The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.25 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 20.12.2011 passed by the learned Additional District and Sessions Judge, Jajpur in C.T (Sessions) Case No.9 of 2009. Arun Pingua and another State of Odisha -versus- …. …. Appellants Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Ms. A.R. Panda, Advocate. For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel CORAM:
Legal Reasoning
laterite stone on his person in our view is well in order as here no such specific evidence has come as to if it was only one among them had dashed the deceased. The participation and involvement of the accused persons in the alleged incident where the death of the deceased having been established, the submission of the leaned counsel for the accused persons being addressed. 11. So far as the manner of happening of the alleged incident is concerned, P.W.1 (informant) has deposed by stating that at the time of crime, there was tussle between the accused persons and the deceased as a result of which, the deceased fell down on the ground. P.W.3 wife of the P.W.1 has deposed by stating that, they saw three persons, i.e. accused persons and the deceased were tussling among themselves in Page 6 of 8 JCRLA No.25 of 2012 {{ 7 }} Dhananjaypur ground. P.W.4 (sister) of the informant has deposed the same thing in her deposition like P.Ws.1 and 3 that on reaching the field (near the spot) they noticed that three persons, i.e., accused persons and the deceased were tussling among themselves in the field. The F.I.R. (Ext.1) reveals that when the accused persons were asking the deceased as to why he had kept illicit relationship with females folks, it was replied by the deceased that not only he had kept the relationship with the sister of accused no.1 but would lift her too, for which both the accused persons got annoyed and provoked and picking up laterite stone from nearby dashed the deceased. 12. The evidence of P.Ws.1, 3, 4 as well as the F.I.R. averments would show that after exchange of words between them, much after tussle, on being provocated by the deceased, the incident had taken place. 13. Taking a cumulative view of all these above circumstances appearing in the evidence, as discussed; we are of the view that the offence could be properly categorized as one punishable under section 304-I of the IPC. We are thus of the considered opinion that for the role played by the accused persons and the act done, they would be liable for conviction under section 304-I of the IPC. 14. In that view of the matter, this Court, alters the conviction under section 302 of the IPC to one under section 304-I of the IPC. Consequently, the Appellants (accused persons) are sentenced to undergo rigorous imprisonment for a period of ten (10) years for the said offence and to pay a fine of Rs.1,000/- in default to undergo R.I. for six months each for the offence under Section 304-I of the I.P.C., 1860. JCRLA No.25 of 2012 Page 7 of 8 {{ 8 }} 15. With the above modification as to the judgment of conviction and order of sentence dated 20th December, 2011 passed by the learned Additional Sessions Judge, Jajpur, in C.T. (Sessions) Case No.9 of 2009,
Arguments
MR. JUSTICE D.DASH MR. JUSTICE A.C. BEHERA Date of Hearing :12.09.2023 :: Date of Judgment:14.09.2023 A.C. Behera, J. This is an Appeal under Section 383 of the Code of Criminal Procedure, 1973, which has been preferred by the Appellant against the judgment of conviction and order of sentence passed on dated 20.12.2011 in C.T. (Sessions) Case No. 9 of 2009 by the learned Additional Sessions Judge, Jajpur, wherein, the Appellants convicted for the offence under Section 302/34 of the I.P.C., 1860 and were sentenced to undergo imprisonment for life and pay fine of Rs.1000/- each. JCRLA No.25 of 2012 Page 1 of 8 {{ 2 }} 2. The Appellant being the accused persons were facing the trial having been charged under Section 302/34 of the IPC, 1860 on the allegation of commission of murder of one Kalandi Sahu on dated 25.06.2008 at about 5.30 P.M. inside a field in village Dhananjaypur under the jurisdiction of Kalinganagar Police Station in the District of Jaipur, in furtherance of their common intention. 3. The projected case of the prosecution during trial is as under:- On dated 25.06.2008 at about 5.30 P.M., it was found by some of the villagers of the spot village Dhananjaypur that, the accused persons were taking Kalandi Sahu (deceased) into the field of their village by dragging and abusing him. During the course of such dragging, the accused persons suddenly picked up a big laterite stone from the ground and dashed against the deceased with heavy force. So, by the result of such dashing of stone with heavy force on the person of the deceased, he(deceased) fell down on the ground sustaining injuries on his person and then the accused persons pressed the deceased while he was lying on the ground. When the deceased became motionless being dead they (accused persons) tried to flee away from the spot through bicycle. But, the informant along with some of his villagers detained them (accused persons) near their village school and ascertained their identity along with the identity of the deceased. The accused persons disclosed their names and the address of the deceased before them and they(accused persons) also told that, they have killed the deceased assaulting by means of stone, as the deceased had kept illicit relationship with the sister of accused no.1. JCRLA No.25 of 2012 Page 2 of 8 {{ 3 }} Thereafter, the informant lodged written F.I.R. vide Ext.-1 against the accused persons before the Inspector-in-Charge(IIC), Kalinganagar Police Station stating all these aforesaid happenings. Basing upon such F.I.R. the IIC, registered Kalinganagar P.S. Case No.100 of 2008 against the accused persons under Sections 302/34 of the I.P.C. and took up the investigation. During investigation, he (I.O.) examined the informant and other witnesses, visited the spot, arrested the accused persons, held inquest over the dead body of the deceased, prepared the inquest report vide Ext.2/3, sent the dead body of the deceased for post-mortem examination issuing requisition and dead body challan and accordingly, Post-mortem examination over the dead body of the deceased was conducted by the doctor and the report to that effect was prepared. The I.O. also effected seizure of the incriminating articles and sent the same for chemical examination. He (I.O.) took other steps during investigation and after completing the investigation, submitted final form against the accused persons to face the trial for commission of offence under Sections 302/34 of the I.P.C. for murder of Kalandi Sahu. 4. Accordingly, after commitment of the case to the court of Sessions, these accused persons faced trial before the learned trial court below standing charged under Sections 302/34 of the I.P.C., 1860. 5. The plea of the defence was one of complete denial and false implication of the accused persons. In order to substantiate the aforesaid charge under Sections 302/34 of the I.P.C. against the accused persons, altogether 23 numbers of witnesses were examined on behalf of the prosecution and several documents were exhibited vide Exts.1 to 15 JCRLA No.25 of 2012 Page 3 of 8 {{ 4 }} which include the F.I.R. and Post-mortem examination report vide Exts.1 and 7 respectively. 6. Out of the 21 witnesses of the prosecution, P.Ws.1, 2,3,4, 5, 6, 7 and 17 belong to village Dhananjaypur. Among the said eight witnesses P.W.1 is the informant, P.W.3 is his wife, whereas P.W.4 is his sister and they are the vital witnesses of the prosecution. P.W.5 to 7 are the witnesses to the seizure of incriminating articles. P.W.8 is the scribe of the F.I.R. as well as an independent witness. P.W.21 is a person of the neighbouring village of P.W.1. P.W.18 and 19 are the co-workers of the deceased. P.W.23 is a witness to the inquest. The rest, witnesses i.e., P.Ws.9, 10, 11, 12, 13, 14, 15, 16, 20 and 22 are the official witnesses. Out of them, P.Ws. 11, 12, 13, 14, 15 and 16 are constables and they are the witnesses to the seizure list. P.W.21 being the A.S.I. of police is also one of the witnesses to the seizure made in course of investigation. P.W.9 is the doctor, who had conducted autopsy over the dead body of the deceased and had prepared P.M. report vide Ext.7. P.W.22 is the sole Investigating Officer of the case, who had submitted final form on completion of the investigation. After conclusion of hearing and on examining the evidence available in the record, the trial court below found the accused persons guilty for the offence under Sections 302/34 of the I.P.C. by placing reliance upon the evidence of the P.Ws.1, 3, 4, 8, 9 and 22, disbelieving the plea of the defence and sentenced them as afore-stated. 7. We have already heard from the learned counsel for the appellant(accused) and the learned Additional Standing Counsel for the respondent-State and so also have perused the evidence available in the record. JCRLA No.25 of 2012 Page 4 of 8 {{ 5 }} Learned counsel for the appellants (accused persons)inviting attention to the depositions of the P.Ws.1, 3, 4, 8, 9 and 22 submitted that, their evidence is not sufficient for proving the case against the accused persons beyond reasonable doubt for holding them guilty under Section 302 of the I.P.C. He contended that, accepting versions of the above witnesses as they have deposed, the trial court ought to have convicted the accused persons for commission of offence under Sections 304-I of the I.P.C. and not under Section 302/34 of the I.P.C. He accordingly urged for modification of conviction and appropriate reduction of sentence. 8. On the contrary, the learned Additional Standing Counsel argued in support of the impugned judgment of conviction and sentence passed by the learned trial court below contending that the evidence of P.Ws. 1, 2, 3, 4, 8, 9 and 22 being well corroborated with each other go to show that, the nature of death of the deceased was instantaneous and homicidal being the outcome of the injuries caused through forcible dashing of laterite stone on his person by both the accused persons. He further submits that, the accused were caught hold by P.W.1 along with others of the spot village while they were trying to flee away from the spot after killing the deceased Kalandi Sahoo. For which, according to him the impugned judgment of conviction and order of sentence passed against the accused persons under Section 302/34 of the I.P.C. are not liable to be interfered with. 9. It appears from the evidence of the doctor (P.W.9) as also the Post-mortem examination report prepared by him vide Ext.7 that, the cause of death of the deceased was due to shock, haemorrhage resulting from injuries on his vital organ, i.e., brain. The injuries found on the JCRLA No.25 of 2012 Page 5 of 8 {{ 6 }} body of the deceased were ante mortem in nature and might have been caused by heard and heavy blunt object. The aforesaid un-assailed testimonies of the doctor (P.W.9) would show that, the nature of death was homicidal. 10. On conjoint reading of the evidence of P.W.1 (informant), P.W.3, P.W.4 and P.W.8 along with the evidence of doctor (P.W.9) and the Investigating Officer(P.W.22) coupled with the P.M. report (Ext.7) go to show that, while the accused persons were restrained by the villagers of Dhananjaypur including the informant P.W.1 immediately thereafter the occurrence, they (accused persons) voluntarily disclosed about their involvement and participation in the incident and the findings made by the learned trial Court below on the basis of the aforesaid evidence of P.Ws.1, 3, 4, 8, 9 and 23 holding the involvement and participation of the accused persons assaulting the deceased at the spot by dashing
Decision
the Appeal stands disposed of. Since both the accused persons, namely, Arun Pingua and Sikandar Pingua are on bail, the Trial Court is directed to take further necessary steps in accordance with law so that the accused persons shall serve out the sentence, as has been awarded hereinabove. (A.C. Behera), Judge. (D.Dash), Judge. Mr. D. Dash, J. I Agree. Orissa High Court, Cuttack The 14th of September, 2023/ Jagabandhu, P.A. and Utkalika Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 13-Oct-2023 18:53:29 JCRLA No.25 of 2012 Page 8 of 8