MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.35 of 2013 AND JCRLA No.40 of 2019 In the matter of Appeals under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 15th March, 2013 & 16th March, 2013 respectively passed by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Bolangir in S.C. No.141/21 of 2011. Kainru Bhoi @ Bhoe (In both JCRLAs) State of Odisha (In both JCRLAs) …. Appellant -versus- …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant : Mr. B.S. Rayaguru, Amicus Curiae in both JCRLAs For Respondent : Mr. P.K. Mohanty, Additional Standing Counsel (In both JCRLAs) CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of Hearing : 07.03.2024 : Date of Judgment: 15.04.2024 V. Narasingh, J. The Appellant from jail assailing his conviction under Section 302 of the Indian Penal Code, 1860 (‘IPC’) and sentencing him to undergo R.I for life and pay a fine of JCRLA Nos.35 of 2013 & 40 of 2019 Page 1 of 16 Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for six (6) months in terms of the judgment of conviction and order of sentence dated 15th March, 2013 & 16th March, 2013 respectively passed by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Bolangir in S.C. No.141/21 of 2011, had filed Jail Criminal Appeal No.35 of 2013. Thereafter, the Appellant preferred Jail Criminal Appeal No.40 of 2019. 2. Both the appeals are taken up together for hearing
Decision
and disposed of by this common judgment on the consent of the Parties. 3. On 08.06.2011, one Mitu Sahu (P.W.2) submitted a written report before the A.S.I. of Agalpur Police Out Post alleging that his brother, Upendra Sahu was stabbed by the Appellant while he was brushing his teeth in front of his house. Thereafter, he was taken to hospital where he was declared to be dead. On the basis of the same, Loisingha P.S. Case No.76 of 2011 dated 08.06.2011 U/s.302 of IPC was instituted citing the Appellant as the sole accused and the investigation was taken up in right earnest. 4. It is revealed that the I.O-P.W.9 visited the spot, held inquest over the dead body in presence of the witnesses and sent the dead body of the deceased Upendra for post-mortem JCRLA Nos.35 of 2013 & 40 of 2019 Page 2 of 16 examination and prepared the Inquest report-Ext.2. P.W.2 is stated to be one of the witnesses to such inquest. 5. In the inquest report, it was stated that there was a puncture wound on the left side chest of the deceased. 6. I.O-PW.9 visited the place of occurrence, examined other witnesses and apprehended the Appellant and searched of the house of the Appellant recovered knife containing stains of blood. The Scientific Officer, who accompanied the team, collected the blood stains of the deceased as well as the stains on the knife. And, Ext.5 is the seizure list. 7. On the basis of the statement of the witnesses and materials collected including the post-mortem report marked as Ext.11 and coupled with the report of the Scientific Officer marked as Ext-14 and opinion of the Doctor-Ext.12, charge sheet was submitted against the Appellant under Section 302 of IPC and after commitment, the accused faced trial in S.C. No.141/21 of 2011 in the Court of learned Additional Sessions Judge-cum-Special Judge (Vigilance), Bolangir. 8. To drive home the charge for the offence punishable under Section 302 of IPC, the prosecution relied on the evidence of ten (10) witnesses. Their details run thus; JCRLA Nos.35 of 2013 & 40 of 2019 Page 3 of 16 P.W.2 is the informant and a post occurrence witness P.W.1 is his brother and also a post occurrence witness P.W.3, P.W.6 and P.W.7 are eye witnesses to the occurrence P.W.4, P.W.5 and P.W.8 are witnesses to seizures P.W.9 is the I.O. P.W.10 is the Doctor, who conducted autopsy of the deceased. Besides, the prosecution also proved several documents which were admitted into evidence and marked as exhibits and relied on material objects, M.Os.I to IV. No defence evidence was adduced and the stand of the defence was one of complete denial and false implication. 9. P.W.10 is the Doctor, who conducted the post- mortem examination of the deceased on police requisition on the date of occurrence at 4.30 P.M. and found one penetrating wound of size 2 cms x 1.5 cms present over the left side of the chest of the deceased. 10. On internal examination, huge blood clots in the rib region of the chest and accumulation of blood in the pericardial cavity of the heart together with an incised wound of size 1 cm x 1.5 cms over the left ventricle of heart of JCRLA Nos.35 of 2013 & 40 of 2019 Page 4 of 16 the deceased was found. There were rigor mortis on four limbs of the deceased. 11. In her evidence, P.W.10 doctor stated that the cause of the death of the deceased was on account of shock and haemorrhage for the injury to the heart. She opined in the post-mortem report, Ext.11 that all the injuries were ante mortem in nature and she further stated that she examined one knife with a metal blade and plastic handle and the injuries found on the deceased Upendra are possible by the said knife (M.O.III). All said evidence have remained unchallenged. 12. Hence, we find the evidence on record to be sufficient enough to hold that Upendra met homicidal death. 13. Having arrived at this basic finding relating to the nature of death of said Upendra with which we agree, the learned Trial Court went on to scrutinize the evidence on record and primarily relying on the evidence of P.Ws.3, 6 and 7 (eyewitnesses) and coupled with the evidence of P.W.9 - I.O. arrived at the finding of guilt of the Appellant has committed the offence under Section 302 of IPC and thereafter, negating the prayer to take a lenient view directed the Appellant to suffer imprisonment for life and pay a fine of Rs.10,000/- in default thereof to suffer R.I. for a further JCRLA Nos.35 of 2013 & 40 of 2019 Page 5 of 16 period of six months more towards his conviction under Section 302 IPC subject to set off under Section 428 Cr.P.C. 14. Heard, Mr. B.S. Rayaguru, learned Amicus Curiae for the Appellant and Mr. P.K. Mohanty, learned Additional Standing Counsel-Public Prosecutor for the State. 15. Learned Amicus Curiae argued with vehemence and also relied on written note of submission canvassing that the manner of examination of evidence on record by the learned Trial Court was perverse and it is his assertion that evidence of P.Ws.3 ,6 & 7 who are stated to be the eyewitnesses cannot withstand closer scrutiny because of inherent contradictions for which, the Petitioner is entitled to be acquitted. 16. Alternatively, it was submitted that taking into account that the Appellant is in custody for about 13 years, leniency may be shown in the matter of award of sentence. 17. Learned Public Prosecutor supported the impugned judgment and it is his submission that basing on the evidence, rightly the accused- Appellant has been conviction under Section 302 IPC. 18. P.W.2 is the informant and brother of the deceased. He stated that while he was in village Agalapur, there were commotion that the Appellant had murdered his brother by JCRLA Nos.35 of 2013 & 40 of 2019 Page 6 of 16 giving a knife blow and he went to the hospital which was near the weekly market of Agalapur and saw Upendra who by then have been declared dead by the Doctor. On his instruction, one Rankamani Sethi of Agalpur Police out post registered a complaint, the contents of which were read over and explained to him which was later registered as FIR and he has proved the same as Ext.1 and his signature as Ext.1/1. 19. It is borne out from his deposition as well as deposition of P.W.1, another brother of the deceased that the accused was related to them as their cousin. It is also stated by P.W.1 that accused is the brother-in-law (Bhinio) of his wife. 20. Citing P.W.3 as an eye witness by the prosecution, was objected to with vehemence by the learned counsel for the Appellant. 21. In his deposition, P.W.3 has stated that both the deceased and he are residents of village Rengali and at the time of occurrence, he had gone inside his house to bring tooth brush and when he was coming out of the house saw the accused-Appellant running away after dealing a knife blow on the left side chest of his brother Upendra and Uependra keeping hands over the injury on his left chest was shouting for help. JCRLA Nos.35 of 2013 & 40 of 2019 Page 7 of 16 22. His further deposition is of seminal importance and is quoted in vertbatim. “I ran near Upendra immediately and asked him as to what happened. He told that the accused Kainru stabbed on his chest by means of knife, resulting his injury.” 23. It is further borne out from his evidence that prior to the occurrence, there was quarrel between the accused- Appellant and his wife. And, the wife of the accused- Appellant used to seek help of P.W.2 and the deceased, since they are related and the deceased on several occasions advised the accused-Appellant to refrain from quarrelling with his wife. P.W.3 believed that on account of such intervention, the deceased was miffed with such conduct of his brother and he attributed the same as the motive for commission of offence. 24. Nothing has been elicited from the mouth of P.W.3 in his cross-examination to discredit him. 25. P.W.6 in his evidence has narrated the incident leading to injury and ultimate death of Upendra with clarity. He has stated that the accused-Appellant went near Upendra and there were some exchange of words between them and during the course of such exchange of words, the accused- Appellant dealt a knife blow on the left side chest of Upendra JCRLA Nos.35 of 2013 & 40 of 2019 Page 8 of 16 resulting in bleeding injury. As the deceased Upendra resisted the accused and tried to push him aside, the knife fell down on the ground and it is stated that Upendra lost his sense due to severe bleeding from such injury. He submitted that he and some others lifted the injured from the ground and put him on a cot, then arranged a vehicle and took the injured to the hospital where the doctor declared him dead. 26. He has further stated in his examination-in-chief that when the injured Upendra pushed accused-Appellant, the accused ran away to his house. 27. It is apposite to note that in the cross-examination, it has been brought out and noted in paragraph-12 that “During the occurrence, deceased Upendra shouted “Kainru Chhuri Bhusidela” repeatedly for 2-3 times.” 28. P.W.7 is another eyewitnesses, who has stated that the occurrence took place in front of his house and he has vividly described the manner in which, the deceased after being attacked with a knife by the accused-Appellant tried to push him and ran for some distance and fell down in front of the house of one Choubarga Putel. 29. It is relevant to note that P.W.7 has stated that the knife, with which the deceased was attacked, fell down JCRLA Nos.35 of 2013 & 40 of 2019 Page 9 of 16 during the scuffle between the deceased and the accused- Appellant. Thereafter, it is stated by the P.W.7 that “Accused Kainru lifted that knife and ran to his house.” 30. P.W.9 is the I.O. He stated that during the investigation on the very day he recovered a knife containing stains of blood and entered the same in the seizure list, marked as Ext.5. 31. He has also stated that he produced the seized weapon of offence (knife) before P.W.10 (Doctor) and issued a query requesting the said P.W to opine on the plausible cause of the injuries found on the dead body of the deceased. 32. The Doctor on examination of the weapon of offence conveyed her opinion, which has been marked as Ext.12. 33. P.W.10 (Doctor) referring to Ext.12 opined that injuries found on the body of the deceased Upendra are possible by the knife (MO-III), which she examined on police requisition. 34. On analysis of the evidence on record, we find that the witnesses have fully corroborated each other as to the role of the accused-Appellant and the prosecution, through said evidence, has thus proved beyond reasonable doubt that it is this accused-Appellant, who, by giving a blow by means of JCRLA Nos.35 of 2013 & 40 of 2019 Page 10 of 16 knife (M.O.III) on the chest of the deceased, has caused his death. 35. The submission of the learned counsel for the Appellant is that though it is borne out from the Case Diary that there were several material witnesses like Balistha Pradhan, Narendra Sahu, Choubarga Putel and cited as charge sheeted witnesses, yet, they were not brought to the witness box and even the scribe of the FIR has not been examined. And, since the independent witnesses have been kept out of the scrutiny of the Court, the case of the prosecution has to be viewed with suspicion. Such submission has no legal foundation. 36. It is trite law that it is prerogative of the prosecution to produce the witnesses and order of such production by the prosecution cannot also be challenged and as such for non- examination of some witnesses, the prosecution cannot be blamed or its case cannot be doubted for that reason also no adverse inference can be called. But where it is shown that such non-examination of the witness is deliberate so as to suppress or avoid some material facts relating to the happening in the incident coming to surface, which if would have come, the benefit of doubt have gone to the defence and thus, he was prejudiced in his defence, the prosecution very JCRLA Nos.35 of 2013 & 40 of 2019 Page 11 of 16 much shares the blame and benefit of doubt then gets extended to the accused. Nothing touching the above being shown, the contention of the learned counsel for the Appellant regarding non-examination of the independent witnesses like Choubarga Putel, before whose house the deceased fell down after the attack pales into insignificance, in the face of the credible evidence on record. 37. Hence, considering the evidence of P.W.3 before whom the deceased named the accused as assailant which is substantive evidence in terms of Section 32(1) of the Evidence Act. And, as is brought out from the evidence of P.W.7 who is also an eyewitness that after dealing the blow the accused ran away with the weapon of offence to his house. Seizure of such weapon of offence (M.O.III) from the house of the accused and detection of human blood stain on M.O.III which was established by virtue of Ext.16 and the opinion of the Doctor which confirms the statement of P.Ws.3, 6 and 7, this Court has no iota of doubt that the only conclusion that can be arrived at is that the Appellant is author of the crime. 37-A. This Court does not find any infirmity in the analysis of evidence on record by the learned Trial Court and as such, affirms the conviction. JCRLA Nos.35 of 2013 & 40 of 2019 Page 12 of 16 37-B. At this stage, learned counsel for the Appellant as a last straw of defence urges this Court to consider alteration of conviction and submits that on a conspectus of evidence on record, this cannot be said to be a case under Section 302 of IPC and prays for alteration of conviction under section 304-I IPC. 37-C. It is submitted that the accused dealt only one blow and after the deceased fell down during tussle with him, he had not made any attempt to inflict any further blow. 37-D. Learned Public Prosecutor, Mr. Mohanty, submits that the accused-Appellant on the date of fateful day being armed with a knife in premeditated state came to the house of the deceased and inflicted the fatal blow and thereafter, he ran away from the spot along with the weapon of offence. Hence, the learned Trial Court has rightly found him guilty under Section 302 IPC. 38. In the case of Stalin vrs. State represented by the Inspector of Police, (2020) 9 SCC 524, the Apex Court has dealt with the factors which ought to be taken into account in recording a conviction under Section 302 IPC or under Section 304 IPC. Referring to all the judgment on the point at issue it has been laid down that there cannot be any straight jacket formula that a single injury would not ipso facto JCRLA Nos.35 of 2013 & 40 of 2019 Page 13 of 16 render a conviction under Section 302 IPC sustainable. Para- 7.2 of the aforementioned judgment of the Apex Court in the case of Stalin (supra) is extracted hereunder: “From the above stated decisions, it emerges that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated hereinabove, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence.” 39. Analyzing the evidence on record, on the touchstone of the law laid down in the aforesaid case, it is noted that the accused appellant dealt the blow during altercation with the deceased and such blow ultimately proved fatal and there was also scuffle before that. No evidence is forthcoming from the prosecution prior to the incident there was any serious JCRLA Nos.35 of 2013 & 40 of 2019 Page 14 of 16 dispute between the deceased and the accused Appellant who are related to each other. It can further be seen post occurrence that the accused did not try to conceal himself. The weapon of offence was also seized from his house. There is nothing on record to indicate from the evidence on record that the accused was in any manner trying to glorify the act. 40. Taking over all view of the fact situations leading to the incident, this Court is of the considered view that the offence committed by the accused-Appellant would stand categorized under Section 304-I of the IPC and considering that the Appellant is in custody for more than 13 years, the sentence is altered to the period of incarceration as undergone. 41. Accordingly, the Appeal is allowed in part. Conviction and sentence under Section 302 IPC is set aside and the Appellant’s conviction is altered to one under Section 304 Part 1 of IPC and he is hereby sentenced to the period of incarceration already undergone. 42. Since the accused is in custody, he be set at liberty if he is not required to be confined in connection with any other case. JCRLA Nos.35 of 2013 & 40 of 2019 Page 15 of 16 43. Before parting, this Court places on record the sincere efforts made by Mr. B.S. Rayaguru, learned Amicus Curiae and the dispassionate way in which the learned Public Prosecutor, Mr. P.K. Mohanty rendered the assistance. (V. Narasingh) Judge D. Dash, J. I agree. (D. Dash) Judge Orissa High Court, Cuttack Dated the 15th April, 2024/ Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Apr-2024 14:30:06 JCRLA Nos.35 of 2013 & 40 of 2019 Page 16 of 16