MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.130 of 2003 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 26th April, 2003 passed by the learned Additional Sessions Judge, Jharsuguda in S.T. Case No.323/38 of 2000. 1. Rabindra Ray @ Raju; and 2. Ramnath Ray ---- -versus- …. Appellants State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.L.N. Patel (Advocate) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM:
Legal Reasoning
at times in a quite unexpected manner; we are of the view that the offence could be properly categorized as one punishable under section 304-II of the IPC. We are thus of the considered opinion that for the role played by these accused persons and the act done, they would be liable for conviction under Section 304-II of the IPC. CRLA No.130 of 2003 Page 7 of 8 Having held as above, we find that the accused persons to have remained in custody for some time during trial and then have suffered imprisonment from 26.0.2003 till 21.12.2009 when this Court, in Appeal, directed for their release on bail. In the facts and circumstances, for the offence committed by the accused persons as we have held, they are hereby sentenced to imprisonment for the period already undergone. 12. In the result, the Appeal is allowed in part with the modification as to the judgment of conviction and order of sentence dated 26th April, 2003 passed by the learned Additional Sessions Judge, Jharsuguda in S.T. Case No.323/38 of 2000 to the extent as indicated above. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 27-Aug-2024 12:15:12 CRLA No.130 of 2003 Page 8 of 8
Arguments
MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 01.07.2024 : Date of Judgment : 20.08.2024 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 26th April, 2003 passed by the learned Additional Sessions Judge, Jharsuguda in S.T. Case No.323/38 of 2000 arising out of G.R. Case No.313 of 2000 corresponding to Brajrajnagar Police Station Page 1 of 8 CRLA No.130 of 2003 (P.S.) Case No.70 of 2000 pending in the Court of the learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Brajrajnagar. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, they have been sentenced to undergo imprisonment for life. 2. PROSECUTION CASE:- One Deep Narayan Ray since was selling milk in the area at a lesser price, these accused persons were objecting to the same and for the said reason, there was quarrel between them. It is stated that during mid night of 05.05.2000, when Deep Narayan came out of his house for attending the call of nature, these accused persons attacked him and assaulted him by lathi on his belly and gave kicks him. Dur to such assault, Deep Narayan raised hullan and became unconscious. Hearing the shout, the wife of Deep Narayan, namely, Gangajal Devi (P.W.1), sister Santi Devi (P.W.2), brother-in-law Sudam Ray (P.W.5), brother Surendra (P.W.6) and another co-villager, namely Nageswar Ray (P.W.9) arrived at the spot. Having found Deep Narayan in an injured condition, they shifted him to his house. On the following morning, Deep Narayan was taken to Central Hospital, Mandalia. His condition when became serious, as advised by the Doctor, Deep Narayan was shifted to V.S.S. Medical College & Hospital, CRLA No.130 of 2003 Page 2 of 8 Burla. As his health condition di not improve, Deep Narayan was again taken to S.C.B. Medical College & Hospital, Cuttack where in course of his treated, Deep Narayan expired on 02.06.2000. The matter, having been reported by Gangajal Devi (P.W.1), the wife of Deep Narayan (deceased) in writing before the Inspector-in-Charge (IIC) of Brajrajnagar P.S., the IIC initially registered the criminal case under section 341/325/34 of the IPC and directed the Assistant Sub-Inspector (A.S.I.) of Police (P.W.10) to take up the investigation. In course of his investigation, he (P.W.10) examined the Informant (P.W.1) and others and visited the spot where he also examined other witnesses. He has also recorded the statement of the injured on 20.05.2000 at 10.30 a.m. The incriminating articles were seized in course of investigation and on 27.05.2000, accused Rabindra, being arrested, was forwarded in custody to Court. On 04.06.2000; keeping in view the death of Deep Narayan, the investigation was taken up by the IIC (P.W.12) and on completion of the investigation, Final Form was submitted placing these accused persons to face trial for commission of the offence under section 302/34 of the IPC. 3. Learned S.D.J.M., Brajrajnagar, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. CRLA No.130 of 2003 Page 3 of 8 That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 4. The prosecution, in support of its case, has examined in total fourteen (14) witnesses (P.W.1 to P.W.14) during Trial whereas the defence examined one witness (D.W.1). The prosecution has also proved several documents, which have been admitted in evidence and marked (Exts.1 to 9). Out of those, the important are the FIR (Ext.3), medical report (Ext.1), inquest report (Ext.2), post mortem report (Ext.6) and the statement of the injured (Deep Narayan) recorded in course of investigation. 5. The Trial Court, upon examination of the evidence of the prosecution witnesses as also the documents admitted in evidence on their behalf, has found these accused persons to be guilty of culpable homicide amounting to murder since they have caused the death of Deep Narayan by assaulting him on vital part of his body. 6. The accused persons have taken the plea of complete denial and false implication. He, however, has examined one witness in support of such plea. 7. Mr.L.N. Patel, learned counsel for the Appellants (accused persons), at the outset, without question the nature of death of the deceased as homicidal as per the report of the Doctor (P.W.11) CRLA No.130 of 2003 Page 4 of 8 conducting the post mortem examination over the dead body of the deceased and other circumstances emanating therefrom, submitted that here is a case where even accepting the version of the prosecution witnesses as regards the role played and acts done by these accused persons viewing the other surrounding circumstances, which have emerged in evidence, the Trial Court ought not to have convicted the accused persons for commission of the offence under section 302 of the I.P.C. He further submitted that viewing the happenings in the incident as emerge in evidence and the subsequent events with the fact that the parties hail from rural back ground whose tamper usually run high and behavior for silly reasons, often becomes abnormal, the Trial Court ought to have convicted the accused persons for commission of offence under section 304-II of the IPC. He, therefore, urged for alteration of conviction Section 302 of the IPC to one under Section 304-II of the IPC and accordingly, he contended that the accused persons be visited with the sentence as would be deemed just and proper. 8. Mr.S.K. Nayak, learned Additional Government Advocate submitted all in favour of the finding returned by the Trial Court that the accused persons are liable for commission of the offence under Section 302 of the I.P.C. He further submitted that the blow being by a piece of lathi, on the vital part of the body of the CRLA No.130 of 2003 Page 5 of 8 deceased, the Trial Court did commit no mistake in holding the accused guilty for commission of the offence under section 302 of the IPC. 9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.14) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.9. 10. The death of Deep Narayan has been proved to be homicidal through the evidence of the Doctor (P.W.11), who had conducted the autopsy over the dead body as also the evidence of other Doctor (P.W.14), who had first treated Deep Narayan and the evidence of other witnesses (P.W.1, P.W.2, P.W.5, P.W.6 and P.W.9), who had seen the deceased with the injuries, which too have been noted in the Inquest Report (Ext.2) prepared by P.W.10. The prosecution through the evidence of P.Ws.1, 2, 5, 6 & 9 is found to have successfully established its case that these accused persons had assaulted the deceased by means of lathi and have given kicks, which is not challenged before us. The incident, having taken place in the mid night of 05.08.2000, the death has occurred on 02.06.2000. The Doctor opined that the cause of death was due to septicalmic shock on account of the CRLA No.130 of 2003 Page 6 of 8 external injuries on the right and left side abdomen, lateral aspect of the pelvis. It is stated that the accused persons were bearing grudge with the deceased since he was selling milk at a lesser price in the locality and they had a quarrel with him. In the occurrence, it is stated that the accused persons assaulted the deceased by means of lathi and had given kicks. It is not forthcoming in the evidence as to for how much of time the incident had continued when P.W.1 states that the deceased was being assaulted by lathi, P.W.6 states that he was being assaulted by accused persons by fist blows and kicks first and the accused persons thrust blows with lathi. 11. So, the evidence, as above, discussed being cumulatively viewed, with the fact that the parties hail from rural pocket of the Scheduled Area of the State where ordinarily their temper run high and for silly reasons, they many a times behave differently,