The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.69 OF 2008 An appeal under section 374 Cr.P.C. from the judgment and order dated 18.03.2006 passed by the Sessions Judge, Bolangir in Sessions Case No.133/B of 2001. ---------------------------- Panchanan Udurkaruan ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Ms. Tapaswini Sinha Advocate For Respondent: - Mr. Arupananda Das Addl. Govt. Advocate ----------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K.SAHOO AND THE HONOURABLE MR. JUSTICE S.K. MISHRA --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 29.01.2024 --------------------------------------------------------------------------------------------------- By the Bench: The appellant Panchanan Udurkaruan faced trial in the Court of learned Sessions Judge, Bolangir in Sessions Case No.133/B of 2001 for commission of offences punishable under sections 302/307 of the Indian Penal Code (hereinafter the // 2 // ‘I.P.C.’) on the accusation that on 28th April, 2001 at about 4.00 p.m. at village Maharapali under Bolangir Sadar police station, he committed murder of Kuber Bagarti (hereinafter ‘the deceased’) so also stabbed Smt. Belmati Bag (P.W.11) with a knife on her stomach with an intention to commit her murder. The learned trial Court vide judgment and order dated 18th March 2006 found the appellant guilty of both the offences charged and sentenced him to undergo rigorous imprisonment for life under section 302 of the I.P.C. and to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/-(rupees two thousand), in default, to undergo rigorous imprisonment for one month under section 307 of the I.P.C. and both the sentences were directed to run concurrently. Prosecution Case: 2. The prosecution case, as per the first information report (Ext.2) (hereinafter ‘F.I.R.’) lodged by Kesaba Sahu (P.W.2) before the Officer in-charge of Bolangir Sadar police station on 29.04.2001, in short, is that P.W.11 was the daughter of his friend and she was given in marriage to one Dalaganjan Bag of village Jagalpata and accordingly, P.W.2 had family relationship with P.W.11. Four to five years prior to the date of lodging of the F.I.R., the husband of P.W.11 expired for which, Page 2 of 23 // 3 // P.W.11 came to stay at village Maharapali in the house of one Pabitra Bag (P.W.7) with his daughter Udia Bag (P.W.12) and she was sustaining her livelihood working as labourer. It is further stated in the F.I.R. that six months prior to the lodging of the F.I.R., the appellant gave a proposal for marriage with P.W.12 and accordingly, the appellant was visiting the house of P.W.11 and was also looking after the wellbeing of P.W.11 and P.W.12. When the appellant insisted for his early marriage with P.W.12, P.W.11 wanted to defer it, for which dispute arose and P.W.11 came to the village of the informant (P.W.2) and called P.W.2 and the deceased to Maharapali to solve the dispute. On 27.04.2001, P.W.2 and the deceased came to village Maharapali but the matter could not be sorted out in the meeting and again on 28.04.2001, another meeting was convened and the brothers of the appellant were present in that meeting. However, the appellant was not present and since the dispute could not be resolved on account of absence of the appellant, P.W.2 along with P.W.11 and the deceased were proceeding to Maharapali square to go to village Ghunghutipali by bus. On the way, P.W.2 went to attend the call of nature and P.W.11 along with his brother (the deceased) were proceeding ahead and it was 5 O’ Clock in the afternoon and at that time, P.W.11 came near P.W.2 Page 3 of 23 // 4 // receiving injury on her belly and disclosed before P.W.2 that she was stabbed by the appellant and the appellant also stabbed the deceased for which latter was lying in front of the school at village Harijanpada. P.W.2 took steps for admission of P.W.11 in the hospital, who was in a critical condition and then came back to the front of the school where the deceased was lying dead with bleeding injuries. Information was given to the Bolangir Sadar police station over phone and the police officials arrived at the spot and on the verbal report of P.W.2, the F.I.R. was drawn up by P.W.13 Kishore Kumar Panigrahi, the Officer in-charge of Bolangir Sadar police station and Bolangir Sadar P.S. Case No.56 dated 29.04.2001 was registered under sections 302/307 of the I.P.C. against the appellant. Upon registration of the F.I.R., P.W.13 took up investigation of the case. During the course of investigation, he examined the witnesses, visited the spot, seized the articles as per seizure lists (Exts.3 & 4). The appellant was taken into custody and the I.O. seized a knife from the house of the appellant at his instance. After conducting inquest over the dead body of the deceased, the dead body was sent for post mortem examination and the wearing apparels of the deceased were seized. P.W.13 made a query to the doctor, who conducted post Page 4 of 23 // 5 // mortem examination by sending the seized knife regarding possibility of injuries sustained by the deceased with such weapon and received the report. He also sent the seized articles for chemical examination through the learned S.D.J.M., Bolangir and received the chemical examination report and on completion of investigation, he submitted charge sheet on 18.08.2001 under sections 302/307 of the I.P.C. against the appellant. Framing of charges: 3. After submission of charge sheet, the case was committed to the Court of Session after complying due committal formalities. The learned trial Court framed charges against the appellant as aforesaid and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Prosecution Witnesses & Exhibits: 4. During course of the trial, in order to prove its case, the prosecution examined as many as fourteen witnesses. P.W.1 Ranjit Putel is a witness to the inquest over the dead body of the deceased marked as Ext.1. Page 5 of 23 // 6 // P.W.2 Kesaba Sahu is the informant in the case. He supported the prosecution case and narrated the whole the incident. P.W.3 Bishnu Prasad Kalsai is a witness to the seizure of blood stained earth and some sample earth as per seizure lists vide Ext.3 and Ext.4 respectively. He is also a witness to the inquest over the dead body of the deceased. P.W.4 Ashok Bag, P.W.5 Jagnu Bag, P.W.6 Kaleswar Kalsai and P.W.10 Bhubaneswar Kalsai did not support the prosecution case for which they were declared hostile by the prosecution. P.W.7 Pabitra Bag did not support the prosecution case. P.W.8 Dr. Ram Chandra Hota was the Assistant Surgeon attached to District Headquarters Hospital, Bolangir, who conducted the post mortem examination on the dead body of the deceased on 29.04.2001 on police requisition and proved his report vide Ext.5. He further opined that the cause of the death of the deceased was due to shock and haemorrhage due to injuries to the vital organ like heart and lungs and it is homicidal in nature. He examined one knife with iron part and wooden handle and opined that the injuries on the deceased were Page 6 of 23 // 7 // possible by the said knife. He also proved his opinion report vide Ext.6. P.W.9 Gadadhar Singh was the Medical Attendant attached to Badimunda P.H.C. He stated that on 28.04.2001, during the absence of the doctor and compounder, one old lady came with injuries and he told her to wait but as the doctor and compounder did not turn up, the old lady went away. P.W.11 Belmati Bag is the injured in the case and also the sister of the deceased. She supported the prosecution case and stated about the incident. P.W.12 Udia Bag is the daughter of P.W.11. She stated that on the date of occurrence, while she herself along with P.W.11, the deceased and another person were coming to Maharapali chhak to board the bus, the appellant dealt a knife blow on the left side chest of P.W.11 and when the deceased tried to intervene, the appellant assaulted him by knife for which the deceased died at that place. P.W.13 Kishore Kumar Panigrahi was the Officer in- charge of Bolangir Sadar police station, who is the Investigating Officer of the case. Page 7 of 23 // 8 // P.W.14 Dr. Anandita Mishra was the Assistant Surgeon attached to District Headquarters Hospital, Bolangir, who examined the appellant on police requisition and proved her report vide Ext.9/1. She opined that all the injuries might have been caused by sharp cutting weapon and the age of injuries are within forty-eight hours when seen at 11.10 a.m. She further stated that she collected the nail cuttings and nail clippings of the appellant and handed over the same to the accompanying police escort as per report vide Ext.11/1. The prosecution exhibited sixteen documents. Ext.1 is the inquest report, Ext.2 is the F.I.R., Ext.3, Ext.4 and Exts.7 to Ext.7/5 are the seizure lists, Ext.5 is the post mortem report, Ext.6 is the opinion of the Medical Officer, Ext.8 is the requisition to Medical Officer of P.W.11, Ext.8/1 is the injury report of P.W.11, Ext.9 is the requisition to Medical Officer of the appellant, Ext.9/1 is the injury report of the appellant, Ext.10 is the query to Medical Officer, Ext.11 is the requisition to Medical Officer for nail clipping, Ext.11/1 is the report of nail clippings of the appellant, Ext.12 is the forwarding letter, Ext.13 is the Chemical Examination Report, Ext.14 is the command certificate, Ext.15 is the statement of P.W.11, Ext.15/1 is the relevant Page 8 of 23 // 9 // portion in 161 Cr.P.C. statement of P.W.11 and Ext.16 is the statement of P.W.12 under section 161 Cr.P.C., The prosecution also proved seven material objects. M.O.I is the knife, M.O.II is the one pair black chappal, M.O.III is the one pair slipper, M.O.IV is the saree (blood stained) of P.W.11, M.O.V is the jeans pant and banian of the appellant, M.O.VI is the blood stained garment of the deceased and M.O.VII is the bucket. Defence Plea: 5. The defence plea of the appellant is one of complete denial and false implication owing to previous dispute. The defence neither examined any witness nor exhibited any document.
Facts
Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well as documentary evidence on record come to hold that in view of the evidence of the doctor (P.W.8) and his report (Ext.5) and the opinion given that the injuries sustained by the deceased were ante mortem in nature and probable cause of death of the deceased was due to shock and haemorrhage on account of injuries to the vital organs like heart and lungs, there could be Page 9 of 23 // 10 // no room for doubt that the death of the deceased was homicidal. The learned trial Court disbelieved the evidence of P.W.12 as an eye witness to the occurrence in view of her contradictory statement made before the Investigating Officer. However, the learned trial Court accepted the evidence of P.W.11, the injured and the corroboration of her evidence from the post mortem report and particularly the opinion which has been given by the doctor that the injuries sustained by the deceased were possible by the knife seized. Taking into account the manner in which the appellant assaulted P.W.11, the learned trial Court came to the conclusion that the prosecution has been able to establish the charges under sections 302/307 of the I.P.C. against the appellant beyond reasonable doubt. Contentions of the Parties: 7.
Legal Reasoning
Rekha Mandal (supra), we are of the view that the conviction of Page 20 of 23 // 21 // the appellant under section 307 of the I.P.C. is not sustainable in the eyes of law and the conviction is altered to one under section 324 of I.P.C. The evidence of P.W.11 has not at all been shaken in the cross-examination. Her evidence is clear, cogent and trustworthy. However, it appears that there was no previous enmity between the appellant and the deceased. The occurrence happened all on a sudden when without intimating the appellant, P.W.11 along with P.W.12, the deceased and P.W.2 were leaving the village and proceeding towards Maharapalli square and when the appellant came to know about the same, he approached and requested them to return back to the village to which P.W.11 did not agree. The possibility of dispute arose at that point of time between the parties cannot be ruled out and when the appellant assaulted P.W.11 first, the deceased intervened and it appears that a single blow was given with the knife on the chest and which proved to be fatal. Law is well settled that merely because a single blow has been given, that would not ipso facto bring the case from section 302 I.P.C. to either under section 304 Part I or II of the I.P.C., but taking into account the absence of any previous enmity, the surrounding circumstances under which the offence Page 21 of 23 // 22 // has taken place and moreover single blow given by the appellant with the knife, we are of the view that the case would fall squarely under the Exception 1 to section 300 of I.P.C. and as such, the conviction of the appellant under section 302 of I.P.C is altered to one under section 304 Part I of the I.P.C. Accordingly, the appellant is found guilty under section 304 Part I of the I.P.C. On the perusal of case record, we find that the appellant was taken into judicial custody on 30.04.2001 and he faced the trial as UTP and after he preferred this Jail Criminal Appeal, he was granted bail by this Court on 19.05.2011 and thus, he has undergone substantive sentence of more than ten years. The occurrence took place in April 2001 and in the meantime, more than twenty two years have passed and the appellant is enjoying his liberty for more than twelve years by now and therefore, while convicting the appellant under section 324 of the I.P.C., we sentence him to undergo R.I. for one year and for the offence under section 304 Part I of the I.P.C., we sentence him to undergo R.I. for ten years and both the sentences are to run concurrently. Since the appellant has already undergone the sentence imposed by us today, he shall not be taken into judicial custody further. Page 22 of 23 // 23 // The JCRLA is accordingly allowed in part. Trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. Before parting with the judgment, we put on record our appreciation to Ms. Tapaswini Sinha, learned counsel for the appellant for rendering her valuable assistance in arriving at the above decision. We also appreciate Mr. Arupananda Das, learned Additional Government Advocate for ably and meticulously presenting the case on behalf of the State. S.K. Sahoo, J. …………………………… S.K. Mishra, J. ……………………………… Orissa High Court, Cuttack The 29th January 2024/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 02-Apr-2024 15:30:09 Page 23 of 23
Arguments
Ms. Tapaswini Sinha, learned counsel appearing for the appellant contended that since out of the two eye witnesses examined by the prosecution, the evidence of P.W.12 has been disbelieved by the learned trial Court, the case of the prosecution rests upon the solitary evidence of P.W.11. According to Ms. Sinha, the evidence of P.W.11 cannot be said to be absolutely reliable and truthful so that implicit reliance can be placed on her evidence. It is argued that even though P.W.11 stated to have Page 10 of 23 // 11 // sustained injury on account of knife blow given by the appellant on her left side chest and according to the Investigating Officer, she was sent for medical examination, but the doctor who examined P.W.11 was not examined during trial to prove the injury report and such report has been proved by the Investigating Officer. The learned counsel further argued that P.W.13 is not the competent witness to prove such report in absence of any materials on record as to why the doctor could not be examined to prove such report and more particularly when the defence did not get any opportunity to cross-examine the doctor, it is difficult to sustain the charge under section 307 of the I.P.C. It is further argued that there was no previous enmity between the appellant and the deceased and the occurrence happened all on a sudden when P.W.11 along with the deceased were trying to leave the village where they were staying and proceeding to Maharapali chhak to catch a bus and the appellant intervened and requested P.W.11 to come back to village Maharapali and since the deceased intervened, on account of grave and sudden provocation, a single blow has given to the deceased which proved fatal and in view of the background of the case and the surrounding circumstances under which the assault has been made, it may be a case of culpable Page 11 of 23 // 12 // homicide not amounting to murder punishable under section 304 Part I of the I.P.C. but not under section 302 of the I.P.C. The learned counsel further argued that the appellant was taken into judicial custody on 30.04.2001 and he was never released on bail during the trial and after the JCRLA was preferred, he was directed to be released on bail as per the order of this Court on 19.05.2011 and as such, he was remained in custody for more than ten years and therefore, the conviction may be altered to one under section 304 Part I of the I.P.C. and the sentence be reduced to the period already undergone. Mr. Arupananda Das, learned Additional Government Advocate, on the other hand, supported the impugned judgment and argued that since the appellant was insisting for early marriage with P.W.12 and P.W.11 was not agreed for the same, there was dispute between the parties and a meeting was convened on the date of occurrence at village Maharapali and since the appellant did not attend the meeting, no settlement could be arrived at and while P.W.11 and her brother (deceased) were leaving the village along with P.W.2 and proceeding to Maharapali square, the appellant appeared on the scene of occurrence and not only assaulted P.W.11 but also dealt a blow on the chest of the deceased for which, the deceased met Page 12 of 23 // 13 // instantaneous death. The learned counsel further argued that in view of the findings in the post mortem report, which has been proved by P.W.8, the ocular evidence adduced by P.W.11 is getting corroboration from the medical evidence and since the deceased being the brother of P.W.11 intervened when the assault was made to P.W.11 by the appellant, the manner in which deceased was assaulted at the spot and the effect of the blow which was given by the appellant on the chest clearly proves that the appellant intended to commit murder of the deceased and therefore, the learned trial Court has rightly found the appellant guilty under section 302 of the I.P.C so also under section 307 of the I.P.C. as in spite of best attempts made by the prosecution, the doctor could not be produced and on the prayer made by the learned Public Prosecutor, the injury report of P.W.11 was marked as Ext.8/1 as per the order dated 12.01.2005 on admission. Whether the deceased met with a homicidal death?: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let us first examine the evidence available on record as to how far the prosecution has succeeded in establishing that the deceased met with a homicidal death. P.W.13, the I.O. held inquest over the dead body and Page 13 of 23 // 14 // prepared the inquest report (Ext.1) at the spot and sent the dead body was sent for post mortem examination. P.W.8, the Assistant Surgeon attached to D.H.H., Bolangir conducted post mortem examination on 29.04.2001 and he noticed the following injuries: “1) There was one lacerated injury over the left side of the forehead 1” above the left eyebrow 1” x ½” skin deep; 2) Lacerated wound of size 2” x ¼” x skin deep over the left palm; 3) Penetrated wound i.e. clean cut margin through which a part of lung was protruded with pleura. On cutting of the lung from the spot it was found a wound with clean cut margin 4 c.m. x 1 c.m. at the centre penetrating to the chest situated over the left side of chest 6 c.m. below the axillary fold level of 5th rib directed towards the mid-line of the body angle to the base about lungs, 12 pericardium, heart on the left side, specially the left chamber i.e. oracle and venrticle of the heart. No other injury or abnormality is noticed. Injuries are ante mortem in nature and time since death is 24 hours. c.m. penetrating the pleura, The cause of death of the deceased was due to shock and haemorrhage due to injuries to the vital organ like heart and lungs and it is homicidal in nature.” After seizure of the knife from the house of the appellant, the Investigating Officer sent it to P.W.8 seeking for Page 14 of 23 // 15 // his opinion whether the injuries sustained by the deceased were possible by such weapon or not and P.W.8 has opined that the injuries on the deceased to be possible by such weapon and the report has been marked as Ext.6. In the cross-examination, the doctor has stated that injury nos.1 & 2 were possible by fall on the rough surface. However, he has stated that injury no.3 caused instantaneous death. Nothing further has been elicited in the cross-examination to disbelieve the evidence of P.W.8. The learned counsel for the appellant has also not challenged the homicidal death of the deceased and therefore, we are of the humble view that the learned trial Court has rightly come to the conclusion that the deceased met with homicidal death. Analysis of the evidence of eye witnesses: 9. During trial, the prosecution examined Belmati Bag (P.W.11) and her daughter Udia Bag (P.W.12) as the eye witnesses to the occurrence. The learned trial Court after assessing the evidence of P.W.12 came to hold that her statement made before the Investing Officer under section 161 of Cr.P.C. has been confronted to her that she had not stated to be an eye witness to the occurrence rather she had stated before the Investigating Page 15 of 23 // 16 // Officer that by the time of her arrival, the appellant had already stabbed P.W.11 and the deceased. The previous statement of P.W.12 was that she liked the appellant and her mother (P.W.11) had fixed her marriage with appellant but subsequently, P.W.11 decided to perform her marriage elsewhere, but strangely P.W.12 stated in her evidence in Court as if she did not know the appellant. The learned trial Court held P.W.12 to be not a reliable and trustworthy witness. We are of the humble view that since P.W.12 did not state before I.O. to be an eye witness to the occurrence and gave her statement as a post-occurrence witness, her evidence in Court that she was an eye witness to the occurrence and had seen the assault not only on P.W.11 but also on the deceased has been rightly disbelieved by the learned trial Court. If the evidence of P.W.12 is discarded, the only evidence remains as an eye witness to the occurrence is P.W.11. P.W.11 has stated that on the date of occurrence, she along with P.W.2, the deceased and P.W.12 were proceeding towards Maharapali chhak to board a bus and at that time, the appellant rushed towards them with his brothers and mother and asked them to return back to the village and on their denial, the appellant pierced a knife on his left side chest below the breast Page 16 of 23 // 17 // and she attempted to catch hold of the knife in order to protect herself for which, she sustained injury on her palms and at that time, the deceased tried to rescue her but the appellant dealt a knife blow on the belly of the deceased. The deceased was trying to run away towards Harijan Basti but he fell down after crossing the road and died. In the cross-examination, P.W.11 has stated that the appellant never used to pay any visit to their house and she had no prior acquaintance with the appellant and she had no enmity with the appellant much less any land dispute. She further stated that one day prior to the occurrence, she had been to call her brother (deceased), P.W.2 and informed them that she would not stay in the village anymore. She further stated in the cross-examination that a meeting was held one to two hours before they left the village and they came to their house from the place of meeting and then they proceeded to Maharapali Chhak. She further stated that she was assaulted by the appellant in Harijan Basti and the deceased was also assaulted in that place. She specifically stated that the appellant dealt one knife blow to her on the left side of chest and she tried to catch hold of the knife of the appellant after he withdrew the same from the body. Page 17 of 23 // 18 // From the evidence of Investigating Officer (P.W.13), it appears that P.W.11 was sent for medical examination and the requisition has been marked as Ext.8. It appears from the medical examination report of P.W.11 vide Ext.8/1 that Dr. Umakanta Beriha examined her on 29.04.2001 and he noticed a stab wound on the medial aspect of her left breast of size 1” x ¼’’ x 1½” which was opined to be simple in nature, another stab wound on the left side of chest of size ¾” x ¼” x ½” which has also been opined to be simple in nature and three incised wounds on the little finger, right finger and middle finger of the right hand, which were also opined to be simple in nature. It is correct that the doctor, who examined P.W.11 on police requisition could not be examined and therefore, Ext.8/1 could not be proved through him but it has been proved by the Investigating Officer (P.W.13). The order dated 12.01.2005 of the learned trial Court indicates that a petition was filed by the learned Public Prosecutor on 05.10.2004 for marking the injury report issued by the Dr. Umakanta Bariha in favour of P.W.11 as an exhibit. The learned trial Court verified the case record, which revealed that the S.R. of summons issued against the said doctor through the Director of Health Services, Orissa was returned back unserved with a report that he having Page 18 of 23 // 19 // resigned from his service had joined the Indian Navy. Since the appellant was in jail custody since 30.04.2001 and there was delay in disposal of the trial, the learned trial Court allowed the petition filed by the learned Public Prosecutor relying on the ratio laid down by the Division Bench of this Court in case of Basu Harijan -Vrs.- State of Orissa reported in 95 (2003) Cuttack Law Times 477 wherein, it was held that non- examination of the doctor, who conducted autopsy on the ground that his attendance could not be procured for his evidence and since the report has been marked on the consent of the defence, the autopsy report could not be brushed aside. Therefore, we are of the view that even though the doctor could not be examined before the learned trial Court as per the reasons assigned by the learned trial Court in its order dated 12.01.2005, but since the injury report has been marked as Ext.8/1 without objection, it cannot be said that the appellant has been prejudiced in any way for non-examination of the doctor and more particularly when the said order passed by the learned trial Court has not been challenged in the higher Court. We are of the view that the learned trial Court has rightly placed reliance on the injury report of P.W.11 marked as Ext.8/1. However, looking at the injuries sustained by P.W.11 as per the Page 19 of 23 // 20 // injury report Ext.8/1, it appears that all the injuries were simple in nature and there is nothing on record to show that any of the injuries are fatal or dangerous to life. In the case of Rekha Mandal -Vs.- State of Bihar reported in 1968 (Volume 8) Supreme Court Decisions 208 wherein seventeen injuries consisting of incised and punctured wounds were caused to the injured by different weapons such as farsa, spear and lathi but none of the injuries was grievous and only two of them were located on the head and neck, it was held as follows:- "2.......Medical evidence did not disclose that any of the injuries was cumulatively dangerous to life and the question therefore is whether in these circumstances it could be held that the offence disclosed was one under S. 307 of the Indian Penal Code. That section requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge." The Hon'ble Court altered the conviction from section 307 to section 324 of the Indian Penal Code. Taking into account the ratio laid down by the Hon’ble Supreme Court in the case of