MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.89 of 2009 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 18th September, 2009 passed by the learned Additional Sessions Judge, Rairangpur in C.T. Case No.45 of 2007. Banamali Dehury ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.B.K. Behera (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 03.04.2024 : Date of Judgment : 15.04.2024 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and order of sentence dated 18th September, 2009 passed by the learned Additional Sessions Judge, Rairangpur in C.T. Case No.45 of 2007 arising out of G.R. Case No.196 of 2007 (T.C. No.756/07) corresponding to Bisoi P.S. Case No.35 of 2007 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Rairangpur. Page 1 of 10 JCRLA No.89 of 2009 The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 302 of the IPC. 2. PROSECUTION CASE:- On 31.05.2007 around 7.00 p.m., accused Banamali Dehury assaulted his wife Gurubari by means of a Thenga and caused her death. When Gurubari was being assaulted by the accused, she was shouting. Hearing the shout, their neighbour, namely, Janak Dehury (P.W.7) went to the spot and intervened. In the process, Janak (P.W.7) was also injured. One Arjun Dehury, the brother of Gurubari (deceased) and the brother-in-law of accused, on 01.06.2007 around 8.15 a.m, lodged a written report to the above effect Officer-In-Charge (O.I.C.), Bisoi Police Station (P.S.). The O.I.C. of Bisoi P.S., receiving the above report, treated
Facts
the same as FIR (Ext.1) and upon registration of the criminal case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.10), in course of the investigation, examined the informant (P.W.1) as also the scribe of the FIR (Ext.1) and recorded their statement under section 161 JCRLA No.89 of 2009 Page 2 of 10 Cr.P.C. The I.O. (P.W.10), having visited the spot, prepared the spot map (Ext.6) and held the inquest over the dead body of Gurubari and prepared the report to that effect (Ext.2). Thereafter, the I.O. (P.W.10) sent the dead body of Gurubari for post mortem examination by issuing necessary requisition. He (P.W.10) seized one stick and the wearing apparels of the accused under seizure list (Ext.4) and also seized blood stained earth, sample earth and broken bangles under seizure list (Ext.3). The I.O. (P.W.10) sent the seized incriminating articles for chemical examination through Court and on completion of the investigation, submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Rairangpur, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 5. The prosecution, in support of its case, has examined in total twelve (12) witnesses during Trial. Out of them, the informant, who happens to be the brother of Gurubari (deceased), is P.W.1. P.W.2 is the scribe of the FIR (Ext.1). P.Ws.3 & 4 are the JCRLA No.89 of 2009 Page 3 of 10 witnesses to the seizure. P.W.5 is the person before who, this accused made his confession. P.W.7, as projected by the prosecution, is an eye witness to the occurrence. P.W.8 is the of the neighbour of the deceased. P.W.9 is the Doctor who collected the blood samples and nail clippings of the accused whereas the Doctor, who had conducted the post mortem examination over the dead body of Gurubari is P.W.11 and the Doctor, who examined the neighbour (Janak) of the deceased, has been examined as P.W.12. The I.O. of the case is P.W.10. 6. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 12. Out of those, the important are, the FIR (Ext.1), the spot map (Ext.6), inquest report (Ext.2); the post mortem report (Ext.11) and the chemical examination report (Ext.10). 7. The accused person has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea.
Legal Reasoning
at times in a quite an unexpected manner; 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, this Court, alters the conviction of the accused under Section 302 of the IPC to one under section 304-II of the IPC. Consequently, the Appellant (accused) is sentenced to undergo rigorous imprisonment for a period of seven (7) years. 13. In the result, the Appeal is allowed in part with the modification as to the judgment of conviction and order of sentence dated 18th September, 2009 passed by the learned Additional Sessions Judge, Rairangpur in C.T. Case No.45 of 2007 to the extent as indicated above. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 16-Apr-2024 14:39:42 JCRLA No.89 of 2009 Page 10 of 10
Arguments
8. Mr.B.K. Behera, learned counsel for the Appellant (accused) submitted that the entire case of the prosecution is based on the solitary testimony of P.W.7 and that is said to be deriving corroboration from the evidence of P.W.5 before whom the JCRLA No.89 of 2009 Page 4 of 10 accused is said to have told that he had assaulted his wife (Gurubari-deceased), which is said to be fortified through the evidence of the Doctor (P.W.11), who had conducted the autopsy over the dead body of Gurubari. He further submitted that the evidence of P.W.7 ought not to have been relied upon by the Trial Court in stating that the accused had assaulted his wife Gurubari. He further submitted that the evidence of P.W.5 is quite unnatural when he states that the accused went to him and told to have assaulted his wife and also unbelievable as nothing is said as to what was the occasion then for the accused to go and so state. He, therefore, submitted that the Trial Court has committed grave error by fastening the guilt upon the accused in causing the death of his wife (Gurubari). In the alternate, he submitted that even accepting the prosecution case as emanate from the evidence of P.W.7 in its entirety, the accused cannot be held liable for commission of the offence under section 302 of the IPC and at best, it would be one under section 304-II of the iPC. He, therefore, submitted that in that event, the conviction of the accused should be altered to one under section 304-II of the IPC and he be visitged with the sentence as deem appropriate for the said offence committed under the circumstance as placed by P.W.7 and other witnesses. JCRLA No.89 of 2009 Page 5 of 10 9. Mr.P.K. Moanty, learned Additional Standing Counsel for the for the Respondent-State has supported the finding of guilt against this accused, as has been returned by the Trial court. According to him, P.W.7 is a natural witness and there is absolutely no material to doubt her evidence to the effect that she had gone to the spot on hearing the shout of Gurubari and had seen the accused assaulting Gurubari by a Thenga. He further submitted that the evidence of P.W.5, who has no axe to grind against the accused that the accused had told him to have assaulted Gurubaari provide sufficient corroboration to the evidence of P.W.7. He next submitted that deceased, being at that point of time unarmed and keeping in view the evidence of P.W.7, that the accused had repeatedly assaulted the deceased by Thenga, the conviction of the accused for commission of the aforesaid offence is justified. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.12) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.12. 11. Before going to examine the evidence of P.Ws.5 & 7, giving a look at the evidence of the Doctor (P.W.11), who had conducted JCRLA No.89 of 2009 Page 6 of 10 the autopsy over the dead body of Gurubari, we find him to have noted three external injuries; on the person of the deceased. Two lacerated injuries, one on the right knee joint and the other one is on the scalp. According to him, the size of the injury found on the scalp was 7 cm X 2 cm. Third lacerated injury was found by P.W.11 on the right side forehead measuring 1 cm X 5 cm X 5 cm and one bruise at the left side of the abdomen in mid auxiliary line opposite to left 8th, 9th and 10th rib of size 15 c.m. X 2.5 c.m. These injuries are stated to be ante mortem in nature. The vital injury that this P.W.11 had noticed on dissection is the rupture of spleen and his specific evidence is that the death was due to haemorrhage and shock resulting from that. With such medical evidence, when we approach the evidence of P.W.7, we find her to have stated that at the relevant time, she was in the house, which adjoins the house of the accused and had seen the accused assaulting Gurubari by a thenga who was then shouting for help. Having gone near the place, when she (P.W.7) found accused assaulting Gurubari by a stick, she asked Banamali (accused) not to assault. She further states that at that point of time, Gurubari caught hold of her and, therefore, the blow of the accused by that stick also fell on her. Her positive evidence is that Gurubari met her death after the said assault. Although she has not been able to say number of blows given by accused upon Gurubari, she has JCRLA No.89 of 2009 Page 7 of 10 stated that it was the result of repeated blows. Her evidence is to the effect that except her, none-else had witnessed the occurrence. She has denied the suggestion that no such occurrence had taken place and she had also not received the injury in the said incident. We find no such material to have been elicited even to throw any doubt on the version of this P.W.7 as regards her presence in seeing the incident. This P.W.7 had been examined by the Doctor (P.W.12), who had found myalgia and swelling all over the body of P.W.7 and small bruise on the right hand of P.W.7 and myalgia and swelling on the front and back of the chest of P.W.7. Rather, through the evidence of P.W.12, the Doctor, who had examined P.W.7, the presence of P.W.7 at the scene of occurrence is fully established. No such material has come to surface even to remotely indicate that this P.W.7 was having any exe to grind against the accused. Her evidence appears to be quite natural and conduct to be absolutely responsive befitting to the situation then prevailing. P.W.5 has also stated that the night around 11.00 p.m., the accused had been to his house being armed with a thenga and stated that he had assaulted his wife by the said thenga. This P.W.5 is none other than the Grama Rakhi of the Village. His evidence is that when the accused came and told about the incident, none-else was present. The evidence of P.W.5 thus JCRLA No.89 of 2009 Page 8 of 10 provide further corroboration to the evidence of P.W.7. The above evidence being found to be reliable, we are left with no option but to conclude that the deceased met her death on account of the assault upon her by the accused. Having said, as above, we, however, find that no evidence is forthcoming as to the reason for the accused for proceeding to assault his wife. It is also not stated by any of the witnesses including P.W.7 that the accused and the deceased were not having the cordial relationship when the fact remains that they were remaining under one roof. Therefore, the ordinary interference stands that for some petty matters, the dissention between the accused and his wife having arisen, the accused being the husband, had assaulted the deceased. Except the injury on the abdomen in mid-auxiliary line opposite to left of 8th, 9th & 10th rib leading to the fracture of the said ribs, which then resulted the rupture of the spleen; the other injuries having nothing to do with the ultimate death of Gurubari. It is, however, not stated by P.W.7 that the accused had given the blows upon the belly of the deceased with much force. 12. So, the evidence, as above, discussed being cumulatively viewed, with the fact that the parties hail from rural pocket of the Scheduled Area of the State where ordinarily their temper run high and for silly reasons, they many a times behave differently, JCRLA No.89 of 2009 Page 9 of 10