KULAMANI SANDHA Vs. STATE

JUDGEMENT

(1.) The appellant, who faced the trial u/S. 304 IPC but was convicted u/S. 323 IPC and sentenced to six months' R.I., has preferred this appeal. The indictment which he faced was that on 15-7-1983 at about 9 a.m. he called the deceased from his house and took him towards a banian tree where in the presence of P.Ws. 1, 5, 9 and 12 and some others, he abused the deceased in filthy language and assaulted him with a yoke which was lying there causing head injury and an injury to his right thigh. The deceased lodged a station diary entry Ext.8 in the police station on the same day. The deceased was sent for medical examination but as the injuries were found to be simple; he was advised by the police to approach the Court. The deceased was not admitted to any hospital but was taking treatment as an outdoor patient. But subsequently infections having set in, he died on 28-7-1983. F.I.R. was lodged by his son on 29-7-1983.

(2.) Though the prosecution examined P.Ws. 1, 5, 9 and 12 as ocular witnesses, yet the learned Additional Sessions Judge did not rely upon the evidence of P.Ws. 9 and 12 and hence the only residuary evidence to establish the culpable conduct of the appellant is the evidence of P.Ws. 1 and 5. Such fact is also not disputed by Mr. H. K. Jena, the learned Additional Government Advocate. P.W. 1 stated that he is a cycle repairer who carries on repairing work under a banian tree at the end of the village and that on the day of the occurrence at about 2 or 3 p.m. while he was sitting under the banian tree along with P.Ws. 5 and 9, both the appellant and the deceased case from the village side and the deceased complained before him of being abused by the appellant in filthy language. The appellant also abused the deceased filthily in his presence. P.W. 1 advised the appellant as to why he was abusing the deceased but the appellant asserted that he would assault the deceased and notwithstanding the percussions of the witness, picked up a yoke M.O. 1 which was lying there and gave three blows, one to the back of the deceased, the second blow to his head and, when the deceased fell down, the third blow on his right thigh. After that he throw M.O. 1 and left the place. Due to the assault the deceased received bleeding injuries. The evidence of P.W. 5 was also to the same effect. So far as P.W. 9 is concerned he was permitted to be cross-examined by the prosecution since he stated of the appellant having given only one blow to the back of the deceased on account of which he fell down and of not having seen any other blow having been given. He however stated that he saw bleeding injuries on the left side head of the deceased but could not say as to how that injury came by.

(3.) The evidence of P. Ws. 1 and 5 has been assailed since P.W. 1 admitted that the appellant had initiated a proceeding u/S. 145 Cr. P.C. three to four years back against his father and cousin brother Pitambar Sandha and of his father having filed a damage suit in 1980 against the appellant in the court of the Munsif, Sonapur. The evidence of P.W. 5 has been assailed as he is admittedly the brother-in-law of P.W. 1 having married his sister. It was for such reason contended that the witnesses were inimical to the appellant and could not be relied upon. Besides, Mr. Das also contended that since both the witnesses consistently stated of the deceased having received three injuries, the first being on his back followed by the injury on the head and thereafter on the right thigh but no injury having been found by the doctor (P.W. 7) conducting the post-mortem examination on the back, the witnesses must be held to be unreliable. The third submission of Mr. Das is that since admittedly other independent eye witnesses were available but were held back by the prosecution, its case must be viewed with suspicion and the conviction of the appellant must be set aside.