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M. Apparao and anr. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1983CriLJ953
AppellantM. Apparao and anr.
RespondentState of Orissa
Cases ReferredDeep Chand v. State of Haryana
Excerpt:
..... - the order of conviction is assailed on the ground that it is not supported by any reliable evidence. in the doctors' opinion, the injuries were antemortem in nature and might have been caused by some hard, blunt and rough weapon like a stone. according to him, death was due to shock and haemorrhage resulting from the injuries to the vital organs like brain and lungs. in a village people are well-known to each other. state of haryana, the maxim falsus in uno falsus in omnibus is not a sound rule to apply in the conditions in this country and, therefore, it is the duty of the court in cases whore a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. if the remaining evidence is..........section 34, i p. c. and sentenced each of them to rigorous imprisonment for life. the other three accused persons were acquitted of the charge. no appeal against the order of acquittal having been preferred it stands final and conclusive.2. the occurrence is alleged to have taken place on 8-1-1978 about 7 p.m. at village hatipada under gopalpur police station. it was alleged that the deceased was living with his family in that village sometime before the occurrence. on the date of occurrence while he was preparing ganja for smoking, accused sirulu (since acquitted) went to his house and told him that he was required by four persons waiting outside. as the deceased did not agree to go, sirulu dragged him out of the house and all the five accused persons began assaulting him. pws 1 and 2,.....
Judgment:

P.K. Mohanti, J.

1. The appellants along with three others stood charged under Section 302 read with Section 34, I.P.C. with having caused the death of one Purusottam Behera of village Tokia Berhampur under Chhatrapur Police Station in the district of Ganjam, After trial, the learned Addl. Sessions Judge convicted the two appellants under Section 302 read with Section 34, I P. C. and sentenced each of them to rigorous imprisonment for life. The other three accused persons were acquitted of the charge. No appeal against the order of acquittal having been preferred it stands final and conclusive.

2. The occurrence is alleged to have taken place on 8-1-1978 about 7 p.m. at village Hatipada under Gopalpur Police Station. It was alleged that the deceased was living with his family in that village sometime before the occurrence. On the date of occurrence while he was preparing Ganja for smoking, accused Sirulu (since acquitted) went to his house and told him that he was required by four persons waiting outside. As the deceased did not agree to go, Sirulu dragged him out of the house and all the five accused persons began assaulting him. PWs 1 and 2, the wife and daughter respectively of the deceased, rescued him from the clutches of the accused persons and brought him to his house. But the appellants entered into the house, dragged the deceased outside and committed assault on him. The deceased sustained multiple injuries on his body and died the next morning.

On hearing a rumour about the occurrence of murder, the Grama Rakhi lodged information at the Police Station upon which a station diary entry was made, The Police Officer visited the village Hatipada and recorded the first information report of PW 1. In due course all the accused persons were charge-sheeted by the Police.

3. The plea of the appellants was a denial simpliciter.

4. The prosecution case rests on the ocular evidence of PWs 1 and 2. The trial court relying on the same convicted and sentenced the appellants as aforesaid. The order of conviction is assailed on the ground that it is not supported by any reliable evidence.

5. The doctor PW 8 who conducted autopsy over the dead body of the deceased on 10-1-1978 at 12-30 p.m. found as many as 27 injuries. On dissection, he found contusions over the left temporal region, anterior wall of the chest, lateral aspects of both sides of the chest, the inner wall of the chest and fracture of ribs. Pleura was contused on either side due to fracture of ribs. The right side lung was contused and ruptured in the upper lobe. The right thorasis cavity was found to be filled with blood. In the doctors' opinion, the injuries were antemortem in nature and might have been caused by some hard, blunt and rough weapon like a stone. According to him, death was due to shock and haemorrhage resulting from the injuries to the vital organs like brain and lungs. The above opinion of the doctor leaves no room for doubt that the death was homicidal.

6. The next question for consideration is whether the evidence of PWs 1 and 2 establishes the guilt of the appellants. Their evidence cannot ho lightly brushed aside merely on the ground of their relationship with the deceased. Their evidence, however, re-quires a closer scrutiny. PW 1 Radha Beherani stated that on the evening of the date of occurrence while her husband was sitting in the living room and was preparing Ganja for smoking. accused Sirulu went there and told the deceased that he was required by four persons waiting outside. The deceased told him that he would talk to them in the next morning, but Sirulu dragged him out and dealt him two slaps. The other accused persons kicked him as a result of which he fell down. Then the deceased was dragged up to a shop and was given kick blows. He was rescued from the clutches of the accused and was brought to his house. But appellant No, 1 entered into the house by scaling over the wall and appellant No. 2 entered through the house of one Surji. Both of them assaulted the deceased and dragged him outside, The deceased was again assaulted by kicks and stones on an open field. After persistently assaulting the deceased they threw him into his house and fled away.

PW 2 Satya Beherani who is a girl aged about 20 years corroborated the statement, of PW 1 in material particulars.

7. PWs 3, 4 and 5 were cited as witnesses to the occurrence, but they did not support the prosecution case at the trial. They resiled from their earlier statements before the police and were cross-examined by the Public Prosecutor. They discredited themselves by their own contradictory statements. The trial court did not place any reliance on their evidence.

8. Mr. P. K. Misra, the learned Counsel appearing on behalf of the appellants criticised the evidence of PWs. 1 and 2 on the ground that they could not have recognised the assailants of the deceased as the occurrence took place in a dark-night and there was no light at the place of occurrence. It was also argued that some of the accused persons having been acquitted on the self-same evidence of PWs. 1 and 2 the conviction of the appellants cannot be sustained.

9. It was elicited from PW 1 in cross-examination that the occurrence took place in a dark-night and that she saw the incident with the electric light She stated that there is an electric light post near the place of occurrence. PW 6 who is a ward member of the village Grama Panchayat, on the other hand, stated that street lighting had been stopped much prior to the occurrence as the Grama Panchayat did not pay the electric charges. The learned Counsel for the appellants naturally attempted to make the most of this statement of PW 6 and contended that due to darkness the witnesses could not have recognised the assailants. In the facts and circumstances of the case, we are unable to hold that the witnesses could not recognise the assailants. There was nothing brought out in the cross-examination of the witnesses on which it could be said that their evidence is false or improbable. The evidence of the witnesses that they had seen the appellants assaulting the deceased conveyed, by necessary implication, the fact that there was sufficient visibility for them to recognise the assailants. In a village people are well-known to each other. Even in dark-night they can Identify persons from a distance from the gait, stature and manner of movement. In the present case, PWs. 1 and 2 had several opportunities of seeing the appellants at the time of occurrence. They first saw the appellants committing assault on the deceased near their house. Then they saw the appellants dragging the deceased towards the shop of one Surya. PW 1 stated to have rescued the deceased from the clutches of the accused persons while they were committing assault on him near that shop, Again she saw the two appellants entering into her house and dragging the deceased out of the house and committing further assault on him on an open field. The evidence of PW 7. the Investigating Officer, shows that the distance between the house of the de-ceased and the open field where the assault took place is only 66 feet. It is quite unlikely that PWs. 1 and 2 would have kept quiet and sat tight at their house when the deceased was dragged out of the house and assaulted. The evidence of PW 1 shows that she entreated the abused persons not to commit any assault on her husband; but she was threatened with assault. PW 2 was not asked anything about visibility at the spot. It was suggested to her in cross-examination that neither she nor her mother had gone to the open field to witness the assault; but she denied the suggestion. Thus it appears that the witnesses saw the appellants from close quarters and identified them as the assailants of the deceased.

10. It is next contended that inasmuch as PWs. 1 and 2 have been disbelieved to the extent they implicated three accused persons who have been acquitted, the trial court should have in toto rejected their evidence as untrustworthy. We are unable to accede to this contention. Merely because some of the accused persons have been acquitted on the self-same evidence of PWs. 1 and 2, the whole case cannot be thrown out on that account. The maxim falsus in uno falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or exaggeration, It is, therefore, the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff. As pointed out in 1970 SCC (Cri) 146 : Deep Chand v. State of Haryana, the maxim falsus in uno falsus in omnibus is not a sound rule to apply in the conditions in this country and, therefore, it is the duty of the Court in cases whore a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains in tact, then the Court should uphold the prosecution case to the extent, it is considered safe and trustworthy.

PW 1 gave a full and detailed account of the occurrence and her evidence is corroborated in material particulars by the first information report which she had lodged before the Investigating Officer soon after his arrival at the spot. The evidence of PWs. 1 and 2 is quite consistent with the medical evidence. The presence of abrasions on the dead body of the deceased corroborates the evidence of PWs 1 and 2 that the deceased was dragged. Their evidence that the deceased was assaulted with a stone is also supported by the doctor. The Investigating Officer seized a piece of stone lying at the spot. It is not shown that PWs. 1 and 2 made any contradictory statement before the police about the complicity of the appellants. Their evidence with regard to the complicity of the appellants is clear, consistent and convincing. All the facts spoken to by them strike as nothing but truth. They are quite natural witnesses and they corroborate each other mutually and substantially. We have carefully gone through their evidence and see no reason for taking a view contrary to what has been held by the trial court about their veracity.

11. We may now proceed to consider the nature of the offence committed by the appellants. As indicated earlier, the doctor opined that the death was due to shock and haemorrhage resulting from the injuries to the vital organs like brain and lungs. He found contusions over the left temporal region and the chest. Internal examination revealed fracture of ribs, The right side lung was contused and ruptured in the upper lobe. The doctor did not say whether the injuries found on the body of the deceased, collectively or individually, were sufficient in the ordinary course of nature to cause death. His evidence only shows that the injuries found on the body of the deceased were likely to cause death. Presumably everybody knows that the head and chest are vulnerable parts of the human body, and if a man with that knowledge inflicts injuries on those parts of the body with such violence as to cause fracture of ribs and rupture of lungs; he should be presumed to have the knowledge that by his act he was likely to cause death. The offence committed by the appellants would, therefore, fall under Section 304, Part II, I. P. C,

12. The attack on the deceased appears to have been done in concert pursuant to a pre-arranged plan, The conjoint and concerted attack unmistakably indicates that the appellants were actuated by a common intention. They are, therefore, to be convicted under Section 304, Part II read with Section 34, I. P. G. Accordingly, we alter the conviction from one under Section 302/34. I.P.C. to that under Section 304, Part II read with Section 34, I.P.C. and reduce the sentence to R.I. for five years.

13. Subject to the above modification, the appeal stands dismissed.

14. Before concluding, we may point out that it is the duty of the Public Prosecutor to put a question to the doctor as to the nature of the injuries, i.e., whether they were sufficient in the ordinary course of nature to cause death, or likely to cause death, because the intention or the knowledge of the accused person is to be inferred only from the nature of the injuries. If this duty is neglected by the Public Prosecutor, then the Sessions Judge ought to put this question

B.K. Behera, J.

15. I agree.


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