MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.244 of 2001 In the matter of an Appeal under section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 15th October, 2001 passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No.57/41(A) of 1999. ---- Achuta Pradhan @ Padhan …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.D.P.Dhal, Senior Advocate. For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 01.10.2024 Date of Judgment: 09.10.2024 D.Dash,J The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 15th October, 2001 passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No.57/41(A) of 1999 arising out of G.R Case No.104 of 1998, corresponding to Biramaharajpur P.S. Case No.77 (10) of CRA No.244 of 2001 Page 1 of 15 1998 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Biramaharajpur. The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life for commission of the said offence. 2. PROSECUTION CASE:- On 28.09.1998, around 8 a.m., a meeting was going on in the village temple mandap. The said meeting had been called at the instance of Biranchi Padhan (P.W.7), who was then the Ward Member of the local Panchayat and the purpose was to discuss about the irrigation of the village land by taking water from Bhunginal. The said meeting was attended by this accused (Achuta) & others including Niranjan Padhan. Many villagers around 40-50 in numbers were also present. It is stated that when the meeting was going on, dissention arose between Niranjan on one hand and this accused Achuta on the other. Therefore, the meeting could not further proceed and all dispersed. After that, when Niranjan came out of the mandap, it is stated that this accused Achuta came with a Barchi and stabbed Niranjan at his abdomen. The other co-accused persons, who were tried separately in Sessions Case No.57/41 of 1999, assaulted Niranjan by thenga when he was lying on the ground being injured by CRA No.244 of 2001 Page 2 of 15 receiving the Barchi blow from this accused Achuta. Niranjan succumbed to the said injury at the spot. It is further stated that thereafter accused Surendra (who, having faced the trial in S.C. Case No.57/41 of 1999, had been convicted for commission of the offence under section 302 read with section 149 of the IPC and had preferred the Appeal since has died, the same has been abated as against him), dealt a tangia blow on the head of Harihar Padhan (P.W.5), who happens to be the son of Niranjan (deceased) and then accused Jharbulu Padhan, the Appellant in CRA No.243 of 2001, which he has filed challenging his conviction for commission of the offence under section 302/149 of the IPC passed in S.C. Case No.57/41 of 1999, assaulted Harihar Padhan (P.W.5) by means of a sword on his arm. On 28.09.1998, around 11 p.m., Satyaban Padhan (P.W.6), who happens to be the son of Niranjan (deceased) lodged a written report with the Circle Inspector of Police,
Legal Reasoning
Biramaharajpur. Said written report being treated as FIR (Ext.2), criminal case was registered and the said Circle Inspector (P.W.9) took up the investigation. 3. In course of the investigation, the I.O (P.W.9) examined the Informant (P.W.6) and other witnesses. He (P.W.9) visited the spot and prepared the spot map (Ext.7). Requisition was issued for medical examination of Harihar (P.W.5). On that day, the I.O CRA No.244 of 2001 Page 3 of 15 (P.W.9) held inquest over the dead body of Niranjan in presence of the witnesses and prepared the report to that effect (Ext.6). Requisition was also issued for post mortem examination over the dead body of Niranjan. Incriminating articles were seized by the I.O (P.W.9) at the spot in presence of the witnesses under seizure list. After the post mortem examination, the wearing apparels of Niranjan (deceased) produced by the Police Constable were also seized. Incriminating articles were sent for chemical examination through Court. Finally, on completion of the investigation, the I.O (P.W.9) submitted the Final Form placing this accused to face the trial under section 147/148/307/302/149/109 of the IPC. 4. Learned S.D.J.M., Biramaharajpur on receipt of the Final Form, took cognizance of the offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offences against the accused. 5. The prosecution, in the trial, has examined in total nine (09) witnesses. The Doctor, who had medically examined Harihar (P.W.5) is P.W.1 whereas the Doctor, who conducted the post mortem examination over the dead body of Niranjan, has come to CRA No.244 of 2001 Page 4 of 15 the witness box as P.W.3. P.W.2 is the scribe of the FIR lodged by the Informant (P.W.6), who happens to be the son of the deceased. An independent witnesses to the occurrence has been examined as P.W.4. As already stated, the injured, who is the son of Niranjan (deceased), is P.W.5. One co-villager of the parties has been examined as P.W.7 and P.W.8 is the then O.I.C of Biramaharajpur Police Station, who had arrested the accused persons receiving the requisition from the Circle Inspector, who is the I.O and has been examined as P.W.9. 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in the evidence and marked Ext. 1 to 11. Important of those are the F.I.R. (Ext.2), Inquest Report (Ext.6) and Postmortem Examination Report (Ext.4). The spot map and the Chemical Examiner’s report had been admitted in evidence and marked as Ext.7 and Ext.11 respectively. 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea. 8. The Trial Court, with the evidence of the Doctor, conducting the Post Mortem Examination over the dead body of Niranjan and other evidence, has held the nature of death of Niranjan to be homicidal. Next proceeding to examine the CRA No.244 of 2001 Page 5 of 15 evidence let in by the prosecution, the Trial Court has arrived at a conclusion that this accused Achuta is guilty of commission of offence under section 302 of the IPC. Since all other accused persons were convicted in Sessions Case No.57/41 of 1999, conviction of this accused was recorded only under section 302 of the IPC.
Legal Reasoning
9. Mr.D.P. Dhal, learned Senior Counsel for the Appellant accused), without disputing the nature of death of Niranjan, as has been held by the Trial Court to be homicidal, contended that the evidence of the witnesses (P.Ws.4, 5, 6 & 7), being read simultaneously, would appear to be highly discrepant on the material aspect of the case especially as to the happenings of the incident and also the roles played by this Appellant and all said manners. He further submitted that the evidence on record would reveal that the prosecution in the trial has suppressed some material facts as to how the incident began and then how it went on. In support of the same, he has invited our attention to the evidence of P.Ws.4, 5, 6 & 7 as also the I.O (P.W.9). He submitted that after the incident, although it is projected by the prosecution through these witnesses that it was at the instance of this accused, the actual incident as to the unlawful confinement and assault started, that was not the version during the investigation which rather that this accused was first attacked by Niranjan (deceased), who had thrown him and sat over his chest, CRA No.244 of 2001 Page 6 of 15 which has been clearly proved through the I.O (P.W.9) after drawing the attention of P.W.5 to his previous statement. He further submitted that there is absolutely no evidence on record that this accused or others, who are the members of unlawful camp of the deceased, were not armed with any weapon. He submitted that the prosecution has not only suppressed the material facts concerning the commencement of the incident but also the happenings thereafter and that is the reason for which other important witnesses have not been examined for serving the end. He, therefore, submitted that with the available evidence on record, the conviction of this Appellant for committing the murder of Niranjan cannot be sustained. It was alternatively submitted that even if it is said for a moment that accused Achuta gave the fatal blow on the belly of Niranjan (deceased), the manner in which the incident occurred and the subsequent events when are viewed in their proper perspective, it can at best be held that accused Achuta had committed the offence under section 304-I of the IPC by exceeding the right of private defence of his person. He, in this connection, contended that even though specifically such a plea of right of private defence of person has not been taken during the trial, the same clearly surfaces in the evidence let in by the prosecution and, therefore, the Court can very much looked into that aspect. CRA No.244 of 2001 Page 7 of 15 10. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial Court for commission of the offence under section 302 of the IPC, submitted that the Trial Court, on detail discussion of the evidence of P.Ws.2, 3, 4 & 7, did commit no error in doing so. According to him, it having been proved that this accused Achuta had dealt a blow by means of a Barchi on the belly of Niranjan, which has resulted his death, the conviction of this accused Achuta for the said offence of murder of Niranjan is not liable to be interfered with. He further submitted that the accused since has not taken the plea of right of defence of a person merely banking upon the statement of some witnesses, which they had given during investigation and saying that the same amounts to suppression of material facts as regards the happening of the incident, at this stage, it would not be permissible to conclude that this accused Achuta would be liable for commission of the offence under section 304-I of the IPC for having exceeded the right of private defence of person as was then available to him. 11. 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 prosecution witnesses (P.Ws.1 to P.W.9) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.11. Page 8 of 15 CRA No.244 of 2001 12. In order to ascertain the sustainability of the finding of guilt of the accused for commission of the offence under section 302 of the IPC in intentionally causing the death of Niranjan by inflicting the Barchi blow on his belly, by addressing the rival submission of the parties, we are now called upon to undertake the exercise of examining the evidence for their appreciation. 13. The FIR (Ext.2) has been lodged by Satyaban, who is the son of Niranjan (deceased) and has been examined as P.W.6. It is stated in the said FIR (Ext.2) that after the meeting people started dispersing, and he saw this accused Achuta and others, namely, Surendra, Jhalburu, Bidesi, Kapilas, Chintamani, Pintu and Purna coming out of their house holding lathi, barchi and sword when his father (P.W.2) and brother (P.W.5) were just coming out of the temple to go to their house, attacked them in a group. During evidence, P.W.6 has stated that hearing hullah, when he rushed to the spot, he saw this accused Achuta stabbing on his father’s belly by means of a Barchi. He has further stated that when he arrived at the spot, he saw accused Kishore, the wife of this accused Achuta handing over the Barchi to her son accused Surendra and said Surendra handed over the Barchi to this accused Achuta, who with that Barchi stabbed at the belly of Niranjan. During cross-examination, he has stated that when he first reached the spot, he saw both scuffling on the ground in front of the temple and this accused Achuta and his father Niranjan (deceased) were CRA No.244 of 2001 Page 9 of 15 rolling on the ground when other accused persons had surrounded Niranjan. He has further stated that the villagers, namely, Dusata, Ganesh and some others had snatched away the Barchi from the hands of this accused Achuta, but the prosecution has neither examined Ganesh nor Dusata. In the FIR (Ext.2), the important fact is found to be missing that accused Kishore had handed over the Barchi to accused Surendra and thereafter, accused Surendra handed over the said Barchi to this accused Achuta. Thus, the evidence of this witness (P.W.6), being read in its entirety and viewed with all above surrounding circumstances, which emanate therefrom clearly go to show that as to how the occurrence began is not being correctly stated. Under the circumstances, it is difficult to find out from the evidence of P.W.6 that this accused all of a sudden gave a blow by means of Barchi on the belly of Niranjan when P.W.6 is also not stating anything as to who initiated the quarrel after the meeting ended. The co-villagers (P.W.7) has stated that after the person started leaving the meeting place, outside the temple premises, this accused Achuta quarreled with Niranjan (deceased) and in course of said quarrel, he stabbed at the belly of Niranjan (deceased) by means of Barchi. He is not stating that as to how Achuta got that Barchi and who handed over the same to him. He is a relation of Niranjan (deceased) and has admitted that CRA No.244 of 2001 Page 10 of 15 Niranjan was his brother-in-law. As per his evidence, 40-50 persons were standing near and around the deceased at the spot and that was before the deceased was hit by the Barchi by this accused Achuta. This P.W.7 is not stating anything about the rolling of this accused and the deceased and the scuffle as stated by P.W.6. The other independent witness (P.W.4) is stating about the occurrence to have happened completely in a different manner. He states that in front of the temple, the accused persons assaulted Niranjan by fist blows and were seen rolling on the ground with the deceased. He further states that when the scuffle was going on in between the accused and Niranjan; Surendra came in front of the temple holding a Barchi and handed over the same to his father Achuta, who took that Barchi and pierced by means of that at the belly of Niranjan. He next stated that subsequently that Barchi had been snatched away by accused Dusta Padhan, who again has not been examined by the prosecution. It is also his evidence that when Achuta gave the blow on Niranjan, other accused persons were holding him by means of thenga. He does not state anything as regards the assaults being made by this accused or any others upon P.W.5 or anyone-else of their group. Now, P.W.5, who is no doubt an important witness for the prosecution, being the injured in the said incident is the son of CRA No.244 of 2001 Page 11 of 15 Niranjan (deceased) and he has stated that just in front of the temple, accused Achuta caught hold of Niranjan and there was scuffle between them. It is further stated that at that point of time, accused Kishori handed over the Barchi to accused Surendra, who immediately gave that Barchi to accused Surendra and he then stabbed by means of that on the abdomen of Niranjan. It is further stated that when Niranjan was assaulted by this accused Achuta, other accused persons, namely, Lalbihari handed over the thenga to accused Bidesi, Pintu, Chintamani and others and they thus assaulted Niranjan by means of that thenga when Niranjan was lying on the ground. He further states that at that point of time, he was standing near his father and then accused Kapilas handed over the thenga to accused Surendra and a sword to accused Jharbulu whereafter accused Surendra with that thenga dealt a blow on his head causing bleeding injury. The evidence of P.W.1 further provide corroboration to the seat of injury and the weapon used in causing the injury upon P.W.5 when he has stated to have noted one lacerated would on the vault of the scalp, which of course was simple in nature. The evidence of P.W.5 and other witnesses, as already discussed, receive further corroboration as regards the injuries other than the fatal injury caused upon the deceased when P.W.3 states to have noted one lacerated wound over lateral margin of right hand in the middle and swelling on the left leg. The CRA No.244 of 2001 Page 12 of 15 attention of this P.W.5, having been invited to his previous statement, it has been proved through the I.O. (P.W.9), which run as follows:- “13. It is a fact that P.W.5 had not stated before me that after the quarrel was ensued, accused Achuta had sat over the chest of his father on the mandap. It is a fact that P.W.5 has stated before me that during quarrel, his deceased father had thrown accused Achuta on the ground and had there after sat over her chest. It is a fact that P.W.5 has stated that seeing the deceased sitting on the chest of accused Achuta, all the accused persons ran towards their house to bring the legal weapons. It is not a fact that my investigation is perfunctory. It is not a fact that without any basis, I have submitted against this accused in this case. 14. It is a fact that P.W.5 has stated before me that his father, the deceased was first assaulted by accused persons, namely, Bidesi, Pintu, Chintamani and Lalbihari by thenga and thereafter accused Achuta had penetrated the belly of the deceased with a barchi while the deceased was still lying on the ground. It is a fact that P.W.5 has stated before me that after the quarrel was ensued between the deceased and Achuta, thereafter accused persons Surendra, Bidesi and other inmates of the accused persons reached the mandap. It is a fact that P.W.5 had stated the Lalbihari brought four sal lathies and has handed over them to accused persons, namely, Pintu, Purna and Bidesi. It is a fact that P.W.5 has stated before me that while he was going away towards his house, Jharbulu had assaulted him with a sword on his right hand and accused Surendra had dealt axe blow on his head.” CRA No.244 of 2001 Page 13 of 15 14. The evidence as above discussed although is not free from doubt to say that accused Achuta first gave upon the blow at the belly of Niranjan by that Barchi, the said evidence, however, appears to be consistent that accused Achuta had given that blow by means of barchi at the belly of Niranjan (deceased). It, however, appear from the evidence of the I.O. (P.W.9) that he has tried to suppress some material facts by giving a go-bye to his previous statement that during the quarrel, his father had thrown accused Achuta on the ground and thereafter sat over his chest and it is only thereafter all the accused persons ran towards their house to bring the lethal weapons. This clearly gives an idea that somehow accused Achuta, having got the barchi, inflicted the injuries upon Niranjan. In the facts and circumstances, accepting the evidence of the prosecution witnesses that this accused Achuta had assaulted by means of that barchi at the belly of Niranjan, which has led to his death, the offence, however, in our considered view ought to be categorized under section 304-I of the IPC. Thus, having held the accused guilty of commission of the offence under section 304-I of the IPC, when we find from the record that this accused Achuta has served out the sentence for a period of nine years or so before he was released by the order passed in this Appeal, at this distance of time, there being lapse of about two and half decades, when the accused is more than CRA No.244 of 2001 Page 14 of 15 seventy years old, we are of the considered view that for the conviction of the accused for the said offence under section 304-I of the IPC; if he is sentenced to the period undergone, that would serve the interest of justice and meet its end. 15. With the above alteration of conviction and order of sentence dated 15th October, 2001 passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No.57/41(A)
Decision
of 1999, the Appeal stands disposed of. (D. Dash) Judge I agree. (V. Narasingh) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 09-Oct-2024 14:05:09 CRA No.244 of 2001 Page 15 of 15