L.MOHAPATRA, J & C.R.DASH, J. CRA. NO.121 OF 1999 (Decided on 09.03.2011) LOKANATH PUJAPANDA & ANR. …… …. Appellants. .Vrs. STATE OF ORISSA ………… Respondent. A. EVIDENCE ACT, 1872 (ACT NO. 1 OF 1872) – S.32 (1) For Appellants - M/s. D.Nayak, R.K.Pradhan, M.Mohanty, S.K,.Das, P.K.Mohanty, N.K.Mohanty, B.Rout & B.Das. For Respondent - Additional Government Advocate C.R.DASH,J. Both the appellants along with six others stood trial for offence punishable under Section 302/34, I.P.C. Learned Trial Court found the present appellants guilty under Section 302/34, I.P.C. and sentenced each of them to suffer imprisonment for life. The aforesaid judgment and order of sentence dated 26.03.1999 passed in S.T.Case No.22/64 of 1997 and S.T. Case No.48/327 of 1997 by learned Second Addl. Sessions Judge, Puri are impugned in this appeal. 2. A compendium of the prosecution case, as found from the record, is as follows :- The occurrence happened at about 7.30 a.m. The occurrence happened at about 7.30 a.m. on 27.09.1996 at Gudia Sahi, Puri in front of the house of deceased Laxmidhar Rout. Deceased Laxmidhar Rout was brining water from the front courtyard of his house at that time. Both the appellants being armed with swords came there and dealt blows on the head of the deceased from his backside, abusing him in filthy language. They were also declaring simultaneously to take away his life. Receiving the blow when the deceased Laxmidhar Rout entered inside his house, both the appellants chased him and dealt further blows to his head by the swords held by them. The deceased raised his right hand to ward off the sword blow and received cut injuries on his little finger and another finger. Owing to assault by the appellants, deceased Laxmidhar Rout sustained multiple cut and bleeding injuries on his head, shoulder, hands and legs. ‘Basti’ people rushed to the spit hearing shout of the deceased, and seeing them the appellants decamped from the spot. The deceased was first taken to Puri Town P.S. in a rickshaw and thereafter he was taken to District Headquarter Hospital, Puri for necessary treatment. While undergoing treatment, the deceased succumbed to the injuries on 01.10.1996. F.I.R. was lodged in Puri Town P.S. On completion of the investigation, the Investigation Officer (P.W.10) filed charge-sheet implicating the present appellants and others in the offence punishable under Section 302/34, I.P.C. The defence plea is one of complete denial. 3. Prosecution has examined eleven witnesses to prove the charge. P.Ws. 4, 6 and 9 are the eye-witnesses to the occurrence. P.Ws.7 and 8 are post-occurrence witnesses. P.Ws.2 and 3 are the witnesses to the inquest held over the dead body of the deceased by the I.O. (P.W.10). P.W.1 is a witness to the seizure. P.W.5 is the Medical Officer, who examined the injured Laxmidhar Rout (deceased) on police requisition and held post- mortem over his dead body on his death. P.W.10 is the Investigating Officer, who had conducted the substantive part of the investigation and P.W.11 is the I.O. who received the report, treated the same as F.I.R., registered a case and directed P.W.10 to take up investigation. Defence has examined none. 4. Learned Trial Court, on consideration of the materials on record, held the appellants guilty under Section 302/34, I.P.C. and convicted them there under, while acquitting the others implicated in the offence. 5. Learned counsel for the appellants submits that there being discrepancies in the ocular testimony of P.Ws.4, 6 and 9, and P.W.4 being a chance witness, conviction of the appellants on the basis of their evidence is not sustainable in the eyes of law; motive on the part of the appellants having not been proved, conviction of the appellants under Section 302, I.P.C. is bad in law; the cause of death of the deceased having been opined to be cerebral embolism which may occur even in case of a hypertensive patent, cause of death of the deceased is not proximate to the act of the appellants and it is too remote so as to hold the appellants guilty under Section 302, I.P.C. In the alternative, it is submitted by learned counsel for the appellants that regard being had to the nature of injuries sustained by the deceased and cause of his death, appellants could have only been convicted either under Section 324, I.P.C. or at best under Section 326, I.P.C. 6. P.W.4 is criticized and assailed by learned counsel for the appellants on the ground of his being a chance witness. P.W.4 is a co-basti man of both appellants and the deceased. At the relevant time of occurrence he (P.W.4) was passing across the house of the deceased on his way to nearby Laxmi Bazar to bring vegetables. He saw the occurrence standing in front of the house of the deceased and he has described in detail the conduct of the appellants, manner of assault on the deceased by each of the appellants, his part in taking the deceased Laxmidhar Rout in a rickshaw to Puri Town P.S. and there from, on and advice of the police, to the District Headquarter Hospital. Learned Trial Court has eschewed the defence contention on this point through detail discussion in paragraph-8 of the impugned judgment, by referring to various authorities on the point. The relevant facts, which, according to learned trial court, rescues P.W.4 from being a chance witness is the fact that he is a co-basti man of both the parties and he has explained his presence at the spot at the relevant time of the alleged occurrence. Taking into consideration the evidence of P.W.4 in its entirely, we do not find justification to take a different view, but we feel persuaded to reinforce the findings of the learned trial court by referring to Rana Pratap vrs. State of Haryana, A.I.R. 1983 S.C. 680, wherein Hon’ble the Supreme Court has held thus- “….. We do not understand the expression “chance witnesses”. Murder are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence can not be brushed aside or viewed with suspicion on the ground that they are mere “Chance Witness” is borrowed from countries where every man’s home is considered his castle and every and must have an explanation for his presence elsewhere or in another man’s castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street Vendors on 2 the ground that they are “Chance witnesses” even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence. In the case in hand, presence of P.W.4 at the spot having been found to be probable, he being a resident of the locality and he (P.W.4) having given reasons or having explained his presence at the spot, his evidence can not be brushed aside or viewed with suspicion on the ground that he is a chance witness. 7. P.Ws. 6 & 9 are daughter and wife respectively of the deceased. They are eye witnesses to the occurrence. They came from inside the house to see the occurrence on being attracted by the shout of the deceased. They have also described in detail the conduct of the appellants, manner in which each of the appellants mounted the assault and the injuries sustained by the deceased. Their evidence is criticized on the ground of their relationship with the deceased. Learned trial court by referring to various case laws on the point, has negatived such a contention by holding that relationship can not be a ground to discard the sworn testimony of a witness. There is no infirmity in the findings of the trial court on this point and learned trial court having appreciated the evidence of P.Ws.6 and 9 carefully and cautiously before believing them as they were criticized on the ground of their relationship, we also do not find any infirmity in the decision making process by the learned trial court so far as the evidence of P.Ws.6 and 9 are concerned. 8. In the present case, the deceased himself has lodged the F.I.R. vide Ext.6, which was scribed by P.W.8. In course of treatment, his statement under Section 161 Cr.P.C. was recorded and such statement has been proved as dying declarations of the deceased. The statement given by the deceased in Ext.6 and 10 relates to the circumstances of the transaction, which resulted in his death. It is well settled in law that any statement made by the deceased, which are directly connected with or related to his death and which reveal a tell tale, is admissible in evidence under Section 32(1) of the Evidence Act. No authority is required to be referred to justify our findings on the point to the effect that Exts.6 and 10 in the present case are admissible under Section 32(1) of the Evidence Act. We, therefore, hold that learned trial court has taken the right view on admissibility of Exts. 6 and 10 under Section 32(1) of Evidence Act as dying declarations of the deceased. 9. Learned counsel for the appellants submits that cause of death of the deceased to cerebral embolism and the medical officer P.W.5 has specifically opined that cerebral embolism can also happen in case of a hypertensive patient without any injury being caused to such a patient. It is further submitted that in view of such fact, it can not be said that there is proximate relationship between the act of the appellants and death of the deceased. On such premises, it is contended that when death of the deceased can not be held to be homicidal, Exts.6 and 10 can not be held to be relevant and admissible under Section 32(1) of the Act, inasmuch as both the Exhibits do not contain statement of the deceased, which relates to the circumstances of the transaction that resulted in his death. 10. Evidence of P.W.5 shows that during the post-mortem examination he (P.W.5) found the following external injuries on the dead body of the deceased :- “ (i) Incised wound 2”x1”x cutting muscles and fascie posterior part of the left leg 3” above the knee obliquely placed. (ii) Abrasion with bleeding over anterior part of left knee and right ankle. 3 (iii) Incised wound 4”x1”x bone deep bleeding present on anterior part of right knee just below the patella semi-circular with curved upwards, (iv) Incised injury 2”x1” cutting outer cortes of the skull below the injury bleeding present anterior posteriorly placed over left eye brow. (v) Amputation of the little finger of the right hand from the base bleeding present. (vi) Ring finger of the right hand cut vertically separating nail from the pulp up to second wrist laterally and up to base media. (vii) Incised wound 2”x3” cutting deep muscle transversely placed bleeding present on the lateral part of the left palm 2” above the acromia process. (viii) Incised wound 3”x1/2”x skin deep bleeding present over supra scapular region left side anterior posteriorly placed.” It is opined by him (P.W.5) that all the injuries except injury no.(ii) were stitched. The internal injuries found by P.W.5 are punctured haemorrhage over both the hemisphere of the brain, fracture of upper fibula of the left side, fracture and upper tibia on the right side, and cutting of outer cortes of front parietal bone of the left side. Cause of death, according to P.W.5, is multiple injuries leading to cerebral embolism and shock. It is further opined by P.W.5 that all the injuries except injury no.(ii) above were caused by sharp cutting weapon. In cross-examination (at Para-13), P.W.5 has testified thus :- “13. Without any Injury cerebral embolism may occur if there is hypertension.” 11. Learned counsel for the appellants capitalized much on the aforesaid opinion of P.W.5 and submits that there being nothing on record to show that the deceased was not suffering from hypertension, cerebral embolism caused to the deceased can not be attributed to the injuries sustained by him. 12. ‘Cerebral Embolism’ medically refers to a condition of blockage of blood flow through vessel in the brain by a blood clot that formed elsewhere in the body and travelled to the brain. P.W.5 is specific in his opinion that multiple injuries caused to the deceased have led to cerebral embolism in the present case. He having conducted the post-mortem on the dead body of the deceased, is the right person to form the opinion as aforesaid. His opinion in paragraph-13 of his cross-examination is an answer to a general question as to whether cerebral embolism may occur without any injury. Such a general opinion can not, however, supersede the specific opinion given by him in his examination-in-chief. We are, therefore, constrained to hold that the injuries sustained by the deceased in the present case have led to cerebral embolism resulting in the death of the deceased. 13. It is well settled in law that in order to hold the death of a person to be homicidal, the injuries inflicted must be the proximate cause of death and not a remote cause connected with the death by a chain of intervening events. In other words, the ‘death’ should be connected with the act of violence or other primary cause not merely by a chain of causes and effects but by such direct influence as is calculated to produce its effect without intervention of any considerable change of circumstances. The death of a person must be at least a likely consequence of the injury received. In view of such position of law when any disease, which actually causes death, is natural and probable 4 result of the injury which has been caused, the person who has inflicted injury is to be held responsible for the disease arising from the injury. Therefore, when the disease, which actually causes death is disease like meningitis, peritonitis, tetanus, pneumonia, gangrene or a condition like cerebral embolism, as in the present case and it is natural of a condition like probable result of the injury which the accused has caused, the accused is to be held to be responsible for the disease or condition arising from the injury, and the death in such cases is to be held to be homicidal. In the premises as aforesaid, it is to be held that death of the deceased Laxmidhar Rout was a homicidal death. 14. Learned counsel for the appellants has raised some other points regarding absence of motive, etc., but all those points being in the fringe and having been discussed and negatived by learned trial court in the impugned judgment, we do not find any justification to burden this judgment by reiterating the same in detail. 15. Coming to the alternative contention raised by learned counsel for the appellants, there is no dispute on the point of law that in a charge under Section 302, I.P.C. an accused can be convicted suitably either under Section 324, 325 or 326, I.P.C. in such a case where death of the deceased was not the direct result of the injuries caused to the deceased during the occurrence. But in case the injuries caused to the deceased are held to be the cause of death of the deceased, there is no scope to convert or to modify the conviction under Section 302, I.P.C. to one under any of the sections relating to hurt. In the present case we have already held that death of the deceased is a homicidal death and injury received by the deceased is the cause of his death. In the premises as aforesaid, contention of learned counsel for the appellants to convert the conviction of the appellants to one under Section 324, I.P.C. merits no consideration. 16. Except injury no. (iv) extracted supra, all other injuries are on non-vital parts of the body of the deceased. Injury no. (iv) is an incised injury of size 2” x 1” cutting outer cortes of the skull below the injury present anterior and posteriorly placed over left eye- brow. The aforesaid injury or other injuries received by the deceased can not be brought under Clause Thirdly of Section 300, I.P.C. in as much as there is nothing on record to come to a finding that the injuries were sufficient in ordinary course of nature to cause death and the appellants had intended to cause those particular injuries shown to have been sustained by the deceased. Except injury no. (iv), which is not a grievous injury and which has not affected fatally the deceased, all other injury are either on legs or palm or knee. In view of such fact, it can not be held that the appellants had the intention to cause death of the deceased. The blood clot resulting in cerebral embolism might have been caused by fracture of left fibula or right tibia. In view of such fact knowledge may be attributed to both the appellants to the effect that by their act they are likely to cause death of the deceased. We are inclined to take such a view taking into consideration the indiscriminate assault on the deceased by sharp cutting weapons like sword. Accordingly the appellants are held to have committed offence of culpable homicide not amounting to murder punishable under Section 304, Part-II, I.P.C. 17. In view of our discussion supra, conviction of the appellants is modified to one under Section 304, Part-II, I.P.C. read with Section 34 thereof. Conviction of the appellants under Section 302/34, I.P.C. is accordingly set aside. 5 It is submitted by learned counsel for the appellants that both the appellants have already suffered imprisonment for 10 years as Under Trial Prisoners, as they were in custody since 29.09.1996 until their release on bail in mind 2007. Regard being had to such submission, the sentence in respect of both the appellants is modified to the period already undergone by each of them. The Criminal Appeal is accordingly allowed in part. The appellants be discharged of the bail bonds executed in the present case. Appeal allowed in part. 6