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2010 Supreme(Ori) 871
IN THE HIGH COURT OF ORISSA
Pradip Mohanty, D.P. Ray, JJ.
DAMBURU GADABA - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Jail Criminal Appeal No. 243 of 1998
Decided On : 26-02-2010
Gokulananda Sahu, for the Appellant; J.P. Pattnaik, A.G.A., for the Respondent
The main legal point established in the judgment is the classification of the offense under Section 302, IPC or Section 304 Part I, IPC based on the nature of the assault and its consequences.
Headnote:
302 IPC - Assault leading to death - Evidence Act Section 27 - 302, 304 Part I, IPC - The court concluded that the appellant assaulted the deceased, and the act falls under Section 304 Part I, IPC instead of Section 302, IPC. The appellant was sentenced to undergo rigorous imprisonment for ten years.
Fact of the Case:
The appellant was convicted under Section 302, IPC for assaulting and causing the death of the deceased. The prosecution's evidence, including the testimony of the sole eyewitness and medical evidence, supported the assault.
Finding of the Court:
The court found the evidence of the prosecution witnesses to be clear, cogent, and consistent. The medical evidence supported the eyewitness testimony. The court also concluded that the act fell under Section 304 Part I, IPC instead of Section 302, IPC.
Issues: The issues included the credibility of the eyewitness, the applicability of Section 27 of the Evidence Act for leading to discovery, and the classification of the offense under Section 302 or Section 304 Part I, IPC.
Ratio Decidendi: The court applied the conditions necessary for the application of Section 27 of the Evidence Act for leading to discovery. It also relied on the medical evidence to determine the nature of the assault and its consequences, leading to the classification of the offense under Section 304 Part I, IPC.
Final Decision: The appellant's conviction under Section 302, IPC was converted to one under Section 304 Part I, IPC, and the appellant was sentenced to undergo rigorous imprisonment for ten years. The appellant was to be set at liberty forthwith if already served out more than ten years in custody.
JUDGMENT :
Pradip Mohanty, J. - In this appeal from jail, the Appellant seeks to assail the judgment and order dated 30.06.1998 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No. 66 of 1997 convicting the Appellant u/s 302, IPC and sentencing him to undergo imprisonment for life.
2. Case of the prosecution, as unfolded during trial, is that on 01.01.1997 at about 9.30 PM when the deceased Archita Gadaba, who is the informant's father's younger brother, was washing his hands after taking the night meal, the Appellant started quarrelling with him and threatened to kill him. Saying so, the Appellant assaulted on the head of the deceased by means of an axe with which he was then armed causing severe bleeding injury. Due to such assault, deceased fell down on the floor and became senseless. The informant and Ors. then shifted the deceased to Rabanaguda PHC in that unconscious state. As the deceased did not regain his sense, the informant lodged FIR in Borigumma Police Station. The case was initially registered u/s 307, IPC. But as the deceased succumbed to the injury it was turned to one u/s 302, IPC, investigation was taken up and after its completion charge-sheet was submitted against the Appellant u/s 302, IPC.
3. Plea of the accused is one of complete denial of the allegation.
4. In order to prove the charge u/s 302, IPC, the prosecution examined as many as 16 witnesses including the doctor and the I.O. and exhibited 22 documents. Defence examined none.
5. The learned Addl.Sessions Judge, who tried the case, convicted the Appellant u/s 302, IPC and sentenced him to undergo imprisonment for life basing upon the evidence of P.W.11, the sole eye witnesses, as well as the leading to discovery.
6. Mr. Sahoo, learned Counsel appearing for the Appellant assails the judgment on the following grounds :
(i) P.W.11, who is said to be the only witness to the occurrence, was the wife of the deceased and as such is an interested witness and she tried to develop the story in Court.
(ii) Leading to discovery has not been proved by the prosecution by adducing cogent evidence.
(iii) Seizure list (Ext.3) has not been proved by the prosecution.
(iv) It is alternatively argued that even if it is proved that the deceased died due to the assault given by the Appellant, the Appellant can only be convicted u/s 304 Part I, IPC, since he allegedly gave one stroke to the deceased and no motive has been proved by the prosecution.
7. Mr. Pattnaik, learned Addl. Government Advocate vehemently contends that evidence of P.W.11 is clear, cogent and convincing that the Appellant assaulted the deceased. There is no material to disbelieve her evidence, even though she was the widow of the deceased. While Appellant was in custody he led the police as well as the witnesses to the place of concealment and gave recovery of the weapon of offence. Therefore, there is no illegality committed by the trial Court convicting the Appellant u/s 302, IPC.
8. Perused the LCR, Considering the rival contentions made by the parties, this Court scrutinized the evidence of the witnesses. In the instant case, P.W.10 is the informant who lodged FIR before Boriguma Police Station immediately after shifting the deceased to the PHC. He specifically stated that on 01.01.1997 at about 9.30 PM after taking meal he was asleep. He heard the shout of Gorimani (P.W.11) and came out of his house. By the time he reached the spot, P.W.3 and P.W.1 were present and he saw deceased Archit lying in front of the Courtyard of P.W.3 sustaining profuse bleeding injury on his head. Wife of the deceased (P.W.11) told him that the Appellant had assaulted her husband by means of a tangia on his head. Thereafter, other villagers came. The injured was shifted to the PHC. Till next day, the deceased did not regain his sense. So, he lodged the FIR. Thereafter the deceased succumbed to the injury at 5.00 on 02.01.1997. He proved the FIR (Ext.7). On 03.01.1997, the I.O. in his presence held inquest ov
