MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.186 of 2001 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 12.09.2001 passed by the learned Additional Sessions Judge, Gajapati, Paralakhemundi, in Sessions Case No.20 of 2000 (Sessions Case No.335 of 2000(GDC). ---- Janaki @ Ganapati Das; Simadri Das @ Simanchal; & Benu Madhaba Das -versus- State of Odisha …. Appellants …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms. Deepali Mohapatra, Advocate. For Respondent - Mr. S.K. Nayak, Additional Govt. Advocate CORAM:
Legal Reasoning
MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing :15.05.2024 :: Date of Judgment: 01.07.2024 D.Dash,J. The Appellants, by filing this Appeal, have assailed the judgment of conviction and the order of sentence dated 12.09.2001 passed by the learned Additional Sessions Judge, CRA No.186 of 2001 Page 1 of 11 Gajapati, Paralakhemundi, in Sessions Case No.20 of 2000 (Sessions Case No.335 of 2000(GDC), arising out of G.R. Case No.182 of 1999, corresponding to Paralakhemundi P.S. Case No.69 of 1999, of the Court of learned Sub Divisional Judicial Magistrate (SDJM), Paralakhemundi. The Appellants (accused persons) thereunder have been convicted for commission of offence under section 341/323/302 read with 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). Accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for one (1) year for the offence under section 302 of the IPC when no separate sentence for commission of other offence has been inflicted upon them. 2. Prosecution case is that on 17.08.1999, basing upon the allegation of one Simanchala Bhramma, a Panchayat Meeting had been convened at Uttarasili Chowk on Trinath temple Mandap situated near Regulated Market Committee (RMC) gate, locally known as Jangalpadu chhaka. The meeting was attended by P. Amulya (Informant-P.W.1), Neelamani Panda(P.W.3) Khageswar Das, Simadri Das, Kumuti Bhaskar, Simanchala Bhramma, Janaki @ Gajapati Das and many others. In that meeting, the Informant (Neelamani Panda(P.W.3) was held guilty of the allegations levelled against him. It is stated that after that Simadri Das CRA No.186 of 2001 Page 2 of 11 (accused) and Benu Das (accused) assaulted the Informant (P.W.1) by dealing fist blows and slaps. In view of that, the parents of the P.W.1, who had also been to the meeting place requested the accused persons not to assault the Informant (P.W.1). When the father of the Informant, namely, P. Lingaraj tried to take away the Informant (P.W.1) by releasing him from the clutch of the accused persons; it is stated that accused persons Janaki @ Gajapati, Simadri @ Simanchala and Benu Madhaba dealt kick and fist blows on his chest and belly. Accused Janaki had caught hold of the neck of P.Lingaraj and gave a push which resulted his fall. On account of this, Lingaraj died at the spot. 3. The Informant (P.W.1) then having lodged a written report on 18.08.1999 at 7 am, with the Sub-Inspecter (SI- P.W.8) of Police attached to Gurandi Police Out Post under Paralakhemundi Police Station, entered the said fact in the station diary book of the Police Out Post and took up the investigation while sending the report to the Inspector-in-Charge (IIC-P.W.9) of Paralakhemundi Police Station for registration of the case, awaiting further instruction. The IIC(P.W.9), having received the said written report, registered the case, treated the same as FIR (Ext.1) and directed the S.I (P.W.8) Gurandi Police Out Post to continue with the investigation. CRA No.186 of 2001 Page 3 of 11 4. In course of investigation, the Investigating Officer (I.O- P.W.8) examined the Informant (P.W.1) and other witnesses. He held inquest over the dead body of P. Lingaraj (deceased) in presence of witnesses and prepared the inquest report (Ext.4). He (P.W.8) then sent the dead body for Post Mortem Examination by issuing necessary requisition. He also issued the requisition for medical examination of the Informant (P.W.1) vide Ext.6. The I.O (P.W.8) then prepared the Spot Map, Ext.8 and seized the wearing apparels of the deceased on production by the police constable, who had accompanied the dead body to the morgue under seizure list (Ext.3). On 16.11.1999, the IIC (P.W.9) took charge of the investigation. He (P.W.9) examined other witnesses and on completion of investigation, submitted the Final Form placing the accused persons to face the Trial for commission of offence under section 341/323/302 read with 34 of the IPC. 5. Learned SDJM, Paralakhemundi receiving the Final Form as above, took cognizance of the offence and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge against the said offence against the accused persons. 6. In the Trial, the prosecution in total has examined twelve (12) witnesses. Out of whom, as already stated, P.W.1 is the informant, who is the son of the deceased and had lodged the CRA No.186 of 2001 Page 4 of 11 FIR (Ext.1) and other important witnesses are the Doctors, P.W.10, P.W.11 and P.W.12. P.W.10 had conducted autopsy over the dead body of P.Lingaraj whereas P.W.12 had examined the Informant, P.W.1. The Investigating Officers have been examined as P.W.8 & P.W.9. 7. The prosecution besides leading the evidence by examining above the witnesses has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.9. Out of those, the important are the FIR, Ext.1, inquest report, Ext.4, Post Mortem Report, Ext.9, Injury Reports, Ext.6/2 and 7/2 as also the spot map, Ext.8. 8. The Trial Court upon examination of the evidence of the prosecution witnesses having held the prosecution to have established that P. Lingaraj had met a homicidal death; mainly relying upon the evidence of P.W.1 and P.W.5 (wife of the deceased and mother of P.W.1) has held that the prosecution has proved its case that the accused persons intentionally caused the death of the deceased by assaulting him, beyond reasonable doubt and as such the accused persons have been held guilty of murder under section 302 of the IPC. Accordingly, the accused persons have sentenced as aforestated. 9. The accused has not led any evidence in support of their plea of denial and false implication. CRA No.186 of 2001 Page 5 of 11 10. Ms. Deepali Mohapatra, learned counsel for the Appellants (accused persons) from the beginning without attacking the finding of the Trial Court based upon the evidence of P.W.1 and P.W.5 that the deceased died after being assaulted by these accused persons in that meeting place submitted that for the said role played by the accused persons and the acts done in the incident upon the deceased P.Lingaraj, the Trial Court ought not to have held the accused persons guilty of committing the offence under section 302 of the IPC for murder of P.Lingaraj. He submitted that with the available evidence on record, falling from the lips of P.W.1 and P.W.5 and accepting the same in toto and viewing the same with the surrounding circumstances which emanate from their evidence as also the medical evidence, the accused persons ought to have been held liable for commission of the offence under section 325 of the IPC in respect of deceased P. Lingaraj in causing grievous hurt to him; and the offence under section 323 of the IPC as against P.W.1 & P.W.5 in causing simple hurt to them. In order to buttress her submission, she placed reliance upon the following decisions of the Apex Court: (i)Ratan Singh, Ram Singh & Another -versus - State of Punjab 1988 (Supp) SCC 456 (ii) Lal Mandi vs. State of West Bengal (1995) 3 SCC 603 and (iii) Roy Fernandes Vs. State of Goa & Others (2012) 3 SCC 221 CRA No.186 of 2001 Page 6 of 11 She, therefore, urged for alteration of conviction of the accused persons from section 341/323/302/34 of the IPC to section 341/323/325/34 of the IPC and urged that the accused persons be appropriately visited with the sentence taking into account all the relevant factors including the sufferance of the accused persons from the mental agony of the criminal trial for about 25 years by now. 11. Mr. S. K. Nayak, learned counsel for the State-Respondent submitted all in favour of the finding of guilt against the accused persons as has been rendered by the Trial Court. He contended that when as per the evidence of P.W.1 & P.W.5, all these accused persons having indiscriminately assaulted P. Lingaraj in that meeting place when he was in attempting to get his son (P.W.1 released from the clutch of the accused persons since cumulative effect of the said injuries resulting from the assault of the accused persons has led to the death of the deceased, they have been rightly held liable under section 302/34 of the IPC for having intentionally caused the death of P. Lingaraj besides being convicted for the offence undersection 341/323/34 of the IPC for wrongfully restraining P.Lingaraj, P.W.1 & P.W.5 and causing simple hurt to them. 12. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We CRA No.186 of 2001 Page 7 of 11 have also gone through the depositions of all the witnesses P.W.1 to P.W.12. We have perused the documents which have been admitted in evidence and marked Ext.1 to Ext.7/3. 13. Addressing the rival submission confined to the alternation of conviction of the sentence, it would be apposite to run through the evidence of P.W.1 and P.W.5, who are the two injured witnesses through when, the prosecution has proved the occurrence as well as the role played by the accused persons and the act that they have done there upon P. Lingaraj (deceased) and then to proceed to view the same with the evidence of the Doctor (P.W.10), who had conducted the Post Mortem Examination over the dead body of P.Lingaraj. It has been stated by P.W.1 that the accused Simanchala and accused Benu assaulted him in the meeting place when his father P.Lingaraj and mother P.W.5 protested. He further states that then all the three accused persons dealt fist blows and slaps upon his father and more specifically, he has stated accused Simanchala to have assaulted on the chest of his father and thereafter, it is further stated that all the accused persons indiscriminately assaulted his father and gave him the push which led to his fall resulting fracture on his head. P.W.5, the wife of the deceased states that the accused persons assaulted her husband indiscriminately on his chest, belly, back and other CRA No.186 of 2001 Page 8 of 11 places and, thereafter, her husband fell down. As it appears from their evidence, in that meeting when it was held that the allegations against P.Amulya stands substantiated, the two accused persons namely, Simadri and Benu assaulted P.Amulya, P.W.1 by giving first blows and slaps and thereafter when the deceased intervened, he was assaulted. Coming to the evidence of the Doctor, who had conducted autopsy over the dead body of the deceased, we find him to have stated that he had noticed no external injury on the body of the deceased except noticing fracture of 7th, 8th and 9th ribs on the right side along mid auxiliary line, which was confirmed on dissection. His further evidence is that the fracture on 8th rib has been fatal as it has finally entered inside the thorasic cavity and that is stated to be the cause of death. In the entire incident, no such weapon has been used by any of these accused persons. There was no prior planning for the incident and none of the accused persons had any grudge as against the deceased, who having made the attempt to rescue his son (P.W.1), he has been assaulted. 14. In view of the evidence available on record falling from the lips of P.W.1 & P.W.5, it cannot be specifically said as to on whose assault, the 8th rib of P.Lingaraj had been fractured and at best what could be attributed to them to the injuries resulting in CRA No.186 of 2001 Page 9 of 11 fractures. None of these accused persons would be convicted for causing injuries individually upon the deceased which could make out an offence under section 302 of the IPC. In view of the evidence of P.W.1 & P.W.5 and the surrounding circumstances emanating therefrom as aforestated, it cannot be said that the accused persons assaulted the deceased in furtherance of their common intention of killing the deceased. 15. The facts and circumstances in detail as above do not justify the conviction of the accused persons for offence under section 302/34 of the IPC. The accused persons with the available evidence placing the facts and circumstances can thus be fastened with the liability of an offence under section 325/34 of the IPC insofar as the act done by them upon P.Lingaraj (deceased) is concerned. This view of ours derives support from the conclusions arrived at by the Hon’ble Apex Court in the factual settings of the respective cases cited (Supra) by the learned counsel for the accused persons. We accordingly, set aside the conviction and order of sentence recorded by the Trial Court against the accused persons for the offence under section 302/34 of the IPC and instead find them guilty for an offence under section 325/34 of the IPC while confirming their conviction for the offence under section 341/323/34 of the IPC. CRA No.186 of 2001 Page 10 of 11 The incident dates back to 17.08.1999 and the accused persons have undergone the mental agony of criminal trial for near about 25 years when it is further seen that accused Janaki @ Ganapati has now crossed 65 years of age whereas the other two are within the age group of 50-55 years. The fact remains that all of them hail from the rural background and live on cultivation and the judicial notice of the fact can be taken of the fact their temper usually run high and behaviour often even for silly reasons seen as abnormal and totally unexpected. 16. Cumulatively, viewing all these factors, we are inclined to sentence each of them with the rigorous imprisonment for the period already undergone by them and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for six months each. It is further directed that the entire realized fine amount be paid to the legal heirs of deceased-P. Lingaraj in equal proportion. 17. This Appeal, therefore, succeeds to the limited extent as notice above. (D. Dash), Judge. V. Narasingh, J. I Agree. (V. Narasingh), Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 03-Jul-2024 16:36:28 Judge. CRA No.186 of 2001 Page 11 of 11