The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.157 OF 1993 (From the judgment and order dated 23rd April, 1993 passed by learned Sessions Judge, Koraput-Jeypore in S.C. No.202 of 1992) Jogi Gutal … Appellant -versus- The State … Respondent Advocates appeared in the case through hybrid mode: For Appellant : Mr.M.K.Mohanty Advocate -versus- For Respondent: Mr.S.K.Mishra, Addl. Standing Counsel --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18.4.2023. Sashikanta Mishra,J. The Appellant, being convicted for the offence under Section 304 Part-II of the I.P.C. was sentenced CRA No.157 of 1993 Page 1 of 9 to undergo R.I. for two years as per judgment passed by learned Sessions Judge, Koraput-Jeypore on 23rd April, 1993 in S.C. No.202/1992. He seeks to challenge the said judgment in the present appeal. 2. The prosecution case, briefly stated, is as follows; On 8th May, 1992, the accused-appellant and the deceased Sama Gutal took liquor in the verandah of the house of the deceased. A quarrel ensued between them over payment of money resulting in a tussle in front of the house. When the accused attempted to assault the deceased by means of a spear, one Uttara Golari snatched away the spear from his hand whereupon, the accused brought out a Ghagada(Kati) from the verandah of Jori Gutal and dealt three successive blows with its blunt side on the back of the deceased due to which he fell down. At that time Uttara Golarik the wife of the deceased took him to their house where he succumbed to the injuries. In a village meeting held subsequently, the accused admitted his guilt and expressed recourse for his act. CRA No.157 of 1993 Page 2 of 9 On such basis an F.I.R. was lodged by Uttara Golari (P.W.2) before the Boipariguda P.S. on 11th May, 1992 leading to registration of P.S. Case No.27(1)/1992 under Section 302/323 of I.P.C., followed by investigation. Upon completion of investigation, charge sheet was submitted against the accused also for the aforementioned offences. 3. The plea of the accused, apart from denial is that he and the deceased had a quarrel in front of their house. 4. In order to prove its case, the prosecution examined 6 witnesses, of whom P.W.1 is the doctor who examined Jori Gutal and also conducted post mortem examination on the body of the deceased. P.W.2 is Uttara Golari, the informant and eye witness. P.W.3 is the wife of the deceased and also an eye witness. P.W.4 is Jori Gutal, the injured and an eye witness. P.W.5 is Sanu Golari, a co-villager. P.W.6 is the I.O. That apart, prosecution proved 9 documents and the CRA No.157 of 1993 Page 3 of 9 two weapons of offence as material objects. The defence did not adduce any evidence whatsoever. 5. The Court below after going through the ocular and medical evidence held that the death of deceased was homicidal in nature. As regards the authorship of the crime, the Court below relied upon the version of eye witnesses, P.Ws.2 and 3 to hold that the offence is well established. Further, the Court below also took note of the dying declaration made by the deceased before P.W.2 just before his death. On the evidence as above, the Court below found that the prosecution was successful in establishing its case against the accused. However, considering the fact that the occurrence had taken place on a sudden quarrel and the accused had used the blunt side of Ghagada (Kati), the Court below was not inclined to convict the accused under Section 302 of I.P.C. The Court below also found no evidence to prove the offence under Section 323 of I.P.C. As such, the accused was convicted for the offence under CRA No.157 of 1993 Page 4 of 9 Section 304 Part II of I.P.C. and sentenced to imprisonment as already stated hereinbefore. 6.
Legal Reasoning
Heard Mr. M.K.Mohanty, learned counsel for the Appellant and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State. 7. Assailing the impugned judgment, Mr. Mohanty has contended that the so-called dying declaration of the deceased could not have been taken note of by the Court below. Moreover when the eye witness P.W.4 turned hostile and P.W.3 is the wife of the deceased, the prosecution case becomes inherently unworthy of belief. Moreover, there are several contradictions, in their evidence, which have been ignored by the Court below. 8. Mr.S.K.Mishra, learned State counsel on the other hand, submits that the case against the accused is clearly proved from the evidence of the informant (P.W.2), who was an eye witness as also P.W.3, wife of the deceased who was also an eye witness. Moreover, CRA No.157 of 1993 Page 5 of 9 as per the version of P.W.5, the deceased had clearly stated that the accused had assaulted him and caused injuries. There is therefore, no reason to find fault with the findings of the Court blow. 9. In order to appreciate the contentions raised, I have gone through the evidence of the prosecution witnesses carefully. Be it noted that the finding that the nature of death of the deceased was homicidal is not seriously disputed. In any case, from the evidence of P.W.1, it is seen that the deceased sustained the following injuries. <One abrasion on the right side of the back i.e. lumbar region of the size of 7=X ½= caused by blunt weapon=. On dissection of the liver he found features of alcoholic hepatitis with super added rupture. According to P.W.1, the death was due to alcoholic hepatitis with super added tear of liver and rupture of kidney, which may be homicidal in nature. Significantly, he testified that the external injury CRA No.157 of 1993 Page 6 of 9 corresponds to rupture of liver and kidney, which is sufficient in ordinary course of nature to cause death. The prosecution proved two material objects, an iron Ghagada (Kati) and a spear. According to P.W.1 the injuries found on the deceased could have been caused by the blunt side M.O.1. In fact, this is also the case of the prosecution that the accused had assaulted the deceased by blunt side of the Ghagada. 10. From the evidence of the informant (P.W.2) it is seen that he fully corroborated the F.I.R. story. Moreover, though he was cross examined, nothing was elicited form him to doubt his sworn testimony. Similarly, P.W.3, the wife of the deceased is also an eye witness, who deposed about the occurrence in material particulars which is fully inconsistent with the F.I.R. version and also corroborates the version of the P.W.2. Undoubtedly, P.W.4 who was supposedly an eye witness, turned hostile. Nevertheless, the evidence of P.W.2 and 3 is sufficient to establish the case of the prosecution. Even not accepting the so-called dying CRA No.157 of 1993 Page 7 of 9 declaration made by the deceased before P.W.2, the other evidence on record is sufficient to bring home the charge against the accused. Moreover, this Court finds that the incident occurred out of a sudden quarrel and at a time when both the accused and the deceased were intoxicated having consumed liquor (Pendam). There is no evidence to show that the accused had the intention before hand to do away with the life of the deceased. Though some evidence was adduced with regard to a prior dispute yet, the same is not worthy of acceptance. This Court therefore, finds that the Court below rightly held the charge under Sections 302 and 323 of I.P.C. as not established, but the case is one under Section 304 Part II of I.P.C. 11. As regards the sentence imposed, it is seen from the lower Court case record that the accused had spent some time in custody during trial. The occurrence took place on 8th May, 1992 which is more than 31 years before. The accused was aged about 43 years at the time of occurrence which, makes him aged CRA No.157 of 1993 Page 8 of 9 about 73 years presently. No criminal activity has been reported against him post the occurrence. This Court is therefore, of the considered view that it would be too harsh to send him to prison to serve the remaining part of the sentence at this distance of time, rather ends of justice would be served if the sentence imposed is modified to the period already undergone by the accused. 12. In the result, the appeal is allowed in part. The impugned judgment of conviction is confirmed. The sentence is however, modified to the period of detention already undergone by the accused during trial. …………….…….……….. (Sashikanta Mishra) Judge ASHOK KUMAR BEHERA Digitally signed by ASHOK KUMAR BEHERA Date: 2023.04.25 12:07:23 +05'30' Ashok Kumar Behera CRA No.157 of 1993 Page 9 of 9 CRA No.157 of 1993 Page 10 of 9 CRA No.157 of 1993 Page 11 of 9 CRA No.157 of 1993 Page 12 of 9