MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.98 of 2010 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 25th September 2010 passed by the learned Additional Sessions Judge, Nabarangpur in Criminal Trial No.18 of 2009. Rupdhar Majhi @ Rukdhar …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms.Aurolina Pal Advocate as Amicus Curiae For Respondent - Mr.S.K. Nayak, Additional Govt. Advocate. CORAM:
Legal Reasoning
unexpected manner; we are of the view that the offence could be properly categorized as one punishable under section 304-II of the IPC. We are thus of the considered opinion that for the role played by this accused and the act done, he would be liable for conviction under Section 304-II of the IPC. 13. Now coming to the question of sentence; the record being perused it is seen that the incident had taken place on 18th August 2008 and by now, there has been lapse of more than 15 years and 11 months. The accused having faced the trial at the age of 37 is now about 53 years old and he being on bail, no such material is placed that he has indulged himself in any criminal activity during the period. Nor it is shown that he was having criminal cases to his credit prior to the present one. It was also submitted that the accused has remained in custody for more than 8 years. Taking all these above factors into consideration, this Court feels that while maintaining the conviction of the accused for the offence as aforestated, if he is sentenced to the period undergone; JCRLA No.98 of 2010 Page 8 of 9 that would be in the interest of justice, which is hereby so done to serve the ends of justice and meet its end. 14. In the result, the Appeal is allowed in part, with the alteration of conviction and modification of the sentence to the extent as indicated above. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 22-Aug-2024 18:46:43 JCRLA No.98 of 2010 Page 9 of 9
Arguments
MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 26.07.2024 : Date of Judgment : 20.08.2024 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and order of sentence dated 25th September 2010 passed by the learned Additional Sessions Judge, Nabarangpur in Criminal Trial No.18 of 2009 arising out of G.R. Case No.484 of 2008 corresponding to JCRLA No.98 of 2010 Page 1 of 9 Papadahandi P.S. Case No.122 of 2008 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Nabarangpur. 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.20,000/- with the default stipulation to undergo rigorous imprisonment for two years. 2. Prosecution case is that on 18.08.2008 around 10.30 pm, when the Informant (P.W.1) was in the house along with his father, the accused suddenly came to the house and openly stated to take away the life of the Informant as was of the belief that their father practicing witchcraft and by that he had caused the death of the daughter. It be stated here that the accused is the son of the deceased and the Informant (P.W.1) is the brother of the accused. It is next stated that the accused having said so, forcibly dragged the father of the Informant (deceased) from the house and seeing this the Informant and other family members out of fear went outside the house and took shelter of the house of co- villager namely, Raisingh. The accused thereafter, took the father of the Informant (deceased) to the field and assaulted him by means of fist blows and slaps which led to his death. It is further stated that accused thereafter took the dead body of the deceased JCRLA No.98 of 2010 Page 2 of 9 and put the same on a cot. The informant on the next day came and saw the dead body of his father lying on a cot and he then was told by one Kirtan (P.W.2) as to how all that happened to his father and what the accused did upon him. The matter being reported by the Informant (P.W.1) with the Maidalpur Police Outpost, on the basis of the report, the ASI of Police Maidalpur Outpost (P.W.15) made station diary entry and sent the same to Inspector-In-Charge (IIC), Papdahandi Police Station for registration of the case. Awaiting the registration of the case, he (P.W.15) carried out the investigation at his end. 3. The Investigating Officer (I.O.-P.W.15), in course of the investigation, examined the informant (P.W.1), visited the spot and examined other witnesses at the spot, held the inquest over the dead body of the deceased in presence of the witnesses, prepared the report to that effect (Ext.2) and sent the dead body of the deceased for postmortem examination. On 19th August 2008, the IIC, Papdahandi P.S. when received the written report of the Informant (P.W.1), being sent by the ASI, Maidalpur Police Outpost, he registered the formal F.I.R. and took up investigation of the case. He (P.W.16) then again examined the Informant (P.W.1) and other witnesses, re- JCRLA No.98 of 2010 Page 3 of 9 visited the spot, examined some other witnesses, and on the same day, the I.O. (P.W.16) arrested the accused, seized the wearing apparels of the deceased and the accused and prepared seizure lists. He received the postmortem examination report of the deceased. The I.O. (P.W.16) on completion of the investigation, submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Nabarangpur, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 5. The prosecution, in support of its case, has examined in total sixteen (16) witnesses during Trial. Out of them, the P.W.1 is the Informant and son of the deceased, P.W.2 claims to be the eye witness to the occurrence, P.Ws.3, 4 and 5 are the post occurrence witnesses, P.w.6 is the witness to the inquest conducted over the dead body of the deceased, P.Ws.7, 8, 9 and 10 are the witnesses to the seizures of different articles, P.W. 13 is the Medical Officer, who had been examined the deceased whereas P.W.13 is the Doctor who had given the opinion as regards the nature of injuries and their ordinary impact. P.Ws.15 and 16 are the two Investigating Officers. JCRLA No.98 of 2010 Page 4 of 9 6. 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 9. Out of those, the important are, the FIR (Ext.1), the postmortem report (Ext.7) and the inquest report (Ext.2). 7. The accused person has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea. 8. Learned Counsel for the Appellant (accused) from the beginning without impeaching the prosecution evidence as regards the role played and act done by the accused in the incident as emerged therefrom; submitted that keeping in view the fact that the parties hail from rural background where their temper ordinarily run high and they exhibit abnormal and unexpected behavior even in silly matters and taking judicial notice of the same; the accused ought not to be convicted for committing the offence under section-302 of the IPC. He, therefore, submitted that in that event, the conviction of the accused should be altered to one under section 304-II of the IPC and he be visited with the sentence as deemed appropriate for the said offence committed under the circumstance. He further submitted that since the accused has served out the sentence by JCRLA No.98 of 2010 Page 5 of 9 remaining in custody more than eight (8) years and three (3) months; the Court in interest of justice and serving its ends may impose for the period undergone. 9. Learned Counsel for the State submitted all in favour of the conclusion of the Trial Court in contending that the accused has been rightly found guilty for commission of offence under section- 302 of the IPC. He submitted that it having been proved through Doctor (P.W. 13) that the death has resulted from the fracture of ribs and injury to the lung and liver and hypovolemic shock caused by the act of the accused; the finding that the accused is guilty for commission of offence under section-302 of the IPC is well in order. 10. 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 witnesses (P.Ws.1 to P.W.16) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.9. 11. Coming to address the rival submission as regards alteration of conviction and modification of sentence, since the role played by the accused and the act done as emerge from the evidence of P.W.1, is not impeached, we find that the accused is the son of the deceased, and it is stated by P.W.1 that the accused JCRLA No.98 of 2010 Page 6 of 9 was dragged away from the house by the accused by giving fist and kick blows. P.W.2 had also stated that he had seen the accused dealing fist blows and kick which herein has the death of the deceased. P.W.13, is the Doctor who had conducted postmortem examination over the dead body of the deceased namely, Sadan Majhi. He had noticed only external injury which was an abrasion on the left chin. According to him, the death is due to fracture of the of the ribs which has caused injuries on lung and liver and the hypovolemic shock. It is not the evidence that the accused had gone to the house where the deceased was then living with any weapon. In fact the prosecution is that the accused assaulted the deceased by giving of fist and kick blows. Although it is said that there was fracture of the ribs, no such corresponding external injuries has been noticed. The deceased was staying with P.W.1 and there was some dispute relating to the partition of the properties as it emanate from the evidence. There was no prior planning by the accused for the said incident. The parties hail from rural background where their temper usually run high and they exhibit showing abnormal and unexpected behavior even in silly matters for which judicial notice can be taken. JCRLA No.98 of 2010 Page 7 of 9 12. All these above discussed facts and circumstances, being cumulatively viewed and further taking judicial notice of the fact that the parties hail from rural pocket of the Scheduled Area of the State where ordinarily their temper run high and for silly reasons, they many a time behave differently, at times in a quite