Orissa High Court
Chinu Patel And Ors. vs State Of Orissa on 4 May, 1989
Equivalent citations: 1990CRILJ248
JUDGMENT V. Gopalaswamy, J.
1. This appeal is preferred against the judgment of the learned Additional Sessions Judge. Sambalpur in S. T. No. 13/1 of 1982 convicting the five appellants under Sections 148, 325/149 and 323, I.P.C. and sentencing each of them thereunder to undergo R.I. for two years on each of the first two counts and to undergo R.I. for one year on the 3rd count, with a direction that the sentences so imposed should run concurrently.
2. The prosecution case, briefly stated, is as follows :
On 13-8-80 at about noon-time the accused persons placed a 'Dhair' (an instrument for Catching fish) on the water channel leading from the village tank to the land of deceased Mandhata Patel. As a result of the placing of the 'Dhair' the flow of the water in the channel was obstructed and water overflowed into the land of the deceased resulting in the deposit of sand in his land. On coming to know about it the deceased came to the place where the 'dhair' was kept and raising objection about it, carried away the 'Dhair' despite protests of the accused persons, stating that he would place the matter before the Panchayat and show them the 'Dhair'. Sometime thereafter as the deceased and his wife came out of their house to dry boiled paddy, the six accused persons dragged deceased Mandhata to a place in front of their house and assaulted him there with a Bhar stick and lathis causing fatal injuries on his person. When Banamali Patel (P.W. 14) the brother of the deceased, and Shanti Patel (P.W. 11), the wife of the deceased, intervened to rescue the deceased from being further assaulted, the accused persons assaulted them also and pelted stones at them. The deceased was taken to Burla hospital for better (SIC) and there he died on 15-8-80. Banamali Patel reported about the occurrence to the police and on the basis of his report, the police proceeded with the investigation of the case and after completion of the investigation filed the charge-sheet against the appellants and one Pandaba Patel, since acquitted.
3. The accused persons pleaded that the occurrence had not taken place in the manner alleged by the prosecution. According to the defence the deceased and his brother P.W. 14 forcibly entered into the house of the accused persons by breaking open the door and attempted to assault accused Chinu and his son Parasadi Patel when they shouted and on hearing their shouts, accused Shankar, Mandhata and Jaga, the three other sons of Chinu arrived there each holding a stick and thereafter Banamali and the deceased assaulted the accused persons and in the course of such assault, as P.W. 14 attempted to assault accused Jaga, the latter sat down, when the blow given by P.W. 14 hit the head of the deceased. The defence examined D.Ws. 1, 2 and 3 in support of their plea.
4. The appellants and one Pandaba Patel stood their trial in the Court of Session under Sections 302/149, 323/149 and 148, I.P.C. On a consideration of the evidence, the learned Sessions Judge, while acquitting all the accused persons of the charge under Section 302/149, I.P.C., convicted the present five accused-appellants under Sections 325/149, 323/149 and 148, I.P.C. The sixth accused Pandaba Patel was acquitted of all the charges levelled against him. So the scope of the present appeal is confined to an assessment of the evidence placed on record to find put if the prosecution could successfully prove the charges under Sections 325/149, 323/149 and 148, I.P.C. against the appellants.
5. The prosecution has has examined in all 15 P.Ws. to prove its case. P.W. 1 is I.P. Pujari who. conducted the post-mortem examination over the dead body of the deceased. P.W. 1 is Dr. Manorama Satapathy who examined P.Ws. 11 and 14 and accused Mandhata, Jagadish and Parsadi regarding their injuries. P.W. 3 is a rickshaw puller who does not state anything material. P.W. 4 witnessed the inquest and he was also a seizure witness, P.Ws. 5 and 13 were examined to prove certain seizures made during the course of the investigation, P.W. 6 was examined to depose about a the incident regarding the quarrel which took place between the accused persons and the deceased on account of the placing of the 'Dhair in the water channel, which ultimately ended in by the deceased removing and carrying away the 'Dhair' to his house. P.W. 6 was declared hostile by the prosecution. P.W. 8 was examined to depose about the cultivation of the land, adjoining the water channel in question, by the deceased by the relevant date. P.W. 11 is the wife of the deceased. P.W. 14 Banamali Patel is the brother of the deceased and he is the informant in the case. P.Ws. 11 and 14 are the eye-witnesses to the occurrence. P.Ws. 7 and 12 were examined as independent eyewitnesses to the occurrence. P.W. 9 was the A.S.I. of police attached to Burla Police station and he held the inquest over the dead body of the deceased and he despatched the dead body for its post-mortem examination. P.W. 15 was the O.I.C. Barpali P.S. on 13-8-80 and he scribed the F.I.R. Ext. 17 on the report of the informant, P.W. 14 and on its basis proceeded with the investigation of the case and on 24-6-81 he handed over the charge of the investigation of the case to P.W. 10, who submitted the charge sheet in the case.
6. The five accused persons. Nos. 2 to 6 in the trial Court, are all sons of accused No. 1, Chinu Patel. Accused Chinu is the brother of deceased's father. On a consideration of the prosecution evidence the trial Court did not accept the prosecution story against accused Pandaba Patel and acquitted him of all the charges levelled against him. This is a circumstance which indicates that the prosecution made an attempt to implicate all the five sons of accused Chinu in the occurrence of assault against the deceased and. therefore, the prosecution evidence against the appellants should be scrutinised carefully before the same is accepted as true.
7. Out of the list of witnesses examined by the prosecution. P.Ws. 7, 11, 12 and 14 were examined as eye-witnesses to the occurrence and so their evidence merits careful consideration.
The evidence of P.W. 7 shows that on the relevant afternoon as he was returning from the field after performing the weeding operation, he found deceased Mandhata lying on the road in front of the houses of the accused and the deceased. He does not claim to have seen the assault on the deceased by the accused persons. From the evidence of P.Ws. 11 and 7 it is seen that the house of the accused persons was opposite to the house of the deceased at a distance of about 10 cubits and the village road intervened between their houses. P.W. 14 is the brother of the deceased and his house was also quite close to the houses of the accused and the deceased.
8. According to P.Ws. 11 and 14 as the deceased was being assaulted by the accused persons, as they intervened and tried to rescue him they too were assaulted, as a result of which they sustained injuries. The occurrence of assault on the deceased took place on the afternoon of 13-8-80. On the same day, on police requisition, P.W. 2 Dr. Manorama Satpathy examined P.Ws. 11 and 14 regarding their injuries.
On examining Banamali Patel (P.W. 14) she found the following external injuries :--
(i) one contusion -- 1 1/2" X 1." -- three inches below cervical prominence;
(ii) one contusion 1" X 1/2" three inches below right elbow;
(iii) one contusion 1" X 1/2" -- two inches above right knee; and
(iv) one lacerated wound 1/4" X 1/6" four inches above left eye.
She opined that the age of the above injuries was within six hours from the time of her examination.
Likewise. on the very same day P.W. 2 examined Shanti Patel wife of the deceased and found one contusion 4" X 4" above her right knee joint and the age of the injury was stated to be within 6 hours.
P.W. 2 proves the injury reports of P.Ws. 14 and 11, Exts. 2/1 and 3/1 respectively.
The evidence of P.W. 2 can be safely relied on and the same fully supports the version of P.Ws. 11 and 14 that they sustained injuries during the course of the occurrence. This is a circumstance which confirms the presence of P.Ws. 11 and 14 at the time of occurrence. That apart, as P.Ws. 11 and 14 are the wife and the brother of the deceased and as the occurrence of assault on the deceased had taken place close to their houses, there is no reason to disbelieve them when they stated that they rushed to intervene while the deceased was being assaulted.
In view of the above circumstances, it is established that P.Ws. 11 and 14 are competent witnesses to depose about the occurrence of assault on the deceased.
9. The evidence of deceased's wife P.W. 11 shows that on the relevant afternoon she and her husband were drying boiled paddy on, the road in front of their house and at that time as her husband refused to return the 'Dhair' stating that he wanted to show it to the 'Panch Members', accused Chinu, Parsadi and Shankar shouted "Dharare Salaku Piton" and so shouting Chinu, Parsadi and Shankar dragged her husband to the road in front of their house and there the other accused persons were present. It is in her evidence that at that time accused Chinu was holding a 'Charpatia thenga' M.C. II, accused Jaga was holding a Marha, accused Mandhata was holding the Bhar M.C. III, accused Parsadi was holding two broken bricks, accused Pandaba was holding a stick and accused Shankar was holding the handle of a spade. She, deposed that accused Shankar first assaulted her husband on the back side of his head with the handle of a spade as a result of which her husband fell down, whereafter all the accused persons assaulted her husband. Regarding the occurrence of assault on the deceased the evidence of P.W. 14 shows that after the deceased was dragged by accused Shankar, Parsadi and Chinu to a place in front of their house, accused Shankar assaulted the deceased on his head with the handle of a spade and the deceased fell down and thereafter all the accused persons assaulted him.
10. P.W. 12 was examined as an independent witness and his house is near the house of P.W. 14 Banamali. His evidence shows that on the relevant afternoon as he was changing his dress in his house, he heard a hullah and then he came out of his house and saw accused Shankar assaulting the deceased on his head with a geda. when he fell down and thereafter all the accused persons assaulted the deceased. Thus the version of P.Ws. 11 and 14 that accused Shankar had given a blow on the head of the deceased with the handle of a spade is corroborated by the independent witness P.W. 12 when he deposed about the assault on the deceased by accused Shankar with a geda.
11. P.Ws. 11, 12 and 14 did not state before the I.O. about accused Shankar, assaulting the deceased on his head with the handle of a spade and mainly this is the only circumstance that weighed with the learned Sessions Judge in rejecting their version that it was accused Shankar who gave the fatal blow on the head of the deceased. No doubt, the omission by P.Ws. 11, 12 and 14 about the assault on the head of the deceased by accused Shankar before the I.O. is a material omission, but merely on that score the statements of P.Ws. 11, 12 and 14 in Court on oath should not be discarded if there is other reliable corroborative evidence establishing the truth of such evidence, as in the present case.
12. P.W. 1 who conducted the autopsy over the dead body of the deceased found the following external injuries.
(i) One oblique incised injury 1 1/2" X 1" X 1 which has been stitched behind the pina of right car;
(ii) One injury 1 1/2" incised one and oblique just above acciput;
(iii) One circular contusion 1 Cm. X 1 Cm. at the middle of medical border of right scapula; and
(iv) just below left elbow joint one abrasion 1/2" X 1/4".
According to the prosecution the injury No. 2 is the head injury caused by the blow given by accused Shankar on the head of the deceased. P.W. 1 opined that the above external injury No. 2 might have been caused by hard and blunt substance like the wooden lathi M.O. II. There is no reason to doubt the correctness of the above opinion of P.W. 1. So the medical evidence in the case lends support to the version of P.Ws. 11 and 14 that accused Shankar had assaulted the deceased on his head with the handle of a spade.
13. On a consideration of the evidence, the learned Sessions Judge also came to a finding that it was one of the appellants who assaulted the deceased causing the fatal head injury. So normally it is not expected of P.Ws. 11 and 14 who were closely related to the deceased that they should be allowing the real culprit who dealt the fatal blow on the head of the deceased to escape and in his place substitute a person who was not really the author of the fatal injury.
14. That the deceased received a lathi blow on his head during the course of the occurrence is admitted even by the defence, though according to the defence when Banamali (P.W. 14) attempted to give a lathi blow on the head of the accused Jaga, as the latter sat down, the lathi accidentally hit the head of the deceased.
15. Hence on a careful scrutiny of the evidence of P.Ws. 11, 12 and 14. as discussed above, I find that the prosecution has satisfactorily proved that it was accused Shankar who had given a blow on the head of the deceased with the handle of a spade which resulted in the fatal head injury.
16. The version of P.Ws. 11 and 12 shows that after accused Shankar assaulted the deceased on his head, the deceased fell down and thereafter all the accused persons had assaulted him. P.W. 11 stated that the accused persons were armed with 'Bhar' etc. From para 12 above it is seen that the deceased sustained four injuries during the course of the occurrence and injury number (iv) is an abrasion. P.W. 1 opined that the injury No. (i), the injury near the right ear (mentioned in para 12/above) was caused by a knife. None of the witnesses to the occurrence P.Ws. 11, 12 and 14 stated about any of the accused persons holding a knife at the time of occurrence. So it cannot be said that the said injury No. (i) was caused by any of the accused persons. There is no satisfactory explanation from the side of the prosecution as to how it was caused. As earlier found the injury on the head, a injury No. (ii) (mentioned in para 12 above) was caused by accused Shankar. So, as alleged by P.Ws. 11, 12 and 14, if really all the accused persons had assaulted the deceased with Thenga, Badi, Bhar etc. even after he fell down due to the blow given by accused Shankar then the deceased would have sustained more number of injuries of a more serious nature than merely a contusion and an abrasion (injuries Nos. (iii) and (iv) mentioned in para-12 above) as found by P.W. 1. So this is a very strong circumstance to show that P.Ws. 11, 12 and 14 are not stating the truth when they alleged that all the accused persons assaulted the deceased even after he fell down and, therefore, their evidence on this aspect cannot be safely relied on.
17. The evidence of P.Ws. 11 and 14 shows that as P.W. 11 went and intervened, accused Chinu gave two blows on her right thigh with a Charpatie nerhe. The Lady Doctor (P.W. 2) who examined her (P.W. 11) found only one injury above her right knee (as mentioned in para 3 above). The Doctor opined that the age of the injury was within 6 hours and was possible by means of a lathi. P.W. 14 merely stated that P.W. 11 intervened at the time of occurrence of assault on the deceased, accused Chinu assaulted her on her right thigh, but he did not state specifically that Chinu had given her two lathi blows. The evidence of the Doctor P.W. 2 also discloses that P.W. 11 sustained only one injury near her right thigh. So from the above evidence it is seen, that though the version of P.W. 11 that accused Chinu had given her two blows with a lathi appears to be an exaggeration, yet from the evidence of P.Ws. 2, 11 and 14, it can be safely held that accused Chinu dealt a blow with a lathi near the right thigh of P.W. 11 during the course of the occurrence.
18. The evidence of P.W. 14, Banamali shows that as he intervened when the deceased was being assaulted, accused Chinu assaulted him (P.W. 16) on his head with a lathi, accused Jaga assaulted him on his left scapular region, accused Shankar assaulted him near his right buttock and accused Parsadi threw brick bats towards him, P.W. 11 deposed that as Banamali, P.W. 14, intervened he was assaulted by accused Chinu, Jaga, Parsadi and Madha. The version of P.W. 11 about accused Madha also assaulting P.W. 14 is not corroborated even by P.W. 14 himself, P.W. 11 does not state about accused Shankar also assaulting P.W. 14, P.W. 11 does not state as to on which parts of the body of P.W. 14 the accused assailants had assaulted him. So from the evidence of P.W. 11 it is seen that she lends corroboration to the evidence of P.W. 14 to a limited extent, in that she too stated that accused Chinu, Jaga and Parsadi had assaulted P.W. 14. Dr. M. Satapathy (P.W. 2) examined Banamali (P.W. 14) and found a contusion on his back (mentioned as injury No. (i) in para 8 above) and a lacerated wound on his head (mentioned as injury No. (iv) in para 8 above). The above referred injuries, mentioned as injuries Nos. (i) and (iv) in para 8 above, correspond to the blows said to have been given by accused Chinu and accused Jaga on the person of P.W. 14. Dr. Satapathy (P.W. 2) opined that the said injuries are simple in nature and might have been caused by a lathi and the age of the injuries were stated to be within six hours from the time of her examination. P.W. 14 was examined by P.W. 2 on 13-8-80 at about 4.30 P.M. (vide Ext. 2/1). So the medical evidence in the case lends support to the version of P.W. 14 that as he intervened accused Chinu had assaulted on his head and accused Jaga had assaulted near about his left scapular region. P.W. 14 had merely stated that accused Parsadi had thrown brick bats 'towards him'. P.W. 14 did not state that accused Parsadi threw the brick hats 'at him' or that (SIC) of the brick bats so thrown towards him had actually hit him. In any event P.W. 14 himself does not say that he sustained injuries below his right elbow and above his right knee at the hands of any of the accused persons. So the prosecution evidence is not clear as to how P.W. 14 sustained the two contusions, one below his right elbow and the other above his right knee, mentioned as injuries Nos. (ii) and (iii) in para 8 above. Hence on a careful scrutiny of the evidence of P.Ws. 2, 11 and 14, it is seen that the prosecution could satisfactorily prove that accused Chinu and Jaga had assaulted P.W. 14 on the relevant afternoon.
19. On a careful analysis of the material evidence on record, as discussed above, it is seen that what at all the prosecution could satisfactorily prove is that accused Chinu. Jaga and Shankar took an active part in the occurrence which took place on the relevant afternoon, during the course of which accused Shankar had caused the fatal injury on the head of the deceased, and accused Chinu had assaulted P.Ws. 11 and 14 causing simple injuries on their persons and accused Jaga had assaluted P.W. 14. There is no reliable evidence to show that either accused Madha or accused Parsadi had assaulted either the deceased or P.W. 11 or P.W. 14.
20. From the evidence of the Doctor, P.W. 2 it is seen that P.W. 2 examined Madha on 14-8-80 and found an abrasion 1" X 1/4" on the person of Madha. Likewise, P.W. 2 found on her examination of accused Parsadi that he too sustained two parallel bruises above his elbow joint. P.W. 2 opined that the above injuries on the persons of accused Madha and Parsadi were possible by means of lathis and the age of the said injuries indicated that they were received at the time of the occurrence. From he above medical evidence, in the light of the evidence of the eye-witnesses, it can be safely held that accused Madha and Parsadi were also present at the time of the occurrence. Even the defence plea reveals that the presence of all the appellants at the time of the occurrence is not denied, though the defence had their own version of the occurrence. Accused persons 2 to 6 are the sons of accused No. 1, Chinu and admittedly the occurrence had taken place near the houses of the accused and the deceased. So from the mere presence of accused Parsadi and Madha at the scene of occurrence it cannot be presumed that they were present there as the members of an unlawful assembly comprising of accused Chinu and his sons.
21. It is appropriate at this stage to refer to the gist of the evidence elicited through the D.Ws. The evidence of D.W. 1 shows that on the relevant afternoon he found the accused persons on the one hand and deceased Mandhata and his brother Banamali (P.W. 14) on the other fighting with each other with lathis in their hands, D.W. 2 deposed that on the date of occurrence at about 1 p.m. as he was going on the road near the place of occurrence, he saw the three sons of accused Chinu on the one hand and deceased Madhata and Banamali on the other chasing each other being armed with lathis, D.W. 3 stated in his chief examination that he did not see the occurrence. So the evidence of D.Ws. 1 and 2 discloses that it was a case of free fight between the accused persons on the one hand and the deceased and Banamali (P.W. 14) on the other. There is nothing in the evidence of the D.Ws. which creates any doubt regarding the truth of the prosecution version that accused Shankar had assaulted the deceased on his head with a lathi. So the defence plea that the accused persons were merely the victims of aggression at the hands of the deceased and his brother (P.W. 14) is false and baseless.
22. It was earlier found that accused Madha and Parsadi sustained injuries during the course of the occurrence Doctor P.W. 2 examined accused Jaga Patel on 13-8-80 and found one lacerated wound 1 1/2" X 1/4" near the left pariotal eminence of his scalp. The Doctor opined that the said injury was simple in nature and possible by a lathi. The age of the injury was within 24 hours. The Doctor's above opinion can be safely relied on and it shows that accused Jaga had also received an injury on his head during the course of the occurrence. The explanation of Banamali (P.W. 14) that the accused persons received the injuries in the tussle as he tried to snatch away the lathis from their hands Was rightly rejected by the trial Court. On a perusal of paras 9 and 12 of the trial Court judgment, it is seen that in view of the absence of any satisfactory explanation regarding the injuries found on the 3 accused persons, the learned Addl. Sessions Judge arrived at the finding that there was a mutual fight between deceased Mandhata and his brother Banamali (P.W. 14) on the one hand and the accused persons on the other and that during the course of such fight deceased Mandhata had sustained the injuries on his head. The defence evidence in the case also lends support to such a finding. The accused persons and the deceased were closely related and there was no previous enmity between the parties. Accused Chinu and his sons are the accused persons and on the relevant morning the 'Dhair' belonging to them (M.O. 6) was taken away by the deceased and in spite of repeated requests by the accused persons for the return of the same, the deceased refused to return it and insisted on reporting the matter to the Panchayat. It is in this background that; the occurrence of assault on the deceased had taken place. So the background under which the occurrence had taken place would also suggest that there must have been heated altercation between the parties regarding the return of the 'Chair' (M.O. 6) which must have suddenly developed into a free fight between the parties and thus the probabilities in the case also lend support to the finding of the trial Court that there was a free fight between the parties and I see no reason to differ with the above finding of the trial Court.
23. In view of the finding of the trial Court that the prosecution has suppressed part of the truth regarding the occurrence: with which I agree, it is difficult to hold that the assault on the deceased was the outcome of a planned attack on him by accused Chinu and his sons. On the other hand as earlier pointed out, the probabilities are that as the accused demanded for the return of the 'Dhair' and as the deceased refused to return the same, a quarrel ensued which ultimately resulted in, a free fight between the parties during the course of which both sides were injured. In such a situation as there is no scope for a preplanned attack by the accused, the question of the accused persons forming an unlawful assembly having a common object to do any of the acts mentioned in the 5 clauses of Section 141, I.P.C. does not arise for consideration. In Lalji v. State of U.P., AIR 1973 SC 2505 : (1973 Cri LJ 1769), the Supreme Court held that where a sudden quarrel arises between the parties as a result of remonstrance and counter remonstrance and an unpremeditated free fight takes place between them it cannot be said that the accused who were present there formed an unlawful assembly. In such a case each of the accused persons should be held liable for his own act and not vicariously liable for the acts of others. So on a careful scrutiny of the evidence placed on record I find that the prosecution failed to prove satisfactorily that all the appellants formed themselves into an unlawful assembly at the time of occurrence, and therefore the charge against the appellants under Section 325 read with Section 149, I.P.C. and Section 323 read with Section 149, I.P.C. must fail. However, each of the appellants would be held liable for the individual acts proved against him.
24. In view of my findings in the preceding para I acquit all the appellants of the charges under Sections 148, 325/149 and 323/149, I.P.C. and the order of conviction and sentence passed against the appellants by the trial Court under these sections is hereby set aside. However, as accused Shankar was found to have assaulted the deceased on his head with a lathi, causing a fatal injury on his head, he is found guilty under Section 325, I..P.C- As there is no reliable evidence to show that accused Parsadi and Madha assaulted either the deceased of P.W: 11 or P.W. 14 both of them are completely acquitted. The prosecution has satisfactorily proved that accused Chinu had assaulted P.Ws. 11 and 14 with a lathi voluntarily causing hurt to them and therefore he is found guilty under Section 323, I.P.C. Likewise, the prosecution could satisfactorily prove that accused Jaga had voluntarily caused hurt to P.W. 14 and so I find him guilty under Section 323, I.P.C.
25. In the result, accused Shankar is convicted under Section 325, I.P.C. and sentenced thereunder to undergo R.I. for two years. Accused Chinu is the father of the other accused persons and as an elderly man he should have exercised restraint. On the contrary it is found that accused Chinu had assaulted P.Ws. 11 and 14. So far having voluntarily caused hurt to P.W. 11, I convict accused Chinu Patel under Section 323, I.P.C. and sentence him to four months rigorous imprisonment. For the offence under Section 323, I.P.C. for having voluntarily caused hurt to P.W. 14 also, he is likewise sentenced to four months rigorous imprisonment. However, I direct that both the sentences so imposed on accused Chinu Patel should run concurrently. So far as accused Jaga Patel is concerned, I convict him under Section 323, I.P.C. and sentence him thereunder to undergo simple imprisonment for a period of one month.
26. In conclusion, the appeal preferred on behalf of Madha Patel and Prasadi Patel is fully allowed, whereas the appeal preferred on behalf of the other appellants is only partly allowed to the extent indicated above.