses. Another submission made by Mr. Mohanty in this context is that the blood groups of the two accused not having been examined, it cannot be said for certain that the blood found in their wearing apparels was that of the deceased alone. As to this, it may be pointed out that it being not the defence case at all that the accused had sustained any injuries at the time of the occurrence, the recovery of human blood of Group 'A' from their wearing apparels has to connect them with the crime.
13. Because of all the above, we are satisfied that deceased Chaitan had met his end at the hands of the two accused. The next question to be answered is relating to the nature of the offence committed by the assailants. This aspect of the matter needs our scrutiny because of the evidence given by the autopsy surgeon P.W. 13 as well as P.W. 18, the surgery specialist, apart from what has been noted in the bed-head-ticket, Ext.9, regarding the condition of Chaitan from the date he was admitted in the hospital (which was 22-11-1984) till the date of his expiry (10-12-1984). Ext.9 shows that Chaitan had almost recovered by 29-11-1984 as he was not administered any medicine from that date till 5-12-1984 on which date the injured again complained about severe burning sensation on both the feet whereafter he was put on some medicines and by 9-12-1984 multiple rashes were found present on the whole body subsequent to which it was detected that Chaitan had contacted measles and dystentery after which his condition deteriorated so much so that he breathed his last on 10-12-1984. As to the cause of his ultimate death it has been deposed by P.W. 18 that the same was due to ureamia which means renal failure. According to P.W. 13, however, the cause of death was pulmonary embolism which signifies sudden blocking of pulmonary vessel. The autopsy surgeon has further testified that cases of pulmonary embolism occur as a result of fracture of bone which leads to bedridden condition, unconsciousness, chronic diseases and the like when the man is unable to move his limbs. The further testimony of this expert is that in case of pulmonary embolism, death is almost sudden and so it is not possible to remove the clot and save the life by surgical operation.
14. From what has been deposed by the medical experts and noted in Ext. 9, we find that the present is a case where the death had occurred about 18 days after the occurrence and that too due to pulmonary embolism or urcamia. It is, therefore, submitted by Mr. Mohanty that the case does not come within the mischief of Section 302, IPC inasmuch as it cannot be said that any of the clauses of Section 300, IPC is attracted in the present case. Though the two medical experts have deposed that the injury on the right foot so also this injury along with the other injuries was sufficient to cause death in the ordinary course of nature, we would entertain doubt whether the assailants had known about this aspect of the matter, or they had intended the death of Chaitan when they in furtherance of their common intention had caused the injury on the right foot of Chaitan which had led to the amputation of the right foot 4" from the level of the ankle. The loss of the right foot being of the size of about 4" -- 5", we are not satisfied if the offence committed in the present case could be said to be murder. But then, we have no doubt that by causing the foot injury along with others with weapons like Farsa and Bhujali, the assailants must have intended to cause such bodily injury as was likely to cause death and the offence thus attracts the mischief of Part I of Section 304, IPC. It is also worth pointing out in this connection that one of the injuries caused was on the neck and the same was as long as 5" and the instrument used was a Farsa which is a very sharp cutting weapon. Though in this connection our attention has been invited to (1) Sarju Prasad v. State of Bihar, AIR 1965 SC 843 : (1965 (1) Cri LJ 766) wherein the accused appellant was ultimately found guilty Under Section 324 instead of Section 307, IPC and (2) Tholan v. State of Tamil Nadu, AIR 1984 SC 759 : (1984 Cri LJ 478) wherein the conviction was altered from Section 302 to Section 304, Part II, IPC. this had been done on the facts of those cases which were entirely different from the one at hand. The accused-appellants are, therefore, found guilty Under Section 304, Part I, IPC. For this offence, we are satisfied that a sentence of R.I. for seven years would meet the ends of justice and we, therefore, award the same.
15. In the result, the appeal is allowed to the extent that the conviction Under Section 302, IPC is altered to one Under Section 304, Part I, IPC for which offen each of the appellants is sentenced to undergo R.I. for seven years. From the sentence so awarded, the period of imprisonment already undergone, which is of more than 51/2 years, would be set off.
S.C. Mohapatra, J.
16. I agree.