The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.37 of 2012 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 9th August, 2011 passed by the learned Adhoc Additional Sessions Judge, (FTC), Balangir at Patnagarh in Sessions Case No.169/2 of 2010-11. Kiabana Bariha; and Dhubaleswar Bariha …. Appellants -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.Jagabandhu Sahu, Advocate For Respondent - Mrs.Saswata Patnaik, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing :22.11.2023 : Date of Judgment : 04.12.2023
Legal Reasoning
D.Dash, J. The Appellants, by filing this Appeal, have challenged the judgment of conviction and order of sentence dated 9th August, 2011 passed by the learned Adhoc Additional Sessions Judge, (FTC), Balangir at Patnagarh in Sessions Case No.169/2 of 2010-11 arising out of G.R Case No.251 of 2010, corresponding to Belpada P.S. Case No.50 of 2010 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Patnagarh. The Appellants (accused persons) thereunder have been convicted for commission of offence under section 302/34 of the Indian Penal CRLA No.37 of 2012 Page 1 of 8 {{ 2 }} Code, 1860 (in short, ‘the IPC’) and accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for a period of six (6) months. 2. PROSECUTION CASE:- On 30.06.2010 around 10.05 p.m., one Miniketan Bariha (P.W.14) informed the Assistant Sub-Inspector of Police (A.S.I.-P.W.9), who was then in Belpada Police Station (P.S.) over telephone that the accused persons, namely, Kiabana Bairha and his two sons, namely, Dhubale Bariha and Dhaneswar Bariha of Village-Juba (Barihapada) had committed the murder of Shankar Biriha of that village during evening hour. The A.S.I. of Police (P.W.9), receiving the said information, entered the fact in the Station Diary Book maintained at the P.S. and then basing upon that information, the Sub-Inspector (S.I.) of Police (P.W.15) went to that village. He (P.W.15), on arrival, found the dead body of Shankar lying on a charpoy in the courtyard of their house. Miniketan Bariha (P.W.14) at the spot presented a written repot (Ext.5) to the I.O. (P.W.15), which being treated as the FIR, the case came to be registered and investigation commenced. It was stated in the FIR (Ext.5), that the Informant (Miniketan- P.W.14) and his three brothers, father and uncle Kiabana (accused) used to stay separately having common courtyard. On 22.05.2010, they had given the marriage of their sister Malati. On that day, during evening hour, his brother namely, Shankar asked the accounts from Miniketan as to the gifts received in the said marriage. He (P.W.14) replied to have given the accounts to his mother and so saying, went to his house for CRLA No.37 of 2012 Page 2 of 8 {{ 3 }} taking dinner. However, hearing hullah from the courtyard and also the shout of his elder sister-in-law Bhanumati when Miniketan-P.W.14 came out, he saw his uncle Kiabana (accused) along with two sons Dhubleswar & Dhaneswar (who was not on the trial) were assaulting his brother, namely, Shankar (deceased) by means of a Merha. It was specifically stated that accused Kiabana assaulted the deceased by that Merha when his two sons were assaulting on the neck of the deceased giving fist blows which resulted the death of Shankar. 3. The Investigating Officer (I.O.-P.W.15) examined the informant (P.W.14). Having visited the spot, he (P.W.15), prepared the spot map (Ext.16). The I.O. held inquest over the dead body of the deceased and prepared the report to that effect (Ext.2). He sent the dead body of Shankar for post mortem examination by issuing necessary requisition. The I.O. (P.W.15) sent the seized incriminating articles for chemical examination through Court. On completion of investigation, Final Form was submitted by the I.O. (P.W.15) placing the accused persons to face the Trial for commission of offence under section 302/34 of the IPC. 4. Learned S.D.J.M., Patnagarh, on receipt of the Final Form, took cognizance of the offence under section 302/34 of the IPC 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 these accused persons. 5. In the trial, the prosecution examined in total fifteen (15) witnesses. Out of them, as already stated, P.W.14 is the informant who had lodged the FIR (Ext.5) scribed by P.W.4. P.W.1 is a post occurrence witness and also a witness to the seizure of weapon of offence. P.Ws.2 CRLA No.37 of 2012 Page 3 of 8 {{ 4 }} & 5 are the witnesses to the inquest. P.Ws.3, 8, 13 & 14 are the mother, brother, wife and younger brother of the deceased. P.Ws.6, 10 & 12 are the witnesses to the seizure of wearing apparels of the deceased. The Doctor, who conducted autopsy over the dead body of the deceased, is P.W.11. The I.O. of the case, at the end, has come to the witness box as P.W.15. 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in the evidence and marked Ext. 1 to 19. Important of those, are the F.I.R. (Ext.5), Inquest Report (Ext.2) and Postmortem Examination Report (Ext.12). The spot map prepared by the I.O. (P.W.15) has been admitted in evidence and marked Ext.16. 7. The accused, having taken the plea of denial and false implication, has, however examined two witnesses in support of said plea.
Legal Reasoning
8. Mr.J.Sahu, learned counsel for the Appellants (accused persons), from very beginning, instead of impeaching the evidence let in by the prosecution as to the nature of death and more importantly the role played and the act done by the accused persons as have been placed by the prosecution, submitted that with the acceptance of all those, the Trial Court instead of holding the accused persons guilty of commission of offence under section 302/34 of the IPC, ought to have convicted them for the offence under section 304-II/34 of the IPC. He submitted that the parties hail from rural back ground and there is no evidence on record to show that the accused persons had any prior planning for the incident so as to assault the deceased and it appears that everything had happened CRLA No.37 of 2012 Page 4 of 8 {{ 5 }} all of a sudden, that too within short time span. According to him, keeping in view the status of the parties and the background from which they hail, it can be well said that their tamper usually run high and behavior for silly reasons, often becomes abnormal. In view of all these above, according to him, the Trial Court ought not to have convicted the accused persons for commission of offence under section 302/34 of the IPC. He, therefore, urged for altercation of conviction for commission of offence under Section 302/34 of the IPC to the offence under Section 304-II/34 of the IPC and accordingly, he contended that the accused persons be visited with the sentences as appropriate for the said offence. 9. Mrs. S. Patanaik, learned Additional Government Advocate submitted all in favour of the finding returned by the Trial Court that the accused persons are liable for commission of the offence under Section 302/34 of the I.P.C. She further submitted that since the blow by Merha, on the neck of the deceased, has proved fatal in causing the death, the Trial Court did commit no mistake in holding the accused persons as per their joint role guilty for commission of the offence under section 302/34 of the IPC. 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.W.1 to P.W.15) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.19. 11. In order to address the rival submission confined to the question of altercation of the conviction under section 302/34 of the IPC, as has been recorded by the Trial Court to one under section 304-II/34 of the CRLA No.37 of 2012 Page 5 of 8 {{ 6 }} IPC, we are now called upon to look at the evidence of P.Ws.3, 8, 13 & 14. P.W.14 is the Informant, who had lodged the FIR (Ext.5). He has stated to have come out of the house hearing the shout of his sister-in- law Bhanumati (P.W.13). He has further stated that when he saw first the accused persons after assaulting his brother, and leaving the spot. Thus his evidence is not on the score as to how actually the incident took place and which of the accused played what role and did what in the said incident. P.W.13 is the witness whose hullah had drawn the attention of P.W.14. She has stated that accused Kiabana challenged Shankar, who happens to be her husband as to why he was asking the account from Miniketan (P.W.14) and thereafter when Shankar gave his reply, all of a sudden accused Kiabana picked up Geda and assaulted on his neck and another blow on his belly when accused Dhubleswar caught hold the neck of Shankar and accused Dhaneswar assaulted with fist blows, which resulted the fall of the deceased. When such is the evidence of P.W.13, we find the evidence of P.W.3, who is stating that accused Kiabana all of a sudden challenged Shankar as to how he dared to ask for the account and then said accused along with his two sons Dhubleswar and Dhaneswar rushed towards Shankar, when Dhubleswar caught hold of his neck, accused Dhaneswar joined and then accused Kiabana dealt Merha blow on the left side of the neck and also on the belly. P.W.8 is the other witness, who has stated that after the challenge, accused Dhubaleswar caught hold of the neck of the deceased from his CRLA No.37 of 2012 Page 6 of 8 {{ 7 }} backside when accused Kiabana picked up a Merha from the spot and assaulted him on the backside of his ear and thereafter, he gave another blow on the belly whereafter accused Dhaneswar assaulted him on his chest by fist blows. Cumulatively viewing the entire evidence, as above, it is found that the incident took place all of a sudden. There was no prior planning behind the incident and the requisite motive. The weapon, i.e., Merha was not with any of the accused persons and that was lying at the spot and after the quarrel, that was taken up by accused Kiabana. The death has taken place as per the evidence of the Doctor (P.W.11) holding the post mortem examination on account of Merha blow causing rupture on the left side over standmastoid muscle and the cut. The accused persons and the deceased hail from rural background and belong to one family. It is also not there in the evidence that there was any enmity between them for which the accused persons were bearing any grudge against the deceased and his family members. 12. In the facts and circumstances as discussed, 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 these accused persons and the act done, they would be liable for conviction under Section 304-II/34 of the IPC. In that view of the matter, this Court alters the conviction under Section 302/34 of the IPC to one under section 304-II/34 of the IPC. Consequently, each of the Appellants (accused persons) is sentenced to undergo rigorous imprisonment for a period of seven (7) years. CRLA No.37 of 2012 Page 7 of 8 {{ 8 }} 13. The Appeal is allowed in part with the above modification as to the judgment of conviction and order of sentence dated 9th August, 2011 passed by the learned Adhoc Additional Sessions Judge, (FTC), Balangir at Patnagarh in Sessions Case No.169/2 of 2010-11. Judge. (D. Dash), G.Satapathy, J. I Agree. Judge (G.Satapathy), 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: 07-Dec-2023 12:31:12 CRLA No.37 of 2012 Page 8 of 8