Orissa High Court
Balaram Panda vs State Of Orissa on 22 April, 1997
Equivalent citations: 1997(II)OLR14
Author: A. Pasayat
Bench: A. Pasayat, A. Deb
JUDGMENT A. Pasayat, J.
1. In this appeal from jail, Balaram Panda (hereinafter referred to an "accused") has questioned correctness of his conviction for commission of offence punishable under Sections 304, Part II, 323, 325 and 201 of Indian Penal Code, 1860 (in short. IPC) and sentences of rigorous imprisonment for seven years, one year and two years respectively as awarded for first three offences which were directed to run consecutively. Though accused was convicted under Section 201, IPC no separate sentence was imposed.
2. Allegations of prosecution in short are that on 30.3.1991 accused caused death of Siba Munda (hereinafter referred to as "deceased"), and intended to cause death of Benga Munda (P.W.4). As unfolded during trial, prosecution version is that on fateful day, deceased and his wife Benga Munda (P.W.4) went with cash of Rs. 5/- to take liquor, accompanied by accused who was their Samudhi. They did not return home till evening. So their daughter' Bhodei Munda having suspected some foul play went in search of their parents, and found her mother in an injured stage lying inside water. She was brought out and when Bhodei asked her mother as to how she sustained injuries, she stated that accused assaulted her husband by means of stone causing bleeding injuries, and when she tried to rescue him, accused assaulted her. After she became senseless on account of assaults, accused threw the dead body of deceased in the water, and also threw her to water. On learning these facts, Bhodei came running and described the matter to her brother Gobinda Munda (P.W.2) who along with his friend went to the spot, brought the injured Benga home and thereafter shifted her, hospital. Information was lodged by Gobinda Munda before the Officer-in-charge, Mahulpada P.S. and investigation was undertaken, Charge-sheet was submitted and trial was held.
3. Eight witnesses were examined on behalf of the prosecution. Benga Munda (P.W 4) was stated to be an eye-witness to the occurrence. Pleading reliance on her version, learned trial Judge found the accused guilty, but according to him case was covered under Part-II of Section' 304, IPC-Additionally analysing injuries on various parts of P.W.4, it was observed that injuries were covered under Sections 323 and 325, IPC. However, Section 307 was held to be not applicable. It was also observed that Section 201, IPC was applicable to the facts of the case, as accused threw the dead body of the deceased to water.
4. Mr. C.S. Namtoar, learned counsel for accused submitted that on the basis of P.W.4's evidence, conviction should not have been rendered. Additionally, it is submitted that in respect of different injuries,, different convictions could not have been made. In any event directions for consecutive running of sentence is uncalled for. Learned counsel for State supported the Judgment.
5. So far as acceptability of P.W.4's evidence is concerned, it is to be noted that she suffered injuries in course of the incident. There is no reason as to why she would falsely indicate the accused who is related to her. It is more often than not, that a relation would not shield the actual culprit and take allegations against an innocent person. A foundation has to be laid if plea of false implication is made. In such matters, Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In the case at hand, evidence of P.W.4 has been analysed at length and therefore, learned trial Judge was justified in placing reliance on her evidence.
6. So far as different convictions for different injuries on the body of P.W.4 are concerned, such a course is not permissible in law. Therefore, learned counsel for accused is justified in questioning separate punishment under Sections 323 and 325, IPC. The assaults were made part of one transaction. The offences are cognate. Lesser offence merges into the graver one. Paragraph 2 of Section 71, IPC is applicable to the facts of the case. Subject of said section is to confirm punishment within reasonable limits. It is based on the rule that where the intention was to commit an offence, the commission of which involves the perpetration of acts, by themselves punishable, the offender shall not be punished for them separately, as his object was to commit one crime and not many. Moreover, if in such a case, every criminal act, however subsequent to the main design, were penal there would be no end to punishment, and the most trivial act might thus be magnified into offences, the punishment of which might be wholly disproportionate to the nature and gravity of the act accomplished. In the circumstances, conviction under Section 325, IPC and corresponding sentence can stand.
7. Section 201, IPC presents a case of accusation after the fact. "An accessory after the fact" said Lord Hale, may be, where a person knowing a falony to have been committed, receives comforts, or assists the felon. (See I Dale 618). Therefore, to make an accessory ex post facto it is in the first place requisite that he should know of the felony committed. In the next place he must receive, relieve, comfort, or assist him. And, generally any assistance whatever given to a felon to hinder his being apprehended, tried or suffering punishment, makes the assister an accessory. The ingredients of an offence under Section 201, IPC are (1) that an offence was committed, (2) that the accused knew or had reason to believe that such an offence has been committed, (3) that the accused caused evidence thereof to disappear, and (4) that the accused caused disappearance of the evidence with the intention of screening the offender from legal punishment. What Section 201 requires is that the accused must have had the intention of screening the offender. To put it differently, the intention to screen the offender, must be the primary and sole object of the accused. The fact that the concealment was likely to have that effect is not sufficient, for Section 201 speaks of intention as distinct from a mere likelihood When the evidence on record is considered in the above legal backdrop, there is no manner of doubt that accused has been rightly convicted under Section 201, IPC.
8. Circumstances determine the question whether sentences, are to run consecutively or concurrently. It would all depend upon nature of crime, criminal background, any, of the accused and such other relevant factors. Court must apply its mind to the facts and circumstances and should not make it a meaningless exercise missing the nuances of the case.
9. In the peculiar circumstances, conviction under Section 304, Part - II, IPC is maintained so is corresponding sentence of seven years imposed. Learned trial Judge has not awarded any sentence so far as Section 201, IPC is concerned. It is stated that in view of sentence awarded, no separate sentence is passed. The course adopted by learned trial Judge is not permissible in law. On hearing learned counsel for appellant-accused, we impose a sentence of one year. Sentence awarded in respect of Section 325, IPC is maintained. Sentences are to run concurrently.
The appeal is allowed to the extent indicated above.
A. Deb, J.
10. I agree.