The High Court · 2010
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.26 of 2011 An appeal from the judgment and order dated 18.12.2010 passed by the Adhoc Additional Sessions Judge, Fast Track Court, Champua in S.T. Case No.70/212 of 2010. ---------------------------- Bagina Munda ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Chitta Ranjan Sahu Advocate For Respondent: - Mr. Sonak Mishra ---------------------------- Addl. Standing Counsel P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 10.01.2024 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Bagina Munda faced trial in the Court of learned Adhoc Additional Sessions Judge, Fast Track Court, Champua in S.T. Case No.70/212 of 2010 for offence punishable under section 307 of the Indian Penal Code (hereinafter ‘the I.P.C.’) on the accusation that on 24.08.2010 at about 7.30 p.m. at village Bamandiha in Keonjhar district, in his house, he inflicted injury by means of arrow shot to his elder brother Damodar Munda (P.W.1) with such intention or knowledge and [ 2 ] under such circumstance that, had he caused death of P.W.1, he would have been guilty of murder. The learned trial Court, vide impugned judgment and order dated 18th December 2010, found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo simple imprisonment for a further period of three months. The Prosecution Case: 2.
Legal Reasoning
The prosecution case, as per the first information report (hereinafter ‘the F.I.R.’) (Ext.1) lodged by one Sivil Gagarai (P.W.3), the son-in-law of P.W.1 before the Inspector in- charge of Bamebari police station on 28.08.2010, is that on 24.08.2010 at about 7.30 p.m., on account of family dispute, there was a quarrel between the appellant and his father-in-law (P.W.1) and during such quarrel, the appellant, out of anger, shot an arrow which hit on the abdomen of P.W.1 for which the latter sustained bleeding injuries. P.W.1 was immediately shifted to District Headquarters Hospital, Keonjhar for his treatment. On the basis of such written report presented by P.W.3, the Inspector in-charge of Bamebari police station registered Bamebari P.S. Case No.114 dated 28.08.2010 under JCRLA 26 of 2011 Page 2 of 16 [ 3 ] section 307 of the I.P.C. against the appellant and directed P.W.6 Onam Lakra, S.I. of police to take up investigation of the case. During course of the investigation, P.W.6 issued requisition in favour of the injured (P.W.1) to the Medical Officer of District Headquarters Hospital, Keonjhar, examined the witnesses, recorded their statements and arrested the appellant on 28.08.2010. He seized the bow and arrow on being produced by the appellant and prepared the seizure list vide Ext.2 and forwarded him to the Court on 29.08.2010. The seized arrow was sent to the Medical Officer for opinion, making some queries thereon. P.W.6 received the medical report and query report and on completion of investigation, he submitted charge sheet against the appellant under section 307 of the I.P.C. Framing of Charge: 3. After submission of charge sheet and commitment of the case to the Court of Session, the learned trial Court framed charge under section 307 of the I.P.C. against the appellant on 23.11.2010 and since he refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. JCRLA 26 of 2011 Page 3 of 16 [ 4 ] Prosecution Witnesses & Exhibits: 4. During course of the trial, in order to prove its case, the prosecution examined as many as six witnesses. P.W.1 Damodar Munda is the injured in the case, who is the elder brother of the appellant. He stated that the wife of the appellant, in an inebriated state, started hurling obscene language to his son and when his son opposed her from doing such thing, both the appellant and his wife got enraged and threatened to file false rape case against his son. He further stated that the appellant shot an arrow at him which pierced his body below the left side chest and he sustained injury and got treatment for more than fifteen days in Keonjhar Hospital. P.W.2 Rupa Munda is the elder sister of both the appellant as well as injured P.W.1. She stated to have learnt about the incident on the next day morning. She further stated that P.W.1 was first taken to Kalapahad for treatment but when the doctor expressed his inability to treat him, he was shifted to the District Headquarters Hospital, Keonjhar for further treatment. P.W.3 Sivil Gagarai is the son-in-law of P.W.1 and also the informant in this case. He stated that there was a quarrel between the appellant and the injured (P.W.1), subsequent to which the appellant shot an arrow at the injured, JCRLA 26 of 2011 Page 4 of 16 [ 5 ] which pierced on his chest. Due to such arrow shot, the injured sustained bleeding injury and later, the arrow was removed. He is a witness to the seizure of the arrow as per seizure list Ext.2. P.W.4 Ramsingh Munda is the brother of both the appellant as well as the injured, who stated to have heard about the incident. He also stated to have seen the wound on the person of the injured three days after the occurrence. P.W.5 Dr. Suresh Chandra Mohapatra was attached to the District Headquarters Hospital, Keonjhar as a Medicine Specialist, who examined the injured on police requisition and found a lacerated injury over left chest of the injured. He referred the case to the Surgery Specialist, D.H.H., Keonjhar for final opinion, who opined the injury to be grievous. He proved his report vide Ext.3 P.W.6 Onam Lakra was the S.I. of Police attached to Bamebari police station, who is the investigating officer of the case. The prosecution exhibited four numbers of documents. Ext.1 is the F.I.R., Ext.2 is the seizure list in respect of arrow, Ext.3 is the injury report and Ext.4 is the query report. JCRLA 26 of 2011 Page 5 of 16 [ 6 ] Defence Plea: 5. The defence plea of the appellant was one of denial. The appellant examined himself as D.W.1 and stated that he could not say how P.W.1 sustained injury on his person and he did not inflict the arrow blow on him on the date of occurrence. Findings of the Trial Court: 6. The learned trial Court, after assessing the oral and documentary evidence on record, accepted the version of the injured (P.W.1) so also the eye witness (P.W.3) and on analyzing the medical evidence adduced by P.W.5, it was held that the prosecution has successfully proved the charge against the appellant and accordingly, convicted him of the offence charged. Contentions of the Parties: 7.
Legal Reasoning
Mr. Chitta Ranjan Sahu, learned counsel for the appellant contended that the appellant and the injured (P.W.1) were brothers and the delay of four days in lodging the F.I.R. has not been explained and there was no motive behind the commission of the crime and the occurrence stated to have taken place all of a sudden when a quarrel ensued while the parties were consuming liquor on account of Rakhi Purnima festival. Learned counsel further argued that there is no such JCRLA 26 of 2011 Page 6 of 16 [ 7 ] medical evidence to justify the conviction under section 307 of the I.P.C. and the appellant has remained in judicial custody for about three years. Therefore, he argued that even if this Court accepts the evidence of P.W.1 and P.W.3, coupled with the medical evidence, it may at best be a case under section 326 of the I.P.C. and since the injury was grievous as per the opinion of the doctor (P.W.5), the substantive sentence be reduced to the period already undergone. Mr. Sonak Mishra, learned Additional Standing Counsel appearing for the State, on the other hand, supported the impugned judgment and contended that P.W.1 has received serious injury on his chest for which he was hospitalized and his family members were more concerned to provide him better treatment to save his life and in such a scenario, the delay in lodging F.I.R. cannot be a ground to disbelieve the prosecution case. The injured (P.W.1) has specifically stated about the genesis of the occurrence and not only the appellant threatened P.W.1 by saying “TATE BINDHIDEBI”, but when the wife of the appellant brought bow and arrow and handed it over to the appellant, the appellant shot an arrow which pierced in the left side chest of P.W.1 for which he has to undergo treatment for more than fifteen days. Learned counsel further argued that the evidence of the eye witness P.W.3, the son-in-law of P.W.1 also JCRLA 26 of 2011 Page 7 of 16 [ 8 ] corroborates the evidence of P.W.1 and moreover, the doctor (P.W.5) has specifically stated to have noticed one lacerated injury on the left side chest of P.W.1 which has been opined to be grievous in nature. Learned counsel further argued that as per the evidence of the doctor (P.W.5), who proved the report of Dr. J.K. Tripathy attached to D.H.H., Keonjhar that the injury was on the vital part of the body like spleen and death was possible without surgical intervention. Learned counsel further argued that when a query was made by the I.O. (P.W.6) to examine the weapon of offence and opinion, Dr. J.K. Tripathy has opined that the injury inflicted on the person of P.W.1 would be possible with the seized weapon and therefore, the learned trial Court has rightly found the appellant guilty of the offence under section 307 of the I.P.C. and thus, the appeal deserves to be dismissed. Delay in lodging F.I.R. (Ext.1): 8. The occurrence stated to have taken place on 24.08.2010 at about 7.30 p.m. and the F.I.R. was lodged on 28.08.2010 at 9.15 a.m. P.W.1 has stated in his cross- examination that he lost his sense due to arrow shot and taken to Kalapahad Hospital and the doctor expressed inability to extend treatment to him looking to the severity of wound and JCRLA 26 of 2011 Page 8 of 16 [ 9 ] advised to shift him to Keonjhar District Headquarters Hospital and accordingly, he was taken there. He stated to have received treatment in the hospital for fifteen days. P.W.2 and P.W.3 have also stated similarly. Delay in lodging F.I.R. is normally viewed with suspicion as there is possibility of concoction and embellishment of the occurrence. The object of insisting upon a prompt lodging of the report is to obtain early information not only regarding the assailant but also about the part played by the accused, the nature of the incident etc. for which it becomes necessary for the prosecution to satisfactory explain the delay. In my humble view, the evidence adduced by P.Ws.1, 2 and 3 regarding the critical condition of the injured (P.W.1) and his hospitalization and anxiety to give priority to save his life explains the delay in lodging the F.I.R. satisfactorily. Appreciation of evidence of the injured (P.W.1) and eye witness (P.W.3) and medical evidence: 9. The injured (P.W.1), who is the star witness on behalf of the prosecution, stated that the occurrence in question took place in the evening hours of Rakhi Purnima and the wife of the appellant, who was in an inebriated condition, started hurling obscene language for which his son obstructed her but the wife of the appellant got enraged and the appellant, who is his JCRLA 26 of 2011 Page 9 of 16 [ 10 ] younger brother, threatened him to inflict arrow blow on him. At this stage, the wife of the appellant brought bow and arrow and gave it to the appellant and the appellant inflicted arrow blow which pierced below his left side chest and he sustained bleeding injury. He further stated that he was treated for more than fifteen days to heal the wound. In the cross-examination, he has stated that they were in a habit of consuming liquor on festive occasions and it was a dark night and he was not present when the altercation between the wife of the appellant and his younger son took place. He further stated that the informant (P.W.3) was present at the spot when the occurrence took place as he was invited to attend Rakhi Purnima (also known as Gamha Purnima) in his house. Though P.W.1 has been subjected to lengthy cross- examination but nothing has been elicited to discard his testimony. Law is well settled that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness and his testimony cannot be brushed aside lightly. In the case of Shivalingappa Kallayanappa -Vrs.- State of Karnataka JCRLA 26 of 2011 Page 10 of 16 [ 11 ] reported in 1994 Supp (3) Supreme Court Cases 235, the Hon’ble Supreme Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions. The evidence of the informant (P.W.3), who is the son-in-law of P.W.1, corroborates the evidence of P.W.1 as he has stated that on the date of occurrence, he was present in the house of P.W.1 and the appellant and the P.W.1 quarreled with each other and the appellant dealt bow and arrow blow which pierced below the chest of P.W.1, for which he sustained bleeding injury and then the arrow was removed. In the cross- examination, he has stated that the F.I.R. was scribed by one police officer, but he could not say the name of such police officer. He further stated that people of his caste used to consume liquor in festive occasions and that at the time of occurrence, he was with his father-in-law (P.W.1). The learned defence counsel has not brought out anything in the cross- examination to discard the evidence of P.W.3 and therefore, the evidence of P.W.3 corroborates the evidence of P.W.1 except that P.W.3 has not stated like P.W.1 that the wife of the appellant brought bow and arrow and handed over the same to JCRLA 26 of 2011 Page 11 of 16 [ 12 ] the appellant and P.W.3 has not stated that the appellant uttered words like “TATE BINDHIDEBI” as has been stated by P.W.1. The doctor (P.W.5), who examined P.W.1 on 25.08.2010, noticed one lacerated injury measuring 1½” x 1/3” x ¾” over left chest lower part axillary and he referred the case to the Surgery Specialist of D.H.H., Keonjhar for final opinion and the doctor opined that the injury was grievous. The injury report has been proved as Ext.3 and the query report has also been proved as Ext.4. The doctor has stated that the injury sustained by P.W.1 was on the vital part of the body like spleen and it is a grievous injury and further stated that death was possible without surgical intervention. Thus, the medical evidence corroborates the version of P.W.1 and P.W.3. Whether the conviction of the appellant under section 307 of the I.P.C. is justified?: 10. In case of State of Maharashtra -Vrs.- Balaram Bama Patil reported in A.I.R. 1983 Supreme Court 305, the Hon’ble Supreme Court held as follows: "9....to justify a conviction under section 307 of the I.P.C, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance JCRLA 26 of 2011 Page 12 of 16 [ 13 ] in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to the actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under the section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." In case of Rekha Mandal -Vrs.- State of Bihar reported in 1968 (Volume 8) Supreme Court Decisions 208 wherein 17 injuries consisting of incised and punctured wounds were caused by different weapons such as farsa, spear and lathi and none of the injuries was grievous and only two of them were located on the head and neck, it was held as follows:- JCRLA 26 of 2011 Page 13 of 16 [ 14 ] "2....Medical evidence did not disclose that any of the injuries was cumulatively dangerous to life and the question therefore is whether in these circumstances it could be held that the offence disclosed was one under section 307 of the I.P.C. That section requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge." In the case in hand, there is no material on record that there was any pre-arranged plan to commit the crime. The occurrence took place all of a sudden when a quarrel ensued while the parties were taking liquor on account of Rakhi Purnima festival. The appellant and P.W.1 are brothers and P.W.1 was not present in the scene of occurrence when quarrel started between the son of P.W.1, who was aged about 25 years with the wife of the appellant who was on inebriated condition and started hurling obscene language and son of P.W.1 objected to the same. Though P.W.1 has stated that the appellant uttered words “TATE BINDHIDEBI” and the wife of the appellant brought bow and arrow and handed over the same to the appellant, but P.W.3’s evidence is completely silent in that respect. Adibasis carry bows and arrows which they do as a normal part of their lives, which they have done for generations and generations. Being armed with bow and arrow by the appellant while JCRLA 26 of 2011 Page 14 of 16 [ 15 ] celebrating Gamha Purnima day was not an unusual feature or it cannot be said that he came prepared to commit the crime. It is not unusual for tribal man to lose temper on trivial issues. P.W.1 has stated that it was a dark night and therefore, it cannot be said that the appellant in that darkness aiming at the chest of P.W.1 shot the arrow, which caused injury to the spleen. Though the injury has been opined to be grievous in nature by P.W.5, but the statement of P.W.1 that he was hospitalized for more than fifteen days is not getting corroboration from any medical evidence and the bed head ticket has not also been produced. In view of the factual scenario, the relationship between the appellant and the injured (P.W.1), absence of any previous hostility between the two though they were residing in separate mess and property and the surrounding circumstances under which the offence is stated to have been committed during a sudden quarrel, the manner in which the injury was caused, the time of occurrence and in absence of any medical evidence that the injury caused was fatal though it was a grievous one and in absence of any medical evidence that the injured (P.W.1) was hospitalized for more than fifteen days as deposed to by P.W.1, I am of the view that the prosecution has failed to prove beyond a reasonable doubt that the appellant intended to kill P.W.1. The intent cannot be determined solely by the severity of JCRLA 26 of 2011 Page 15 of 16 [ 16 ] the harm done to the injured and thus the offence would not come within the purview of section 307 of the I.P.C. and accordingly, the conviction of the appellant is altered from under section 307 of the I.P.C. to one under section 326 of the I.P.C. The appellant has remained in judicial custody for about three years and since from the date of occurrence, more than thirteen years have already passed, I think it proper to reduce the sentence to the period already undergone by the appellant. Accordingly, the Jail Criminal Appeal is partly allowed. A copy of this judgment with the trial Court records be sent down to the concerned Court forthwith for information. Before parting with the case, I would like to put on record my appreciation to Mr. Chitta Ranjan Sahu, learned counsel for the appellant for rendering his valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Sonak Mishra, learned Additional Standing Counsel. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 10th January 2024/Sipun JCRLA 26 of 2011 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Jan-2024 17:00:44 Page 16 of 16