P Tripathy, R Biswal
1. Appellant Khali Pradhan I (in CRLA No. 93 of 2004) is the elder brother i of Janardan alias Danardan (P.W. 3). J Gobardhan, hereinafter referred to as "the 5 deceased". He is the younger son of P.W. 2. Accused-appellant Abhimanyu alias Avina (in CRLA No. 240 of 2004) is the grandson (daughter's son) of appellant Khali Pradhan.
2. On 28-6-2002 night, house of accused-appellant Khali Pradhan was gutted with fire. On being asked by the inmates present in that house, P.W. 3, the deceased and P.W. 9 i.e. mother of the deceased came out of their adjoining pucca house to help to extinguishing the fire, but before that P.W. 3 pulled out his bullock cart which was near the burning house. It is the fire brigade staff, who extinguished the fire. On the following day morning, i.e. 29-6-2002, accused-appellant Khali with some of his family members arrived at the burnt house and was in the process of cleaning. In course of that, he and his family members were scolding and abusing P.W. 3 and his family members and attributing arson on them. P.W. 3 thus, came and approached accused Khali Pradhan and raised protest for the abuse. It is alleged by the prosecution that then five accused persons (which includes both the appellants) formed an unlawful assembly being armed with weapons and attracked P.W. 3 so as to do away with his life. It is the further prosecution case that on the instigation of co-accused persons, accused Khali dealt a blow by means of a spade aiming to the head of P.W. 3 but the latter warded it off and sustained injury only on his finger and forearm. Sustaining that injury when P.W. 3 sat on the floor, the deceased rushed to his father for rescue and at that time accused Avina dealt a blow by means of a split bamboo causing injury on his head and as a result of that blow the deceased fell down. Since the deceased sustained bleeding injury on his head, therefore, he was taken to the hospital via Police Station and thereafter he was shifted to Medical College for specialized treatment because of seriousness of the injury, but on 2-7-2002, the deceased succumbed to the injuries. On the basis of the FIR lodged by P.W. 3 the LLC. (P.W. 11) with the aid and assistance of P.W. 10, AS1 of police, took up investigation and ultimately submitted charge-sheet for various offences including the offence under Sections 302/149, IPC. Trial Court framed charge for the offences under Sections 148/324/302/149, IPC against the five accused persons.
3. Accused persons denied to the charges and claimed for trial. To substantiate the charge, prosecution examined 13 witnesses.
Out of them, P.W. 1 is the widow of the deceased, P.W. 3 is the injured informant, P.W. 4 is the elder son of P.W. 3, P.Ws. 6 and 8 are two neighbours in the locality of occurrence and P.W. 9 is the mother of the deceased (wife of P.W. 3). They were examined as eye-witnesses to the occurrence. Out of them, P.W. 6 did not support the prosecution and, therefore, he was subjected to leading questions by the prosecution with the permission of the Court. P.W. 13 is the doctor in the Headquarter Hospital who attended to both P.W. 3 and the deceased and granted them treatment and also respectively proved their injury certificates, Exts. 4/1 and 5/1 and P.W. 12 is the doctor, who conducted autopsy on the dead body of the deceased and proved the post-mortem examination report, Ext. 10. As stated earlier, P.Ws. 10 and 11 are the I.Os. P.W. 7 and P.W. 4 were the witnesses to the inquest. The other relevant documents were also tendered in evidence and accepted by the Court from the side of prosecution. Accused persons did not adduce any defence evidence.
4. On appreciation of evidence of P.Ws. 12 and 13, trial Court recorded the finding that Gobardhan i.e. deceased suffered homicidal death. In that respect, learned Counsel for the appellants draws our attention to the evidence of P.W. 13 to the effect that the fatal injury which was sustained by the deceased not have been inflicted by split bamboo but because of fall after sustaining the blow on the head (dealt by accused Avina). That aspect has been discussed in the impugned judgment to record his finding on homicidal death. We also found that the head injury was caused as a result of the blow dealt on the head by the split bamboo and therefore, a case of homicidal death is proved by the prosecution. There is no argument to dispel the injury on the body of P.W. 3.
5. Learned Additional Sessions Judge on appreciation of evidence of P.Ws. 1. 3, 4, 8 and 9, recorded the finding in favour of the acquitted co-accused persons that prosecution has not been able to prove either a case of riot or sharing of common object for inflicting injury on P.W. 3 or causing murder of the deceased. Accordingly, the other three accused persons were acquitted of all the charges. Learned Additional Sessions Judge also recorded the finding that the act of assault was done by individual accused i.e. appellants in each of the appeals respectively against the deceased and P.W. 3, and therefore, while appellant Avina is guilty of murder punishable under Section 302, IPC appellant Khali is guilty of the offence under Section 324, IPC for causing simple hurt by using spade and inflicting injury on P.W. 3. The trial Court, thus, sentenced accused Avina to imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo R.I. for six months for the offence under Section 302, IPC. He also sentenced accused Khali to undergo R.I. for two years and to pay a fine of Rs. 1,000/-, in default to undergo R.I. for six months for the offence under Section
324. IPC.
6. Learned Counsel for the appellants while criticising the aforesaid order, of conviction, argues that evidence of eye-witnesses are discrepant about the manner in which the occurrence took place. On perusal of evidence on record, we do not find any noteworthy discrepancy so as to doubt the credibility of any of the eye-witnesses to the occurrence. On the other hand, in the process of cross-examination, we see suggestions have been given in the shape of confrontation of the statement under Section 161, Cr.P.C. and thereby admitting about the occurrence. Contradition confronted in that respect on the statement of each of the witnesses are not on material particulars so as to cast doubt on the credibility of any of the eye-witnesses. Thus, we do not find any merit on the argument of the appellants so as to discard the evidence of eye-witnesses for granting acquittal or benefit of doubt.
7. Learned Counsel for the appellants argues that so far as the conviction under Section 302, IPC is concerned, it is not sustainable against accused Avina inasmuch as a single blow by split bamboo was given which hit the head of the deceased and after sustaining that blow he fell down and according to P.W. 13 the other injury i.e. the fracture injury could have been possible because of fall on the ground. Learned Standing Counsel on the other hand argues that the deceased would not have fallen unless the blow on the head would not have been dealt by the split bamboo and therefore culpability of the appellant is not minimised. We find the argument of learned Standing Counsel to be accepted so as to record the finding that the death of the deceased was homicidal and that is attributable to accused Avina.
8. Learned Counsel for the appellants advances an alternative argument that even if the death was homicidal and as a result of the single blow dealt by a split bamboo and the injury which was caused on the head according to the evidence of P.W. 13, then it should be a case of culpable homicidal and not amounting to murder punishable under the Second part of Section 304, IPC. Learned Standing Counsel though does not support that argument, but he is unable to wriggle out from Exception 4 of Section 300, IPC. Exception 4 therein reads as follows:
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner;
Explanation--It is immaterial in such cases which party offers the provocation or commits the first assault.
9. Indeed, in this case the sequence of event as narrated by the prosecution and not disputed by the accused persons indicate that when accused Khali was cleaning inner burnt room, PW-3 entered there and protested for the abuse aiming at him and his family members. By then his deceased son was not far away from him. When accused Khali dealt a spade blow and P.W. 3 sat down with minor injuries on the finger and forearm, the deceased rushed to that spot. May be with the apprehension of any danger and with heat of passion, a single blow by split bamboo was dealt by accused Avina, who was standing by his grand father (accused Khali). Under such circumstance, Exception-4 of Section 300, I.P.C. is squarely applicable to this case.
10. Thus, we agree with the argument of learned Counsel for the appellants so as to set aside the order of conviction under Section 302, I.P.C. and to find it a case culpable homicide not amounting to murder punishable under Section 304, Part II, I.P.C. Regard being had to the facts and circumstances involved in the case, though appellant Avina seeks for a minimal punishment, but keeping the provision of law in view, we impose a sentence of seven years R.I. for his conviction under Section 304, Part II, I.P.C.
11. Learned Counsel for the appellants also argues for some leniency in the punishment imposed on appellant-Khali, who was 55 years old by the date of the trial in the year, 2002. Learned Standing Counsel opposes reduction of sentence. Regard being had to the aforesaid facts and circumstances and the age factor of the appellant-Khali, we modify the sentence by withdrawing the substantive sentence and impose the sentence of fine only. Accordingly, for conviction under Section 324, I.P.C., accused Khali is to pay a fine of Rs. 3,000/- and default to undergo S.I. for a period of one year. In the event fine is paid, the entire sum be paid to P.W. 3.
12. Accordingly, both the Criminal Appeals are allowed in part by modifying the conviction and sentence in the above indicated manner. We put on record out appreciation about the efficient way the case was conducted by learned Counsel for the appellants and also by the learned Standing Counsel.
