JUDGMENT
K.P. Mohapatra, J.
1. These two criminal appeals arise out of the judgment passed in Sessions Trial No. 27 of 1983 and have been heard analogously. In the former appeal, the appellants were acquitted of charges under Sections 147, 148, 324 and 302 read with Section 149 and were convicted under Section 323, I.P.C. but sentenced to undergo rigorous imprisonment for six months each. In the latter appeal, appellant Biswanath was convicted under Section 302, I.P.C. and was sentenced to undergo imprisonment for life. The other two appellants, like the appellants of the former appeal, were only convicted under Section 323, I.P.C. and were sentenced to undergo rigorous imprisonment for six months each after acquittal of the other charges. This common judgment will govern both the appeals.
3. Prosecution case stated in brief is that on 7-10-1981 at about 7.00 a.m. to 8.00 a.m. Nira, brother of P.W. 1 was cleaning the ground at the root of a cocoanut palm planted about seven years back in front of his house by scrapping the grass by means of a spade. While he was doing so, accidentally some earth fell on the homestead of appellant Sarat to which he took exception and thus a quarrel ensued. P.W. 1 arrived at that time and suggested for demarcation of the homesteads of both to which appellant Sarat did not agree. But some gentlemen of the village intervened and temporarily pacified the parties. P.W. 1 thereafter left the place to take his bath. While he had gone up to a distance of about 100 cubits, he heard the shouts of the deceased. When he came back, he found that the deceased was being assaulted by some of the appellants. In course of the incident, some villagers arrived at the spot. They found that the appellants were indiscriminately assaulting the inmates of the house of P.W. 1, including P.W. 1 himself, and caused bodily injuries to them. Appellant Biswanath picked up a spade (M.O. I) and dealt two blows on the head of the deceased who had by that time fallen on the ground on being assaulted by means of lathis by others. As a result of the assault by the spade, he received severe injuries. He was removed to Nischintakeili P.H.C. and for better treatment he was later brought to the S.C.B. Medical College Hospital where he succumbed to the injuries. One of the brothers of P.W. I, namely, Madhusudan Naik (P.W. 5) lodged the F.I.R. (Ext. 1) at Salipur Police Station, after which investigation commenced. In course of investigation, P.Ws. 1, 2, 3, 5 and 7 were examined by the Medical Officer of Nischintakoili P.H.C. who found simple injuries on them. After close of investigation, charge-sheet was submitted against all the appellants for having committed offences under Sections 147, 148, 323, 324 and 303 read with Section 149, I.P.C.
3. The plea of the appellants was denial of their participation in the occurrence. They stated that a false case was brought against them on account of previous enmity.
4. There were large number of eye-witnesses to the occurrence which took place between 7.00 a.m. and 8.00 a.m. right on the village road. They were P.Ws. 1, 2, 3, 6 and 7, all belonging to the same family as that of the deceased and were themselves injured. They were also related to the appellants except appellant Sarat. Further, the house and homestead of appellant Sarat is on the right and the house and homestead of appellant Biswanath is on the west of the house of the above prosecution witnesses. The independent witnesses who belonged to the same village are P.Ws. 8, 9, 10 and 11. Two Medical Officers (P.Ws. 17 and 19) had examined the injured prosecution witnesses and the deceased. P.W. 20 had conducted his postmortem examination. The learned Additional Sessions Judge, on consideration of the prosecution evidence, recorded the following findings:–
(i) The prosecution failed to prove the charges against the appellants for offences under Sections 148 and 149, I.P.C. There was also no proof that they shared the common intention of injuring the prosecution witnesses and for committing the homicide of the deceased within the meaning of Section 34, I.P.C.;
(ii) Sangita Naik, wife of appellant Sarat had not committed any offence much less assaulting P.W. 1 by means of a lathi. She was acquitted;
(iii) Appellant Biswanath had assaulted the deceased by means of a spade (M.O. I) on a vital part, i.e., head of the deceased, and so he was guilty of committing murder under Section 302, I.P.C. He was convicted and sentenced thereunder to undergo imprisonment for life; and
(iv) The rest of the appellants did not commit the murder of the deceased and were acquitted of the charge under Section 302, I.P.C. The prosecution, however, proved that they had assaulted P.Ws. 1, 2, 3, 6 and 7 by means of lathis, slaps and fist blows and had injured them. Therefore, they were found guilty under Section 323, I.P.C. and each of them was sentenced to undergo rigorous imprisonment for six months.
5. Mr. S. K. Mund, learned counsel appearing for the appellants, did not challenge the finding of the learned trial Judge to the effect that the death of the deceased was on account of homicide. As a matter of fact, the medical evidence (P.W. 20) is to the effect that on account of the fatal blow on the head of the deceased by means of a sharp cutting weapon, such as, a spade (M.O. I) the death of the deceased was caused. P.W. 17, a Medical Officer of Nischintakoili P.H.C. had examined P.Ws. 1 and 7 and found bruises, lacerated injuries and abrasions, which were of simple nature on their bodies. Similarly, P.W. 19, another Medical Officer of Nischintakoili P.H.C. had examined P.Ws. 2, 3 and 6 and found an incised injury, bruises, abrasion and cut injury, which were also of simple nature, on different parts of their bodies. The above evidence, as well as the finding of the learned Judge that P.Ws. 1, 2, 3, 6 and 7 were injured, was not challenged.
6. Mr. Mund, however, strenuously urged that the entire prosecution evidence is thoroughly discrepant, exaggerated and unreliable. The witnesses were also interested in the prosecution case and were actuated by ill feeling on account of enmity with the appellants. Therefore, it is unsafe to rely on such evidence in support of the judgment of conviction of the appellants. Mr. B. Misra, learned Additional Government Advocate, on the other hand, urged that the evidence of the injured witnesses cannot be discarded on account of interestedness, because the same has been substantially corroborated by reliable independent witnesses. When the evidence against the appellants is overwhelming, the prosecution case cannot be thrown overboard on account of little discrepancies here and there and some exaggerations. Therefore, the judgment of conviction and sentence is not liable to be disturbed. The contentions require careful examination.
7. At the time of hearing, the learned counsel very painstakingly took us to the entire material prosecution evidence. We find therefrom that P.Ws. 1, 2, 3, 6 and 7, who were members of the same family, not only stated that they were assaulted by the appellants by means of slaps, fist blows and lathis, but also without any sort of provocation, appellant Biswanath by means of a spade (M.O. I) gave two blows on the head of the deceased which caused his death despite timely treatment. Adverting to the specific evidence of the witnesses, it will appear that P.W. 1 stated that on account of land disputes, there was some sort of ill feeling between the parties and the immediate cause of the occurrence was his younger brother Nira clearing the ground underneath a coconut palm standing in front of his house which had been planted by his father seven years back. Although temporarily the dispute subsided, yet no sooner P.W. 1 had left the place, a quarrel commenced, in course of which the appellants assaulted not only himself, but also P.Ws. 2, 3, 6 and 7. Appellant Biswanath picked up a spade (M.O. 1) which was lying near the coconut palm and dealt two blows on its sharp side on the head of the deceased. As a result, he sustained bleeding injuries and was removed first to Nischintakoili P.H.C. and then to the S.C.B. Medical College Hospital, Cuttack, for better treatment where he succumbed to the injuries. His evidence has been corroborated by the other injured witnesses who stated that not only they had been assaulted by the appellants, but also the deceased by means of a spade (M.O. I) by appellant Biswanath. It is true that motives can be ascribed to these witnesses because of previous land disputes. Therefore, their evidence has to be examined with due caution. Except minor discrepancies and some exaggerated versions which they naturally gave, because they themselves were victims of assault and one member of their family was done to death, yet it is difficult to disbelieve their version. Had they not been assaulted and the deceased done to death, they would not have implicated the appellants. Above all, their evidence has been corroborated by independent witnesses, such as, P.Ws. 8, 9, 10 and 11 who were persons of the same village and were quite natural and competent witnesses. All of them stated that the injured witnesses (P.Ws. 1, 2, 3, 6 and 7) were assaulted by the appellants and the deceased was assaulted by appellant Biswanath by means of a spade (M.O. I) on the head resulting in bleeding injuries. Attempt was made in cross-examination to show that they were interested in the prosecution party and were inimical to the appellants, but nothing was elicited to the aforesaid effect. There in no doubt that being independent witnesses they supported the prosecution. It is hard to disbelieve their version of the prosecution case. Thus it is a case in which as many as nine eye-witnesses saw the occurrence and gave their version of assault. On consideration of their evidence and in agreement with the learned Judge, we hold that factually the injured witnesses were assaulted by the appellants and the deceased was assaulted by appellant Biswanath by means of a spade (M.O. I).
8. Mr. Mund, while criticising the evidence of the prosecution witnesses, laid too much stress on minor discrepancies and some exaggerated versions. Referring to his hair-spliting criticism of the prosecution evidence, we would only remind what Krishna Iyer, J. on behalf of the Court said in AIR 1978 SC 1542 : (1978 Cri LJ 1612), Narotam Singh v. State of Punjab (at p. 1613):
“Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The ‘sacred cows’ of shadowy doubts and marginal mistakes, pro-cessual or other, cannot defer the Court from punishing crime where it has been sensibly and substantially brought home.”
9. On a careful reappraisal of the overwhelming prosecution evidence, we are satisfied that the learned Additional Sessions Judge recorded correct findings of facts with regard to the complicity of the appellants for assault on P.Ws, 1, 2, 3, 6 and 7 and the murderous assault on the deceased by appellant Biswanath.
10. Mr. Mund contended that even if it is held that appellant Biswanath had assaulted the deceased on the head by means of a spade, yet the case would fall within the ambit of exception IV of Section 300 and accordingly . the aforesaid assailant shall be punishable under Section 304, Part II, and not under Section 302, I.P.C. The contention is opposed on the ground that there is no evidence that the deceased had taken part in the quarrel and that although his wife made entreaties, appellant Biswanath declared that he would make her a widow and then assaulted the deceased to physically liquidate him. In forming the opinion as to whether the specific case of appellant Biswanath will fall within the ambit of Section 304, Part II, I.P.C., it is necessary to consider the totality of the facts, circumstances and probabilities of the case and not to make a narrow interpretation of the evidence adduced by the prosecution. It cannot be gainsaid that there was a quarrel between the two parties, though on a trifling matter. The quarrel assumed significance because of previous ill-feeling on account of land disputes. The number of the prosecution party was not small. Both the parties were almost numerically equal in strength. Appellant Biswanath did not come prepared for the murder of the deceased, because he came empty handed. He did not bring any weapon from his house. All of a sudden, while the marpit was going on, he picked up the spade and in a fit of anger assauslted the deceased. In our opinion, therefore, exception IV of Section 300 is squarely attracted to the case of appellant Biswanath, because he committed culpable homicide which did not amount to murder as it was committed without premeditation in a sudden fight in the heat of passion upon sudden quarrel.
11. In the result, the appeals are allowed in part. Conviction and sentence of appellant Biswanath under Section 302 are altered to Section 304, Part II, I.P.C., and he is sentenced to undergo rigorous imprisonment for seven years instead of life imprisonment. The conviction of rest of the appellants under Section 323, I.P.C. is confirmed, but the sentence is reduced to the extent of rigorous imprisonment already undergone by each of them.
J.M. Mohapatra, J.
12. I agree.