Orissa High Court
Bhramarbar Prusty And Anr. vs State Of Orissa on 24 September, 1993
Equivalent citations: 1994CRILJ378
JUDGMENT D.M. Patnaik, J.
1. The two appellants assail their conviction under Section 304, Part I read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for ten years each and to pay fine of rupees one hundred.
2. Prosecution case in short is, deceased Sundarmani Dehuri had encroached a piece of government land and was about to construct a house on it and had raised certain poles on the land. The land of the appellants adjoins this encroached land by the deceased. There was dispute between the deceased and the appellants over this issue.
On 23-4-1984 at 6.30 a.m. the deceased found that some poles had been removed from the site. The appellants came there. There was an altercation during which appellant Bhramara gave a lathi blow on the head of Sundarmani causing bleeding injury and his son appellant Narayan with a crow-bar assaulted the deceased causing injuries to both hands of Sundarmani. The occurrence took place in presence of P.W. 3, son of the deceased and P. Ws. 4 and 5 the two outsiders. The injured was removed to the hospital but died on the same day at 1.30 p.m. The appellants have denied the prosecution allegation and pleaded that the allegation was the outcome of political rivalry between one Sadananda Kanhar, a political leader of the locality who was opposing to start a medicine shop by the appellants in the locality.
3. Heard Mr. S.K. Mund, learned Counsel for the appellants and Mr. G.K. Mohanty, learned Counsel for the State.
That the finding of the learned Sessions Judge that Sundarmani died a homicidal death was not assailed by Mr. Mund. To appreciate the case, it is necessary to mention the nature of the injuries received by the deceased.
P.W. 1 is the Doctor who conducted the post-mortem examination. On the external examination, he found that there was one lacerated wound on the right side of the front of head above the hair line 1" x 0 x 1/2" with three nylon stitches. The rest four injuries were swellings with bruises on the left forearm, right-wrist and on both sides of the back. The length of these bruises varies from 2" to 6".
The Doctor on dissection, internally found a haemotoma corresponding to external injury on the head and there was a transverse fracture of the frontal bone extending from the right temporal region crossing the midline of the fore-head. The membranes were torn along the fracture line of the scalp. There was subdural collection of blood in the cranial from the rupture of sagital sinus and the right frontal lobe of the brain. The brain under the wound was lacerated. The spleen was ruptured and there was blood in the peritonial cavity. The cause of death was due to subdural haemotoma on account of the fracture causing laceration of the brain. The rupture of the spleen also caused haemorrhage and this, according to the Doctor, also contributed the cause of death. The Doctor opined that the injuries to the skull as well as the rupture of the spleen were fatal and they were also individually sufficient in the ordinary course of nature to cause death.
4. The opinion of the Doctor that the injury to the spleen also contributed to the cause of death cannot be accepted in the absence of any positive evidence. P.W. 3 the son of the deceased, stated that it was appellant Narayan who gave a blow with the crow-bar on the left hand and the second blow on the right hand of the deceased and it was only appellant Bhramara who had given one blow with the lathi on the head of the deceased. He did not state that any of the appellants to have assaulted the deceased on his abdomen. P.W. 2 at the first instance examined the deceased also did not state anything about the external injury on the abdomen though he stated in his evidence to have noticed the other injuries already mentioned. To add to this, P.W. 2 stated to have noticed a scar mark on the upper abdomen of the deceased suggesting prior operation. P.W. 3 admitted in his cross-examination that five years prior to the occurrence the deceased had underwent an operation in the intestine. Thus the opinion of the Doctor (P.W.1) that he found the spleen to have been damaged cannot be considered to be the result of the assault alleged by the prosecution. In the background of the fact that earlier the deceased had underwent an operation in the intestine and secondly there is absence of evidence that the deceased was assaulted at that point of the body.
Therefore, it was the head injury alone which was responsible for the death but on the other the bruises on the hands which were found by the Doctors to be only simple injuries. Therefore, conclusion is, Sundarmani died a homicial death because of the single injury on the head.
5. Mr. Mund, strenuously urged about the discrepancy in the evidence of P.Ws. 3, 4 and 5 who are said to be eye-witnesses to the occurrence. The learned Sessions Judge did take cars of such a criticism while dealing with the evidence of these witnesses in paragraphs 10 to 12 of his judgment where he has mentioned that the discrepancies being of minor and negligible nature did not affect the over-all prosecution case. He has devoted three paragraphs in discussing the evidence of the three witnesses and he has given the reasons for accepting their evidence as true to which I do not find any reason to differ.
6. P.W. 3 is the son of the deceased whose presence at the particular moment could not have been disbelieved. So also P.Ws. 4 and 5 who are the persons of the locality and the occurrence having been taken place close to the shops nearby. P.W. 3's evidence was as follows :--
On the date of occurrence at 6 a.m. his father was on the disputed land. He came to him hearing his hullah. He saw appellant Bhramara came running with a Thenga and gave blows on the head of his father on the right side. His father fell down on the ground. Narayan who was standing there assaulted his father with a crow-bar on his both hands. He physically lifted his father to a distance of 50 cubits and thereafter the injured was taken on a rickshaw to the Kantamala unt-Post.
The material part of his evidence in cross-examination was that the encroached land on which the deceased had fixed some poles for construction of the house was adjacent to the land of appellant Bhramara which the latter had purchased from one Sankar Sahu. The date of occurrence was a weekly market day. From that weekly market place Kantamal Outpost was situated at a distance of about one kilo-meter. The place of occurrence would not be visible from the market place. He saw the occurrence from a distance of 20 cubits where the reached after hearing the hullah of his father. He kept his father on the P.W.D. road at a distance of about 40 cubits from the hotel. He arrived at the hotel at 7 a.m. and remained there till 6 p.m. He admitted to be the adopted son of the deceased. He also admitted that about five years prior to the occurrence the deceased had underwent an operation of his intestine. He denied the defence suggestion that it was he who assaulted his adoptive father.
Nothing has been elicited from his cross-examination to disbelieve this witness.
6A. P.Ws. 4 and 5 corroborated the evidence of P. W. 3 While P.W. 4 was proceeding towards the weekly market to sell sweets, P.W. 5 stated that he was near the Kantamal Block Office to take tea and he saw the occurrence from near the hotel of one Suresh Mohanty and it is found from the evidence of P.W. 3 that the total of Suresh Mohanty was on the other side of the road close to the place of occurrence. Therefore, presence of this witness at that hour of the day cannot be considered to be unusual. Their names also find place in the F.I.R. which was lodged at the Katnamal Outpost on the same day at 7 a.m., that is, an hour after the occurrence The statement of the two wittnesses and the F.I.R. lodged shortly after the occurrence amply corroborate the evidence of P.W. 1.
Therefore, the finding of the learned Sessions Judge that it was the two appellants who assaulted deceased Sundarmani in the manner stated above cannot be disturbed. The next question arises as to what offence the appellate did commit.
7. The deceased sustained injuries on his head as deposed by the prosecution witnesses and this was by a lathi by appellant Bhramar. The injuries caused by Narayan were found to be simple injuries. There is no material to hold that Narayan shared the common intention with appellant Bhramar who dealt the blow on the head causing an injury which caused the death. Therefore, his conviction under Section 304, Part 1, read with Section 34 of the I.P.C. is misconceived. He is, therefore, found to have committed an offence under Section 323, I.P.C.
So far the injury caused by the appellant Bhramar is concerned, it is established from the evidence on record that the occurrence took place on a sudden quarrel and that too at the spot. There was no premeditation on the part of appellant Bhramara to assault the deceased. From the evidence of the Doctor, P.W. 2 who first examined the injured it is found that he noticed the head injury as 1 1/2" x 1/4th" x the scalp deep. From the size of the injury it is apparent that appellant Bhramara did not give a violent blow with the lathi and, therefore, it cannot be said that intended to cause that injury which was likely to cause death. Having not taken any undue advantage of the situation in the background of things he can at best be attributed with aknowledge that injury on the head was likely to cause death. He is liable to be convicted under Section 304, Part II of the I.P.C.
8. In the result, the appeal is allowed to the extent that appellant Bhramar be sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 304, Part II and appellant Narayan be sentenced to undergo rigorous imprisonment for one month under Section 323, I.P.C. The period during which both the appellants were in custody be set off.