Orissa High Court
Gotipalli Venkat Rao vs State Of Odisha on 18 August, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA NO.95 OF 1993
(From the judgment and order dated 18th March, 1993 passed
by learned Addl. Sessions Judge, Parlakhemundi in S.C.
No.18 of 1992/ S.C. No.45 of 1992)
Gotipalli Venkat Rao
... Appellant
-versus-
State of Odisha ... Respondent
Advocates appeared in the case through hybrid mode:
For Appellant : Mr.P.K.Mishra
Advocate
-versus-
For Respondent: Mr.S.K.Mishra
Addl. Standing Counsel
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
18.08.2023.
Sashikanta Mishra,J. The Appellant questions the legality and correctness of the judgment of conviction and sentence CRA No.95 of 1993 Page 1 of 12 passed by learned Addl. Sessions Judge, Parlakhemundi on 18th March, 1993 in S.C. No.18 of 1992/ S.C. No.45 of 1992. As per the said judgment the Appellant was convicted for the offence under Section 335 of I.P.C. and sentenced to undergo R.I. for four years.
2. The prosecution case, briefly stated, is as follows; On 4th September, 1991, at about 5.00 P.M. in village Kharasanda under Parlakhemundi P.S. in the erstwhile district of Ganjam, the deceased G. Dharma Rao, being drunk abused the accused in obscene language due to which he became enraged and gave several lathi blows on the face and neck of the deceased causing his death. The matter was reported by L. Ananta Rao in the Parlakhemundi P.S. leading to registration of P.S. Case No.96(1) of 1991 under Section 302 of I.P.C. followed by investigation. Upon completion of investigation, charge sheet was submitted against the accused for the above offence. CRA No.95 of 1993 Page 2 of 12
3. The accused took the plea of denial.
4. In order to prove its case, the prosecution examined 11 witnesses out of whom, P.Ws.9, 10 and 11 are official witnesses while P.W.7 is the autopsy surgeon. P.Ws.1,3,4,6 and 8 are eye witnesses. Besides, the prosecution proved 14 documents and five material objects from its side. The defence did not adduce any evidence, either oral or documentary.
5. After appreciating the evidence on record, the Trial Court first held that P.Ws.2 and 5 cannot be treated as eye witnesses and therefore, referred to the evidence of P.Ws.1,3,4,6, and 8 only. After going through the evidence of the doctor (P.W.7) and that of the aforementioned witnesses, it was held that the accused gave one lathi blow on the head of the deceased as a result of which he fell down. However, after examining the evidence of the Doctor in detail, the Trial Court held that there was no evidence to show that the death of the deceased was due to the assault on the head. But in view of the finding the accused had inflicted one CRA No.95 of 1993 Page 3 of 12 lathi blow on the head of the deceased, the trial court held that the same had led to grievous hurt as defined under Section 320 of I.P.C. and since the accused had acted on sudden and grave provocation, he was held guilty under Section 335 of I.P.C. On such findings the trial Court convicted and sentenced the accused as aforesaid.
6. Heard Mr. P.K.Mishra, learned counsel for the Appellant and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State.
7. Assailing the impugned judgment, Mr. Mishra has contended that firstly, the evidence on record as relied upon by the trial Court does not clearly show the guilt of the accused because of the inherent contradictions therein. Secondly, even assuming that the accused had dealt a single blow with a lathi on the head of the deceased, there being no evidence that the injury caused thereby was grievous in nature, conviction of the Appellant under Section 335 of I.P.C. is bad in law.
CRA No.95 of 1993 Page 4 of 12
8. Mr. S.K.Mishra, learned Addl. Standing Counsel, on the other hand, has supported the findings of the trial Court by arguing that the contradictions referred to in the evidence of the witnesses including eye witnesses are minor and do not affect the prosecution case. As regards the finding of the trial Court that the injury was grievous in nature, adequate reasons have been given in the judgment, which cannot be questioned.
9. It is to be kept in mind at the outset that the accused was charged originally for murder punishable under Section 302 of I.P.C., but was ultimately convicted for the lesser offence under Section 335 of I.P.C. The State has not preferred appeal against such conviction for the lesser offence.
10. Mr. Mishra, learned counsel for the Appellant has pointed out several discrepancies in the evidence of the eye witnesses. For instance, it is stated that according to P.Ws.4 and 6 the accused gave lathi blow on the head of the deceased and while he fell down the CRA No.95 of 1993 Page 5 of 12 accused gave two more blows. But P.Ws.1 and 3 stated that the accused gave only one blow. This shows that the witnesses were not clear as regards the number of blows given by the accused with the lathi and therefore, their testimonies could not have been relied upon. This Court however, finds that taking note of such objection raised by the defence during trial, the trial Court compared the versions of P.Ws.4 and 6 with the F.I.R. which is the earliest version of the occurrence and found that there were three injuries but held that two of the injuries are minor in nature and connected with the main injury. To better appreciate the finding as above, it would be apposite to refer to the evidence of the doctor (P.W.7) who testified that the following three injuries were found;
(a)one lacerated injury 2" x ½" x bone deep running horizontally on the fore- head situated 2" above the right eye brow;
(b)one bruise 1½" x ½" situated horizontally in front of right tragus;
(c)one bruise 3 ½" ½" situated horizontally over the front of the neck at the level of Adams apple.
CRA No.95 of 1993 Page 6 of 12
11. It was held that the injury as at Sl. Nos.(b) and
(c) are very minor in nature. Since P.W.4 did not specify the part of the body on which the injury was found and P.W.6 said that the accused gave two blows, one on the back and the other on the neck of the deceased while he fell down, the trial Court found such evidence contradicting that of the doctor. Thus, the trial Court preferred, and according to this Court rightly so, the medical evidence over ocular evidence and held that the accused gave one lathi blow on the head of the deceased as result of which he fell down and there is no evidence that he had given two other blows after the deceased fell down. This Court finds nothing wrong in such finding so as to interfere.
12. The evidence of the doctor as regards the cause of death is highly significant but not conclusive. According to him, the death is due to intracranial haemorrgage and cerebral laceration and asphyxia caused by traumatic laryngeal spasm. He further categorically stated that the injuries are simple in CRA No.95 of 1993 Page 7 of 12 nature, ante mortem and caused by hard straight object. In cross-examination it is stated as follows;
"The flow of sero sanguinous fluid from the nostrilis and mouth indicate that the death is due to asphyxia. The asphyxia according to me has been caused by laryngeal spasm. The spasm may be caused from various grounds such as irritation of throat, drinking of alcohol containing irritant or by disease. Death due to Laryngeal spasm is almost immediate. The stomach had contained some liquid at the time of my examination."
Thus, if cause of death is due to spasm which could be due to drinking of alcohol then on the face of the evidence that the deceased had consumed alcohol, the same has to be treated as the cause of his death and not the lathi blow. This is also what the Trial Court has held, which this Court fully concurs with.
13. Having held so, the Trial Court went on to determine the nature of the injury, whether it was simple or grievous. It was noted that according to the doctor, the injuries were simple in nature. Surprisingly, the trial Court did not accept the version CRA No.95 of 1993 Page 8 of 12 of the doctor on the ground that his opinion is not final on the nature of the injuries and went on to determine the same on his own by referring to the 'Penal Law of India', 10th Edition by Dr. Sir Hari Singh Gour, wherein it was held that the injury inflicted on the head are always regarded as dangerous to life and they may not cause fracture and skull bone and yet prove fatal by reason of the injury they import to the brain. Basing on this principle, the trial Court held that the nature of injury sustained by the deceased was grievous.
14. After considering the reasoning adopted by the Trial Court in holding so, this Court is unable to accept the same for the simple reason that there was nothing inherently improbable or defective in the testimony of the doctor so as to persuade the Court to substitute his own opinion with that of the doctor. In fact, it is not possible to do so because he being an expert is always treated as the best person to give an opinion about the nature of the injury. It is also well CRA No.95 of 1993 Page 9 of 12 settled in this regard as can be seen in the judgment of the Apex Court rendered in the case of Mafabhai Nagarbhai Raval vs. State of Gujarat; AIR 1992 SC 2186; wherein it was held that unless there is something inherently defective the Court cannot substitute its opinion to that of the doctor. Similar view was taken by the Apex Court in the case of State of U.P. vs. Shanker; AIR 1981 SC 897 wherein the Apex Court disapproved the substitution by the High Court of the opinion of medical experts on conjectural premises.
15. In such view of the matter, the finding of the trial Court that the nature of injury sustained by the deceased was grievous being contrary to the expert medical opinion cannot be sustained in the eye of law.
16. As discussed earlier, there is evidence that the accused had dealt one lathi blow on the head of the deceased causing three injuries, all of which were simple in nature. In the considered view of this Court therefore, this would be a case of simple hurt CRA No.95 of 1993 Page 10 of 12 attracting the mischief of Section 323 of I.P.C. instead of Section 335 of I.P.C. This Court holds accordingly.
17. It is alternatively argued by Mr. P.K. Mishra that even if the appellant is convicted for the offence under Section 323 of I.P.C., it must be be taken into account that the occurrence took place more than 32 years ago. The Appellant, who was aged about 26 years, is now aged about 58 years. He had spent some time in prison during trial. According to Mr. Mishra therefore, it would be too harsh to sent him to prison to serve any further imprisonment for the offence Section 323 of I.P.C.
18. Considering the submissions and in particular taking note of the fact that the occurrence took place more than 32 years back, no fruitful purpose would be served by sending the Appellant to prison at this belated stage, more so as he has already spent some time in prison.
CRA No.95 of 1993 Page 11 of 12
19. In the result, the appeal is allowed in part. The impugned judgment of conviction and sentence is hereby modified to the extent that the Appellant stands convicted for the offence under Section 323 of I.P.C. but as regards the sentence, the same shall be confined to the period of imprisonment already undergone by him during trial.
.................................. (Sashikanta Mishra) Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Aug-2023 17:34:50 CRA No.95 of 1993 Page 12 of 12