Orissa High Court: In a jail criminal appeal against the conviction order of the Adhoc Additional Sessions Judge, Fast Track Court, Champua, for offences punishable under Section 307 of the Penal Code (‘IPC’), S.K. Sahoo*, J. allowed the appeal and altered the conviction under Section 307 of the IPC to under Section 326 of the IPC.
In the matter at hand, the convict was accused of inflicting injury upon his elder brother (P.W.1) by means of arrow shot with such intention or knowledge and under such circumstance that might have caused his death. The Trial Court found the convict guilty and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for three more months.
Analysis
Delay in lodging FIR
The Court noted that the said occurrence took place on 24-08-2010 at about 7:30 p.m. and the FIR was lodged on 28-08-2010 at 9:15 a.m. and that the P.W.1 had stated that he lost his senses due to arrow shot and was taken to the hospital and the doctor expressed inability to extend treatment to him looking at the severity of wound and advised to shift him to another hospital, where he received treatment for 15 days. On delay in lodging FIR, the Court said that it is normally viewed with suspicion as there is possibility of concoction and embellishment of the occurrence and the object of insisting upon a prompt lodging of the report is to obtain early information not only regarding the assailant but also about the part played by the accused, the nature of the incident etc. for which it becomes necessary for the prosecution to explain the delay. However, the Court viewed that in the present case, the evidence adduced by P.W.1, his elder sister and son-in-law regarding the critical condition of P.W.1 and his hospitalization and anxiety to priorly save life explained the delay in lodging the FIR satisfactorily.
Testimony of an Injured witness
The Court said that the law is well settled that the testimony of a witness who was himself injured in the occurrence is generally considered to be very reliable, as there is a guarantee of the presence of that witness at the scene of the crime. The Court also said that convincing evidence is required to discredit an injured witness and his testimony cannot be brushed aside lightly.
Hence, the Court considered P.W.1 as the star witness, who stated that the convict’s wife was drunk and hurled obscene language for which his son tried to stop her, but she got enraged and the convict threatened to blow an arrow at him. The convict’s wife brought a bow and arrow, and the convict shot an arrow, which pierced below his left side chest, and he sustained bleeding injury. The Court also noted that P.W.1 was subjected to lengthy cross-examination, but nothing was elicited to discard his testimony.
The Court also noted that the son-in-law’s statement also corroborated P.W.1’s testimony. The Court also referred to the doctor’s statement, wherein he stated that the injury sustained by P.W.1 was on the vital part of the body like spleen, and it was considered as a grievous injury and that death was possible without surgical intervention. Hence, the Court said that the medical evidence corroborated the version of P.W.1 and his son-in-law.
Whether the conviction under Section 307 of the IPC was justified?
The Court referred to State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28, wherein, it was observed that to justify a conviction under Section 307 of the IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to the actual wounds. It is not necessary that the injury caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. The Court must see if the act, regardless of its result, was done with intention or knowledge and under the circumstances mentioned in the section.
The Court said that in the matter at hand, nothing could show that there was any pre-arranged plan to commit the crime, the occurrence took place suddenly after a quarrel between the parties, who were consuming liquor on account of Rakhi Purnima festival. The Court also noted that the convict and P.W.1 are brothers and that P.W.1 was not present at the scene of occurrence when quarrel started between his son and convict’s wife who was in an inebriated condition and started hurling obscene language. The Court noted that the son-in-law’s statement was silent on the part that the convict’s wife brought the bow and arrow and handed it over to the convict. The Court said that it is common for the Adivasis to carry bows and arrows as a normal part of their lives. The Court also added that being armed with bow and arrow by the convict while celebrating a festival was not an unusual feature, or it cannot be said that he came prepared to commit the crime and it is not unusual for tribal man to lose temper on trivial issues. The Court also noted that it was a dark night and therefore, it cannot be said that the convict in that darkness aimed at P.W.1’s chest, which caused injury to the spleen.
Thus, keeping in view the factual scenario, the relationship between the parties, absence of any previous hostility between the two, sudden quarrel, the manner in which the injury was caused, the time of occurrence and in absence of any medical evidence that the injury caused was fatal though it was a grievous one, the Court held that the prosecution failed to prove beyond a reasonable doubt that the convict intended to kill P.W.1. The Court observed that the intent cannot be determined solely by the severity of the harm done to the injured and thus the offence would not come within the purview of Section 307 of the IPC and accordingly, the conviction under Section 307 of the IPC was altered to under Section 326 of the IPC.
Decision
The Court noted that the convict remained in judicial custody for about three years and since from the date of occurrence, more than thirteen years had already passed, the Court deemed it proper to reduce the sentence to the period already undergone. Accordingly, the Jail Criminal Appeal was partly allowed.
[Bagina Munda v. State of Odisha, 2024 SCC OnLine Ori 457, Decided on: 10-01-2024]
Judgment Authored by: Justice SK Sahoo
Advocates who appeared in this case:
For the appellant: Advocate Chitta Ranjan Sahu
For the respondent: Additional Standing Counsel Sonak Mishra
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