DEBA DEBARANJAN MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two appeals are directed against a common judgment passed by learned Second Additional Sessions Judge, Pun (hereinafter described as the trial Judge) in S.T. Nos. 2/30 and 4/174 of 1988. The appellants in the present appeals (hereinafter referred to as the accused) have been convicted for offence punishable under section 304/34 of the Indian Penal Code, 1860 (in short, T1the I.P.C.) and sentenced to imprisonment for life. In S.T. No. 2/30 of 1988 one Deba Debendra Kumar Sahu Cased trial but has been acquittal by learned trial Judge.

(2.) Accusation which led to the trial of accused, filtering out unnecessary details, is as follows: One Chandramani Sahu (hereinafter referred to as the deceased) had a sweetmeat stall at Market crossing of Pun Municipality. On 25.7.1987 at about 3 a.m. night a written report was submitted by Binod Kumar Mohanty (P. W .1). According to it, at about 2.15 a.m. night, two accused - appellants along with another had come to the shop of the deceased. The informant was working as a servant in the said shop. Accused Baina all of a sudden caught hold of the neck of Karna, another employee and asked him to give him a glass of water. He took a sip of water from the glass offered to him, and sprinkled the same on the face of the aforesaid Karna. When the deceased raised protest accused Baina Brahma suddenly got furious and threw a challenge to the deceased. There was a counter challenge by the deceased. This resulted in an altercation between two of them. Accused Baina took a vow to take revenge touching the tail of a cow standing in front of the shop. At that time, the police vehicle passed on the road, and two accused persons and third person who was accompanying them fled away towards Narendra tank. After about half an hour, they returned to the shop of the deceased. Accused Deba and other one who. was accompanying them sat on a table in front of the shop of one Laxmidhar. Accused Baina went inside the shop and dragged the deceased to the road. When P.W. I tried to stop ahem, accused Baina gave a slap on his face and he sustained injuries. Accused Baina made the deceased sit down on the bench in front of the egg shop of Laxmidhar. Accused Deba, and other person who was with them stood on the right side of the deceased, and accused Baina stood on his left side. When the deceased raised a protest suddenly accused Deba brought out a knife which he was holding in his hand and stabbed on the chest of the deceased. P.W. I caught hold of the accused Baina, but he gave him a push and all of them fled away. On account of such stabbing the deceased Cell down on the ground in a pool of blood. P.W. 1 shifted the deceased to the Pun Sadar hospital in a rickshaw, where the doctor declared the deceased dead. A description was given of the person who was with accused- appellants. It was stated that prior to the occurrence, accused Baina and Deba had taken Limn worth of Rs. 22 without payment and when the deceased asked for money they threatened him to teach him a lesson. Investigation was undertaken on the basis of information lodged. During investigation, blood-stained Dhoti, banian and wearing apparels belonging to the deceased were seized and the dead body was sent for Postmortem examination. Deba Sahu was arrested on 7.8.1987. Accused Deba Mohapatra was arrested at Calcutta on 6.8.1987 and accused Baina was arrested on 27.7.1988. After completion of investigation, charge-sheet was submitted and accused faced trial. Plea of accused persons was denial of allegations. Though they did not dispute murder of the deceased, they denied their complicity.

(3.) In order to further its case, prosecution examined twenty three witnesses. Out of them, P.Ws. 1,2, 3, 5,6, and 14 were stated to be occurrence witnesses. Among these P.W.1, 3 and 14 spoke about the murderous attack on the deceased, but P.W. 6 resided from his statement made during investigation. P.W.2 deposed to have seen the first part of occurrence, and to have come after hearing to cry of the deceased after he was, stabbed, and also to have seen the accused persons running away. He also deposed to have seen the accused Baina dragging the deceased out of his shop. Evidence of P.W.5 is to the effect that on hearing the cry of the deceased he came out and saw the accused persons running away. Learned trial Judge found evidence of the eye witnesses to be credible and cogent and convicted and sentenced the accused persons as aforesaid. 4. Mr. B.S. Misra (1) addressed us on behalf of accused Baina Brahma. Mr. D. Panda made submissions on behalf of accused Deba Mohapatra. Their common ground of attack to the legality of judgment of learned trial Judge is that evidence of P.Ws. 1, 2, 3 and 14 does not inspire confidence and therefore, conviction is not in order. Emphasis is laid on the evidence of the doctor who stated that weapon of assault which was identified by the witnesses could not have possibly caused fatal injuries found on the body of the deceased. Non-examination of Karna and one Aju who are stated to have witnessed the occurrence was highlighted. In Court, P.W.1 has given an exaggerated version, which varies materially from the statement made during investigation. There was no seizure of blood-stained earth. There was considerable delay in examination of P.W.2 and that throws a shadow of doubt on the veracity of his evidence. There is substantial variation between evidence of the witnesses about, manner of assault the place of assault and as to, how the occurrence took place. With reference to evidence of doctor (P.W. 21) it is stated that he had found one punctured wound on the right hypochoendrium (right planks of the abdomen), just below the dorsal margin. P.W.1 has stated in the F.I.R. that the deceased was stabbed on the chest but in Court he stated that injury was sustained on the right side of the belly, P.Ws. 3 and 14 have stated assault was on the right side of the belly. The Doctor has opined that the death was due to shock and hemorrhage due to injury on the abdomen. In view of the contradictions, omissions and discrepancies in the evidence of P.W.1, vis-a-vis the statement in the F.I.R., his evidence becomes suspect and is liable to be discarded. The Doctor has noticed two injuries: one of them being on the scalp. No witness has stated about any assault on the scalp and in view of the I.Os. statement that he found two injuries on the person of the deceased and the inquest report mentioned about two injuries on the deceased, absence of any explanation as to how the second injury was sustained throws doubt on, the credibility of evidence. The direction of the wound was upward as noticed by the Doctor (P.W. 21) which is impossible if the assault was standing and the victim was on a sleeping position. In addition, learned counsel for accused Baina has submitted that even if prosecution version is accepted in toto, a case under section 302/34, I.P.C. is not made out against accused Baina. No evidence has been led to show that be said accused shared any common intention to cause death of the deceased. There is no material to show accused Baina knew about possession of knife by accused Deba which was stated to have been used fur assault. The same was concealed, as accepted by witnesses for the prosecution. Therefore, conviction of Baina under section 302/34 is not maintainable. Learned counsel for State on the other hand, contended that evidence of the witnesses is clear I and cogent. There is absolutely no contradiction, and/or omission so far as evidence of the witnesses is concerned. The F.I.R. is not required to give an elaborate description of the facts situation. The purpose for submission of the F.I.R. is to set law into motion. It is sufficient if salient features of the prosecution case are indicated therein. The F.I.R. was lodged a few minutes after the occurrence after the deceased was assaulted from a very close quarter by accused Deba. Hypothetical evidence of the doctor is not sufficient to discard credible and cogent ocular testimony of the witnesses. Learned trial Judge has looked at the weapon and had observed that injuries were possible. So far as plea of non-applicability of section 34, I.P.C. to accused Baina is concerned, it is submitted that evidence clearly shows that he was fully aware that accused Deba was intending to assault the deceased with a knife. It is highly improbable that all the three came together and accused Baina did not know that accused Deba was carrying a knife. The background facts clearly show that there was pre-concert and each one shared the common intention. Merely because Karna and Aju have not been examined in the shop of the deceased, their non-examination is of no consequence because it is nobody s case that they witnessed the murderous assault. Therefore, judgment of conviction and sentence is in order.