SAPNESWAR NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The three petitioners were prosecuted for offences under sections 326/341/ S06/ 34, I.P.C for having assaulted P.W. 2 on 30.3.1986 at about 8 a.m. They were sentenced to undergo rigorous imprisonment for fifteen days under section 341/ 34, I.P.C and also to undergo rigorous imprisonment for six months for the offence under section 326/34, I.P.C but were acquitted of the charge under section 506/34, I.P.C The conviction and sentence having been confirmed in appeal, the present revision has been preferred. In a nutshell, the prosecution case is that P. W. 2, who is a barber by profession, was going to village Sabajbahal for rendering service but was waylaid by the petitioners near a banyan tree and there petitioner No. 1 caught hold of him by his neck, threw him on the road and assaulted him with fist blows, slaps and kicks. The petitioner No.3 assaulted him with an axe on his head and petitioner NO.2 assaulted him with an iron rod. They left P.W. 2 lying- on the road with profuse bleeding. P.W. 1, the son of P.W. 2 having been informed by P.W. 3 came to the spot and took P.W. 2 to the Sohella P.H,C and then to the Bargarh Sub-divisional Hospital and ultimately he was removed to the V.S.S. Medical College Hospital, Burla P.W. 1 lodged information with the police on the basis of which investigation was taken up after completion of which charge-sheet was submitted. Prosecution case was sought to be established through the evidence of the eye-witnesses P.Ws. 3 and 4 besides the evidence of the ilijured P.W. 2. P. Ws. 5 and 6 were the seizure witnesses and P. W. 7 was the doctor who examined P.W. 2. P.W. 8 was the 1.0. while acquitting the petitioners of the charge under s. 506/ 34, I.P.C, the trial court convicted them as earlier stated finding the prosecution to have well brought the charges. In finding the petitioners guilty, the court held that though the P.W. 2 had exaggerated the assault upon him, yet there was ring of truth in his version and that he had been assaulted in a manner so as to justify conviction u/s. 326, I.P.C.

(2.) Mr. Nayak, learned counsel for the petitioners, has urged, assailing the conviction and sentence, that P.Ws. 3 and 4 could not be witnesses to the occurrence since it is the statement of P.W. 2 that they came to the scene after the assault. It is seen from the evidence of P.W.1 that P.W.3 Jakta Mallik informed him of the assault on his father and he went to the spot with P.W. 3. P.W. 2 stated that on hearing the hulla P.Ws. 3 and 4 and others had come to the place of occurrence. He denied the suggestion that he had not stated before the police that hearing his hulla P.W. 3 had come to the spot and to have stated that after the occurrence P.Ws. 3 and I had come to the place of occurrence. Even if such statements of P.W. 2 or P.W. 8 are taken as correct, all that those show is that though it is the version of P.W. 2 that P.W. 3 had come to the spot hearing his hulla, yet he had not stated so before the investigating officer. Such fact would at best show an omission on the part of P. W. 2 to have not mentioned the name of P.W. 3 as having come to him at the first instance. Such omission is not a contradiction and hence the substantive evidence of P. W. 2 in that regard is not to be discarded nor does it falsify the evidence of P. W. 3 as an eye-witness. So Jar as P.W 4 is concerned, it was the statement of P. W. 2 that he had also come to the spot while he was being assaulted. Regarding presence of P. W. 4 at the time of assault, there is even no omission in the evidence of P. W. 2. Thus, P.W. 4 was an eye-witness to the occurrence. Hence, the combined effect of the evidence of P.Ws. 2, 3 and 4 as also of P.W. 7 the medical officer unmistakably shows P.W. 2 to have been assaulted by the petitioners resulting in his injuries as testified to by P.W. 7. The next submission of Mr. Nayak is of embellishment by P. W. 2 as regards the injuries suffered by him. The learned trial court as also the appellate court took the view that if such embellishments are chipped off, the substance of the evidence unmistakably shows the P.W. 2 to have suffered the injuries including the incised injury. It is submitted by Mr. Nayak that P.W. 7 has opined the injury NO.4 to be a grievous one even though it was only bruise and could not have been a grievous one. On the other hand, the learned trial court found injury No.5 to be a grievous one even though the medical opinion regarding that injuries was not so. It is his submission that bereft the medical opinion, the court on its own could not have treated injury No.5 as grievous. Injury No.4 is shown to be a bruise of 5 x 3 on the right forearm 4 above the wrist joint with abnormal mobility of 90 degree of proximal and distal parts. It was the remark of the medical officer that X-ray was needed to assess the extent of the injury. In cross-examination the medical officer explained that abnomlal mobility injury NO.4 was due to fracture of bone and that abnormal mobility is not possible due to disease. Grievous hurt as is defined in section 320, I.P.C. inter alia, is a hurt which causes the sufferer to be, during the space of twenty days, in severe bodily pain. Mr. Nayak has relied on (I 984) 2 Crimes 405 (Bhagbat v. State), a Division Bench decision of this Court to contend that where the doctor is not quite sure of the nature of the injury suffered for which he advised X-ray examination, but X-ray examination report is not produced, the injury is not to be taken as a grievous one and calls for an alteration of the conviction. The decision is inapplicable to the case as the very evidence of P.W. 7 says that the abnormal mobility noticed in the injury was due to fracture of bone. Fracture of bone is itself a grievous injury as is defined in section 320, I.P.C. What the doctor remarked was that an X-ray examination was necessary only to assess the extent of the injury, i.e. to find out the extent of the fracture but there was no doubt about the fact that a fracture had been caused which could be inferred from tile abnormal mobility. Injury No.4 was hence a grievous injury. So far as injury No.5 was concerned, it was an incised wound with slightly ragged margin of 2 x 1/8 x 1/8 vertically placed on head 4 above the left eye. The injury was remarked as a simple one by the doctor but the trial court was of the opinion that it was a grievous one. It is of course true that court may regard an injury as grievous on the evidence led before it irrespective of the doctorTs opinion. The court was of the opinion that since injury No.5 was caused by a sharp cutting weapon like Tangia at a place like head, it was to be taken as grievous injury within the meaning of section 320, I.P.C. The injury could not be so termed unless there was further evidence that the injury had put the injured to twenty or more days of severe pain or that on that account of it he was unable to pursue his ordinary work. The appellate court also found the injury No. 4 as a grievous one.

(3.) The last submission of Mr. Nayak is lack of common intention of the petitioners to cause such injury to P.W. 2. He submits that so far as petitioner No.1 is concerned, he only threw P.W. 2 on the road and assaulted him with fist blows, slaps and kicks but that the other two petitioners who are his sons assaulted him with Tangia and iron rod. There is no evidence that P.W. 1 shared the common intention of petitioners 2 and 3 to assault P.W. 2 in the same manner. The submission does not find force with one of the reason that admittedly all the three petitioners had waylaid P. W. 2 while he was going to Sahajbahal and it was petitioner No. 1 who first opened the assault by throwing him on the road. The other two petitioners are his sons who were armed with Tangia and iron rod. All of thelil unmistakably had appeared at the scene with the intention of assaulting P.W. 2 which was carried into effect. So the mere fact that petitioner NO.1 was not armed like other two petitioners does not absolve him of the intention also harbored by the other two. In that view of the matter the conviction of the petitioners had been rightly made by the trial court and upheld by the appellate court. So far as petitioners 2 and 3 are concerned, there is absolutely no justifiable reason to interfere with the sentence imposed. However, so far as petitioner No. 1 is concerned, he was aged 65 years in 1988. As such his present age would be 70 years. Considering the fact, I would reduce his sentence under section 326/34, I.P.C. to rigorous imprisonment for three months. Subject to the modification in the sentence, the revision is dismissed. Revision dismissed subject to modification in sentence.