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Duinath Barik Alias Bibhar Vs. the State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberJail Criminal Appeal No. 56 of 1981
Judge
Reported in1985(II)OLR329
ActsIndian Penal Code (IPC) - Sections 302 and 326
AppellantDuinath Barik Alias Bibhar
RespondentThe State of Orissa
Appellant AdvocateK.C. Mohanty, Adv.
Respondent AdvocateIndrajit Ray, Addl. Govt. Adv.
DispositionAppeal dismissed
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 6 who was an eye-witness to the occurrence clearly proves that the appellant and the deceased had been quarrelling prior to the occurrence. 6 in support of his contention that she was not a reliable eye-witness to the occurrence......the appellant and the deceased along with the two children were residing in a portion of her house. the occurrence took place in the morning of a monday. on the previous saturday evening there was some quarrel between the appellant and the deceased during which the appellant threw away and broke down some earthen pots of the house. in the night of sunday preceding the occurrence the appellant assaulted the deceased followed by a quarrel between the two. in the morning of the occurrence she was sitting at the entrance door of her house. p. w. 7, sari came weeping and told her that the appellant threw a bell-metal khuri at her and was assaulting the deceased coming in the house. immediately thereafter she saw the deceased coming out of the house followed by the appellant who was.....
Judgment:

K.P. Mohapatra, J.

1. The appellant has been convicted under Sections 302 and 326 of the Indian Penal Code and sentenced to undergo imprisonment for life and rigorous imprisonment for three years for each of the offences respectively.

2. The appellant was a rickshaw puller and a resident of Beherapali in the outskirt of Bolangir town. He married deceased Bhalu who had a daughter, Sari (P. W. 7) aged about ten years and a son aged about five years through her first husband. The couple along with the children lived in a portion of the house of Gupta (P. W. 6). It was alleged that the appellant and the deceased had frequent quarrels for two days prior to the date of occurrence, i.e., 8. 10. 1979 which was a Monday. In the morning of the date of occurrence the appellant picked up quarrel with the deceased. When P. W. 7, Sari intervened, the appellant threw a Khuri ( a large and heavy bell-metal utensil used for taking rice with gruel) which hit her. Thereafter the appellant became furious, picked up a Tangia (M O. I) and started assaulting the deceased by means of it. Seeing the assault on her mother, P. W. 7 ran outside and informed P. W. 6, Gupta, who was sitting at the front door of her house about the assault Shortly thereafter P. W. 6, Gupta saw that the deceased was running hither and thither outside the house and the appellant chasing and assaulting her by means of the Tangia. The deceased fell down inside the nearby drain being seriously injured. Even when she had already fallen down, the appellant dealt a few more blows on her by means of the Tangia. P. W. 7, Sari cried and protested. The appellant dealt a blow on her head by means of the Tangia, threw it on the ground and ran away towards the Sambalpur road. P. W. 7 Sari was removed to the Bolangir hospital by P, W. 5. Premlal and another for treatment. The deceased was also taken to the same hospital where she breathed her last. P. W. 8, the Sub-Inspector of Police, Bolangir Police Station first received a phone message at about 8-30 a. m. from the Medical Officer, Bolangir hospital and recorded the station diary entry (Ext. 16). Thereafter, he ascertained the facts regarding the incident and drew up First information Report (Ext. 9) suo motu. After close of investigation he submitted charge-sheet against the appellant for offences under Sections 302 and 326 of the Indian Penal Code.

3. The appellants plea was a complete denial of his complicity in the crime.

4. The learned Sessions Judge, Bolangir, accepted the ocular testimony of the eye-witnesses to the occurrence P. W. 6, Gupta P. W. 7, Sari, and found that the appellant was the perpetrator of the offences he was charged with. Therefore, he convicted and sentenced him as already referred to earlier.

5. The evidence of P. W. 2, the Medical Officer who performed the autopsy shows that there were six injuries mostly on the head of the deceased. According to her opinion, three of the injuries were fatal and were sufficient in the ordinary course of nature to have caused death which was on account of shock and haemorrhage. The injuries were ante-mortem and could have been caused by the blunt and sharp sides of the Tangia (M. O. I) according to the reports, Exts. 1 and 2/1. Her evidence leaves no room for doubt that the death of the deceased was on account of homicide which fact was not challenged in appeal.

6. Mr. K. C. Mohanty, learned counsel appearing for the appellant urged that there is no evidence that the appellant and the deceased had been quarrelling prior to the occurrence and so the prosecution did not establish motive for the murder. According to him, the evidence of P. Ws. 6 and 7 is so discrepant and unworthy of credit that no conviction could be founded on the same. Learned Additional Government Advocate, on the other hand, urged that the evidence of P. Ws. 6 and 7 which is entirely believable clinches the guilt on the appellant and so there is no escape from the irresistible conclusion that the appellant was the perpetrator of the offences. The contentions require careful examination.

7. P. W. 1, father of the deceased came to the house of the appellant and the deceased at Beherapali on Saturday and Sunday preceding the date of occurrence and left in the morning of Monday, whereafter, the occurrence took place. He has denied of any quarrel having taken place between the appellant and the deceased. But it would appear from his evidence that he was sleeping at night in the house of another and so it would be reasonable to hold that he was not a witness. to depose as to the quarrel between the appellant and the deceased while he was away from their house. On the other hand, the evidence of P. W. 6 who was an eye-witness to the occurrence clearly proves that the appellant and the deceased had been quarrelling prior to the occurrence. P. W. 6, Gupta is the wife of the appellant's cousin. According to her evidence the appellant and the deceased along with the two children were residing in a portion of her house. The occurrence took place in the morning of a Monday. On the previous Saturday evening there was some quarrel between the appellant and the deceased during which the appellant threw away and broke down some earthen pots of the house. In the night of Sunday preceding the occurrence the appellant assaulted the deceased followed by a quarrel between the two. In the morning of the occurrence she was sitting at the entrance door of her house. P. W. 7, Sari came weeping and told her that the appellant threw a bell-metal Khuri at her and was assaulting the deceased coming in the house. Immediately thereafter she saw the deceased coming out of the house followed by the appellant who was assaulting her by means of a Tangia, The deceased ran hither and thither, but the appellant chased and assaulted her by means of the Tangia, As a result of the assault the deceased could not escape and fell down in the nearby drain. She forbade the appellant not to assault the deceased and also raised hulla. Even after the deceased had fallen down on the drain the appellant gave few more blows on the head by means of the Tangia. P. W. 7 also raised hue and cry that her mother was being assaulted. The appellant dealt a Tangia blow on the head of P. W. 7, threw away the Tangia and ran away along the Sambalpur road. Subsequently both the deceased and P. W. 7 were removed to Bolangir hospital. Learned counsel for the appellant took us through the entire evidence of P. W. 6 in support of his contention that she was not a reliable eye-witness to the occurrence. But having carefully considered the total impact of her evidence on the prosecution case, we are unable to find any inherent discrepancy, inconsistency or improbability so as to discard her testimony. On the other hand, she appears to be a natural witness to the occurrence being a close-door neighbour of the appellant and the deceased and an intimate relation too. No special reason has been ascribed as to why her evidence should be thrown out of consideration. We, therefore, accept her evidence.

8. P.W. 7, Sari is the natural daughter of the deceased and the step-daughter of the appellant. She is a child witness aged about ten years at the time when her evidence was recorded. She stated that the occurrence took place on a Monday morning in their Beherapali residence. In the morning of the date of occurrence the appellant threw a bell-metal Khuri which hit her left shoulder joint. She ran to. P. W. 6 weeping. While she was there, the appellant assaulted the deceased by means of a angia all the while chasing her. The deceased fell down inside a drain. he appellant further assaulted her by means of the Tangia. She found leeding injuries on the deceased and went near her weeping. The ppellant came to her saying that he would also kill her and then dealt a angia blow on her forehead. She fell down and lost her senses. She regained her senses in the hospital. In cross-examination she stated that hen the appellant threw the bell-metal Khuri, the deceased was lying on cot as she was having pain in her stomach. She was nonplussed when he was near P. W. 6 and had not seen about the assault on her mother. As she was not in full senses after being hit by the bell-metal Khuri, she stated by guess that she was assaulted by her father. She sat outside the house of P. W. 6 in a perplexed state of mind and so did not properly see the incident of the assault on the deceased. She was cross-examined by the prosecution during which she stated that she had actually seen the assault on her mother by the appellant who had also assaulted her on the forehead by means of the Tangia. In her further cross-examination by the defence counsel she stated that she was tutored by the police to depose regarding the incident. The evidence of P. W. 7, Sari read with theevidence of P. W. 6 will show that she actually saw the occurrence. She was herself assaulted by the appellant and so her presence at the scene of occurrence was but natural. As she was a child witness, it seems, attempt was made so as to swerve her from the path of truth. In any event, a total consideration of her evidence read with the evidence of P. W. 6 leaves no room for doubt that she was an eye-witness to the occurrence and was herself assaulted by the appellant by means of the Tangia, for which P. W. 3, another Medical Officer found a grievous injury.

Learned counsel for the appellant pointed out that P. W. 7 was not immediately examined by P. W. 8, the Investigating Officer and was examined on 21.10. 1979. This aspect of the case has been discussed by the learned Sessions Judge who observed that because P. W. 7 was an indoor patient and had sustained a head injury, she was not in a fit state of mind to be examined. The explanation seems to be plausible. Therefore, no adverse inference can be drawn against the prosecution case on this score.

9. An analysis of the evidence adduced by the prosecution in this case will thus show that the appellant and the deceased had quarrels prior to the occurrence which provided motive for the crime. There were eye-witnesses who saw the appellant assaulting the deceased by means of a Tangia as a result of which she sustained fatal injuries and died. The appellant also assaulted P. W. 7 resulting in a grievous injury. In our considered opinion, the charges have been brought home to the appellant and he has rightly been convicted and sentenced. The appeal is accordingly dismissed.

B.K. Behera, J.

I agree. Both the charges had been brought home to the appellant beyond reasonable doubt. Even if the evidence of P. W. 7, a natural and competent witness, is discarded because of some prevaricating statements made by her owing evidently to the perplexed state of her mind at the time of the murderous assault on the deceased and assault on her, the evidence of P. W. 6 is clear and cogent, true and trustworthy. The sole evidence of P. W. 6 can be made the foundation of an order of conviction for both the charges.


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