SAROJ PODH Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order passed by the learned Addl. Sessions Judge, Bargarh on 7th February, 1989 in S.T. Case No. 142/12 of 1985-87 convicting the appellants under Sections 323/336, I.P.C. and sentencing them to undergo S.I. for six months and one month respectively with a further direction that both the sentences would run concurrently is assailed in this Criminal Appeal.

(2.) The prosecution case in brief is that on 20-6-1985 at noon a dispute crept up with regard to recital of a song by Sarojini Sahu-P.W. 12. It was alleged that co-accused of the appellants, namely, Panibudi Podh (since acquitted), took exception to the lyric and a quarrel ensued. Accused-Saroj Podh- appellant No. 1 who happens to be the son of Panibudi Podh intervened and allegedly caused hurt to Sarojini Sahu by pelting stones at her. On coming to know about the said fact Radhamohan Sahu, father of Sarojini Sahu, and her brother Sanat Kumar Sahu-P.W. 13 joined took exception at the behaviour of Panibudi Podh and appellant No. 1 and moved the panchayat. In the meeting held by Panchayat, the villagers tried their best to restore good will and amity between the families by compromise but then it is alleged that the accused person did not obey the decision of the Panchayat and left the meeting. Deceased Radhamohan Sahu thereafter returned to his house. On the way the accused persons assaulted him and his son Sanat Kumar Sahu-P.W. 13 by pelting stones at them. Due to said assault Radhamohan Sahu sustained injuries on his head. He was removed to Padampur Hospital and thereafter he was referred by the doctor-P.W. 7 to Burla Medical Hospital for treatment and was admitted there. Laxman Sahu-P.W. 1, brother of Radhamohan Sahu, came to Padampur P.S. and lodged the F.I.R. vide Ext. 4. During the course of treatment at Burla Medical Hospital Radhamohan Sahu breathed his last on 26-6-1985. The fact of his death being informed by P.W. 8 the doctor to Burla Police the case turned to one under Section 302, I.P.C. The S.I. of Police-P.W. 16 held inquest over the dead body and submitted a report vide Ext. 6/1. P.W. 17 who initially took up investigation, visited the spot being identified by Laxman Sahu-P.W. 1, seized blood-stained earth and sample earth as per Ext. 1, some stones from near about the spot as per Ext. 4, a pair of chapals and a stick from the house of Basu Nag one of the accused as per Ext. 3, and made over the case for further investigation to P.W. 18 as per the direction of S.D. P.O. In course of investigation post-mortem was conducted over the dead body by P.W. 11. On completion of the investigation, charge-sheet was submitted against the accused persons for alleged commission of offences under Sections 147/302/323/326. I.P.C. read with Section 149, I.P.C. Defence plea was innocence. To substantiate the case prosecution got examined as many as 18 witnesses. At the other hand no oral or documentary evidence was adduced by the defence.

(3.) The trial Court after vivid discussion of the oral evidence came to the conclusion noticing certain material discrepancy in the evidence of P.W. 1 observed that his evidence being hearsay, could not be relied upon. Similarly the Sessions Court also did not place reliance on the evidence of P. Ws. 2 to 6 and 9 to 10. It is pertinent to mention here that P.Ws. 7 and 8 were two doctors. The Court below relying upon the evidence of P.Ws. 12, 13 and 14 coupled with the evidence of P.Ws. 7 and 8, the post-mortem and injury report-Ext. 5 believed the prosecution story with regard to injuries caused to Radhamohan Sahu by pelting stones in the midst of the village. But then it came to the conclusion that there was neither any mens rea nor any intention to kill Radhamohan Sahu. The Court below further observed that having regard to the facts and circumstances under which the occurrence took place, it could not be said that the accused persons ever intended to cause death of Radhamohan Sahu or had the knowledge that the assault was likely to cause death. On the basis of such conclusion and as all the injuries were caused with regard to pelting of stones the Court below held the accused persons liable for commission of offence under Section 336, I.P.C. The Court below further came to the conclusion after scrutinizing the evidences of P. Ws. 12, 13 and 14 there was nothing against Basu Nag accused No. 2 and Panibudi Podh accused No. 5 and acquitted them of the charges. The learned Addl. Sessions Judge however found the present appellants guilty of commission of offences under Sections 323/336/34, I.P.C. and convicted them thereunder, while acquitting them of rest of the charges. After hearing learned counsel for the appellants the Court below sentenced the appellants to undergo S.I. for six months under Section 323, I.P.C. and one month under Section 336, I.P.C. with direction that the said sentence would run concurrently. The said order of convicton is impugned on the ground that the learned Addl. Sessions Judge having disbelieved most of the witnesses, namely, P.Ws. 1, 2, 3, 4, 5, 6, 9 and 10 acted illegally and with material irregularity in convicting the appellants only on the basis of evidence of three witnesses, being P.Ws. 12, 13 and 14, who happen to be respectively the daughter, son and wife of the deceased. It is further urged that there was ample evidence that Panibudi Podh one of the accused had sustained injury, which went unexplained by the prosecution and as such, the said Court ought to have held that the prosecution had exaggerated the story and had not come with clean hands. According to learned counsel for the appellants there were gross discrepancies in the evidence of P.Ws. 12 and 13 and as such the order of conviction should not have been passed on the basis of their evidence. It is further stated that as only one injury was noticed by the doctor who had examined the deceased at the first instance and that being a mere abrasion, no conviction or sentence should have passed against the appellants. The statements made by learned counsel for the petitioners are strongly repudiated by learned counsel for the State.