Pahala Dehury vs. State Of Orissa

HIGH COURT OF ORISSA: CUTTACK. JCRLA NO.39 OF 2002

From the judgment and order dated 23.8.2002 passed by Shri S.C. Mishra, Additional Sessions Judge, (Fast Track Court), Baripada in S.T. No.1/150 of 2001-2002.

THE HONOURABLE SHRI JUSTICE L. MOHAPATRA AND

THE HONOURABLE SHRI JUSTICE B.K. PATEL

Date of hearing & judgment – 22.2.2012

B.K. PATEL, J. This appeal from jail is directed against the judgment and order dated 23.8.2002 passed by the learned Additional Sessions Judge, (Fast Track Court), Baripada in S.T. No.1/150 of 2001-2002 convicting and sentencing the appellant to undergo imprisonment for life and to pay a fine of Rs.2000/-, in default to undergo R.I. for one year, under Section 302 of the Indian Penal Code (for short 'the I.P.C.') for having committed murder of deceased Gangadhar Dehury.

2. Appellant is a distant relation of the deceased. Deceased alongwith his son informant P.W.1, daughter-in-law P.W.2 and wife P.W.9 were occupying one portion and the appellant was residing on the other

portion of a house allotted to the appellant under Indira Awas Yojana. It is alleged that on 21.3.2001, informant P.W.1returned home from work at about 7.00 P.M. and asked his wife P.W.2 for food. As P.W.2 did not respond, P.W.1 dealt her a slap. P.W.2 tried to escape and she accidentally trod upon the rice plate of the appellant who was taking food on the verandah. Appellant picked up quarrel with P.W.1. The deceased intervened and tried to pacify the appellant. The appellant became angry and all of a sudden assaulted on the head of the deceased by means of a bamboo bahungi. Deceased sustained injury, fell down and became unconscious. When people assembled, the appellant threatened them not to report the matter before the police and escaped. Deceased was taken to Baripada Sadar Police Station where on the basis of oral narration about the incident made by P.W.1 the A.S.I. of Police P.W.7 prepared First Information Report Ext.4, registered the case under Sections 325 and 506 of the I.P.C, and took up investigation. The deceased died on the next day while under treatment in District Headquarters Hospital, Baripada. On completion of investigation, charge-sheet was submitted against the appellant for commission of offences under Sections 302 and 506 of the I.P.C.

3. Appellant took the plea of complete denial.

4. In order to substantiate the charge, prosecution examined nine witnesses. P.Ws.1, 2 and 9 as well as deceased's brother P.W.3 and P.W.4 were examined as eye-witnesses. However, P.W.3 admitted in course of his cross-examination that he was a post-occurrence witness, and P.Ws.4 and 9 were declared to be hostilewitnesses. P.W.5 is a doctor who conducted post-mortem examination over the dead body of the deceased. P.W.6 is another doctor who had medically examined the deceased in the hospital. P.Ws.7 and 8 were the investigating officers. Prosecution also relied upon documents marked Exts.1 to 12 and material object M.O.I. No defence evidence was adduced.

Placing reliance on the evidence of P.Ws.1 and 2 stated to have been corroborated by the evidence of P.Ws.3 and 9 as well as medical evidence of P.Ws.5 and 6, the trial court held the prosecution to have established the charge under Section 302 of the I.P.C. against the appellant. However, the appellant was acquitted of the charge under Section 506 of the I.P.C.

5. In assailing the impugned judgment it is submitted by the learned counsel for the appellant that P.Ws.1, 2, 3 and 9, who are closely related to the deceased, were examined as eye-witnesses. But P.W.9 did not support the prosecution case and P.W.3 admitted in his crossexamination to have arrived at the spot after the assault was already over. In such circumstances, the trial court should not have placed reliance on the evidence of P.Ws. 1 and 2. Alternatively, it is argued that circumstances proved in the case established that appellant on the spur of the moment being provoked by the intervention of the deceased all of a sudden dealt a single blow by means of a bahungi on the deceased. Therefore, the appellant had no intention to cause death of the deceased for which he is not liable to be convicted underSection 302 of the I.P.C.

6. Placing reliance on the evidence of P.Ws.1 and 2 as well as medical evidence of P.Ws.5 and 6 learned State counsel supports the impugned judgment.

7. We have carefully scrutinized the entire evidence on record. P.W.1 stated in his evidence that appellant had been allotted with a house under Indira Awas Yojana. Appellant was residing in a portion of it and the other portion of the house was occupied by informant's family members. On the date of occurrence P.W.1 returned home at about 7.30 P.M. and assaulted his wife P.W.2 as she caused delay in supplying him food. The appellant was taking his meals on the verandah of the house. When P.W.2 was going away, her leg came in contact with the rice plate of the appellant for which the appellant quarreled with P.W.1. However, the deceased intervened and impressed upon the appellant not to quarrel. The appellant being angry gave a blow by the bahungi made by bamboo on the head of the deceased with force as a result of which there was bleeding injury. The deceased lost his sense. P.W.1 removed the deceased to Sadar P.S., Baripada and reported the matter. Police sent the deceased to the hospital where the deceased died on the next day. Evidence of P.W.1 has not been discredited in course of cross-examination in any manner. Contents of the First Information Report Ext. 4 materially corroborate the evidence of informant P.W. 1. P.W.2 testified that her husband returning from work asked for food. When there was delay, P.W.1 assaulted her. When P.W.2 was going away, her leg came incontact with the rice pot of the appellant. Though P.W.2 gave two pots of rice, the appellant was not satisfied. He quarreled with the deceased and gave a bahungi blow on the head as a result of which the deceased sustained injury. Evidence of this witness also has not been discredited in any manner in course of crossexamination. Though P.W.3 stated in his examination-in-chief that appellant assaulted the deceased with a bahungi on his head and ran away, in his cross-examination P.W.3 stated that he went to the house of his uncle Nakula from the house of the deceased, and that quarrel and assault was already over on his return to the house of the deceased from the house of Nakula. P.W.4 stated that he did not know anything about the case and was declared to be hostile witness. Deceased's wife P.W.9 stated that after consuming handia she returned to the house during evening time and went to sleep. Subsequently, she ascertained that the appellant assaulted her husband by a bahungi as a result of which he died. She categorically stated in her cross-examination that she had not seen the actual assault on the deceased for which she could not say as to how her husband died. Thus, even though evidence of P.Ws.3, 4 and 9 is of no help to the prosecution, evidence of P.Ws.1 and 2 with regard to assault on the deceased by the appellant by means of a bahungi causing injury remained unshaken. It is also evident from their evidence that the occurrence was preceded by a quarrel between the appellant on the one hand and the informant P.W.1 on the other. The appellant was infuriated as P.W.2 trod upon her rice plate when he waseating. When deceased intervened, all of a sudden the appellant dealt a blow by means of a bahungi on his head.

8. P.W.5 as well as P.W.6 deposed to have found a lacerated injury on deceased's right parietal region. P.W.5 found a depressed fracture on the right parietal bone and opined that cause of death of the deceased was due to neurogenic shock on account of the injury on the vital part of the brain. Occurrence took place on 21.3.2001 and P.W.6 deposed to have medically examined the deceased on 22.3.2001. Thus, it is also obvious that death of deceased was homicidal in nature.

9. As has been observed earlier the occurrence was preceded by quarrel between the deceased and informant P.W.1 when P.W.2's leg came in contact with appellant's rice plate. When the deceased intervened, all of a sudden without any premeditation the appellant assaulted the deceased by means of a bamboo bahungi causing injury sustained by the deceased. It is amply established that being deprived of self control due to sudden provocation the appellant dealt a single blow on the deceased. Therefore, though the appellant might have dealt the blow with the knowledge that injury caused by the blow may result in death, the appellant is not found to have harboured intention or knowledge required to constitute the offence under Section 302 of the I.P.C. Therefore, the appellant cannot

escape the liability for commission of offence under Section 304, Part-II of the I.P.C.

10. In view of the above, we allow the appeal in part, and set aside the impugned judgment and order dated 23.8.2002 passed by the learned Addl. Sessions Judge, (Fast Track Court), Baripada in S.T. No.1/150 of 2001-2002 convicting the appellant for commission of offence under Section 302 of the I.P.C. and sentencing him to undergo imprisonment for life and to pay fine of Rs.2000/-, in default to undergo R.I. for one year. We find the appellant guilty of commission of offence under Section 304, Part-II of the I.P.C. and accordingly, convict him thereunder. He is sentenced to imprisonment for a period of seven years.

It is stated that the appellant is in custody for more than ten years. If that be so, the appellant-Pahala Dehury be set at liberty forthwith, unless his detention is required in connection with any other case.

…………………………. B.K. Patel, J.

L. Mohapatra, J. I agree.

……………………..… L. Mohapatra, J.

Orissa High Court, Cuttack, The 22nd Feb., 2012/B.Jhankar.