Orissa High Court
Dina Alias Dinabandhu Banchhor vs State on 24 July, 1995
Equivalent citations: 1996CRILJ2398, 1995(II)OLR392
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Conviction of the appellant for commission of an offence punishable under Section 304, Part II of the Indian Penal Code, 1860 (in short, the 'IPC') and sentence of rigorous imprisonment for five years as awarded by learned Sessions Judge, Kalahandi is the subject-matter of challenge in this appeal.
2. Dina alias Dinabandhu Banchhor (hereinafter referred to as the 'accused') faced trial for alleged commission of an offence punishable under Section 302, IPC, for causing homicidal death of Gurubaru Bagh (hereinafter referred to as the 'deceased'). Accusations of the prosecution were essentially as follows :
On 17-3-1985 at about 5 p.m. Jita Bagh (PW 1), the informant and his labourer were pulling and draining water to their sugarcane field, and the deceased was moving near the sugarcane field. The accused while standing near his house started hurling abuses at the deceased. The deceased went there and protested by saying that the accused had no business to hurl abuses at him. Hearing this the accused caught held of the hands of deceased, dragged towards his house and pushed him. In the process head of the deceased hit the door frame, as a result of which he died. Wife of PW 1 was sitting on the varandah of her house. She saw the incident and rushed to the spot. By that time she reached, the deceased had already died. Hearing her cry. Decided on 24th July, 1995. informant and other family members came to the spot and found the dead body of the deceased. The informant went to the Kegaon Police Station and lodged oral report to the A.S.I. in the absence of the Officer-in-charge, which was reduced into writing on which L.T.I. of the informant was taken. Investigation was undertaken, and on completion thereof charge sheet was submitted.
3. Prosecution examined eleven witnesses to further its case.
4. Accused pleaded innocence and false implication.
5. PW 2 wife of the informant claimed to be an eye-witness while P Ws 1, 3 and 4 claimed to have come to the spot on hearing her cry. Placing reliance on the evidence of the witnesses learned trial Judge found that the accused was responsible for the death, held that the case is one covered by second limb of Section 304, IPC and sentenced the accused to five years' rigorous imprisonment.
6. In support of the appeal Mr. H.M. Dhal, learned counsel submitted that the background in which the alleged occurrence took place clearly rules out any knowledge of the accused that his act was likely to cause death. He only caught hold of the hands of the deceased and pushed him, and accidentally his head hit the door frame resulting in his death. The deceased was an elderly person and therefore, even if the accused is found to be guilty, a case under Section 304, Part II, IPC is not made out.
Mr. A. Mohapatra, learned counsel for State on the other hand supported the judgment of conviction and sentence.
7. To appreciate rival submissions, it is necessary to take note of evidence of the doctor (PW 7), who had conducted the post mortem. He found the age of the deceased to be aged about 65 years, and stated that in old age the bones are brittle and can be fractured easily. In view of evidence of PW 2 regarding the manner in which the accused pushed the deceased for which he came in contact with the door frame, it cannot be said that the accused had either intention or knowledge to cause death or such bodily injury result whereof was death.
8. Eight kinds of hurt are designated as 'grievous', as set out in Section 320, IPC, Clause 8 thereof speaks of two things (1) any hurt which endangers life, and (2) any hurt which causes the sufferer to be during the space of twenty days; (a) in severe bodily pain or (b) unable to follow his ordinary pursuits. The line between culpable homicide not amounting to murder and grievous hurt is a very thin line. In the former the injuries must be such as are likely to cause death, in the latter, the injuries must be such as endanger life. An injury can be said to endanger life if it is in itself such that it may put the life of the injured in danger. Where there is no intention to cause death or no knowledge that death is likely to be caused from the harm inflicted, and death is caused, the accused would be guilty of grievous hurt if the injury was of a serious nature, but not of culpable homicide.
9. In my considered opinion, this is a fit case to be covered under Section 325, IPC. The conviction under Section 304, Part II, IPC is altered to one under Section 325,IPC. Sentence of two years' rigorous imprisonment would suffice.
The criminal appeal is allowed to the extent indicated above.