The High Court · 2011
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.09 OF 2013 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 12th August 2011 passed by the learned Additional Sessions Judge, Talcher in C.T. (Sessions) Case No.63 of 2010. ---- Mamala Behera …. Appellant State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ===================================================== For Appellant -
Legal Reasoning
From the aforesaid evidence, we find that there was some altercation between accused and deceased. Before the deceased received blow on the head from the side of the accused, the incident was because of the role played by the deceased at the first instant. There was no prior planning for the incident nor there is evidence that accused was carrying the stick with him; rather it is surfacing in the evidence that the accused at that place took up the lathi and assaulted. When P.W.6 does not state that the accused had been slapped by the deceased. P.W.9 says that first accused was given the slap by the deceased. Both the accused and the deceased hail from rural background, mostly having high temper showing abnormal and unexpected behavior in silly matters. Having carefully considered all above circumstances emerging from the evidence, we are of the considered view that the offence can be properly categorized as one punishable under section 304-I of IPC. Therefore, we are inclined to modify the impugned judgment of the Trial Court in convicting this accused for the offence punishable under section-302 of IPC and instead the accused is convicted for the offence punishable under section 304-I of IPC. Accordingly, the accused is JCRLA No.09 of 2013 Page 9 of 10 {{ 10 }} sentenced to undergo rigorous imprisonment for a period of ten (10) years. 12. The Appeal is accordingly allowed in part. With the above modification of the judgment of conviction and order of sentence dated sentence dated 12th August, 2011 passed by the learned Additional Sessions Judge, Talcher in C.T. (Sessions)
Arguments
Ms. S. Pattnaik, Advocate. For Respondent - Mr. P.K. Mohanty, Additional Standing Counsel. CORAM: MR. JUSTICE D. DASH MR. JUSTICE G. SATAPATHY DATE OF HEARING: 30.11.2023: DATE OF JUDGMENT: 19.12.2023 D.Dash, J. The Appellant, by filing this Appeal from inside the jail, has assailed the judgment of conviction and order of sentence dated 12th August 2011 passed by the learned Additional Sessions Judge, Talcher in C.T. (Sessions) Case No.63 of 2010 arising out of G.R. Case No.35 of 2010 corresponding to Kaniha JCRLA No.09 of 2013 Page 1 of 10 {{ 2 }} P.S. Case No.04 of 2010 of the Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Talcher. The Appellant (accused) has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short called as ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- in default to undergo rigorous imprisonment for two months. 2. Prosecution Case:- On 16.01.2010 around 5 pm an incident taken place near the grocery shop of Madan Behera, son of Dola Behera situated at one end of village Durgapur. It is stated that in the said incident, the accused, Mamala Behera dealt thenga blows upon the head of deceased (Amarendra Sethi @ Butu) which resulted his fall and led to his death. Girish Behera (P.W.16) having come to the house of Amarendra, informed about the happenings to Antaryami (P.W.12), the father of Amarendra. Antaryami then rushed to the place and saw his son lying on the ground being unconscious and the thenga was seen to be lying by his side. Amarendra was first shifted to the NTPC Hospital and therefrom as advised by the Doctor, when was being taken for better management and treatment to Cuttack; on the way, he breathed his last. Antaryami (P.W.12), the father Page 2 of 10 JCRLA No.09 of 2013 {{ 3 }} of Amarendra having lodged a written report with the Officer- In-Charge (OIC), Kaniha Police Station on 17.01.2010 about 5 am. Receiving the said written report (Ext.9) from P.W.12, the OIC (P.W.19) treated the same as F.I.R. and registering the case, took up investigation. In course of investigation, the I.O. (P.W.19) examined the Informant (P.W.12) and other witnesses. He then proceeded to spot and prepared the spot map, Ext.12. He seized one lathi from the spot under seizure list, Ext.2 and also seized the blood stained and sample earth from the spot under seizure list, Ext.3. He proceeded to Kaniha Primary Health Centre and held inquest over the dead body of the deceased and prepared inquest report (Ext.1). He also sent the dead body of the deceased for postmortem examination through Constable under dead body challan marked, Ext.13. After postmortem examination, he seized the wearing apparels of the deceased under Ext.4 and arrested the accused. Then the I.O.(P.W.19) seized the wearing apparels of the accused under seizure list, Ext.5 and sent the accused to PHC, Kaniha for collection of the nail clippings and seized the same under Ext.6. After receipt of the report of the postmortem examination held by the Doctor (P.W.11) and on completion of investigation, the I.O. (P.W.11) JCRLA No.09 of 2013 Page 3 of 10 {{ 4 }} submitted the Final Form placing this accused-Manohar Bariha to face the trial for the offence under section-302 of the IPC. 3. The learned S.D.J.M., Talcher 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. 4. In the Trial, the prosecution has examined in total nineteen (19) witnesses. Out of whom, as already stated the Informant, who is father of the deceased and had lodged the F.I.R.(Ext.9) is P.W.12. P.W.1 is the witness to the inquest over the dead body, P.Ws.2 & 3 are the co-villagers of the deceased and the accused and post occurrence witness, P.Ws. 4 & 5 are the seizure witnesses, P.Ws.6 to 9 are the co-villagers and P.Ws.6, 7 and 9 are the witnesses to the occurrence, P.W.10 is also a co-villagers and post occurrence witness, whose car has been used in shifting the deceased to the NTPC Hospital. The Doctor who conducted postmortem examination of the deceased has been examined as P.W.11, P.W.14 is the younger brother of the deceased, P.Ws.15 & 18 are the Police Constables attached to Kaniha P.S. and witness to the seizure list, P.W.17 is the Gramarakhi of Kaniha P.S., the I.O. has come to the witness box at the end has been examined as P.W.19. JCRLA No.09 of 2013 Page 4 of 10 {{ 5 }} 5. The prosecution besides leading the evidence by examining the above witnesses has also proved several documents, which have been admitted in evidence and marked as Exts.1 to 12. Out of those, as already stated the F.I.R. is Ext.9 whereas the inquest report is Ext.1, postmortem examination report, Ext.7; whereas the spot map has been admitted in evidence and marked Ext.12. 6. The plea of the defence is that of complete denial. However, no evidence has been tendered from the side of the accused during the trial. 7. The Trial Court upon analysis of evidence on record and placing reliance upon the evidence of all the eye witnesses and other witnesses and the medical evidence coming from the lips of P.W.11 has concluded that the prosecution has proved the charge against this accused as to have intentionally caused the death of Batu @ Amarendra by assaulting him by means of lathi beyond reasonable doubt. Accordingly, the accused having been convicted for commission of offence under section-302 of the IPC, he has been sentenced as aforestated. 8. Learned Counsel for the Appellant (accused) without questioning the nature of death of Batu to be homicidal as has been held by the Trial Court basing upon the evidence of Doctor, P.W.11, who had conducted postmortem examination Page 5 of 10 JCRLA No.09 of 2013 {{ 6 }} of the dead body of Batu, the I.O. (P.W.19), who held inquest over the dead body of the deceased and other witnesses, who had seen the deceased in an injured condition, confined his submission on the question of alteration of conviction to one under section-304-I of the IPC from section-302 of the IPC as has been fixed by the Trial Court. He submitted that even accepting the prosecution evidence with regard to the role played by the accused and the acts done, the Trial Court ought not to have held the accused guilty for commission of offence under section-302 of the IPC. According to him, the evidence on record would reveal that there was no prior planning behind the incident, the accused and the deceased had been quarrelling and they fought with each other, when the accused was also not holding any weapon. In view of all these above, he contended that keeping in mind that the parties hail from rural background, mostly having high temper showing abnormal and unexpected behavior in silly matters; the Trial Court ought not to have convicted the accused for commission of the offence under section-302 of the IPC. In this connection, he has invited our attention to the depositions for all those witnesses and also the narration in the F.I.R., Ext.9. He thus urged for modification of conviction to one under section 304-I of the IPC and appropriate reduction of sentence. JCRLA No.09 of 2013 Page 6 of 10 {{ 7 }} 9. Learned Counsel for the Respondent-State submitted all in favour of the finding of the Trial Court holding the accused guilty for commission of the offence under section-302 of the IPC. He contended that the accused having assaulted the deceased and done him to death, the offence committed by the accused would stand categorized under section-302 of the IPC. 10. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court and we have also extensively travelled through the depositions of the prosecution witnesses i.e. P.Ws. 1 to 19 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 12. 11. In order to appreciate the rival submissions and on going through the entire record more particularly the depositions of the prosecution witnesses, P.W. 1 to P.W.19, we need to first discuss the evidence of P.Ws. 6 and 9. P.W.6 is that shop owner near which the incident took place. As per his evidence, Amarendra was taking tiffin in his hotel and at that time, the accused was sitting near the shop of Balia. He states that then accused brought out a stick from that place and dealt a blow by means that on the head of the deceased which resulted his fall. He then states that thereafter accused had given two other successive blows on the body of Page 7 of 10 JCRLA No.09 of 2013 {{ 8 }} the deceased. However, during cross-examination, this witness has stated that after purchasing from the beetle shop, when Amarendra was going away, the accused did not call him and rather, the deceased came near him whereafter the occurrence took place, when the deceased charged the accused that how he was interrogating Batu. He has further stated that there was altercation between them, and the accused was then holding a thenga. So this background of fact leading to the incident has been narrated by P.W.6. The evidence of the Doctor, who had conducted autopsy over the dead body of the deceased is to the effect that he had noticed one laceration on the upper part of the ear pinna and one over the left frontal ear of the scalp with bruise over the scalp over the left ear pinna and depressed fracture of the left temporal bone. His evidence is that the cause of death is due to head injury. He is silent that the death was the result of successive blows and is not on account of one. Now coming to the evidence of P.W.9, we find him to have stated that he had seen accused standing near the shop of Balia at the relevant time. When Batu went there and told that one day he would see Mamala which was protested to by accused Mamala. So, Batu (deceased) dealt a slap upon the JCRLA No.09 of 2013 Page 8 of 10 {{ 9 }} accused, who thereafter assaulted by means of stick on the ear of Butu (deceased) who then fell down.
Decision
Case No.63 of 2010, the Appeal stands disposed of. G. Satapathy, J. I Agree. (D. Dash), Judge. (G. Satapathy), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 20-Dec-2023 15:36:40 JCRLA No.09 of 2013 Page 10 of 10