The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.74 OF 2012 In the matter of an Appeal under section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 17th November, 2011 passed by the learned Additional Sessions Judge, (FTC), Bargarh in C.T. Case No.45/12 of 2011. ---- Anjan Barik …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ====================================================== For Appellant -
Legal Reasoning
Mr.S.K.Routray, Advocate as Amicus Curiae For Respondent - Mr.P.K.Mohanty Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY DATE OF HEARING :10.10.2023 : DATE OF JUDGMENT: 01.11.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has assailed the judgment of conviction and order of sentence dated 17th November, 2011 passed by the learned Additional Sessions Judge, (FTC), Bargarh in C.T. Case No.45/12 of 2011 arising out of G.R. Case No.69 of 2010 corresponding to JCRLA No.74 of 2012 Page 1 of 9 {{ 2 }} Barpali P.S. Case No.68(1) of 2011 of the Court of learned Judicial Magistrate First Class (J.M.F.C), Barpali. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.3,000/- (Rupees Three Thousand) in default to undergo rigorous imprisonment for three (3) months for commission of the said offence. 2. Prosecution Case:- The accused namely, Anjan Barik used to quarrel with his parents and assault them demanding money as he was a habitual drunkard and liquor addic. The accused was residing separately from his parents and other family members in a house situated in their village. On 01.07.2010 around 7.00 am Ramesh (deceased) gone to the house of accused to serve him breakfast. There again altercation of words between them took place and it is alleged that the accused assaulted his father, causing bleeding injuries on his head, forehead and neck and then pushed him violently resulting his fall in the cement floor of the verandah of the house. The mother of the accused, who is the wife of the deceased (P.W.2) immediately arrived at the spot and saw accused leaving the place where her husband (Ramesh) was lying unconscious with bleeding injuries on his JCRLA No.74 of 2012 Page 2 of 9 {{ 3 }} head and other parts. Laxmi Barik (P.W.2), the wife of the deceased then cried for help. So her daughter-Bina Barik (P.W.3) and others arrived at the spot. The incident was immediately informed to Gobinda Barik (Informant-P.W.1), who happens to be the nephew of Laxmi (P.W.2), who then reported the matter in writing to the Inspector-in-Charge (I.I.C) of Barpali P.S. Receiving the said report, the IIC (P.W.12) treated the same as the FIR (Ext.1) and registering the case, directed one Assistant Sub-Inspector (ASI) of Police to take up the investigation. On 9.7.2010, the IIC (P.W.12), getting information that the injured Ramesh Barik was dead, took up the investigation. 3. The Investigating Officer (I.O.-P.W.12), having examined the informant (P.W.1) visited the spot, held inquest over the dead body of the deceased in presence of the witnesses and prepared the report to that effect (Ext.2). The wearing apparels of the deceased were seized under seizure list (Ext.12). The dead body of the deceased was the sent for postmortem examination by issuing necessary requisition. The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.12) submitted the Final Form JCRLA No.74 of 2012 Page 3 of 9 {{ 4 }} placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned J.M.F.C., Barpali, on receipt of the Final Form, took cognizance of said 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 aforesaid offences against this accused. 5. In the Trial, the prosecution, in support of its case, has examined in total twelve (12) witnesses. As already stated, the informant, who had lodged the FIR (Ext.1) is P.W.1. P.Ws.2 & 3 are the wife and daughter of the deceased respectively. P.Ws.4, 5, 6, 9. 10 & 11 are the post occurrence witnesses and out of them P.Ws.4, 5 & 6 are also witnesses to the seizure. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.7 whereas P.W.8 is the Doctor, who had initially examined the deceased. The I.O. of the case has come to the witness box as P.W.12. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 14. Important of those, are the FIR (Ext.1); inquest report (Ext.2); the post mortem report (Ext.7). JCRLA No.74 of 2012 Page 4 of 9 {{ 5 }} 6. The accused person, in support his plea of denial and false implication has, however, not tendered any evidence despite opportunity. 7. The Trial Court, having gone through the evidence of the Doctor (P.W.7), who had conducted the autopsy over the dead body of the deceased and had found lacerated wound on the occipital area, bruise on left side of head and neck, bruise on fronto temporal parietal area, haematoma of fronto parietal area on right side of brain, cisternal haematoma of brain right side, fracture of hyoid bone left part as also the evidence of other witnesses, has arrived at a conclusion that the death of Ramesh was homicidal in nature. In addition to that, we find the evidence of P.W.12, who is the I.O, who had held inquest over the dead body of the deceased and prepared Ext.2, which finds mention that the deceased had sustained such injuries on his person. With such evidence on record, we are left with no option but to hold that the deceased had met a homicidal death. 8. Mr.S.K.Routray, learned counsel for the Appellant (accused), from very beginning, instead of attacking the finding as to the authorship of the injuries upon the deceased attributed to the accused as has been recorded by the Trial Court, confined the submission on the question of alteration JCRLA No.74 of 2012 Page 5 of 9 {{ 6 }} of the conviction of the accused to one under section 304-I of the IPC with appropriate reduction of sentence. According to him, viewing the happenings in the incident as also the subsequent events, the relationship etc. when are kept in view with the fact that the parties hail from remote rural back ground whose tamper usually run high and behavior for silly reasons, often becomes abnormal, the Trial Court ought not to have convicted the accused for commission of offence under section 302 of the IPC. He, therefore, urged for alteration of conviction for commission of offence under Section 302 of the IPC to offence under Section 304-I of the IPC and accordingly, he contended that the accused be visited with the sentence as deemed appropriate for the said offence. 9. Mr.P.K.Mohanty, learned Additional Standing Counsel submitted all in favour of the finding returned by the Trial Court that the accused is liable for commission of the offence under Section 302 of the I.P.C. He further submitted that the injuries having been received by the deceased on the head, forehead and neck of the deceased, which has proved fatal in causing the death, the Trial Court did commit no mistake in holding the accused guilty for commission of the offence under section 302 of the IPC. JCRLA No.74 of 2012 Page 6 of 9 {{ 7 }} 10. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court and we have also extensively travelled through the depositions of the prosecution witnesses i.e. P.Ws. 1 to 12 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 14. 11. Proceeding to address the submission of learned Counsel for the Appellant as regards the alteration of conviction to one under section-304-I of the IPC, and appropriate reduction of the sentence, we find from the evidence of the Doctor, P.W.7, who had conducted postmortem over the dead body of the deceased that he had noticed heamatoma on parietal area on the brain and cisternal heamatoma right side, heamatoma of fronto temporo parietal area. As per the evidence, the death was on account of the injujries to the vital organ like brain. The Doctor, who had initially examined Ramesh (deceased) is P.W.8. He states to have noticed one lacerated injury on 1”x1”X1/2” in the occipital area and one bruise over tempro parietal area both to be grievous in nature with another bruise on the left side of the head and neck which were simple in nature. Ramesh having taken to Barpali CHC immediately after the occurrence on 01.07.2010, as advised, he was shifted to the VSS Medical College and Hospital, Burla. The death has taken place on Page 7 of 9 JCRLA No.74 of 2012 {{ 8 }} 08/09.07.2010, i.e., after a week while undergoing treatment. It is stated by more of the prosecution witnesses that the deceased was assaulted by means of any weapon and it is not stated even by P.W.2, the wife of the deceased that she had seen the accused assaulting the deceased. She has also stated that her son (accused) was a habitual drunkard and was also taking ganja. It has been the evidence of the I.O. P.W.12 that there was no mark of tussle or violence at the spot. The parties hail from rural background, mostly having high temper showing abnormal and unexpected behavior in silly matters. The evidence on record being cumulatively viewed rather probabilises the case that the deceased ultimately having fallen on the ground, said injuries on head had been sustained. Having carefully considered all above circumstances emerging from the evidence, we are of the considered view that the offence can be properly categorized as one punishable under section 304-I of IPC. Therefore, we are inclined to modify the impugned judgment of the Trial Court in convicting this accused for the offence punishable under section-302 of IPC and instead the accused is convicted for the offence punishable under section 304-I of IPC. Accordingly, the accused is sentenced to undergo rigorous imprisonment for a period of ten (10) years. JCRLA No.74 of 2012 Page 8 of 9 {{ 9 }} 12. The Appeal is accordingly allowed in part with the above modification of the judgment of conviction and order of sentence dated sentence dated 17th November, 2011 passed by the learned Additional Sessions Judge, (FTC), Bargarh in C.T. Case No.45/12 of 2011. G. Satapathy, J. I Agree. (D. Dash), Judge. (G. Satapathy), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 02-Nov-2023 19:10:31 JCRLA No.74 of 2012 Page 9 of 9