JUDGMENT
1. Heard and the judgment is as follows:
2. Order of conviction under Section 302, I.P.C. and sentence of imprisonment for life passed by learned Sessions Judge-cum-Special, Judge, Kalahandi-Nuapada at Bhawanipatna in G.R. Case No. 52 of 1995 is under challenge. It should have been registered as a Sessions Case, because of involvement of the offence under Section 302, I.P.C. Perhaps for the confusion prevalent then regarding the nomenclature, it was decided as G.R. Case. However that is non-consequential so far as merit of the case is concerned.
3. Admittedly appellant is a neighbour of the deceased’s family. It is alleged that on 24.3.1995 at about 11 A.M. an altercation ensued between the deceased and her mother (P.W. No. 7) in one side and the wife of the accused/appellant on the other, on the ground that wife of the accused snatched away gudakhu, soap and some tamarind from the hands of the daughter of the deceased. At that time, accused rushed out feorn his house being armed with a Iron bucket and dealt a blow to the head of the deceased so also assaulted P.W. No. 7. The deceased fell down and became senseless. She was taken to U.G.P.H.C., Khariar for treatment and there from to Mission Hospital, Khariar because of her serious condition and unconsciousness. She was declared dead in the Mission Hospital. On the information given by husband of the deceased in Khariar Police Station, a case had initially been registered for the offence under Section 294/325, I.P.C. read with Section 3(1)(x) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short the Act’) because deceased being Sabar by caste, was a member of Scheduled Tribe Community and the accused is a Gauda (milkman) by caste. After death of the deceased, the case was investigated for the offence under Section 302, I.P.C. In course of investigation, on police requisition, Doctor Kailash Chandra Pradhan, (P.W. 3) who had granted initial treatment in the U.G.P.H.C., Khariar also conducted the postmortem examination and in the trial Court he proved the injury report, Ext. 1, Post Mortem report, Ext. 3 and the opinion report, Ext. 4. He also proved the injury certificate of P.W. No. 7 marked Ext. 2. According to him, injury was ante mortem in nature and death was due to coma, which resulted from the injury to the head and the probable weapon of offence was the bucker (M.O.I.).
4. On completion of a routine investigation, charge sheet was submitted for the offence under Section 302 I.P.C. and Section 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 and charge was accordingly framed. Accused took plea of denial. To substantiate the charge, prosecution examined as many as 14 witnesses and documents Exts. 1 to 17 and various material objects including the Iron bucket, M.O.I, and the Ex-Ray Plates, M.Os. II & III in respect of head injury. Rests of the material objects are the wearing apparels and the belongings of the deceased. Accused did not adduce any defence evidence in support of the plea of denial.
5. The trial Court assessed evidence of P.W. No. 3 and recorded the finding that the deceased died a homicidal death due to the head injury. He assessed the evidence of P.Ws. 7, 8 and 12, who were eyewitnesses to the occurrence to hold that accused is the author of the ante mortem injury on the head of the deceased, which resulted in her death. Accordingly, learned Sessions Judge convicted the appellant for the offence under Section 302. I.P.C. and sentenced him to imprisonment for life. Learned Sessions Judge on assessment of evidence on record found that prosecution could not prove the charge under Section 3(2)(v) of the Act and accordingly acquitted the accused from the said charge.
6. In course of submission, learned Counsel for the appellant dispute to the homicidal death of the deceased so also his complicity in the crime. Appellant argues for conviction under Section 304-First Part, I.P.C., in the event the aforesaid two conditions of the appellant are not accepted.
7. Learned Standing Counsel on the other hand wholeheartedly supports the impugned judgment and argues to sustain the order of conviction and sentence.
8. Learned Counsel for the appellant argues that evidence of P.W. No. 3 and the post mortem report, Ext. 3 read with the injury certificate, Ext. 1 indicate the fact that death was not due to any injury inflicted by the appellant. In that respect, on perusal of the evidence on record, we find that appellant has adopted the attitude of disputing to anything that the comes whether or not such contention is sustainable. In course of cross examination of P.W. 3 only suggestion, which was given to the Doctor, was that the injury was possible by fall on stone. Whole argument was advanced to dispute the prosecution case of homcidal death of the deceased on the basis of such a suggestion given to P.W. No. 3. When it is nobody’s case that deceased sustained the head injury due to fall on a stone, mere suggestion given in that respect is not sufficient to record a finding that the injury sustained by the deceased was due to fall. On the other hand, positive and affirmative case of the prosecution is that injury sustained by the deceased was due to the blow inflicted by the bucket, M.O.I. Such evidence has remained unshaken or discredited. On the other hand, such evidence corroborates to the allegation that accused dealt blow by use of the bucket to cause the head injury. P.W. No. 3 has specifically stated in his evidence that when the deceased was admitted for treatment, he found lacerated contused wound of the size of 2″ x 1 1/4″ x ΒΌ with heamatoma on the left side of the head on the occipital region. After the death when he conducted the postmortem examination, on dissection, he found that occipital bone was fractured, base of the anterior and medial cranial fossa were fractured, clotted blood was found on the cranial cavity being ante mortem in nature and that membrane of cranial fossa were ruptured. The Doctor further opined that the Investigating Officer sized the bucket, M.O.I, and sought for his opinion if the injury could have been caused by that object and in his report, Ext. 4, the Doctor (P.W. No. 3) opined in affirmative. On the face of such evidence, which are glaring, prominent and acceptable, there remains no doubt that deceased suffered a homicidal death. Therefore, we have no hesitation to reject unreasonable argument advanced by the appellant that deceased did not suffer a homicidal death.
9. So far as the occurrence is concerned, appellant capitalises on the answers given by P.W. No. 7 that she had poor visibility since abut one year and argues that she could not have been an eye-witness. Admittedly, occurrence took place a year back, but nothing has been elicited from her (P.W. No. 7) mouth the by the time of occurrence, she was not able to see properly. No specific question was put to her if she was incapable of seeing to a distance by the date of occurrence. Above all, no question was put to her about her distance from the deceased at the time of assault. Under such circumstance, we do not accept the argument of the appellant to disbelieve P.W. No. 7. On the other hand on perusal of the evidence of P.W. Nos. 7,,8 and 12, we find that they have consistently stated about the assault by the accused/appellant on the deceased by using the bucket, M.O.I. Therefore, in the absence of any deficiency or improbability in such evidence, we accept the appreciation of evidence recorded by the trial Court in support of the charge.
10. Learned Counsel for the appellant argues that at the spur of moment a single blow being dealt by the appellant and the background of that blow being a quarrel therefore, it may not be a case of culpable homicide amounting to murder and that at best it makes out a case of culpable homicide punishable under Section 304, I.P.C. On record, there is no evidence to indicate that there was any provocation to the appellant during altercation between the deceased and the wife of the accused. In the absence of any positive evidence to that effect, we should not go into the realm of surmises regarding existence of involuntary provocation to the accused. Apart from that the velocity of the blow is such that it caused a serious injury on the head, which made the deceased unconscious (coma) from the time of assault till death. Therefore, even if there was no intention to kill, but the gravity of the injury was such that it has to be legally inferred that appellant had knowledge that such injury, in all probability, was going to cause death of the deceased. Thus there is no merit in the contention that accused is guilty of culpable homicide not amounting to murder.
For the reasons indicated above, we do not find any reason to interfere with order of conviction of the appellant for the offence under Section 302, I.P.C. and accordingly the Jail Criminal Appeal is dismissed.