DHANSAI SAHU Vs. STATE

JUDGEMENT

(1.) THE appellants were convict-ed Under Section 302, I. P. C. by the Sessions judge, Bolangir and sentenced to imprisonment for life. They are brothers and the case against them is mat at about 11 A. M. on 20-6-1965 they severely assaulted one Pilu Sahu and caused his death.

(2.) THERE was a proceeding Under Section 145, Criminal P. C. between the deceased Pilu Sahu on one side and the appellants and two others on the other in respect of an Adakata in mouza Amlidadar. The Court of first instance declared the possession of Pilu Sahu by its order dated 31-8-64 and this order was subsequently upheld in Revision by the Sessions Judge, Bolangir by order dated 412-64. There was consequently ill-feeling between the parties. On the date of occurrence Pilu Sahu was sitting on a chair under a mango tree near the Khamabandh and was guarding the mango crop. Julu Sahu (P. W. 8)aged about 10 years and Sarhu, the grandson of the deceased, a boy aged about 12 years were washing their buffaloes in the Adkata tank, Keshari Bai, the daughter of appellant Dhansai challenged the boys as to why they were doing so and pelted stones at the buffaloes. They retaliated by throwing mud at her and she went home weeping. The prosecution case is that immediately thereafter she came back accompanied by the two appellants each of whom was armed with a wooden pole. Dhansai questioned Pilu as to why he did not prohibit the boys from quarrelling with Keshari. Pilu advised them to convene a Panchayat for the purpose. Thereupon Dhansai gave a blow with a wooden pole which struck the left ear of Juglu and it slipped off and struck the thigh of Pilu. Pilu got up from the chair. The appellant Santhkumar gave a blow with the wooden pole on the back of pilu's neck and Dhansai assaulted Pilu on his right flank. Meanwhile P. Ws. 3, 4 and 6 who were near about the tank came to the spot and assaulted the appellants and the latter retaliated and assaulted them. P. W. 5 intervened, but being threatened he left the place. The appellants then assaulted Pilu and he fell down. Even after he fell down on the ground, they continued to assault him as a result of which he died. First Information Report (Ex. 1) was lodged at the Thana by P. W. 1, the son of the deceased at 1-30 p. m. on the same day on which a case was registered against the appellants. Shortly before the F. I. R. was lodged, the appellant dhansai had gone to the Thana and had made a statement on the basis of which a station diary entry (Ex. 24) had been recorded. The A. S. I. who in the absence of the Officer-in-charge recorded the F. I. R. came to the place of occurrence that after-noon and sent the dead body for post-mortem examination. The Medical officer who performed autopsy found the following 19 injuries on the person of the deceased (Ex. 14) : (After enumerating these injuries His Lordship proceeded ). It was found on dissection that the right temporal bone beneath injury No. 18 was fractured into three pieces and the fractured pieces were depressed into the brain substance tearing the membranaeous vessels, at their sites and injuring the brain substance. It was also found that the 8th and 9th ribs of the left side beneath injury No. 12 were fractured at their angles, and the fractured ends tearing the muscles and pleura at their sites pierced into the left lung. Injuries Nos. 5, 12 and 18 were grievous in nature and the rest were simple. In the opinion of the doctor the deceased died due to severe shock and haemorrhage as a result of injuries on vital parts of his body. 3-9. [after discussion of evidence his Lordship proceeded] : 10. We have carefully considered the evidence regarding the occurrence and are fully convinced that the version of the occurrence as given by the prosecution witnesses is the correct one. As stated already, the presence of each of the prosecution witnesses who has spoken about the occurrence is admitted on the defence side, apart from the fact that some of them have also received injuries during the occurrence. From the prosecution evidence we also get an explanation as to how the appellants have received a few minor injuries found on their persons. The defence version has not afforded any explanation as to how Pilu sustained the large number of injuries amounting to 19 found on his body. It is fantastic to believe the suggestion made on the defence side that in the course of the alleged mutual assault the witnesses on the prosecution side have inflicted injuries on Pilu Sahu by mistake. The occurrence took place in broad day light and the persons who were present at the place of occurrence worn not more than a dozen. It is impossible to believe that the prosecution witnesses could have by mistake inflicted the several injuries of which some are grievous in nature on Pilu sahu. In the course of investigation two wooden poles M. Os. V and VI were seized from the appellants and the prosecution case is that the appellants came armed with the same, to the place of occurrence. None of the prosecution witnesses has said that it is with these identical poles that the appellants had assaulted Pilu. Therefore the evidence of the doctor that some of the injuries on Pilu Sahu could not have been caused by M. Os. V and VI does not in any way affect the truth of the prosecution case. It is quite likely that the appellants came there armed with some other poles and not necessarily M. Os. V and VI and the actual weapons of offence have not been seized in this case. What the prosecution witnesses have said is that appellants came with two wooden poles. That evidence stands unrebutted. 11. Mr. D. Sahu appearing for the appellants then contended that the evidence given by P. Ws. 8 and 9 should be ignored as inadmissible in evidence as they have not been administered any oath and the Trial Judge has not given the certificate as required by the proviso to Section 5 of the Oaths Act. P. Ws. 8 and 9 are aged 10 and 12 years respectively. What the learned Trial Judge did was that before examining them regarding the facts of the case he questioned them generally, obviously with the intention of judging for himself whether they understood the nature of the questions and were capable of giving rational answers to the same. After thus generally questioning them he has recorded the impression that the witnesses did not appear to him to be intelligent and hence oath was not administered to them. Section 5 of the Oaths Act, enjoins that oath should be administered to witnesses and then follows the proviso which may be quoted :