The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.41 of 2012 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 06.08.2011 passed by the learned Additional Sessions Judge, Fast Track Court, Rourkela in Sessions Trial Case No. 68/34 of 2010. ---- Khakhu Mahali …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Saroj Kumar Routray (Amicus Curiae) For Respondent
Legal Reasoning
We find that the Doctor (P.W.1) had noticed two incised wounds over the dead body; one near the mouth cavity of the deceased and the other one on the head. It was noticed by P.W.13 during inquest and it has so deposed by other witnesses P.W.3 to 5. The evidence of P.W.1 is clear on the point of death as the result of such ante mortem injuries. In view of such evidence on record, We are wholly in agreement with the view taken by the trial Court that the death was homicidal. 8. Learned counsel for the Appellant (accused) at the very beginning, instead of attacking the finding of the Trial Court based on the evidence that the accused had assaulted the deceased by spade; confined his submissions that accepting the prosecution case as has been stated by the eye-witnesses, the accused is not liable to be convicted for commission of offence punishable under Section 302 of the I.P.C., but under Section 304, Part-II of the IPC. He further submitted that the reason for the incident as also factual settings leading to the incident as has been stated by the so-called eye witnesses P.Ws.3, 4 and 5 being cumulatively viewed, it cannot be said that the accused had the requisite intention to cause death of the deceased, when it is said that the accused was then not even armed and he finding that weapon (spade) lying nearby assaulted the deceased by means of that spade even without aiming to inflict the injury at any particular place of the body of the deceased. He further submitted that the prosecution by not examining the mother of the deceased, who was the best witness to say as to why JCRLA No.41 of 2012 Page 4 of 7 {{ 5 }} the occurrence commenced; and that too when no explanation is coming forward in that regard; the accused ought not to have been held guilty of the offence under section 302 of the I.P.C. as thereby, some other happenings intervening to have been suppressed is not altogether overruled. 9. Learned counsel for the State refuting the submission as above contended that the manner in which the accused has given the blows on the head of the deceased and with the type of weapon which is heavy and sharp cutting has been used as that has led to the instantaneous death of the deceased, the conviction under section 302 of IPC is not liable to be modified. 10. Keeping in view the submission made, We have carefully read the impugned judgment. We too have travelled through the depositions of the witnesses P.W.1 to 13 and perused the documents; Ext.1 to 6. 11. The wife of the deceased (P.W.3) has stated that when the accused was scolding his wife, the deceased objected and that caused annoyance with the accused, who began to quarrel with the deceased and in course of that, picked up a spade and assaulted on the neck of her husband. According to this witness, neck injury has led to the death of her husband. It has also been stated by P.W.4, who is the daughter of the deceased that accused assaulted her father by spade and at that time, accused was quarreling with his wife when her father (deceased) objected, the accused assaulted. It is the evidence of this witness that the spade was lying on the courtyard where the incident took place. It has also been the evidence of P.W.3 that the accused was quarreling with his JCRLA No.41 of 2012 Page 5 of 7 {{ 6 }} wife in connection with the blouse of P.W.3. But then nothing more is stated in that regard. The evidence of P.W.5, who is the brother of the deceased is that to the effect, he had seen the accused quarreling with the deceased and after that accused assaulted the deceased by means of a Kodi (spade) which resulted his fall with bleeding injury. All the witnesses do not state that the accused had given or had attempted to inflict the second blow by means of that spade either at the beginning or after his fall. According to these witnesses, the accused was not armed from the beginning and in course of quarrel, he having picked up the spade has given that solitary blow. It is also not stated by any of these above noted witnesses that the accused chased the deceased for some distance and aiming at the particular place over the body of the deceased had inflicted the blow. It be also stated here that although the accused was charged for committing the offence under section 307 of IPC in attempting to murder P.W.3, the prosecution has failed to establish the charge and therefore, the Trial Court has acquitted the accused on that count. It is also not the evidence of Doctor (P.W.1) that the injuries which he found are not possible by one blow. The parties hail from rural background and they live on cultivation. They too are illiterate and do not even know to sign and thus all have put LTIs. 12. Cumulatively viewing all those surrounding factors as discussed, We are of the considered view that upon acceptance of the prosecution version as falling from the lips of P.W.2 to 5 receiving corroboration from the evidence of P.W.1 and others, the accused for his act would be liable for commission of offence under section 304-I of the IPC and not under section 302 of the IPC. Accordingly, We thus, hold that the JCRLA No.41 of 2012 Page 6 of 7 {{ 7 }} finding of the Trial Court holding the accused guilty for commission of offence under section 302 of IPC is liable to be altered to under section 304-I of IPC. Having held as above, We are of the considered view that sentence of rigorous imprisonment for a period of about 10 years with payment of fine of Rs.2,000/- in default to undergo rigorous imprisonment for a period of two months commensurate the offence and would meet the end of justice. 13. In the result, the Appeal stands allowed in part. The impugned judgment of conviction and order of sentence are modified to the extent as indicated above. Dr.S.K.Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Gitanjali JCRLA No.41 of 2012 Page 7 of 7
Arguments
- Mr.S.S.Kanungo Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 27.02.2023 :: Date of Judgment:14.03.2023 D.Dash,J. The Appellant, by filing this Appeal, from inside the jail, has assailed the Judgment of conviction and Order of sentence dated 06.08.2011 passed by the learned Additional Sessions Judge, Rourkela, in Sessions Trial Case No.68/34 of 2010, arising out of G.R. No.535 of 2000, corresponding to Lathikata P.S. Case No.22(1) of 2000 of the Court of learned S.D.J.M.,Panposh. JCRLA No.41 of 2012 Page 1 of 7 {{ 2 }} The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.2000/- in default stipulation to undergo rigorous imprisonment for a period of two (2) months. 2. Prosecution case is that on 08.04.2000, around 3 p.m., when Chandan Tirkey (Informant-P.W.2), was in his house, he came to know from Basumati Mahali that accused quarreled with her son and assaulted him by means of a spade which has resulted his death and the daughter- in-law (P.W.3) of the accused when had attempted to rescue her husband (deceased), the accused had also assaulted her by means of spade causing injuries on her person. Basing on this written report of P.W.2, the Inspector-in-Charge (IIC) Lathikata Police Station registered the case and the investigation commenced. 3. In course of investigation, the IIC (P.W.13) visited the spot, held inquest over the dead body of the deceased and prepared the report, issued requisition for medical examination of P.W.3 and also sent the dead body for post mortem examination by issuing required requisition. He had also seized the blood stained earth and sample earth from the spot as well as the wearing apparels of the accused and deceased under seizure list. The incriminating articles seized in course of investigation being sent to the chemical examiner through Court, report from the chemical examiner has been received. On completion of investigation, Final Form was submitted by the Sub-Inspector of Police (S.I) of JCRLA No.41 of 2012 Page 2 of 7 {{ 3 }} Lathikata P.S, who had taken over the charge of the investigation from the IIC (P.W.13) in view of his transfer. 4. Learned SDJM, Panposh, on receipt of the Final Form, having taken cognizance of the offence, after observing 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 having committed the offence under section 302 and 307 of IPC, having intentionally cause the death of deceased namely Budhu Mahali and attempting to commit murder of Budhuni Mahali (P.W.3). 5. In the trial, the prosecution in total has examined thirteen (13) witnesses. Out of them, the Doctor, who had conducted the autopsy over the dead body of the deceased is P.W.1 and the two Investigating Officers are P.W.12 and P.W.13. P.W.3 is the wife of the deceased, who happens to be the daughter-in-law of accused whereas P.W.4 is the daughter and P.W.5 is the sister of the deceased. Besides leading the evidence by examining the above witness, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.6; important of those are F.I.R (Ext.2), Post Mortem Report (Ext.1), Inquest Report (Ext.3) and Chemical Examination Report (Ext.6). 6. The plea of defence is that of complete denial and false implication. 7. The Trial Court on going through the evidence of the Doctor (P.W.1) and his report (Ext.1) as well as the evidence of P.W.13, the inquest report (Ext.3) prepared by him and the evidence of P.W.3, 4 and JCRLA No.41 of 2012 Page 3 of 7 {{ 4 }} 5 has arrived at conclusion that the deceased met homicidal death. In fact, this aspect of the case was not challenged before the Trial Court and that is also the situation before us.