The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.98 of 2012 (An appeal U/S.383 of the Code of Criminal Procedure, 1973 against the judgment passed by Smt. Madhumita Das, Additional District and Sessions Judge, First Track Court, Jagatsinghpur in ST No.86 of 2011(CT48/11) corresponding to G.R. case no. 12 of 2011 arising out of Biridi PS Case No.2 of 2011 of the Court of SDJM, Jagatsinghpur) Jalandhar Samal State of Orissa -versus- … … Appellant Respondent For Appellant : Mr. R.N. Nayak, Amicus Curiae For Respondent : Mr. P.K. Mohanty, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :16.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This appeal is directed against the judgment of conviction and order of sentence passed on 16.11.2012
Facts
by the learned Additional Sessions Judge, First Track JCRLA No.98 of 2012 Page 1 of 12 Court, Jagatsinghpur in ST No.86 of 2011 convicting the appellant for committing offences U/Ss.302/323 of IPC and sentencing him to undergo imprisonment for life with fine of Rs.10,000/- in default whereof, to undergo imprisonment for further one year for offence U/S.302 of IPC and further, to undergo Rigorous Imprisonment (RI) for six months for offence U/S.323 of IPC with stipulation of running of sentences concurrently. An overview of prosecution case 2. On 09.01.2011 at about 7 AM in the morning while one Bishnu Charan Samal(hereinafter referred to as the ‘deceased’) was sitting in front of his courtyard of his house in village Sadeikana, his younger son Jalandhar Samal (hereinafter referred to as the ‘convict’) hit to his head by means of an iron hammer, as a result, the deceased died at the spot. The incident occurred on account of household quarrel and when the mother of the convict protested, the convict pushed her causing swelling injury to her left eye. JCRLA No.98 of 2012 Page 2 of 12 On this incident, PW3-Dibakar Samal who is the nephew of the deceased lodged an FIR against the convict vide Ext.3 before the in-charge, Biridi Police Station and, accordingly, Biridi PS Case No.2 of 2011 was registered for offences U/Ss.302/323 of IPC. The matter was accordingly, investigated into and charge-sheet was placed against the convict for commission of offences punishable U/Ss.302/323 of IPC for committing patricide and causing hurt to his mother. 3.
Legal Reasoning
Finding prima facie case, cognizance was taken for offences U/Ss.302/323 of IPC and the convict was sent to trial when he denied to the charge for offences U/Ss.302/323 of IPC. 4. In support of the charge, the prosecution examined altogether 11 witnesses and proved 15 documents under Exts.1 to 15 as against no evidence whatsoever by the defence. Of the witnesses, PW3 is the informant, whereas PW4 is the mother of the convict and wife of the deceased as well as an eye witness to the occurrence, PW1 is the doctor who conducted PM JCRLA No.98 of 2012 Page 3 of 12 examination over the dead body of the deceased, PW10 is the IO, PWs.2 and 5 are the witnesses to extra judicial confession of the convict, PWs.6, 7 and 8 are the seizure witnesses and lastly, PW11 is the witness to the disclosure statement of the convict. 5. The plea of the convict in the course of trial was one of complete denial. 6. After appreciating the evidence on record upon hearing the parties, the learned trial Court came to a conclusion that the deceased suffered a homicidal death and the convict was responsible for such death of his father as well as was also responsible for causing simple hurt to his mother. Learned trial Court accordingly, convicted the appellant for offences punishable U/Ss.302/323 of IPC and sentenced him to the punishment indicated supra. Rival Submissions 7. Mr. R.N. Nayak, learned Amicus Curiae at the outset has submitted that he is not arguing the appeal on merits, rather he is arguing to persuade this Court to JCRLA No.98 of 2012 Page 4 of 12 alter the conviction of the appellant from Sec. 302 of IPC to Section.304 Part-I of the IPC and reduction in the sentence. Mr. Nayak, accordingly, has submitted that considering the manner in which the incident had occurred and the role attributed to the appellant, the conviction of the appellant deserves to be altered from Sec.302 of IPC to Sec.304 Part-I of the IPC and thereby, the sentence of the convict may kindly be reduced to the period already undergone. 8. On the other hand, Mr. P.K. Mohanty, learned ASC has, however, submitted that the learned trial Court has not committed any illegality or perversity in convicting the appellant for offence U/S.302 of IPC as well as 323 of IPC since the prosecution has established its case beyond all reasonable doubt against the appellant for committing patricide and the act of the appellant squarely falls within the firstly clause to Section 300 of IPC and hence, no exception to Section 300 of IPC is attracted in this case and, thereby, the convict having been rightly convicted for offence U/Ss.302/323 of IPC, JCRLA No.98 of 2012 Page 5 of 12 the present appeal merits no consideration. Mr. P.K. Mohanty, accordingly, has prayed to dismiss the appeal. Analysis of law and evidence 9. After having considered the rival submissions upon perusal of record including the impugned judgment, this Court considers that the only question falls for consideration is whether the conviction of the appellant herein for offence punishable U/S.302 of IPC is required to be altered to Section 304 Part-I or Part-II of the IPC. 10. Since the evidence on record clearly depicts the details of occurrence and the role attributed to the appellant, there appears no dispute that the deceased had suffered a homicidal death which is, however, evident from the external injuries as noticed in the PM report by Doctor-PW1, which reads as under: External Injury (i) A lacerated injury of size 1” x ‰” present on right side of the forehead with fracture of frontal bone. (ii) Lacerated injury size 1” x ½” present over right malar eminence on right cheek with fracture of the bone. JCRLA No.98 of 2012 Page 6 of 12 Further, PW1 had, accordingly, opined in his evidence that the injuries were ante mortem in nature and sufficient to cause death of a person in ordinary course of nature and cause of death was due to haemorrhage and shock due to the injury to the brain. PW1 had further answered to the query of the IO as to the possibility of the injury by the said weapon of offences i.e. an iron hammer on police requisition by a report under Ext.2, where he affirmatively answered that the injuries to the deceased may be caused by this hammer. It, therefore, clearly found from the medical evidence that the deceased died of injuries which were possible by the said weapon of offence “hammer”. 11. On coming back to the evidence of eye witness- PW4, it transpired that the deceased was her husband and the convict is his younger son and prior to the occurrence, there was quarrel between the deceased and convict and the convict dealt blows by means of a hammer on the head and near the ear of the deceased, as a result, the deceased struggled with his life and died. JCRLA No.98 of 2012 Page 7 of 12 Additionally, the hammer which was seized by the IO was sent for chemical examination, but it was found stained with human blood as per the chemical examination report vide Ext.15. It is, therefore, very clear from the evidence that the deceased died due to assault by the convict with said “hammer”. 12. Adverting to the contention of the convict- appellant for alteration of conviction for offence U/S.304 Part-I of IPC, it unambiguously appears from the evidence that there was a quarrel between the father (deceased) and his son (convict) prior to the occurrence and the convict was not carrying the “hammer” to the place of occurrence, rather the evidence suggests that in the course of quarrel, the convict dealt blow by means of said weapon of offence “hammer”, but it is not forth coming from the evidence of PW4 as to how many blows the convict had given to the deceased and the cross examination of the Doctor reveals that injury No.i and ii can be possible if somebody would fall from a sufficient height and dashed against a hard and blunt object. JCRLA No.98 of 2012 Page 8 of 12 Although, the learned trial Court has come to a conclusion that the deceased died due to assault of the convict, but it has not directed itself as to whether the act of the convict squarely falls on any of the exception to Section 300 of IPC and it simply arrived at a conclusion that the convict committed murder of his father, but the evidence clearly suggests that the convict was not having any requisite intention to murder the deceased as he had never carried any weapon of offence, rather the occurrence had taken place in a spur of moment without any premeditation pursuant to a quarrel and, thereby, the act of the convict squarely falls under exception 4 to Section 300 of IPC which speaks “culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner”. 13. Admittedly, there is a thin line of difference between Section 304 Part-I and 304 Part-II of the IPC. In former, the intention of the offender is relevant, whereas JCRLA No.98 of 2012 Page 9 of 12 in the later, knowledge of the offender as to his act is relevant. In this case, the appellant, of course, was found not to have any intention to kill the deceased, but the act of hitting the deceased by means of hammer itself reveals the intention of convict to cause such bodily injury as it likely to cause death of the deceased since a blow by hammer on the head of the person with force can definitely cause death of said person and the Doctor has also opined in this case that the injuries to the deceased were sufficient to cause death of a person in ordinary course of nature. In the ultimate analysis of evidence on record, this Court feels that the thin line of the difference as exists between Section 304 Part-I and Part-II of IPC cannot be favourably extended to the appellant, rather the act of the appellant could be categorized as an offence U/S.304 of Part-I of IPC which is punishable with “imprisonment for life” or imprisonment of either description for a term which may extend to “ten years”. 14. In this case, the appellant was in custody during trial and his case was conducted by a State JCRLA No.98 of 2012 Page 10 of 12 Defence Counsel and he is all along in custody after his conviction and the appeal was filed with the aid of High Court Legal Services Committee and at the time of his conviction, the convict-appellant was aged about 38 years and in the meantime, around 12 years have elapsed and, thereby, the age of the convict-appellant would be 50 years right now. In such circumstance, this Court by taking into consideration the status of the convict-appellant considers it appropriate to sentence him to undergo Rigorous Imprisonment for a period of ten years with fine of Rs.1,000/- in default whereof, to undergo Rigorous Imprisonment for three months for 304 Part-I of IPC. Further, this Court does not feel it proper to award any separate sentence to the appellant-convict for offence U/S.323 of IPC. 15. In the result, the appeal is allowed in part. Consequently, the judgment of conviction and order of sentence passed by the learned Additional District and Sessions Judge, First Track Court, Jagatsingpur in ST JCRLA No.98 of 2012 Page 11 of 12 No.86 of 2011 (CT No.48 of 2011) are modified to the extent indicated above. 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.98 of 2012 Page 12 of 12