MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.47 of 2006 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment dated 06.05.2006 passed by the learned Addl. Sessions Judge, Jharsuguda in S.T. Case No.60 of 2005. Jayant Jagat @ Jeetendra @ Janta …. Appellant -versus- State of Odisha …. Respondent For Appellant : L.N. Patel, Advocate For Respondent : Mr. S.N. Das, ASC CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 02.04.2024 : Date of judgment :15.04.2024 V. Narasingh, J. The Appellant (accused) has called in question the judgment of conviction U/s.451/323/354/302/307/34 Indian Penal Code, 1860 (for short, ‘IPC’) and order of sentence dated 06.05.2006 passed by the learned Additional Sessions Judge, Jharsuguda in S.T. Case No.60 of 2005 arising out of Orient P.S. Case No.59 of 2004 directing him to undergo imprisonment for life U/s.302 of IPC and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months and further sentencing to undergo rigorous imprisonment for five years U/s. 307 of IPC and JCRLA No.47 of 2006 Page 1 of 17 also to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months and further sentencing to simple imprisonment for one month U/s. 323 of IPC. 2. The case of the prosecution is that on 25.09.2004 at about 8:00 P.M., when the informant-Santilata Sahu (P.W.5) and wife of the deceased-Dwarika Sahu were talking with Basanti Satanami (P.W.8) and wife of the injured Dillip Kumar Satanami (P.W.9), the father of the accused-Appellant (Sunil Jagat) came there. There was altercation relating to keeping of a cycle by the informant’s (P.W.5) husband near the house of the father of the present accused- Appellant. It is alleged that the father of the accused-Appellant called his daughter and assaulted the informant. 3. On being informed, the husband of the informant (Dwarika Sahu) arrived at the spot and then the accused-Appellant along with his father again came to the house of the informant (P.W.5) and dragged the informant up to the house of Basanti Satanami (P.W.8) and assaulted her resulting in injuries. They also picked up quarrel with Basanti Satanami (P.W.8) when she tried to intervene. In order to prevent further escalation, the informant (P.W.5) took her husband away from the scene of occurrence, confined him inside their house and closed the door from outside. JCRLA No.47 of 2006 Page 2 of 17 4. When the husband of Basanti Satanami (P.W.8) namely, Dillip Kumar Satanami (P.W.9) saw his wife being assaulted by the father of the accused-Appellant, he intervened and gave a push to the father of the accused-Appellant. At this, the accused-Appellant got enraged went inside his house and brought out a knife and stabbed Dillip Kumar Satanami (P.W.9) on his chest. One Banchu @ kamalesh Sahu (since deceased) when tried to intervene he was also stabbed on his stomach and chest and in the meantime the husband of the informant (P.W.5)-Dwarika Sahu could come out of the house and caught hold of the father of the accused-Appellant but he was also stabbed on his stomach sustaining bleeding injury. 5. Then the accused-Appellant along with his father and others fled away from the spot. The injured persons were taken to the hospital. The husband of the informant Dwarika Sahu and Banchu @ kamalesh Sahu succumbed to their injuries and Dillip Kumar Satanami (P.W.9) was severely injured. In the hospital campus, on the oral report of the informant-Santilata Sahu (P.W.5),
Legal Reasoning
plain paper FIR was drawn up (Ext.9) and as the report revealed a cognizable offence under Sections 451/323/354/302/307/34 IPC, Orient P.S. Case No.59 of 2004 was registered on the said date under the self-same Sections and investigation was taken up. JCRLA No.47 of 2006 Page 3 of 17 6. During the course of investigation, the I.O. (P.W.19) found the two of the three injured Dwarika Sahu and Banchu @ kamalesh Sahu to have succumbed to their injuries and seeing the serious condition of another injured Dillip Kumar Satanami requisitioned the services of Medical Officer I/c of the Central Hospital, Mandalia to record the statement of the injured Dillip Kumar Satanami and such statement (Ext.6). was recorded by Dr. A.V.R. Tirkey (P.W.2). 7. Since it was already night, necessary instructions were imparted for guarding the dead bodies by the I.O., thereafter inquest report was prepared (Ext.8 and 12) and requisition for Medical examination of the injured informant-Santilata Sahu (P.W.5) was also sent (Ext.4/2). 8. During the further course of investigation, the I.O. reached the spot on the next day of occurrence on 26.09.2004 at 2:00P.M., collected samples of the blood stained apparels from the place and seizure list was prepared. And, on 28.09.2004 the Appellant- accused (Jayant Jagat) was apprehended at Jharsuguda bus stand being identified by Home Guard Pitambar Pradhan. His wearing apparels were seized and seizure list was marked as Ext.-10. Of the apparels which were seized, one yellow napkin had traces of blood. Thereafter, on the basis of the statement of the accused-Appellant JCRLA No.47 of 2006 Page 4 of 17 recorded under Section 27 of the Evidence Act (Ext.-15), the accused gave recovery of a knife from the backside of the house kept hidden under “a lime bag along with the case of the knife” which was seized in the presence of the witnesses. The accused- Appellant was forwarded on 29.09.2004. 9. It is on record that the knife (M.O.-VI) was sent to the Casualty Medical Officer, Central Hospital, Mandalia (P.W.2) for examination and for opinion. Such opinion (Ext.5) was received. And, on examination of the injured Dillip Kumar Satanami (P.W.9) the Medical Officer (P.W.2) opined that the injuries suffered by the injured P.W.9 are possible by M.O.-VI. 10. It is seen that another requisition was also sent to Medical Officer, Doctor J.C. Parida-P.W.1 of the District Head Quarter Hospital, Jharsuguda relating to the ante mortem injuries found on the bodies of the two of the deceased. He opined that the injuries on the deceased were possible by the M.O.VI vide his opinion (Ext.2) dated 18.10.2004. 11. During the course of investigation as materials came to the fore regarding the involvement of the co-accused Sunil Jagat and one Nilu Jagat, the I.O. took steps for their apprehension and charge sheet was submitted against the present accused-Appellant showing the others as absconders. JCRLA No.47 of 2006 Page 5 of 17 12. During the course of hearing of this Appeal, a report was called for by order dated 04.03.2024 from the learned Trial Court as to if the other accused persons namely, Sunil Jagat and Nilu Jagat were being apprehended later faced trial and if so, result thereof. 13. In response thereto, learned District and Sessions Judge, Jharsuguda in report dated 30.03.2024, which is taken on record, has intimated that on verification of the G.R. Case No.1039(A) of 2004, the I.O. found that the co-accused Nilu @ Nilendri Jagat was CCL and was dealt as per the provisions of Section-14, sub- Section-4 of the Juvenile Justice (Care and Protection of Children) Act, 2015 by the Juvenile Justice Board, Jharsuguda as per order dated 31.03.2021 and so far as the co-accused-Sunil Jagat, the father of the accused-Appellant is concerned the case has been spilt up on 20.02.2019 vide G.R. Case No.1039(B) of 2004 by the learned S.D.J.M., Jharsuguda and on verification of the record it found that NBW issued against the co-accused Sunil Jagat has not yet been executed and he is still at large. 14. From the evidence on record of P.W.1, it is clearly established that the death of Dwarika Sahu and Banchu @ Kamalesh Sahu were ante mortem in nature and during the course of the same occurrence Dillip Kumar Satanami (P.W.9) also suffered injury. JCRLA No.47 of 2006 Page 6 of 17 15. According to the prosecution, the accused-Appellant was one of the three accused persons and he was charged under Sections 451/323/354/302/307/34 IPC. 16. To drive home the charge the prosecution examined 19 witnesses and series of documents were admitted into evidence and marked as exhibits, of which Ext.1-P.M. report, Ext.2- examination report of weapon of offence, Ext.3-Injury report, Ext.6-dying declaration of the injured Dillip Satanami, Ext.5-examination report of iron knife, Ext.-22/1-forwarding letter and Ext.23-C.E. report are of significance. Several material objects were also admitted into evidence of which M.O.VI-knife is the weapon of offence. 17. The defence did not adduce any evidence and. And, statement recorded under Section 313 of Cr.P.C. was one of denial. 18. P.Ws.5, 8, 9, 13 & 18 are the star witnesses on behalf of the prosecution and P.W.2 is the doctor who recorded the dying declaration of P.W.9 (Dillip Kumar Satanami) who providentially survived. 19. P.W.5 (Santilata Sahu) is the wife of the deceased-Dwarika Sahu, she is also the informant and she has narrated the manner in which the father of the accused-Appellant came in a drunken state and picked up quarrel on the trivial issue of keeping of a cycle of her husband and in the course of the same, she was assaulted by the JCRLA No.47 of 2006 Page 7 of 17 father of the accused-Appellant along with his wife and elder daughter. It is in her evidence that she did not report the matter immediately to the P.S. and was waiting for her husband to return and once her husband returned apprehending further trouble she asked her husband to go inside and closed the door from outside. Then again the accused-Appellant with his father, mother and sisters came to the spot started assaulting her and dragged her and at that juncture when the husband of Basanti Satanami (P.W.8) tried to intervene and accosted as to why they were assaulting his wife, the accused-Appellant who was only one facing trial and duly identified, brought out a knife from his house and stabbed Dillip Kumar Satanami below his chest and at that time Banchu @ Kamalesh Sahu tried to intervene and the accused-Appellant also stabbed him twice on his abdomen. 20. She has further stated in her evidence that during this quarrel someone had opened the door of the house and her husband rushed to the spot and he was also stabbed on the stomach by the accused-Appellant causing his intestine to come out. 21. It is in her evidence that after the incident the accused- Appellant with his parents and sisters fled away and they shifted all the three, her husband Dwarika Sahu, Banchu @ Kamalesh Sahu and Dillip Kumar Satanami-P.W.9 to Mandalia Hospital and by the JCRLA No.47 of 2006 Page 8 of 17 time they reached the hospital Banchu @ Kamalesh Sahu died and when the doctors were trying to save her husband Dwarika Sahu, he succumbed to the injuries and the injured Dillip Kumar Satanami (P.W.9) was in serious condition and was shifted to Burla. She stated that at the hospital, she gave an oral report which was reduced to FIR as Ext.9 and proved her signature Ext.9/1. 22. Her testimony stood the test of cross-examination nothing material to discredit her could be elucidated. 23. P.W.9-Dillip Kumar Satanami who was severely injured somehow survived, though taking into account the seriousness of his condition dying declaration was recorded. 24. P.W.2-Dr. A.V.R. Tirkey is the doctor who was the causality medical officer and examined P.W.9-Dillip Kumar Satanami and his wife Basanti Satanami-P.W.8 and recorded the dying declaration of P.W.9. 25. P.W.2 in his evidence has stated that in the presence of staff sister Merry Ruth Tirkey, the dying declaration was recorded. He has stated thus:- “I enquired from the injured and recorded his statement in question answer form, the injured answered to my question that Sunil Jagat and the accused-Appellant stabbed him”. JCRLA No.47 of 2006 Page 9 of 17 He has further stated that the injured P.W.9 was not in a position to sign and such declaration was marked as Ext.6. 26. P.W.9-Dillip Kumar Satanami who miraculously survived has clearly stated that when he was informed by his son Prakash that Sunil Jagat the father of the present accused-Appellant who is absconding has assaulted his wife by Chappal, he immediately came to the spot and was trying to enquire as to why his wife was assaulted and that time Banchu @ Kamalesh Sahu also intervened in the matter and at that moment the accused-Appellant stabbed on him on his chest. And, Banchu @ Kamalesh Sahu was also stabbed on stomach and chest. At that moment Dwarika Sahu (deceased) reached the place of occurrence. He too was also stabbed on the stomach causing serious bleeding injury. 27. He has corroborated the statement of the P.W.2-Dr. A.V.R. Tirkey that Ext.6 was recorded as dying declaration. He has also identified the wearing apparels of the present accused-Appellant M.O.III (pant) and M.O.IV (shirt) and also his shirt-M.O.I and in the cross examination it has been brought out that the M.O.I had cut marks at three places. 28. Nothing material has been elucidated in the cross- examination to discredit the said witness. JCRLA No.47 of 2006 Page 10 of 17 29. The evidence of P.W.8-Basanti Satanami, the wife of P.W.9 who is also another injured has corroborated the informant regarding the genesis of the occurrence and also stated in clear terms regarding the assault by the accused-Appellant on Banchu @ Kamalesh Sahu and Dwarika Sahu-husband of the informant apart from the assault on her husband (P.W.9). Her testimony has also stood the scrutiny of cross examination. 30. The Prosecution further relied on the testimony of P.W.13- Amit Kumar Sarathi, who is an eyewitness and it is in his testimony that both Dillip Kumar Satanami and Sunil Jagat had quarreled and assaulted each other and when Banchu @ Kamalesh Sahu and Dwarika Sahu intervened and tried to separate them, the accused- Appellant stabbed Banchu @ Kamalesh Sahu by the knife on his stomach and at that time Dillip Kumar Satanami also came there shouting that the accused-Appellant have stabbed him. 31. He has further deposed that “thereafter I saw both Sunil Jagat and the accused-Appellant had caught hold Dwarika Sahu and accused stabbed him on his stomach”. 32. He has also identified the knife the weapon of offence as M.O.VI. JCRLA No.47 of 2006 Page 11 of 17 No material contradiction in the statement of P.W.13 could be brought to the fore to assist the accused. 33. P.W.18 is another eyewitness, he has stated about Banchu @ Kamalesh Sahu was trying to intervene. He has stated about witnessing a quarrel between the wife of Sunil Jagat-absconding accused and wife of Dillip Kumar Satanami (P.W.8) and thereafter Dillip Kumar Satanami (P.W.9) came to the Bari of Sunil Jagat. It is his further evidence that Banchu @ Kamalesh Sahu trying to intervene and restrained Dillip Kumar Satanami and Sunil Jagat-the absconding accused not to quarrel and at this time Dwarika Sahu the deceased also entered the fence. P.W.18 has deposed that the accused-Appellant asked Dillip Kumar Satanami P.W.9 to leave his father or else he would kill him and thereafter went inside his house and brought out the weapon of offence and stabbed Banchu @ Kamalesh Sahu on left side chest and abdomen. As already noted the discovery of the weapon of offence M.O.VI was effected in terms of the statement of the accused- Appellant recorded under Section 27 of the Evidence Act. 34. It is the evidence of the I.O that the accused-Appellant led them to the backside of the house near the western side wall where JCRLA No.47 of 2006 Page 12 of 17 he gave the recovery of the weapon of offence hidden under “a lime bag” along with the case of the knife. 35. The prosecution has also relied on expert evidence of the doctors i.e. P.W.1 and P.W.3. P.W.1-Dr. J.C. Parida, who conducted the post mortem examination of the dead body of the deceased Kamalesh Sahu @ Banchu and found the following injuries:- “…….and found a stab wound on the left lower abdomen of size 2.4 cm x 1.2 cm penitrating deep into abdominal cavity. Blood was coming out from the wound. (ii) eliptical incised wound of size 2.5 cm x 1 cm x 1 cm obliquely placed just below the left areola (nipple). The margin of the wound were extra vicsated with blood, (iii) Abrasion of 2 cm x 1 cm on left leg 5 cm below knee, (iv) Abrasion/5 in number of size 1 cm x 1 cm each on the left side five toes, (v) Abrasion 2 cm x 1 сm on right side grate toe. On dissection I found the corresponding injury No.ii of thoracic wall was also cut with underline fatty tissue. With respect the corresponding peritoneium was cut. About 1500 ml of liquid blood were found inside peritoneum cavity. Another injury of 3 cm x 2 cm was found on the mesentery of small intestine. Another incise wound of size 2.5 cm x 2 cm found on the distending colon of large intestine perforating into the lumen and faeces coming out. All the injuries were antemortem in nature caused within 7 to 19 hours from the time of my examination….” injury No.i the to And, which has been brought out in his evidence that the injury No.I in ordinary course of nature could cause death and the same is possible by the weapon of offence (M.O.VI). JCRLA No.47 of 2006 Page 13 of 17 36. P.W.3-Dr. R.K. Joshi who conducted the post mortem examination of other deceased-Dwarika Sahu found the following injuries. “…….and found one stab injury on the right side upper part of abdomen closed to umblicus present transversely of size 3 cm x 1/2 cm on deep into abdominal cavity. The omentum was protruding, blood coming from the wound. Largin of the wound was regular. (ii) Cut injury over right leg below knee. 3 x 1 x 1/2. Un dissection I found the abdomen was full of liquid blood. There is a dent (hole) in the peritoneum. Stab injury on the liver of size 2 x 1 x 2 cm on the under surface of the right of the liver. Another cut injury was on themesocoign on the right side below the liver. It was bleeding and margins were naving blood clot. All the injuries were ante-mortem in nature…” In his opinion he has clearly stated that all the injuries are ante mortem in nature, time since the cause of death was due to shock and hemorrhage resulting in stab injury on the abdomen and the time since death is 12 to 24 hours and the report has been marked as Ext.7. And, he has further stated that on 08.10.2004, he has given an opinion that the injuries could be caused by the weapon of offence produced i.e. M.O.VI. 37. On a cogent analysis of the materials on record, this Court has no hesitation to hold that the present accused-Appellant along with the absconding accused were responsible for causing the death of Dwarika Sahu, Banchu @ Kamalesh Sahu and the injury to Dillip Kumar Satanami. JCRLA No.47 of 2006 Page 14 of 17 38.
Legal Reasoning
It is urged with vehemence by the learned counsel for the Appellant that the Appellant accused was admittedly not involved when the quarrel ensued between the father of the present Appellant accused and the Informant. The accused Appellant was unfortunately dragged into it since his whole family was already involved and ultimately such occurrence led to two fatalities. He also refers to the evidence of P.W.18 which indicates that the accused appellant asked Dilip Kumar Satnami (P.W.9) the injured to let go of his father and the same having been unheeded he went inside his house and brought out the weapon of offence and stabbed. The stabbing of two persons and injuring the third was part of the same transaction and on the basis of the evidence on record, it is submitted that it cannot be said that the accused appellant had picked up individual quarrel with each of the accused and consequentially caused the injuries to which two of them succumbed. It is the further submission of the learned counsel for the Appellant that the turn of events were so fast one after the other that the accused appellant who was aged about 20 years was unaware of the consequence of his act and happened on the spur of the moment. Therefore, in this background it is submitted that the conviction be altered to one under Section 304-I IPC. JCRLA No.47 of 2006 Page 15 of 17 39. Such submission is opposed by the learned counsel for the State. 40. The nature of injuries caused on both the deceased have already been noted on the basis of evidence of P.W.1 who conducted the post mortem on the dead body of the deceased Kamalesh Sahu @ Banchu. P.W.3 deposed about the injuries on the deceased Dwarika Sahu. 41. This Court cannot be oblivious of the fact that by sheer providence P.W.9 Dilip Kumar Satnami survived and in fact considering the seriousness of the injuries dying declaration was also recorded. 42. The factual matrix to alter the conviction from 302 IPC to 304-I IPC are non-existent in the case at hand though this Court is conscious of the fact that at the time of commission of the offence the accused appellant was 20 years but at the same time he having attained the age of discretion he has to be held responsible for his act. 43. The evidence of P.W.8 on which reliance is placed by the learned counsel for the Accused appellant that the same ought to weigh this Court to alter his conviction is on a weak foundation considering the stabbing spree which left 2 dead and one critically injured and also causing injury to P.W.5 and 8 who are ladies, JCRLA No.47 of 2006 Page 16 of 17 negates the submission of the learned counsel for the accused appellant for alteration of sentence. 44. Hence, on a conspectus of the evidence on record, this Court does not find any infirmity in the manner of appreciation of evidence by the learned trial court and thereby this Court concurs with the finding of guilt of the accused appellant for committing offence under Sections 302/307/323/34 IPC and upholds the sentence imposed. 45. 46. The appeal accordingly stands dismissed. Since the Appellant was allowed to be enlarged on bail, he is directed to surrender forthwith to serve out the sentence. Necessary steps in this regard as provided in law shall be taken by the learned Trial Court. (V. Narasingh) Judge D. Dash, J : I agree. Orissa High Court, Cuttack Dated the 15th April, 2024 / Ayesha (D. Dash) Judge Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-May-2024 18:11:02 JCRLA No.47 of 2006 Page 17 of 17