The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.3 of 2013 (An appeal U/S.383 of the Code of Criminal Procedure, 1973 against the judgment passed by Sri A.K. Acharya, Sessions Judge, Kalahandi-Nuapada, at Bhawanipatna in Sessions Case No.67 of 2010 arising out of Lanjigarh PS Case No.34 of 2010, corresponding to G.R. Case No. 233 of 2010 of the Court of SDJM, Bhawanipatna) Raisingh Majhi … Appellant -versus- State of Odisha … Respondent For Appellant : Ms. P. Mishra, Advocate For Respondent : Mr. S.K. Nayak, AGA CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :06.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This is an appeal by the convict challenging the judgment of conviction and order of sentence passed on 21.03.2012 by learned Sessions Judge, Kalahandi- Nuapada, at Bhawanipatna in Sessions Case No.67 of JCRLA No.3 of 2013 Page 1 of 9 2010 convicting the appellant for offence punishable U/S.302 of IPC and sentencing him to undergo imprisonment for life with fine of Rs.5,000/- in default whereof, to undergo further Rigorous Imprisonment (RI) for six months with stipulation of setting off pre trial detention against the substantive sentence. An overview of prosecution case 2. On 01.04.2010 at about 10 AM, one Raisingh Majhi (hereinafter referred to as the “convict”) of village Panpadar picked up quarrel with his fellow villager Guni Majhi (hereinafter referred to as the “deceased”) who was sleeping on a cot in his cow-shed and killed him by repeatedly giving fist and kick blows. On this incident, the wife of deceased PW6-
Legal Reasoning
Lachhama Majhi lodged an FIR vide Ext.2 being scribed by one Suku Majhi against the convict on 02.04.2010 at about 12.30 AM in the mid night, before the IIC, Lanjigarh PS, PW9-Pravasankar Nayak, who registered Lanjigarh PS Case No.34 of 2010 and commenced investigation, in the course of which, he examined the JCRLA No.3 of 2013 Page 2 of 9 informant and witnesses, and recorded their statements, dispatched the dead body to Government Hospital, Lanjigarh for post mortem examination, prepared the spot map under Ext.6 after visiting the spot, arrested the convict and forwarded him to the Court on 03.04.2010. PW9 also seized the wearing apparels of the deceased under Ext.7 and as usual on completion of investigation, PW9 submitted charge-sheet against the convict for offence U/S.302 of IPC. 3. On finding prima facie material, cognizance of offence U/S.302 of IPC was taken and the case was committed to the Court of Sessions in which the convict faced the trial by denying to the charge for offence U/S.302 of IPC. This is how the trial commenced. 4. In support of the charge, the prosecution examined altogether nine witnesses PWs. 1 to 9 and relied upon documents under Exts.1 to 8 as against no evidence whatsoever the defence. The plea of the convict in the course of trial was denial simplicitor. JCRLA No.3 of 2013 Page 3 of 9 5. After appreciating the evidence upon hearing the parties, the learned Sessions Judge convicted the appellant by mainly relying upon the evidence of eye witnesses PWs.1 & 4 and medical evidence of PW7 and sentenced the appellant to the punishment indicated supra. Rival Submissions 6.
Legal Reasoning
In assailing the impugned judgment, Ms. P. Mishra, learned counsel for the appellant while not disputing the finding of the learned trial Court with regard to convict assaulting the deceased and the manner of assault on the deceased leading to his death, has mainly confined his submission for modification of the conviction of the appellant from Sec.302 of IPC to Sec.304 Part-I of the IPC and reduction of the sentence of the convict to the period already undergone. Ms. Mishra has prayed to modify the conviction and sentence of the appellant accordingly to the period undergone since the appellant had already undergone an imprisonment for more than ten years. JCRLA No.3 of 2013 Page 4 of 9 7. On the contrary, Mr. S.K. Nayak, learned AGA, however, has opposed the prayer of the appellant for modification of conviction and reduction of sentence. Learned AGA has accordingly prayed to dismiss the appeal by maintaining the conviction of the appellant for offence U/S.302 of IPC. Analysis of law and evidence 8. After having carefully considered the rival submissions and on going through the impugned judgment and evidence on record meticulously to find out the sustainability of the impugned judgment, this Court, however, does not find any error in the finding of the learned trial Court to the effect that the convict had killed the deceased by giving fist and kick blows, which is apparent from the evidence of PWs.1 and 4 who have consistently testified in the Court that they saw the convict dealing fist and kick blows to the deceased on village road by dragging him and as a result of the assault, the deceased died. The above evidence of eye witnesses as to the death of the deceased was supported JCRLA No.3 of 2013 Page 5 of 9 by the medical evidence of PW7 who has testified in the Court that he conducted post mortem examination on the dead body of the deceased and found bruise over right side of face and left side of mandible, lacerated injury on the left side of Tibia as well as fracture to rib, Cartilage and wall of Thorax, fracture to left tibia and survical vertibra and dislocation of both maxilla and mandible. PW7 also found one internal injury of oesophagus rupture. PW7 had accordingly opined that the cause of death was due to internal haemorrhage and that the mode of death was homicidal and that the injuries found on the dead body of the deceased might have been caused by hard and blunt weapon like stone. 9. From an analysis and scrutiny of above evidence, it is clear that the prosecution has established that the convict caused the death of the deceased by giving fist and kick blows. 10. Although the learned trial Court has convicted the appellant for offence U/S.302 of IPC, but it had not directed itself to find out whether the act of the convict JCRLA No.3 of 2013 Page 6 of 9 was coming under any of the exceptions to murder as contemplated U/S. 300 of IPC and there is absolutely no discussion of evidence in this regard as to whether the act of the convict can be considered for offence U/S.304 Part-I of the IPC, as advanced by learned counsel for the appellant. 11. A careful perusal of evidence on record would go to indicate that the deceased and convict were not only in the lower strata of the society, but also were poor and illiterate villagers. Besides, it is admitted by PW4 in his cross examination that the deceased and convict quarreled with each other over a salap tree and salap juice and the deceased was drunk so also the convict. Quite undisputably, the act of the convict in assaulting the deceased by giving kick and fist blows makes it clear that the convict was not having requisite intention to kill the deceased. Of course, he had intention to inflict such bodily injuries as is likely to cause death of the person in view of the medical evidence which clearly reveals fracture to rib, cartilage, wall of thorax, left tibia and JCRLA No.3 of 2013 Page 7 of 9 survical vertibra and dislocation of both maxilla and mandible. It is also not in dispute that the villagers in India in the lower strata of society have high temper and they lose temper for silly matters and also assault the persons in silly matters even though, they have no intention to kill as has been done in this case by the convict. On meticulously marshaling the evidence on record as well as on going through the impugned judgment in the backdrop of aforesaid facts and circumstances of convict only giving fist and kick blows to the deceased which ultimately resulted in the death of the deceased, this Court is of the considered view that the act of the appellant can at best be categorized for commission of offence U/S.304 Part-I of the IPC and, therefore, the sentence of the appellant is required to be modified. 12. In the result, the criminal appeal is allowed in part by modifying the conviction of the appellant from Sec. 302 of IPC to Section 304 Part-I of IPC and he is JCRLA No.3 of 2013 Page 8 of 9 accordingly sentenced to undergo rigorous imprisonment for ten years. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 17:57:51 JCRLA No.3 of 2013 Page 9 of 9