The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.73 of 2011 From the judgment of conviction and order of sentence dated 30th June, 2011 passed by the learned 2nd Additional Sessions Judge, Cuttack in S.T. Case No.273 of 2009. Pratap Chandra Sahu …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.Amrut Baral (Advocate) For Respondent - Mr.S.K.Nayak, Addl. Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 13.01.2023 : Date of Judgment:27.01.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, assails the judgment of conviction and order of sentence dated 30th June, 2011 passed by the learned 2nd Additional Sessions Judge, Cuttack in S.T. Case No.273 of 2009 arising out of G.R. Case No.3 of 2009 corresponding to Banki P.S. Case No.2 of 2009 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Banki. The Appellant (accused) thereunder has been convicted for committing the offence under section 376/511/304 Part-I of the Indian Penal Code, 1860 (for short, ‘the IPC’) and accordingly, he has been Page 1 of 6 JCRLA No.73 of 2011 {{ 2 }} sentenced to undergo rigorous imprisonment for ten (10) years and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for a period of one (1) year for commission of offence under section 376/511 IPC; and imprisonment for life and fine of Rs.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for two (2) years for commission of offence under section 304 Part-I IPC with further stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- On 09.01.2009 around 7.00 a.m., the wife of the Informant, namely, Dwijabar Sahoo had been to “Huluhula Jora” of Godabar to take her bath. On her way back, she was subjected to ill-treatment by the accused. She was dragged by her saree and being undressed, was murdered by the accused. The Informant (P.W.3), Officer-in-Charge (OIC) of Banki Police Station, at the spot, on receiving the information of the death of the deceased from the Assistant Sub-Inspector of Police (ASI) attached to Subarnapur beat house, having lodged the report with the he immediately registered Banki P.S. Case No.2 of 2009 and took up the investigation. In course of investigation, he examined the Informant (P.W.3), held inquest over the dead body of the deceased, prepared the spot map and seized the incriminating articles. He also sent the dead body of the deceased for post mortem examination. The incriminating articles, being sent for chemical examination through Court, the report has also been received. On completion of the investigation, the Final Form was JCRLA No.73 of 2011 Page 2 of 6 {{ 3 }} submitted placing the accused to face the trial for commission of offence under section 376/511/302 IPC. Learned S.D.J.M., Banki, receiving the Final Form, as above, took cognizance of the offences and after observing all the formalities, committed the case to the Court of Sessions for trial. That is how, the trial commenced by framing the charge against the accused for the above offences. 3. In the trial, the defence has taken the plea of complete denial and false implication. The accused, however, has not examined any witness in support of his defence. 4. The prosecution, during trial, has in total examined twenty-three (23) witnesses. Out of whom, three Medical Officers, who had examined the deceased and the accused are P.Ws.13, 14 & 19. As already stated, the Informant, who is the husband of the deceased, is P.W.3. Two Investigating Officers, who have conducted the investigation for different length of time, are P.Ws.22 & 23. The eye witnesses to the occurrence are P.Ws.2, 10 & 18. P.Ws.4 & 5 are the two witnesses who are said to have seen the later part of the occurrence by deriving their knowledge from P.W.10 and they too are also the witnesses to the seizure of incriminating articles. Besides leading the evidence by examining the above witnesses, the prosecution has also proved the documents admitted in evidence and marked Exts.1 to 16. Out of those, the importants are the FIR (Ext.1), the inquest report (Ext.2/2) and the post mortem report (Ext.7). The seizure lists have been proved and marked Exts.3/2, 4/1, 8, 8/4, 9, 10, JCRLA No.73 of 2011 Page 3 of 6 {{ 4 }} 11, 11/3. The spot map prepared by P.W.22 has been admitted in evidence and marked Ext.13. 5. The Trial Court, upon detail examination of the evidence of the prosecution witnesses as well as the documents, which have been exhibited from the side of the prosecution, has arrived at the conclusion that the prosecution has established the charges against the accused beyond reasonable doubt. Accordingly, the accused has been convicted for committing the offence under section 376/511 IPC. He has, however, been convicted under section 304 Part-I IPC, but not under section 302 IPC. 6. Mr.Amruit Baral, learned counsel for the Appellant (accused), at the outset, instead of questioning the finding of guilt returned by the Trial Court as against this accused holding him guilty for commission of the offences, as above, confined his submission as to reduction of the sentence for the offence under section 304 Part-I IPC. He submitted that keeping in view the facts and circumstances of the case, as have merges from the evidence with other surrounding factors, the sentence of imprisonment of life for the offence under section 304 Part-I IPC is highly disproportionate and according to him, that needs appropriate reduction. In this connection, he also invited the attention of the Court to the evidence of P.W.10, when has stated to have seen the accused assaulting on the neck of the deceased; the evidence of the Doctor is to the effect that said injury is not fatal. According to him, it is not a case where imposition of maximum sentence is called for in so far as the offence under section 304 Part-I IPC is concerned. He submitted that looking at the age of this accused and the background from which he Page 4 of 6 JCRLA No.73 of 2011 {{ 5 }} hails, the quantum of sentence, as has been awarded by the Trial Court for the offence under section 304 Part-I IPC, does not commensurate the offence as proved. 7. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State, on the other hand, submitted all in favour of the quantum of sentence, as has been awarded, by the Trial Court. According to him, the evidence of P.W.10 and other witnesses, being cumulatively viewed as regards the manner in which the offence is said to have been committed, the sentence of imprisonment for life is just and proper. 8. Keeping in view the submissions made, We have carefully gone through the impugned judgment passed by the Trial Court. 9. The Trial Court, upon examination and analysis of evidence, has held the accused guilty for commission of offence under section 376 read with section 511 of the IPC as well as under section 304 Part-I IPC. It has been found from the evidence that the death of the victim was not only due to any other cause but because of the attempt that this accused made to commit rape. Upon discussion of evidence, the Trial Court has also held that the accused had not succeeded in committing rape but attempted to rape, which has faced stiff resistance/struggle offered by the deceased and then the accused, having pushed the victim, her fall on the ground resulting injuries has led to her death. JCRLA No.73 of 2011 Page 5 of 6 {{ 6 }} The accused is a cultivator by profession and as such, earns his livelihood and maintains the family and he too, hails from a rural background and was within his forties at the relevant time of occurrence. The accused, as submitted at the Bar, has served out the sentence for a considerable length of time. Cumulatively viewing all these circumstances and striking a balance, We are of the considered view that imposition of substantive sentence of rigorous imprisonment for a period of ten (10) years for commission of offence under section 304 Part-I IPC commensurate the proven offence and thus would serve the ends of justice. Accordingly, We hereby order for modification of the substantive sentence only for the commission of offence under section 304 Part-I IPC. 10. The Appeal stands accordingly disposed of. The judgment of conviction dated 30th June, 2011 passed by the learned 2nd Additional Sessions Judge, Cuttack in S.T. Case No.273 of 2009, which is impugned in this Appeal, being confirmed; the order of sentence stands modified only in so far as the commission of offence under section 304 Part-I IPC is concerned and that too with regard to the substantive sentence to the extent, as aforementioned. Dr. S.K. Panigrahi I agree. (D. Dash) Judge. (Dr. S.K. Panigrahi) Judge. Basu JCRLA No.73 of 2011 Page 6 of 6