The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 272 of 1994 (An application under Article 226 & 227 of the Constitution of India) --------------- AFR Sambhunath Biswal & Others ...… Appellants -Versus- State of Odisha .... Respondent Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/S. D.Panda, For Opp. Parties : Mr. S.K.Mishra J.Rath, Advocates. _______________________________________________________ CORAM: Additional Standing Counsel JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 16th March, 2023 . The appellants challenge the judgment of conviction and sentence passed by Learned Additional Sessions Judge, Kendrapara on 02.08.1994 in ST case No. 126/15 of 1993 whereby, they were convicted for the offence under Section 304 (Part-II) read with Section 149 of IPC and sentenced to undergo Rigorous Imprisonment for 3 years. Be it noted here that during pendency of the appeal, appellant Page 1 of 10 Bhagaban Biswal having expired, the case against him has abated. 2. The prosecution case, briefly stated is that on 18.06.1992 at about 4 p.m., one Maheswar Biswal and his nephew Bharat Biswal were preparing the ‘Kia’ fencing over the land near their house. At that time accused Nursingha
Facts
challenged them as to why they were doing so and threatened there with dire consequences. Shortly thereafter, all the accused persons being armed with lathis and bricks came and assaulted Maheswar and Bharat. Hearing their shouts, the mother of Maheswar namely, Padmabati came out of their house and intervened but she too was assaulted by accused Bhagaban, Sukanta and Sambhunath Biswal with lathis and bricks. Hearing the shouts of Padmabati her daughter Anjana and daughter-in-law Bali came to her rescue but they were also assaulted. Sarat Biswal, the son of Bali attempted to intervene with the intention of rescuing her mother but accused Sambhunath pelted a brick at him which struck his head. As a result, he fell down unconscious. Despite his fall, he was assaulted with lathis by the accused persons. When Maheswar and Bharat rushed to the spot the accused persons ran away. The injured persons were shifted to Alapua hospital for first-aid from where Sarat was referred Page 2 of 10 to Kendrapara sub-divisional hospital as his condition deteriorated. He could not be shifted that night as it was raining and therefore, on the next day he was taken to Kendrapara hospital from where he was referred to SCB Medical College, Cuttack. In course of treatment, Sarat succumbed to his injuries on 20.06.1992 at 9 a.m. This led to registration of a UD case by the Mangalabag Police Station who conducted inquest and post mortem over the dead body. Upon return to his village Maheswar lodged FIR at Pattamundei Police Station, leading to registration of Pattamundei P.S. case No. 75/92 under Section 147,148,323,325,302,149 IPC, followed by investigation. Upon completion of investigation charge-sheet was submitted against the accused persons also under the aforementioned offences. 3. Charge was framed against the accused persons under Section 148/302/149 IPC. 4. The accused persons took the plea of denial and false implication by stating that they had been entangled because of a previous civil dispute. 5. In course of trial in the Court of Sessions, prosecution examined 10 witnesses of whom, P.W.1 is the informant, P.Ws. 3,4,5 and 8 are the relations of the deceased and eye Page 3 of 10 witnesses. P.W.6 is the doctor who issued injury certificate in respect of the injured persons. P.W.7 is the autopsy surgeon and P.W.10 is the I.O. Prosecution also proved 7 documents. Defence examined two witnesses from its side but did not adduce any documentary evidence. No material objects were proved by either parties. 6. After appreciating the evidence on record, the trial Court came to the finding that the evidence does not prove the offence under Section 302 of IPC inasmuch as there is no pre-meditation on the part of the accused persons to commit murder of the deceased. However, there being clear evidence of assault by the accused persons on the deceased leading to his death, it was held that the case is one of culpable homicide not amounting to murder. The accused persons were thus convicted for the offence under Section 304 Part-II and sentenced as already stated hereinbefore.
Legal Reasoning
informant. There is no dispute as regards this fact inasmuch as P.Ws 1,3,4,5 and 8 have admitted that they are close relations (agnatic) of the informant and the deceased. However, law is well settled that only because a witness is related to the deceased or the informant, the same not need necessarily nullify his sworn testimony if it is otherwise trustworthy. This argument actually cuts both ways inasmuch as being relations it would be their endeavour to see that the real offender is punished and therefore, by falsely implicating some other person they would never allow the actual offender to go scot free. 13. Mr. Mishra has pointed out several discrepancies in the evidence relating to the site of injury. It has been pointed out that according to the prosecution witnesses the injuries sustained because of the blow by the brick was on the head of the deceased whereas the post mortem report shows such injuries on his right ear. This court finds that the point was also raised before the Court below and was rejected by Page 8 of 10 holding that the prosecution witnesses being rustic villagers cannot be expected to depose parrot-like what they had deposed a considerable time before. This Court concurs with such reasoning. 14. It is further argued by Mr. Mishra, there are several gaps in the investigation which cast doubts as regards its sanctity. Mr. Mishra, has pointed out that the injury requisitions in respect of the injured witnesses were not issued, the bricks in question were not produced and investigation was suspended for a long period without any valid reason. Undoubtedly, a faulty investigation can lead to disastrous consequences. However, in the instant case, even accounting for some faults in the investigation, this court finds that the offences are otherwise clearly established on the basis of ocular evidence. Therefore, the discrepancy as pointed out by Mr. Mishra are not such as to be treated as fatal to the prosecution case. 15. Thus, none of the grounds urged by the appellants are convincing so as to persuade this court to interfere with the impugned judgment of conviction. It is however pointed out by Mr. Mishra that the occurrence took place more than 30 years back. The appellants were aged between 20/32 years and therefore, they are presently aged about 50/60years. Page 9 of 10 They have suffered imprisonment for sometime during trial. Mr. Mishra, urges that the sentences should be modified to the period already undergone. 16. This court finds considerable force in the submission of Mr. Mishra. Undoubtedly, the occurrence took place more than 30 years back. The appellants are now elderly persons. There is no record of any other criminal act being committed by them after the occurrence. They have also suffered imprisonment for sometime during trial. This court is therefore, of the view that ends of justice would be served by modifying the sentence imposed to the period already undergone by the appellants. 17. In the result, the appeal is allowed in part. The impugned judgment of conviction is confirmed but the sentence is modified to the period already undergone. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 16th March, 2023/ Deepak Page 10 of 10
Arguments
7. Heard Mr. Anil Mishra, on behalf of Mr. D.Panda, learned counsel for the appellant and Mr. S.K.Mishra, learned State Counsel. 8. Assailing the impugned judgment of conviction, Mr. Mishra has raised the following grounds: (i) There was inordinate delay in lodging of the FIR which suggests that the same was lodged after due deliberation. Page 4 of 10 (ii) All the witnesses, whose version was relied upon by the trial Court are close relations of the deceased and the informant and are therefore, interested witnesses. (iii) There are serious discrepancies relating to the site of injuries sustained by the deceased. (iv) The investigation in the case was faulty as there are several unexplained gaps therein. On the above basis, Mr. Mishra contends that the finding of the trial Court is not acceptable. 9. Mr. S.K.Mishra, on the other hand submits that all the points raised by the appellants before this Court were raised before the Court below and adequately answered. The trial Court has cited appropriate reasons in such regard and there is no reason for this court to interfere with such findings. 10. Before examining the merits of the contentions raised by the parties, this Court finds that there as many as five witnesses who claimed to have been seen the occurrence including some injured witnesses. Having gone through the evidence of such witnesses namely, P.Ws. 1,3,4,5 and 8 this Court finds that they have vividly described the occurrence in all material details. Further, all of them were extensively cross-examined but nothing material was elicited from them to doubt the veracity of their statements. From the evidence Page 5 of 10 so laid, this Court finds that on the date of occurrence there was an altercation between the accused persons and the informant initially and the deceased subsequently in course of which, the accused persons assaulted the deceased by means of lathis and pelted bricks which struck his head. The post mortem report marked Exhibit 6 is fully consistent with the version of the witnesses relating to the injuries sustained by the deceased. The autopsy surgeon being examined as P.W.7 has described the external and internal injuries sustained by the deceased and has opined that the same are ante mortem in nature, suggestive of blunt trauma and appear to be homicidal in nature. She further stated that death was due to trauma resulting from the Cranio-cerebral injuries and that the head injury was fatal in ordinary course of nature. Thus, there is clear evidence that the death of the deceased was the result of the injuries sustained by him in course of assault by the accused person. However, there is no evidence of such act being a pre-meditated one rather, from the evidence of the witnesses and particularly that of the informant (P.W.1), it is clear that the incident arose out of a sudden quarrel without any premeditaton. Though there is some evidence relating to prior civil dispute between the parties yet it cannot be said that the same was of such Page 6 of 10 nature as to goad the accused persons to commit the murder of the deceased rather, it is borne out from the evidence that in course of the quarrel when the deceased intervened with the intention of rescuing his mother, the accused persons had assaulted him. Therefore, the offence under Section 302 is not made out and as rightly held by the court below, this is a clear case of culpable homicide not amounting to murder. 11. Having held so, this Court would now examine the merits of the contentions raised by learned counsel for the appellants. As regards delay in FIR, it appears that the occurrence took place on 18.06.1992 but the FIR was lodged on 21.06.1992. There is delay of 3 days. In his cross- examination, P.W.1 has, inter alia, stated as follows. xxxx xxxx xxxx “xxxx I went to Cuttack with my brother Bhikari. I advised Bharat and Asoka to report at P.S. but they did not do that. Pattamundai p.s. is 9 k.m. from my village. I proceeded Cuttack via Indupur and there is a police station at Indupur. The condition of the patient is so serious we could not leave him to report at p.s. Again Indupur. We reached says there Kendrapara at 3.30. A.M.” is no p.s. at Though it is argued by Mr. Mishra that there was an oral report at the police station which ought to have been reduced to writing yet the evidence in such regard is not very clear. The explanation offered by P.W.1 appears to be reasonable and quite plausible. Obviously when a close relation was assaulted severely and was in serious condition, the first Page 7 of 10 reaction of his relations would be to arrange for his treatment instead of approaching the police station. This court, therefore, finds no merit in the contention raised. 12. It has been argued by Mr. Mishra, that all the witnesses are close relations of the deceased and the