HIGH COURT OF ORISSA: CUTTACK.
Criminal Appeal Nos.183, 188, 222, 273 of 1998
and G.A. No. 29 of 2001
From the judgment and order dated 20.7.1998 passed by Shri P.K.De,
Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in S.C. No.78 of
1996. ---------
(In Criminal Appeal No. 183 of 1998)
Santosh Kumar Das ...... Appellant.
- Versus-
State of Orissa ...... Respondent.
For Appellant : Mr. S.S. Swain.
For Respondent : Govt. Advocate.
(In Criminal Appeal No. 188 of 1998)
Sisir Choudhury ....... Appellant.
-Versus-
State of Orissa ........ Respondent.
For Appellant : M/s. N.C.Pati, A.K.Mohapatra,
S.Misra, P.K. Khuntia,
P.K.Singh and S.Mohanty.
For Respondent : Govt. Advocate.
(In Criminal Appeal No.222 of 1998)
Dayanidhi Barik @ Manatu and ...... Appellants.
another.
-Versus-
State of Orissa ........ Respondent.
For Appellants : M/s. S.K. Mund, D.P. Das
and J.K.Panda.
For Respondent : Govt. Advocate.
(In Criminal Appeal No. 273 of 1998)
Rudra Prasad Das ...... Appellant.
-Versus-
State of Orissa. ...... Respondent
2
For Appellant : M/s S.K.Mund, D.P.Das
and J.K.Panda
For Respondent : Govt. Advocate.
(In Govt. Appeal No. 29 of 2001)
State of Orissa ........ Appellant.
-Versus-
Tulu @ Tulasi Prasad Das and others. ...... Respondents.
For Apellant : Addl. Govt. Advocate.
For Respondents. : M/s. N.C.Pati, A.K. Mohapatra,
S.Mishra, S.K.Nanda, A.K.
Panda (O.Ps. 1 to 4)
Mr. S.S.Swain (O.P.No. 5).
---------
PRESENT:
THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HONOURABLE SHRI JUSTICE B.K. PATELDate of hearing – 21.12.2010 : Date of judgment – 22.12.2010
B.K. PATEL, J. All the five appeals are directed against the
judgment and order passed by the learned Sessions Judge,
Kalahandi-Nuapada at Bhawanipatna in S.C. No. 78 of 1996.
Altogether eight accused persons were facing charges under Sections
147, 148, 324 read with 149, 307 read with 149 and 302 read with
149 I.P.C. before the learned trial court.
2. By the impugned judgment appellants Rudra Prasad Das,
Rohit Barik and Manatu @ Dayanidhi Barik were convicted under
Sections 302 read with 34 I.P.C. and were sentenced to undergo
imprisonment for life. Appellants Rohit Barik and Santosh Kumar Das
were convicted under Sections 307 read with 34 I.P.C., whereas
3
appellant Sisir Choudhury was convicted under Section 307 I.P.C.
Appellants Santosh Kumar Das and Sisir Choudhury were sentenced to
undergo R.I. for five years each but no sentence was awarded to appellant
Rohit Barik under Section 307 I.P.C. in view of sentence awarded to him
under Sections 302 read with 34 I.P.C. Accused Ratan Kumar Agarwal,
who is one of the respondents in the Government Appeal, was convicted
under Section 324 I.P.C. and was sentenced to undergo imprisonment
for the period already undergone by him as an under trial prisoner.
However, accused persons Tulu @ Tulasi Prasad Das and Debe @
Debendra Majhi were acquitted of all the charges.
Appellants Santosh Kumar Das, Manatu @ Dayanidhi
Barik, Sisir Choudhury, Rohit Barik and Rudra Prasad Das have
preferred the criminal appeals assailing their conviction and sentence
whereas in G.A. No. 29 of 2001, State has assailed acquittal of
respondents Ratan Kumar Agarwal, Sisir Choudhury and Santosh
Kumar Das of the charge under Sections 302 read with 149 I.P.C. and
acquittal of Tulu @ Tulasi Prasad Das and Debe @ Debendra Majhji of
all the charges.
3. Prosecution case is as follows:
Accused persons and deceased-Kaushik Singal belong to
occurrence village Ladugaon. Occurrence took place at about 9.00
P.M. on 17.7.1996, the day of Rathayatra, i.e., Car Festival.
Prior to the Rathayatra there was difference of opinion
among the villagers as regards the place at which Deities would be
kept between the period from Car Festival and return Car Festival.
Villagers wanted that Deities would be kept in the house of one Paban
Agarwala whereas accused persons Ratan, Sisir and Santosh opposed
such decision.
Occurrence started when injured Ramesh Ku. Agarwala
(P.W.9) was returning from his rice mill along with informant Jaya
Kiran Agarwala (P.W.1). Accused persons Sisir and Ratan approached
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them from opposite side. As soon as they reached near the house of
one Amar Sing Agarwala, accused Sisir all of a sudden dealt tangi
blow on P.W.9’s chest. When accused Ratan attempted to deal blow
by means of tangi on P.W.9’s head, he caught hold of his hand in
order to ward off the blow. In that process accused Ratan fell down on
the ground. P.W.9 left the place and ran towards his house. P.W.1
snatched away the tangi which accused Ratan was holding.
Hearing hulla, the deceased, who was aged about 15 to 16
years, as well as Rakesh Sharma (P.W.2), Padmasen Agarwala (P.W.5)
and some co-villagers came to the spot. Seeing them accused persons
Ratan and Sisir raised alarm exhorting co-accused persons to come
forward in order to commit murder of P.W.9’s men by saying
“RAMESH RA LOKA KU MURDER KARMA ASHA”. Co-accused
persons Tulasi, Rudra, Debe, Manatu, Rohit and Santosh came to the
spot being armed with tangis and attacked the deceased. Accused
Rudra dealt a tangi blow on deceased’s head whereas accused persons
Manatu and Rohit dealt tangi blows on deceased’s both hands.
Deceased sustained injuries, fell down and died at the spot.
P.W.5 made an attempt to come to the rescue of the
deceased. However, accused persons Rohit and Santosh dealt tangi
blows on his head and hands. P.W.2 also sustained injuries due to
assault. However, P.W.2 snatched away the tangi which accused
Deba was holding.
Occurrence was visible due to availability of electric light
at the spot.
After the occurrence P.W.1 and other injured persons
started for the hospital for treatment in a truck. However, accused
persons being armed with tangis and lathis blocked their way. They
had to go to the house of retired pharmacist in the village for availing
first aid.
5
P.W.1 had to take a round about way to Koksora P.S.
where he lodged First Informant Report Ext.1 before the Officer-In-
Charge (P.W.16) at about 11.00 P.M. P.W.16 registered the case and
took up investigation.
P.W.6 visited the spot in the night of occurrence. In course
of investigation, dead body of the deceased was subjected to inquest
and post-mortem examination. Seizure of tangis and other articles
was effected. Witnesses were examined. On 29.7.1996 the Circle
Inspector of Police, Dharmagarh (P.W.17) took charge of the
investigation. On completion of investigation, charge-sheet for alleged
commission of offences under Sections 147, 148, 324, 307, 302/149
of the I.P.C. was submitted.
4. On consideration of materials on record, charge was
framed against all the accused persons under Sections 147, 148, 324
read with 149, 307 read with 149, and 302 read with 149 of the I.P.C.
In addition, charge under Sections 302 read with 34 of the I.P.C. was
framed against accused persons Rudra, Rohit and Manatu @
Dayanidhi, charge under Sections 307 read with 34 of the I.P.C. was
framed against accused persons Rohit and Santosh; charge under
Section 307 of the I.P.C. was framed against accused Sisir; and
charge under Section 324 of the I.P.C. was framed against accused
Ratan.
5. Defence plea is one of complete denial.
6. In order to substantiate the charge, prosecution examined
seventeen witnesses. P.Ws.1, 2, 5, 9, 16 and 17 have already been
introduced. Out of them, P.Ws.1, 2, 5 and 9 are injured eye witnesses.
P.Ws.3 Bajarang Agarwala and 6 Rama Abatar Agarwala are seizure
witnesses. P.W.4 Dinabandhu Agarwala is a witness to inquest..
P.W.7 Dr.Baishnab Charan Sahu medically examined P.W.5. P.W.13
Dr. Sugyani Satapathy conducted post-mortem examination over the
6
dead body of the deceased as well as medically examined P.Ws.1, 2, 9
and one Chandanlal Sharma. Other witnesses are police personnel. Of
them, P.W.8 Havildar Baibasuta Naik accompanied the dead
body to the hospital and was a witnes to seizure of wearing apparels
of the deceased. P.Ws. 10 Santosh Kumar Nayak, 11 Y. Jagannath
Rao, 12 Arun Kumar Jena, 14 Ramachandra Behera and 15 Kishore
Kumar Patra arrested some of the accused persons on the strength of
requisitions received from Investigating Officers. P.W.14 appears to
have seized a tangi on production of accused Rudra. Prosecution also
relied upon documents marked exhibits. 1 to 42 and material exhibits
M.O.I to XIII.
One Dr. M. Bijaya Gopal was examined on behalf of
defence as D.W.1. Also, medical prescription Ext. A issued by D.W.1
was admitted into evidence.
7. In assailing the impugned judgment and order, following
contentions were raised by the learned counsel appearing for the
appellants:
(i) Occurrence took place during night time when it was dark.
Prosecution evidence regarding availability of any source
of light is vague and inconsistent. There was admitted
factionalism in the village. In the absence of cogent
evidence indicating that place of occurrence was not dark,
learned court below should not have accepted prosecution
evidence ascribing specific overt acts to the accused
persons towards commission of the alleged offences.
(ii) Though medical evidence available from P.W. 13 reveals
that deceased had sustained six external injuries out of
which only injury nos. (i) and (ii) were on the head, only
appellant Rudra Prasad Das was stated to have dealt a
blow on deceased’s head by means of tangi. Injury nos. (iii)
7to (vi) were on palms, right index finger and left forearm
and were not fatal. Prosecution has not led evidence to
indicate that any of the injuries by itself was fatal. It is
evident that only injury no. (ii) i.e. incised wound on left
parietal bone with absence of a portion of parietal bone
exposing the membrane was serious. There is no evidence
indicating the authorship of injury no.(ii). In the absence
of any evidence indicating that all the accused persons
harboured any common object towards commission of the
alleged offences, all of them were acquitted of the charge
under Sections 147, 148 and 149 I.P.C. However, the
learned trial court has convicted appellants Rudra Prasad
Das, Manatu @ Dayanidhi Barik and Rohit Barik under
Section 302 with aid of Section 34 I.P.C. without any
evidence on record to indicate that the appellants had
common intention to commit murder of the deceased.
Prosecution has failed to prove which of the accused
caused fatal wound on the deceased or that all of them
had common intention to commit murder. At the worst
evidence on record indicates that the above three
appellants were guilty of causing injuries on the deceased
without any intention to commit his murder.
(iii) There is no evidence on record to conclude that appellants
Rohit Barik and Santosh Kumar Das attempted to commit
murder of any of the injured persons. Medical evidence
does not indicate that there was any attempt on the life of
any of the injured persons.
(iv) In the absence of evidence establishing motive on the part
of the appellants to commit the alleged offences, the
learned trial court should not have believed the allegation
8
that the appellants were inimical towards the deceased or
injured persons.
(v) Adverse inference ought to be drawn against the
prosecution for suppression of material witnesses
including the person stated to have sustained injuries in
course of occurrence. Partisan evidence of P.Ws. 1, 2, 5
and 9 should not have been made the basis of findings
recorded by the learned trial court.
(vi) The learned court below has failed to take note of
contradictions in the evidence of witnesses as well as
inconsistencies between ocular testimony and medical
evidence.
8. Learned counsel appearing for the State strenuously
contended that evidence of material eye witnesses informant P.W.1
and injured persons P.Ws.2, 5 and 9 corroborated by contents of the
F.I.R. Ext.1, medical evidence available from P.Ws.7 and 13 and post-
mortem examination report and injury reports prepared by them as
well as other circumstances including seizure of weapons of offence
clearly establish all the charges framed against the accused persons.
It was argued that appellants Rudra Prasad Das, Manatu @ Dayanidhi
and Rohit Barik have rightly been convicted under Sections 302 read
with 34 I.P.C. In support of the Government Appeals it was contended
that evidence on record conclusively established that all the accused
persons being armed with axes and other weapons combined together
to launch an attack on the deceased and injured persons causing
injuries on them indiscriminately. Fatal and serious injuries were
inflicted. Therefore, all the accused persons are liable to be convicted
under Sections 302 read with 34 I.P.C. as well as 307 read with 34
I.P.C.
9
9. It is not disputed that death of the deceased was
homicidal in nature. In course of post mortem examination over the
dead body of the deceased by P.W. 13, the deceased was found to
have sustained following injuries:
(i) Incised wound measuring 6″ x 1″ x ¾” over the right
parietal bone close to the vertex with
involvement of bone.
(ii) Incised wound measuring 5″ x 2 ½” x 1″ situated
obliquely from the vertex to down words over the
left parietal bone with absence of portion of parietal
bone of size 2″ diameter, the membrane was visible.
(iii) One incised wound measuring 2″ x 1 ½” x 1″ over the
dorsum of right palm obliquely situated over the
first metacarpal bone with inverted clean edges.
(iv) One lacerated wound over the dorsum of right index
finger measuring 1″ x ½” x with cut off terminal
phalanx.
(v) Incised wound with clean edges over the middle of left
palm measuring 2″ x2″ x ¾” with cut off first, second
and 3rd metacarpal bones.
(vi) One incised wound over the dorsum left forearm 1″
above the wrist joint obliquely placed measuring 3″ x
3/2″ x 2″ with clean edges, with the complete cut off
shaft of radius and ulna. Only skin was intact ventral
aspect.
In answer to query made by the I.O. P.W. 13 opined under
report Ext.23 that all the six injuries could combinedly cause death of
a person in ordinary course of nature and that injury nos. (i), (ii), (iii)
and (vi) alone could cause death of a person. The injuries were caused
by sharp cutting weapon like tangi M.O. I.
10. Injured-informant P.W. 1 was found by P.W. 13 to have
sustained the following injuries:
(i) One incised wound over the dorsum of first inter
phalangial joint of index finger of right hand.
10
(ii) Incised wound over dorsum of first inter-phalangial
joint of middle finger of right hand.
(iii) One bruise measuring 3″ x 1″ over the middle of
right buttock.
P.W. 13 testified that injury nos. (i) and (ii) were possible if
the injured snatched the tangi like M.O. I. from hand of the assailant
and the sharp portion of the tangi came in contact on that part of the
body.
11. P.W. 13 also examined injured P.W. 2 and found a simple
injury on the left calf which could have been caused by sharp cutting
weapon.
12. On medical examination of the injured P.W. 9 by P.W. 13,
a simple injury on the left side of chest caused by sharp instrument
was found.
13. P.W. 13 also appears to have examined one Chandanlal
Sharma who has not been examined by the prosecution and to have
found a simple injury over medial line of left eyebrow which might
have been caused by sharp cutting weapon
14. Injured P.W. 5 was examined by P.W. 7 and was found to
have sustained following injuries:
(i) Lacerated wound situated over the right occipito
parietal region measuring 3 ½” x ½” x ½”.
(ii) Lacerated wound situated just in front of injury no.(i)
measuring 1″ x ½” x ½”.
(iii) Incised wound eleptical in shape clean cut margin
over the tempero parietal region of the skull on the left
side measuring 2″ x ½” x ½”.
(iv) Incised wound clean cut margin on the left side of the
zygomatic bone measuring 2″ x ½” x ½”.
(v) Deep incised wound over right forearm 2″ above the
wrist cutting muscle, fascia, skin and ulna bone
with fracture of radius, causing deformity and loss of
function.
11
(vi) Multiple incised wounds out of which two were
situated over the right outer aspect of little
finger measuring ¼" x ½" x ½".
(vii) Bruises on the left side of forehead and eye brow
measuring 2″ x ½” x ½”.
According to P.W. 7 injury nos. (iii), (iv), (v), and (vi) might
have been caused by sharp cutting weapon like tangi and other
injuries might have been caused by hard and blunt weapon like lathi
or torch light. It does not appear from the evidence of P.W. 7 that any
of the injuries except injury no. (v) was grievous in nature. However,
in course of cross-examination P.W. 7 testified that all the injuries on
the head were simple in nature excepting injury no. (v) on the forearm
and that he had given his opinion that injury no. (v) was simple one.
15. Admittedly, P.Ws. 1, 2, 5 and 9 are the four material
witnesses examined by the prosecution. Informant P.W.1 testified that
there was difference of opinion among the villagers regarding place in
which Deities were to be kept during the period from Car Festival to
return Car Festival. He deposed that villagers wanted the Deities to
be kept in the house of one Paban Agrawala instead of the place in
which the Deities were kept earlier. However, appellants Ratan,
Santosh and Sisir objected to such decision in the meeting held on
16.7.1996.
P.W.1 alleged that occurrence took place at about 9.00
P.M. on 17.7.1996 when he alongwith P.W.9 were returning home
from P.W.9’s mill. When they reached in front of house of one
Amarsingh Agrawala they found accused persons Sisir and Ratan
proceeding from the opposite direction. All of a sudden, appellant
Sisir dealt tangi blow on P.W.9’s left side chest causing severe
bleeding injury. Accused Ratan raised his tangi in order to assault
P.W.9 on his head and P.W.9 caught hold of Ratan’s hands to ward off
blow as a result of which Ratan fell down on the ground. It was
12
asserted by P.W.1 that he snatched away the tangi M.O.I from
accused Ratan’s hands in course of which he sustained injuries on
his fingers of right hand and buttock.
Hearing hulla deceased arrived there being followed by
P.W.2 and P.W.5 and others. At that time acccused Ratan and
appellant Sisir loudly asked to join them to kill the persons belonging
to P.W.9’s group (ASO RAMESH RO LOKAKI MURDER KARMA). At
that time appellants Rudra, Manatu, Rohit and Santosh as well as co-
accused Tulu @ Tulasi and Debe @ Debendra arrived there. After their
arrival at the spot appellant Rudra attacked the deceased by means of
tangi and gave a blow on deceased’s head. Appellants Rohit and
Manatu also dealt tangi blows on both the hands of the deceased.
When P.W.5 intervened in order to rescue the deceased, he was
assaulted by appellant Rohit on his head by means of the handle of a
tangi and by appellant Santosh on his head by means of a tangi. A
tangi blow was also dealt on P.W.2’s leg.
P.W.1 asserted that seeing the blood and when people
started coming to the spot, he returned home with the tangi M.O.I.
It was further asserted by P.W.1 that at the time of
occurrence the light of nearby houses were burning for which he was
able to see the occurrence clearly.
He proceeded on a motorcycle to Koksara police station
on another route and not on the usual way which was blocked by the
accused persons, scribed F.I.R. Ext.1 and handed it over to P.W.16.
P.W.16 examined him and proceeded to the spot. Next morning P.W.1
produced tangi M.O.I before P.W.16 upon which it was seized under
seizure list Ext.2.
Evidence of P.W.1 has not been discredited in any manner
in course of cross-examination. It appears that in his cross-
examination P.W.1 deposed that the deceased was aged about 14 to
13
15 years by the time of his death and that he was not concerned with
the dispute regarding the place in which Deities were to be kept.
16. It appears from the F.I.R. Ext.1 and also it is in the
evidence of P.W.16 that F.I.R. was received and registered at 11.00
P.M. on the date of occurrence. It is alleged in the F.I.R. that though
Deities were kept in earlier years in the house of one Mura
Dandasena, villagers decided during the year of occurrence that
Deities would be kept in the house of one Paban Agrawala during the
period from Car Festival to return Car Festival. However, decision of
the villagers was opposed by appellants Ratan, Sisir and Santosh.
P.W.9 happens to be one of the prominent gentlemen of the village.
After the Car Festival when P.Ws. 1 and 9 were returning from the
side of P.W.9’s mill, appellant Sisir and accused Ratan attacked in
order to kill P.W.9. Appellant Sisir dealt tangi blow on P.W.9’s chest
whereas accused Ratan raised tangi in order to assault on P.W.9’s
head. However, P.W.9 caught hold of Ratan’s hand. In the process
Ratan fell down P.W.9 ran towards his house. P.W.1 snatched away
the tangi which accused Ratan was holding. Hearing noise deceased
as well as P.W.2, P.W.5, Lalit Sharma, Chandan Sharma, Amarsingh
Agrawala and Durga Prasad Agrawala arrived at the spot. At that
time Ratan and Sisir shouted others to come in order to kill the
persons belonging to P.W.9’s group upon which appellants Rudra,
Manatu, Rohit and Santosh as well as co-accused Tulasi and Debe
came to the spot with tangis and launched an attack. Appellant Rudra
dealt tangi blow on deceased’s head whereas appellants Manatu and
Rohit dealt tangi blows on deceased’s hands as a result of which
deceased sustained injuries and died at the spot. When P.W.5 made
an attempt to intervene in order to rescue the deceased, appellants
Rohit and Santosh assaulted him by means of tangis on his head and
hands causing serious injuries. P.W.2 also sustained injuries when
14
he tried to rescue the deceased. It has also been stated in the F.I.R.
that the informant could see the entire occurrence as there was
electric light. Thus, evidence of P.W.1 is materially corroborated
by the contents of F.I.R. lodged soon after the occurrence. Medical
evidence available from the evidence of P.W.13 adverted to above is
also consistent with the evidence of P.W.1.
17. Injured P.W.9 also deposed regarding objection by
appellants Ratan, Sisir and Santosh to the decision of the villagers to
keep the Deities in the house of Paban Agrawala. He testifieed that
the occurrence took place on the road when he alongwith P.W.1 was
returning to their respective houses from his rice mill at about 9.00
P.M. When they reached near the house of Amar Agrawala P.W. 9
found appellant Sisir and accused Ratan coming from the opposite
direction. All on a sudden, appellant Sisir dealt tangi blow on his left
side chest as a result of which he sustained bleeding injury. In the
said process accused Ratan was trying to deal a tangi blow on his
head but he caught hold of Ratan’s right hand in order to ward off the
blow. Accused Ratan fell down on the ground. P.W.9 stated to have
gone to his house out of fear. Thus, evidence of P.W.9 is limited to
that part of the occurrence which took place prior to arrival of
deceased and other co-villagers as well as other accused persons.
There is nothing in the cross-examination of P.W.9 to find any
infirmity in his allegations relating to part played by appellant Sisir in
inflicting injury on his chest. As has been stated earlier, in course of
medical examination, P.W.9 was found to have sustained simple
injury on his left side chest caused by sharp instrument. P.W.9 denied
the suggestion made in course of cross-examination that he used to
vehemently insist that Deities would be kept in the house of Paban
Agrawala.
15
18. P.W.2 deposed to have reached the spot alongwith
Chandan Sharma after hearing hulla from the side of the house of
Amarsingh Agrawala. He categorically testified that at that
time there was electricity in the village and the light from the nearby
houses was burning for which there was light on the road. He found
P.W.1 standing near the house of Amarsingh, accused Ratan
assaulting the deceased by means of fist blows whereas other accused
persons attacking the deceased by raising tangis which they were
holding. It was specifically alleged by him that appellant Rudra dealt a
tangi blow on the deceased’s head whereas appellants Rohit and
Manatu dealt tangi blows on deceased’s hands. He vaguely alleged
that accused Ratan was assaulting the deceased by fist blows which
assertion does not find support from any other witness. After
receiving the blows deceased fell down on the ground. When P.W.5
tried to physically intervene in order to rescue the deceased, appellant
Rohit raised tangi in order to assault on his head. However, P.W.5 in
order to ward off the blow raised both his hands with the torch light
which he was holding. The tangi blow fell on the torch light and the
wooden handle of the axe came in contact with P.W.5’s head.
Appellant Santosh dealt a tangi blow on P.W.5’s right hand. P.W.5
went to the house of Amarsingh Agrawala and fell down there. P.W.2
testified to have watched the occurrence from a distance of about 5 to
6 cubits from the place of occurrence. P.W.2 further deposed that
apprehending that P.W. 5 would be further assaulted by the accused
persons he went near them. One of the accused persons dealt a tangi
blow on his left leg from behind causing bleeding injury. It was
further deposed by him that when one Chandan Sharma came close
to him in order to prevent further assault, appellant Sisir dealt tangi
blow on his left side forehead causing bleeding injury. P.W.2 snatched
away the tangi M.O.II from appellant Debe. Thereafter he and
16
Chandan Sharma entered into the house of Amarsingh. P.W.2
deposed to have seen that some other villagers were standing on the
verandah of the house of Amarsingh. At about 10.30 P.M., P.W.5
and Chandan Sharma boarded a truck in order to go to hospital for
treatment. Accused persons being armed with tangis blocked the
road. They had to return home. On his production tangi M.O.II was
seized by police next day under seizure list Ext.3. Evidence of P.W.2
to have sustained injuries on left calf caused by sharp cutting weapon
is corroborated by evidence of P.W.13. Material part of evidence of
P.W.2 also appears to be without any embellishment.
19. Injured P.W.5 stated that at about 9.00 P.M. on the date
of occurrence he was standing with the deceased on the road in front
of his house. At that time P.Ws.1 and 9 were returning from the side
of rice mill. When they reached near the house of Amarsingh
Agrawala accused Ratan and appellant Sisir attacked P.W.9. On
hearing hulla he and deceased went to the spot. At that time Ratan
and Sisir called their friends hearing which other accused persons
being armed with tangis came to the spot in a group. Out of fear
deceased started to run away. However, all the accused persons being
armed with tangis started attacking the deceased. It was testified by
P.W.5 that except accused Ratan all other accused persons were
armed with tangis. Appellant Rudra dealt tangi blow on deceased’s
head whereas appellants Rohit and Manatu dealt tangi blows on
deceased’s hands. Deceased sustained bleeding injuries and fell down
on the ground. When P.W.5 followed the deceased in order to save
him from the attack, accused persons combinedly attacked him.
Appellant Rohit dealt a tangi blow on his head and appellant Santosh
dealt a tangi blow on his right forearm. P.W.5 fell down on the ground.
When P.W.2 and Chandan came in order to rescue him they were also
assaulted by the accused persons by means of tangis. P.W.5 got up
17
and went to the old house of P.W.9. After sometime P.W.5 as well as
P.W.2 and Chandan were taken in a truck in order to go to Koksara
hospital but on the way the accused persons in a group damaged the
truck. They could not go to the hospital. They received treatment
from a Pharmacist in the village. He deposed to have received
treatment subsequently in District Headquarters Hospital,
Bhawanipatna as well as in Seven Hills Hospital at Bisakhapatnam.
Medical evidence of P.W. 7 referred to above corroborates evidence of
P.W.5 to have sustained incised and lacerated wounds as well as
bruises. There is nothing in the cross-examination of P.W.5 to
disbelieve his testimony.
20. In the very F.I.R. itself, at the earliest, it was pointed out
that the informant could see the entire occurrence as there was
electric light. In his deposition also informant P.W.1 reiterated that
he could be able to clearly see the occurrence due to availability of
light from the nearby houses. Evidence of P.W.2 reveals that he
watched the occurrence from a very close distance and there was
availability of light at the spot from nearby houses. Witnesses and co-
accused persons are co-villagers and closely known to each other.
There being nothing on record to support the contention regarding
want of sufficient light so as to make identification of the assailants
improbable, contention raised on behalf of the appellants in this
regard is without merit.
21. Though, admittedly, other villagers who witnessed the
occurrence were also present near the scene of occurrence and one
Chandanlal Sharma also sustained injuries in course of occurrence,
non-examination of Chandanlal Sharma or any other witness has no
serious impact on the prosecution case which has been unfolded by
injured eye-witnesses P.Ws. 1, 2, 5 and 9. Prosecution is required to
examine all material witnesses whose evidence is necessary for
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unfolding of the narration on which prosecution is based. Narration
of the entire prosecution case having been unfolded by P.Ws.1,2, 5
and 9, prosecution cannot be held to be guilty of suppression of
any material witnesses. In appreciating the evidence of P.Ws.1, 2, 5
and 9 it has to be borne in mind that they are injured witnesses.
22. Evidence on record does not conclusively establish that
the eight accused persons who faced trial combindly committed the
alleged offences. No specific overt act was ascribed to some of them in
assaulting the deceased or any of the injured persons. Though
accused persons Tulu @ Tulasi Prasad Das and Debe @ Debendra
Majhi were also alleged to have come to the spot of occurrence holding
tangis on being exhorted by accused Ratan and appellant Sisir, it is
also in the evidence that not only other co-accused persons but also
many villagers including the deceased assembled at the spot hearing
commotion which took place when P.W.9 was assaulted by Ratan and
Sisir. Also, accused persons Tulu @Tulasi and Debe @ Debendra are
not alleged to have assaulted either the deceased or any of the injured
persons. P.W.5 simply testified that accused Ratan and appellant
Sisir called their friends upon which other accused persons came to
the spot. He did not depose that appellants Ratan and Sisir exhorted
co-accused persons to come to the spot in order to kill persons
belonging to P.W.9’s group. P.Ws. 2 and 9 did not testify that other
accused persons were called by accused Ratan and appellant Sisir.
23. So far as the first part of the occurrence regarding assault
on P.W.9 is concerned, admittedly no other accused person except
Ratan and Sisir were alleged to be present at the spot. No other
accused person except accused persons Rudra, Rohit and Manatu
were alleged to have assaulted the deceased by means of tangis.
Evidence on record does not indicate that all the accused persons or
19
even any five of them were laying in wait being armed with lethal
weapons with any of the common objects enumerated under Section
141 I.P.C. In such circumstances, there appears no infirmity in
the impugned judgment acquitting the accused persons of the charges
under Sections 147 and 148 of I.P.C. or not convicting the accused
persons with the aid of Section 149 I.P.C..
24. It is in the evidence that P.W.1 sustained injuries on his
palm while snatching away tangi M.O.I from accused Ratan who was
making an attempt to deal a blow on P.W.9. Evidence of injured
P.W.1 is corroborated by medical evidence. Therefore, there is also no
infirmity in holding accused Ratan guilty of commission of offence
under Section 324 I.P.C..
25. Injured P.W.5 himself deposed that appellants Rohit and
Santosh assaulted him causing severe injuries. Such evidence finds
support not only from the evidence of P.Ws. 1 and 2 but also from
medical evidence from which it is gathered that P.W.5 sustained
grievous injuries including injuries on head. There was deep incised
wound over right forearm 2″ above the wrist cutting muscle and bone
and fracture of bone resulting in deformity and loss of function.
Therefore, it has been rightly held that the prosecution has
established charge under Sections 307 read with 34 I.P.C. against
appellants Rohit and Santosh beyond reasonable doubt.
26. So far as appellant Sisir is concerned, the only specific
overt act alleged against him was that he dealt a tangi blow on P.W.9’s
left side chest. Medical evidence of P.W.13 indicates that P.W.9 was
found to have sustained a simple skin deep injury. There is no
allegation that appellant Sisir attempted to deal any other blow on
P.W.9. Therefore, in absence of any material on record, there is no
basis to sustain the finding that appellant Sisir attempted to commit
20
P.W.9’s murder and is guilty of commission offence under Section 307
I.P.C. However, in view of the overt act of assault on P.W.9, he cannot
escape the liability of commission of offence under Section 324 I.P.C.
27. So far as offence under Section 302 I.P.C. is concerned, no
other accused except appellants Rudra, Rohit and Manatu was alleged
to have assaulted the deceased. P.Ws. 1,2 and 5 alleged that
appellant Rudra dealt blow by means of tangi on deceased’s head
whereas appellant Rohit and Manatu dealt tangi blows on the hands
of the deceased. In course of post-mortem examination by P.W.13
deceased was found to have sustained two incised wounds on the
head as narrated above. Though injury no.(i) indicated involvement of
bone, obviously injury no.(ii) involving absence of portion of parietal
bone was more serious. Though P.W.13 opined that all the six injuries
could combindly cause death and that injury no.s (i), (ii), (iii) and (vi)
alone could cause death of a person, persecution could have done well
to seek opinion from P.W.13 as to whether any of the injuries could
individually cause death of the deceased. Injury no.(iii) was on the
right palm and injury no.(vi) was on the left forearm. Thus, there is no
clinching evidence to indicate that appellant Rudra was the author of
injury no.(ii). Lack of evidence regarding second blow on deceased’s
head indicates that blows were dealt on the deceased in quick
succession. In such circumstances, it is not safe to conclude that any
of the appellants Rudra, Rohit and Manatu assaulted the deceased
with intention or knowledge required to constitute offence of murder
under Section 302 I.P.C. However, it is amply established that
appellant Rudra dealt tangi blow on the deceased’s head with
intention of causing such bodily injury which was likely to cause
death and thereafter appellants Rohit and Manatu also
indiscriminately dealt tangi blows on the deceased. In such
circumstances, appellants Rudra, Rohit and Manatu are liable to be
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convicted for commission of offence under Sections 304 Part-I read
with 34 I.P.C. instead of offence under Sections 302 read with 34
I.P.C.
28. Save and except alleging that accused persons Tulu @
Tulasi and Debe @ Debendra also came to the spot being armed with
tangis, no overt act of assault has been attributed to either of them.
Admittedly, many villagers also gathered at the spot hearing noise
after assault on P.W.9. Prosecution is found to have failed to
establish that accused persons had any common object to commit the
alleged offences. In such circumstances, there is no scope to infer
that presence of accused persons Debe and Tulu by itself was
culpable. There is no infirmity in the finding of the learned trial court
that prosecution has not been able to establish any of the charges
against said accused persons.
29. Thus, on analysis and reappraisal of the evidence on
record it is found that there is no infirmity in the impugned judgment
acquitting Tulu @ Tulasi and Debe @ Debendra of the charges and
acquitting all the accused persons of the charge under Sections 147,
148 and 149 I.P.C. Also, there is no scope to interfere with conviction
of accused Ratan under Section 324 I.P.C. and appellants Rohit and
Santosh under Sections 307 read with 34 I.P.C. However, appellant
Sisir is liable to be convicted under Section 324 I.P.C. instead of
Section 307 I.P.C. and appellants Rudra, Rohit and Manatu are liable
to be convicted for commission of offence under Sections 304-I read
with 34 I.P.C. instead of 302 read with 34 I.P.C.
30. In view of the above, while setting aside conviction of
appellants Rudra, Rohit and Manatu for commission of offence under
Section 302 I.P.C. and convicting them under Sections 304-I read
with 34 I.P.C. they are sentenced to undergo R.I. for ten years each
thereunder. Also, while setting aside conviction of appellant Sisir for
22
commission of offence under Sections 307 read with 34 I.P.C. and
convicting him under Section 324 I.P.C. he is sentenced to undergo
R.I. for one year thereunder. However, order of the learned trial court
sentencing appellants Rohit and Santosh to undergo R.I. for five years
for commission of offence under Sections 307 read with 34 I.P.C. is
confirmed. Learned trial court has sentenced accused Ratan to
undergo R.I. for the period already undergone as an under trial
prisoner for commission of offence under Section 324 I.P.C. in view of
defence evidence to the effect that he is a mentally challenged person.
We find no reason to interfere with the sentence awarded to accused
Ratan. The impugned judgment and order are modified accordingly.
31. In the result, Government Appeal filed by the State is
dismissed and Criminal Appeals filed by appellants Rudra, Manatu,
Rohit and Sisir are allowed in part to the extent indicated above.
Criminal Appeal filed by appellant Santosh is dismissed.
…………………….
B.K. Patel, J.
PRADIP MOHANTY, J. I agree.
...........................
Pradip Mohanty, J.
Orissa High Court, Cuttack,
Dated the 22nd December,2010/Aswini