Orissa High Court
Kulamani Sahu And Anr. vs State Of Orissa on 2 March, 1994
Equivalent citations: 1994CRILJ2245
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. These two criminal revisions are interlinked as they are directed against a common judgment of the learned Sessions Judge, Dhenkanal.
2. The petitioners (hereinafter referred to as the 'accused') faced trial along with two others, namely, Sanatan Sahu and Nilamani Sahu for alleged commission of offences punishable under Sections 147, 326, 324 and 307 of the Penal Code, 1860 (in short, 'IPC'). The learned Asst. Sessions Judge, Angul acquitted Sanatan Sahu and Nilamani Sahu of all the charges, acquitted the accused-petitioners of the charges under Sections 147, 326, 324, IPC, but convicted them under Section 307, IPC and sentenced each one of them to undergo rigorous imprisonment for three years with a direction to set off the period undergone as under-trial prisoner. In appeal the conviction and sentence awarded by the learned trial Judge were maintained by the learned Sessions Judge, Dhenkanal.
3. The prosecution case is that on 23-11-1983 at about 9 p.m., immersion procession of God and Goddess Hara and Parbati was passing through the village road of Talmul Patna. When the procession reached near a Dolamandapa of the village, suddenly the electric power supply was disconnected. Accused Kulamani and Sanatan put an iron rod on the electric line, and that is how the power supply failed. Taking advantage of the darkness, all the accused persons threw acid on the persons who were participants in the procession. Accused Kulamani dealt a Bhujali blow on the right hand of the informant Hadibandhu Sahu (P.W. 1) causing bleeding injury, and accused Sanatan dealt a tangi blow on Sanjaya Kumar Sahu (P.W. 2) causing bleeding injuries on his right shoulder and chest. On account of throwing of acid Nidhi Sahu, Narendra Sahu and Srikar Sahu (P.Ws. 4 to & respectively) were disfigured having lost their eyes and other persons were also seriously injured. Immediately the injured persons were removed to Angul Hospital, and P.W. 1 lodged first information report at the police station on the same night. The Officer-in-charge registered a case, examined the informant and the injured persons, and gave requisition for their medical examination. Investigation was undertaken and on completion thereof, charge-sheet was submitted.
4. The accused persons denied the allegations. According to them, as the electric power supply failed, the mob suspected the accused to have caused failure of electricity and searched for them. According to the mob, Kulamani was the person responsible. When they could not find Kulamani, they caught hold of accused Sanatan and assaulted him mercilessly, and threw acid on him and as well as his mother, who had come to rescue Sanatan, and foisted this false case as a counterblast. A counter case was filed by the accused on the allegation that on the same night the informant and other injured persons assaulted the accused Sanatan who was hospitalised for a long time.
5. Sixteen witnesses were examined to further the prosecution case, P.Ws. 1 to 9 are the injured persons, P.W. 10 is the medical officer who examined them and also accused Sanatan and his mother. The learned Assistant Sessions Judge, Angul, on consideration of evidence of the injured persons as well as P.Ws. 14 and 15 who were considered to be independent witnesses, found the accused-petitioners guilty, while coming to the conclusion that the accusation against accused Sanatan and Nilamani was not established. He found the accused guilty, and convicted and sentenced them as aforesaid. The appeal filed before the learned Sessions Judge was dismissed, and the conviction and sentence awarded in respect of each of the accused were maintained.
6. The learned counsel for accused-petitioners submits that interestedness of the prosecution witnesses is writ large. The fact that there was a counter case, and one of the, accused persons, i.e., Sanatan was hospitalised for a long time shows that the case was falsely foisted on account of political rivalry. Alternatively, it is submitted that offence under section 307, IPC is not made out. The learned counsel for State on the other hand supported the judgments of the courts below submitting that elaborate analysis of evidence has been made and, therefore, there is no scope for interference while exercising revisional jurisdiction.
7. It is trite law that when the label of hostility or interestedness is attached to a witness, the Court is not to start with the presumption that the evidence is tainted and has to be discarded. What is required is a deeper scrutiny of the evidence. If on elaborate analysis and deeper scrutiny, the Court finds the evidence to be cogent and credible same can be basis for conviction. In the case at hand, most of the eye witnesses are injured persons themselves. Some of them received injuries of very serious nature. Three have lost their eyes. The learned trial Judge who had occasion to look at them has observed that the face and other parts of the body were disfigured to a great extent. When that is the extent and nature of injury, it would be improper to start with the presumption that they were telling falsehood by falsely implicating the accused persons, while shielding the real culprit. Be that as it may, the learned trial Judge has made indepth analysis of evidence of the witnesses. Though the learned Sessions Judge has not elaborately dealt with the evidence, yet has concurred with the conclusions of the learned trial Judge.
8. It is submitted by the learned counsel for petitioners that since the appellate court did not discuss the evidence elaborately, the conclusions are erroneous". Though it is desirable that the appellate court should analyse the evidence, it need not be as elaborate as is required to be done by the original court. Since the appellate court has not elaborately dealt with evidence in the case at hand, I have looked into the evidence. I find no discrepancy therein, so as to render the evidence of the injured persons incredible or unacceptable. It is trite law that while exercising revisional jurisdiction, fresh assessment of evidence is not to be made, unless the conclusions of the courts below as regards the evidence are perverse, unreasonable and are of such nature that a reasonable person would not come to the conclusion as arrived at on the basis of materials brought on record. I do not consider this to be a case of that nature. Therefore, I find no substance in the plea that the evidence of P.Ws. 1 to 9 are tainted and unacceptable.
9. Coming to the second plea relating to non-applicability of Section 307, I find that the essential ingredients required to be proved in the case of an offence under Section 307 are as follows:
(1) That the death of a human being was attempted.
(2) That such death was attempted to be caused by, or in consequence of, the act of the accused.
(3) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
In order to attract application of Section 307, it is necessary to establish that if the victim would have met his death, the offence would have been one under Section 302. An attempt to commit a crime is an act done with intent to commit that crime, and would constitute its actual commission, if not interrupted. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to the actual injury sustained. The action makes a distinction between an act of the accused and result thereof, if any.
10. Section 307 applies to attempt to murder, in which there has been not merely a commencement of an execution of the purpose, but something little short of. a complete execution, the consummation being hindered by circumstances independent of the will of the author. The act or omission, although it does not cause death, is carried to such a length as, at the time of carrying it to that length, the offender considers sufficient to cause death. It is sufficient if the act was one capable of causing death and there was an intention to cause death. A person commits an offence under section 307 when he has an intention to commit murder and in pursuance of that intention. does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. (See Om Prakash v. State of Punjab, . To convict under this section it is not necessary to show that bodily injury capable of causing death was inflicted. What the Court has to see is whether the Act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Attempt need not be penultimate act. It is sufficient if there is intent coupled with some overt act in execution thereof. (See State of Maharashtra v. Balaram Rama Patil, . An attempt is an intentional preparatory action which fails in its object, which so fails through circumstances independent of the person who seeks its accomplishment. An attempt is an intended, but unfinished, crime, tending, but failing, to effect its commission. This view was expressed in R. v. Kinneker, L.R. (1906)2 KB 99. Specific intention to commit the crime of murder is a necessary pre-requisite of the section. To bring a case within the ambit of Section 307, the prosecution has to make out facts and circumstances envisaged by Section 300, IPC. If the ingredients of Section 300 are wholly lacking, there can be no conviction under Section 307. Unless it can be said that the intention or knowledge of the accused was to cause such bodily injury as would come within one of the four clauses of Section 300, IPC, he cannot be held guilty of an offence under Section 307, IPC.
11. From the facts of the case, I find that the doctor who had examined various injured persons has not given any finding that the act would have caused death, but for an interruption. Material in that regard is squarely absent. Therefore, the conviction under Section 307, IPC cannot be maintained. However, the case is squarely covered under Section 326, IPC. The section refers to causing of grievous hurt by means of corrosive substance. In that view of the matter, it is clear that the petitioners have committed an offence punishable under Section 326, IPC. considering the fact that the occurrence took place more than ten years back, I feel it would not be desirable to send the accused persons back to custody. The custodial sentence is restricted to the period already undergone. But considering the fact that they had caused injuries on vital parts of the body of the injured persons numbering nine, I feel that imposition of fine of Rs. 2,000/- (two thousand) on each of the accused-petitioners would be appropriate. On recovery, in respect of each accused, Rs. 200/- each has to be paid to P.Ws. 1 to 9. In other words if the accused-petitioners pay the fine, each of the injured persons shall get Rs. 600/-. In case the accused-petitioners do not pay the fine, default sentence shall be rigorous imprisonment for one year.
Both the revision applications are disposed of accordingly.