1. Both these appeals are directed against the common judgment and order dated 11.12 1981 passed by the learned Addl Sessions Judge, Bhawanipatna, in Sessions Case No. 24/23 of 1981 by which Sadini Dei, appellant in Criminal Appeal No. 1 of 1982, has been convicted under Section 326, IPC and sentenced to undergo R. 1. for one year.
2. Both the appeals were heard together and one set of argument was advanced by learned counsel appearing on both sides. Hence, this common judgment will govern both the appeals.
3. While admitting the Government Appeal on 19. 2. 1982 this Court directed issue of notice to the respondent Sadini Dei to show cause why the punishment may not be enhanced to a substantive term of five years' R. I. Similarly, while admitting the Criminal Appeal, this Court by order dated 15. 1. 1982 directed issue of notice to the appellant Sadini to show cause why the sentence of one year's R. I. may not be enhanced to a minimum period of three years' R. I.
4. A thumb-nail narration of the facts leading to the present appeals is that Sadini Dei, appellant in Criminal Appeal No 1 of 1982, and P. W. 1 Sajani Dei are the two wives of P. W. 3 Sankirtan Patra. On the date of occurrence (9. 9. 1980) while P. W. 3 had slept with his two wives, i. e., P. W. 1 and the appellant, in one room closing the door from inside, at about dawn, the appellant inflicted a blow with a Tangia (M O. I) which hit P. W. 1's head on the right side just below the ear as a result of which P. W. 1 sustained an incised wound. P. W. 1 who was asleep at that time raised a cry and on hearing her cry, P. W. 3 got up and found that the appellant was sitting on a cot inside the room with the Tangia in her hand besmeared with blood. P. W. 3 caught hold of her and snatched away the Tangia from her and raised an alarm. Hearing his shout, P. W. 2 Tankadhar Patra and P. W. 4 Ananraram Patra came to the spot and saw that appellant Sadini was going away.
Immediately after the occurrence, P. W. 3 went to Mohangiri Outpost and reported about the incident which was recorded in the station diary by the Constable-in-charge in the absence of the Officer-in-charge of the Outpost That station diary entry is Ext-7. Thereafter when P. W. 3 and others were proceeding towards the Madanpur-Rampur Police Station, on the way they found P. W. 6, Officer-in-charge of Mohangiri Outpost. They gave him the first information there. P. W. 6 instead of coming to the Outpost went to the place of occurrence and made a preliminary investigation. He examined P. Ws. 2, 3 and 4. As P. W. 1 was found to be in a, serious condition as a result of the injury, she was sent on police requisition to the Madanpur-Rampur hospital where she was examined by the doctor P. W. 5. The appellant who also had some injuries on her person was sent to the said hospital for examination. She was also examined by the doctor P. W. 5. After the preliminary investigation by P. W. 6, the charge of investigation was taken over by P. W. 7, Officer-in-charge, Madanpur-Rampur Police Station. After completion of the investigation. Sadini was charge-sheeted under Section 307, I. P. C. and put on trial.
5. During trial, seven witnesses were examined on behalf of the prosecution. P. W. 5 is the doctor who examined P. W. 1 as well as the appellant. P. W. 6 is the Asst. Sub-inspector of Police of Mohangiri Outpost who did the preliminary investigation and recorded the statements of P. Ws. 2, 3 and 4. P. W.7 is the Officer-in-charge of Madanpur-Rampur Police Station who submitted the charge-sheet.
6. The defence case is one of complete denial. No witness was put in the witness box on behalf of the defence.
7. On a consideration of the evidence on record, the learned trial Court found that the prosecution failed to prove a case under Section 307, I. P. C. against the appellant. The trial Court, however, found that the prosecution could bring home an offence under Section 326, I. P. C. against the appellant and accordingly convicted and sentenced the appellant as already stated above.
8. There is no dispute about the factum of the injury on P. W. 1. This has been dearly testified by P. W. 2, 3 and 4 and as also the victim herself (P. W. 1) and P. W. 5, the doctor who examined P. W. 1, P. W. 5 on examining P. W. 1 found an incised found 2'x l/4' upto the brain- matter damaging the temporal bone. The injury was situated horizontally on the middle of the right ear. P. W. 5 has opined that the injury was grievus in nature and could have been caused by a heavy and sharp cutting weapon. On 3. 12. 80, the Investigating Officer, P. W. 7, sent the Tangia, M. O. I, to P. W. 5 with a request to opine if the injury found on the person of P. W. 1. could be caused by it to which the witness replied in the affirmative. P. W. 5 has further opined that the injury on P. W. 1 was on a vital part of the body and that a bit of hard blow would have caused her death.
On the same day P. W. 5 also examined the appellant Sadini on whose person he found the following injuries :
i) An abrasion l'X 1/2' situated on the middle of the right clavicle.
ii) An abrasion l'X 1/2' situated 1' above the left knee.
According to the doctor, both the injuries on the appellant were simple in nature and could have been caused by a blunt and hard substance. He has further opined that the injuries could be possibly caused by a fall.
9. Mr. S. Misra (1), the learned counsel for the appellant, submits that the evidence adduced on behalf of the prosecution is so much discrepant and weak in nature that the learned trial Court should not have' placed implicit reliance on the same in order to convict the appellant under Section 326.I. P. C. . He further submits that a suggestion was put to the prosecution witnesses that it was P.. W. 3, the husband of P. W. 1 and the appellant, who came home in a drunken state and brandished the Tangia, M. O. I. as a result of which P. W. 1 was injured. According to the learned counsel in order to save the skin of P. W. 3, the prosecution story has been developed. If that would not have been the intention, the prosecution could very well have introduced a story where some unknown person entered the house, inflicted the injury on P. W. 1 and thereafter ran away. But that is not the prosecution case.
I have given my anxious consideration to the submissions made by Mr. Misra. I have carefully scrutinised the evidence of P. Ws. 1, 2, 3 and 4. The categorical evidence of P. W. 1 has not been shaken in any manner even by a lengthy cross-examination. She has given a graphic description as to how the incident took place. Some discrepancies are sought to be made out in the evidence of P. Ws. 2, 3 and 4 as to whether P. Ws. 2 and 4 saw the actual snatchin gaway of the Tangia, M. O. I., by P. W. 3 from the hand of the appellant. Further, it is shown from the evidence of these witnesses that P. W. 3 was always found to be drunk and that after drinking he used to quarrel with his two wives and beat them. But that is the conduct of a person and it has to be seen whether at the time of the occurrence P. W. 3 was in a state of drunkenness or that he was quarrelling with his wives and beating them or that he brandished the Tangia, M. O. I., as a result of which P. W. 1 sustained the injury. In order to evaluate the evidence, we have got to look into the same in its entirety. From the evidence of P. Ws. 2, 3 and 4 we find circumstances lending support to the evidence of P. W. 1. about the complicity of the appellant in causing the injury on P. W. 1.
10. On a thorough scrutiny and proper appreciation of the evidence on record, I am of firm opinion that the learned trial Court has not committed any infirmity in returning a verdict of guilt against the appellant under Section 326, I. P. C.
11. As regards the question of sentence passed by the learned trial Court, I find that the trial Court has passed a sentence of only one year's R. I. which appears to be inadequate in its first flash.
When the appellant was heard in the trial Court on the question of sentence, the learned trial Court found that the appellant was driven out of the house by her husband and she was living on begging and that she was almost a destitute. Although in normal circumstances a superior Court would have frowned upon the sentence passed by the trial Court to be inadequate, yet on an overall consideration of the facts and circumstances of the present case, I am of the view that the trial Court was justified in passing a lenient sentence of one year's R. I. for the offence under Section 326, I. P. C.
12. In the result, Criminal Appeal No. 1 of 1932 is dismissed and the order of conviction and sentence passed by the trial Court is confirmed.
13. For that reasons stated above, I do not find any merit in the Government Appeal and it is accordingly dismissed.
14. The notices of enhancement of sentence issued by this Court in the Criminal Appeal as also in the Government Appeal are hereby discharged.
15. The appellant Sadini Dei shall now surrender to her bail bond to serve out the sentence.