MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.154 of 2003 In the matter of an Appeal under section-374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 29th March 2003 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No.256 of 1999. Budhuram @ Patia Soreng ---- …. -versus- Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. S.K. Dash Advocate. For Respondent - Mr. T.K. Praharaj, Standing Counsel. CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 24.07.2024 : Date of judgment:20.08.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 29th March 1999 passed by the learned Sessions Judge, Sundargarh in
Legal Reasoning
Sessions Trial No.256 of 1999 arising out of G.R. Case No.152 of 1999 corresponding to Lephripada P.S. Case No.21 of 1999 of the CRLA No.154 of 2003 Page 1 of 10 Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundargarh. The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and accordingly, sentenced to undergo imprisonment for life with fine of Rs.5,000/- in default to undergo rigorous imprisonment for two years. 2. The prosecution case is that 30th March 1999, when Mangulu, with his two daughters, mother and another named Maghu Barla, were returning to his village Sarapgarh from Beheremal weekly market. This accused with two others namely, Sadhuram Soreng and Sambaru Soreng assaulted him on the road situated near the house of Gramasevak of village Sarapgarh. Due to such assault, Mangulu died. It is submitted that prior to the occurrence, the accused and two others (since acquitted) being armed with lathis had been to the house of Mangulu in order to settle the score since they were having the dispute. The wife of the deceased (Mangalu) informed the accused persons that deceased had gone to Beheremal weekly market. So, in the evening, the accused persons finding the deceased on the road, assaulted him to death. The matter being report by Siba Barla (P.W.2) in writing with the Officer-In-Charge (IIC), Lephripada Police Station, the CRLA No.154 of 2003 Page 2 of 10 same was treated as FIR and upon registration of the case, investigation commenced. The Investigating Officer (I.O.-P.W.10), in course of investigation, examined the informant (P.W.2) and other witnesses. He (P.W.10) then commanded the Gramarakhi to proceed to the spot and guard the dead body. He (P.W.10) thereafter visited the spot, prepared spot map (Ext.12). The I.O. (P.W.10) then conducted inquest over the dead body of the deceased in presence of witnesses and prepared inquest report (Ext.2). He (P.W.10) also seized the sample earth and blood stained earth from the spot under seizure list and sent the sent the dead body of the deceased for postmortem examination to District Headquarters Hospital, Sundargarh by issuing command certificate and dead body challan. The O.I. (P.W.10) arrested all the accused on 6th April 1999 from his houses at village Saraphgarh. This accused while in police custody revealed is said to have stated that he had concealed the weapon of offence (thenga) in the Mahua orchard situated on the western side of his house. He (I.O.-P.W.10) then recorded the statement the accused. The accused-Budhuram @ Patia Soreng then is said to have led the I.O. (P.W.10) and other witnesses to the Mahua orchard in giving recovery of one lathi, which was seized under seizure list (Ext.5). The I.O. (P.W.10) seized the wearing apparels (lungi) of this accused. The I.O. (P.W.10) then forwarded the Page 3 of 10 CRLA No.154 of 2003 accused person in custody to Court. He (P.W.10) then sent the blood-stained earth, sample earth and nail clippings of the accused to the RFSL, Berhampur for chemical examination through the Court. On completion of investigation, the I.O. (P.W.10) submitted the Final Form, placing this accused and two others to face the trial for the offence under section-302 of the IPC. 3. The learned S.D.J.M., Sundargarh having received the Final Form as above, took cognizance of said offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused persons. 4. In the Trial, the prosecution has examined in total ten (10) witnesses. As already stated, P.W.2 (Informant), who has lodged the F.I.R. (Ext.1) is none other than the cousin brother of the deceased-Mangulu. P.W.1 is the daughter of the deceased and witness to the occurrence, P.W. 3 is the nephew of the deceased (son of elder brother) and witness to the occurrence, P.W.4 is the co-villager and witness to the seizure of the weapon whereas P.W.5 is the mother of the deceased and witness to the occurrence, P.W. 6 is the wife of the deceased and post occurrence witness, P.W.7 being the co-villager of the deceased has witnessed the seizure of the wearing apparels and the Page 4 of 10 CRLA No.154 of 2003 sample earth, P.W.8 is the Doctor who had conducted the postmortem examination of the deceased. The I.O., at the end, has come to the witness box and examined as P.W.10. 5. The prosecution besides leading the evidence by examining the above witnesses has also proved several documents, which have been admitted and marked as Exts.1 to 13. Out of those as already stated the F.I.R. is Ext.1 whereas the inquest report is Ext.2. The postmortem examination report has been admitted in evidence and marked as Ext.6 whereas the injury report of the accused is Ext.8. 6. The plea of the defence is that of complete denial and false implication. It is said that the deceased, being drunk having met an accidental fall on the piece of stone has died. 7. The Trial Court on going through the evidence let in by the prosecution and upon their analysis has returned the finding as against this accused to have assaulted Mangulu (deceased) to death and accordingly, the accused has been held guilty of committing the murder of the deceased (Mangulu) punishable under section-302 of the IPC whereas finding has been recorded that the prosecution has failed to establish the charge against the other two, namely, Sadhu Soreng and Sambaru Soreng and they have been acquitted. CRLA No.154 of 2003 Page 5 of 10 8. Learned Counsel for the Appellant (accused) from the beginning instead of questioning the finding of the Trial Court that this accused had assaulted the deceased by means of lathi on his head contended that accepting the said role of the accused, when other two who were alleged to have been assaulted the deceased by means of axe and knife have been acquitted, keeping in view the surrounding circumstances, the Trial Court ought to have held the accused guilty for the offence under section-302 of the IPC. According to him, for the said role played by the accused and act done, further taking judicial notice of the fact that the parties hail from the Schedule ARea of the State and are the members of the Scheduled Tribe Community, whose temper usually run high and behave unexpectedly for silly reason and respond aggressively many a times; the conviction of the accused need to be altered to one under section-304-II of the IPC and accordingly, he be visited with the sentence as deemed just and proper. 9. Learned Counsel for the Respondent-State refuting the above submission contended that all in favour of the conclusion of the Trial Court that with the accused for the role played in assaulting the deceased on the head by means of lathi which has led to his death, the conviction of the accused under section-302 of the IPC is well in order. CRLA No.154 of 2003 Page 6 of 10 10. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court. We have also extensively travelled through the depositions of the prosecution witnesses i.e. P.Ws. 1 to 10 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 16. 11. It be stated here that this accused with his brother Sambaru and another member of the family namely, Sadhu stood charged for commission of offence under section-302/34 of the IPC. The Trial Court upon examination of evidence and their analysis has found the prosecution to have failed to bring home the charge against those two persons by leading, clear, cogent and acceptable evidence beyond reasonable doubt. The conviction of this accused has been recorded under section-302 of the IPC. As per evidence of P.W.3, who is the nephew of the deceased, this accused assaulted the deceased on his head by means of lathi. He does not implicate this accused either to have attempted to give a second blow, when he says that the assault being made by an axe by the other accused namely, Budhuram (since acquitted). The Doctor (P.W.8) who had conducted autopsy over the dead body of the deceased had noticed one injury on the head i.e. haemotoma over left parietal region of the size of 5cm X 4cm CRLA No.154 of 2003 Page 7 of 10 and on dissection, it has been found that the scalp was lacerated and there were corresponding internal injuries. Admittedly, the
Legal Reasoning
parties were in enmical terms. As it appears from the evidence of prosecution witnesses namely, P.W.3 that accused with others came and they assaulted his deceased. They had not stated any such happenings prior to the said assault nor even they state about any reactions of the deceased and others who were accompanied on arrival of the accused and others. The daughter of the deceased (P.W.1) being of tender age has implicated one Sadhuram to have assaulted on the head of the deceased and the Patia to have stabbed by means of knife on the neck of her father. Whereas, it has been stated by P.W.5, who is the mother of the deceased that at the relevant time, they were drinking water from the nearby tube well and they saw the accused assaulting the deceased by a lathi and other two assaulting the deceased. She does not state that receiving the blow from the accused, the deceased fell on the ground. She is silent as to have heard any cry. She does not also state about the response of the deceased in seeing the accused persons all of a sudden on his wayback home. In view of all such evidence, it appears that these witnesses are suppressing some happenings which had taken place prior to actual assault for the best reasons known to them. It is there in the evidence that the deceased was CRLA No.154 of 2003 Page 8 of 10 then in drunken condition and it is stated by P.W.3 that on the date of occurrence, the deceased had already taken liquor. 12. The accused is a member of the Scheduled Tribe Community and he hails from rural pocket of the Scheduled Area of the State where ordinarily their temper runs high and for silly reasons, they many a time behave differently, at times in a quite unexpected manner. Keeping in view all these aforesaid; we are of the view that the offence could be properly categorized as one punishable under section 304-II of the IPC. We are thus of the considered opinion that for the role played by this accused and the act done, he would be liable for conviction under Section 304-II of the IPC. In that view of the matter, the conviction of the accused is altered to one under section 304 Part-II of the IPC. We are told at the Bar that the accused has undergone custody for more than nine years. We, therefore, are of the considered opinion that at this distance of time when the accused by now has been enjoying liberty for about 14 years and he is aged about 74 years, sentencing the accused to the period undergone, would serve and meet the ends of justice. 13. With the above modification as to the judgment of conviction and order of sentence dated 29th March 2003 passed Page 9 of 10 CRLA No.154 of 2003 by the learned Sessions Judge, Sundargarh in Sessions Trial
Decision
No.256 of 1999, the Appeal stands disposed of. V. Narasingh, J. I Agree. Narayan (D. Dash), Judge. (V. Narasingh), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 22-Aug-2024 18:46:42 CRLA No.154 of 2003 Page 10 of 10