PADMALOCHAN NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant Nos. 1 and 2 who stood trial under Section 307 read with Section 34, I.P.C. having been convicted respectively under Section 326 I.P.C. and sentenced to rigorous imprisonment for three years and under Section 325, I.P.C. of rigorous imprisonment for two years have preferred this appeal. The indictment for which they stood the trial is that the injured P.W. 5 and her son P.W. 1 were in litigating terms with the appellants. On 5.7.1983 while P.W. 5 was going to her Barl to collect pot herbs (SAGA), the appellants dragged her into the cow shed where appellant No.1 inflicted cut blows by means of one iron Katari (M.O. II) and appellant No. 2 dealt blow by means of a bamboo stick (M.O. III). P.W. 5 after having been seriously assaulted causing her bleeding injuries, was removed from the cowshed to her own verandah. P.W. 1, her son, was then absent and after returning home and learning about the incident, he lodged information before the police. The investigation was carried on after completion of which charge-sheet was submitted.

(2.) Admittedly there was no other eye-witness to the occurrence except P.W. 5. P.W. 2 is a witness who saw the appellants carrying P.W. 5 from the cowshed to her own verandah. P. W. 3, a neighbours of the appellants as also of P.W. 5 had come to the place after hearing the hulla of P.W. 5 and had seen injuries on the person of P.W. 5, while she was inside the cowshed P.W. 7 is the medical officer who examined P.W. 5 and found fifteen injuries on her body of which injury Nos. 13, 14, 15, namely fractures of bones were grievous. So far as the other injuries were concerned, there were also grave injuries like one incised wound of 8 cm. x 3 cm x 4 cm horizontally situated on the right deltoid region, a lacerated injury of 3 cm. x 0.75 cm. x 0.75 cm. on the left frontal region of the scalp and another lacerated injury over that part of the size 1 cm. x 0.05 cm x 0.05 cm., one incised wound horizontally situated in the left pinna 1 cm either below the upper lobe or above the lower lobe of 2.5 cm. x 0.05cm and the ear in that portion was completely cut; three incised wounds each of 1.5 cm. x 0.5 cm. x 0.5 and 0.5cm and 0.5 cm. apart such other horizontally situated on the lateral side of the right knee; a lacerated wound 1.5 cm. x 0.5 cmx 0.5 cm. horizontally situated on the anterior surface of the right leg at the middle; one incised injury of 1.Scm.0.5 cm. x 0.5 cm. situated horizontally on the upper portion of left malar region of the face; two incised wounds of 2.5 cm. x 1 cm. x 1.5. cm. situated horizontally on the upper portion of the left gluteal region (buttock) 3 cm apart from each other; privation of the terminal phalanx of right middle finger by a sharp cutting weapon. No doubt such injuries were very grave in nature, but the peculiar feature of the case is that the identity of the person examined by the doctor in respect of whom the certificate Ext. 5 was given was not established install much as one Dinabandhu Mohanty, Home Guard, who had taken the injured to the hospital for the purpose of examination was I not issued any command certificate for the purpose nor was he examined to identify the injured as the person why was examined by the doctor. s, P.W. 7 the doctor has also not identified P.W. 5 to the injured person whom he had examined. There is as such no proof that Ext. 5 relates to u P.W. 5. That apart, as the learned Sessions Judge has noticed, the investigation in the case was done most perfunctorily. It was found that the investigating officer P.W. 9 had not prepared the spot 0 map and even though P.W. 5 was supposed to have sustained serious bleeding injuries, no C4 blood-stained earth was seized. He has not mentioned the description of the spot in the case diary. His evidence regarding the spot is from memory which is not consistent with the admitted case of the parties. He had not sent the weapons of offence to the medical officer for expressing his opinion. Though he seized the Saree of P.W. 5 suspecting the same to have contained bloodstains, yet he did not send it for chemical examination. Though P.W. 5 was in the Soro Hospital for three days from the date of the occurrence, i.e. till 7.7. 1983, yet she was not examined by the 1.0. at that place where after she was removed to the Balasore headquarters hospital and was discharged there from on 12.8.1983. She was examined in the headquarters hospital only on 31.7.1983 and it was admitted by the 1.0. during the period from the date of occurrence till 31.7.1983 he had not at all attempted to examine P.W.5.

(3.) Even though P.W. 5 has stated that after her removal to the Soro Hospital she became unconscious there is absolutely no evidence that she remained unconscious throughout and her examination was not possible. There is also no evidence that after her removal from Soro Hospital to the Balasore headquarters hospital she remained in a condition of being not able to give her statement admittedly no attempt was made by the investigating officer to record her statement even though .he was the sole eye-witness to the occurrence; [he effect of such delayed examination by police was examined by me in Criminal Appeal No. 166 of 1985 decided on 21.12.1988. Prajulla v. State where in analyzing various decisions of the Supreme Court, the statement of a witness who was examined belatedly was not relied upon. The decision was relied upon in Gadadar v. State2 saying that when a witness has been examined elatedly, the veracity of such witness is open to grave doubt and he is ordinarily not to be relied upon.