The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.30 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 17th October, 2012 passed by the learned Adhoc Additional Sessions Judge, (FTC), Padampur in C.T. (Sessions) Case No.243/85/89 of 2011. ---- Manohar Bariha …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ===================================================== For Appellant -
Legal Reasoning
Mr. R.N. Nayak, Advocate. For Respondent - Mr. P.K. Mohanty, Additional Standing Counsel. CORAM: MR. JUSTICE D.DASH MR. JUSTICE A.C. BEHERA DATE OF HEARING :03.10.2023 : DATE OF JUDGMENT: 09.10.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has assailed the judgment of conviction and order of sentence dated 17th October, 2012 passed by the learned Adhoc Additional Sessions Judge, (FTC), Padampur in C.T. (Sessions) JCRLA No.30 of 2013 Page 1 of 9 {{ 2 }} Case No.243/85/89 of 2011 arising out of G.R. Case No.304 of 2011 corresponding to Paikmal P.S. Case No.86 of 2011 of the Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Padampur. 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.3,000/- in default to undergo rigorous imprisonment for three months. 2. Prosecution case is that one Basudeb Pradhan (P.W.6) with his wife Basa Pradhan and sons Jitaranjan Pradhan (P.W.7) and Chitta @ Chittaranjan Pradhan (deceased) were living in their residential house situated in village Bhoi Pada of Paikmal. On 20.08.2011, during noon-hours, Basudeb went to his agricultural land and his wife Basa had gone there prior to him. When Basudeb left his house, Jitaranjan (P.W.7) and his brother Chittaranjan (deceased) were in the house. One Prasanta Bhoi (P.W.5) came and called Chittaranjan. So, Chittaranjan went with Prasant to his agricultural land. When Prasanta and Chittaranjan were gossiping near the land of Prasant, it was around 2 pm, accused Manohar Bariha arrived there and he started abusing Chittaranjan in filthy languages. It was stated that accused assaulted Chittaranjan by giving fist JCRLA No.30 of 2013 Page 2 of 9 {{ 3 }} blows. As a result of that, he fell down and it being on the agricultural land, when Chittaranjan fell down, his wearing apparels were got soiled with mud. Chittaranjan then went to the nearby Chatendunguri tank for cleaning his wearing apparels. The accused however followed him and it was said that in the tank, accused again assaulted Chittaranjan (deceased) by putting him down in the tank water which led to his loss of sense. Receiving such information, Jitaranjan (P.W.7) with others brought Chittaranjan from the tank and shifted him to Paikmal Government Hospital where he was declared dead. Basudeb Pradhan, the father of the deceased Chittaranjan, then lodged the written report (Ext.3) before the S.I. of Police, Paikmal Police Station, who in the absence of the Officer-in- Charge, was discharging the duty as such. Receiving the said written report (Ext.3) from P.W.6, the S.I. of Police (P.W.11) treated the same as F.I.R. and registering the case, took up investigation. In course of investigation, the I.O. (P.W.11) examined the Informant (P.W.6). He then proceeded to Chatendungri tank and seized the incriminating articles found lying nearby. He also prepared the spot map-Ext.6. He then examined other witnesses and arrested the accused. He also held inquest over the dead body of the deceased and prepared inquest report JCRLA No.30 of 2013 Page 3 of 9 {{ 4 }} (Ext.1). He also seized one litre of water of the Chatendungri tank in presence of witnesses and kept the same in one glass bottle under seizure list-Ext.4 and seized the wearing apparels of the deceased. The I.O. (P.W.11) then sent the dead body of the deceased for postmortem examination. The seized articles were sent for chemical examination through Court. On completion of investigation, the I.O. (P.W.11) 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., Padampur 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 eleven (11) witnesses. Out of whom, as already stated that the Informant, who is father of the deceased and had lodged the F.I.R. (Ext.3) is P.W.6, P.W.7 is another son of P.W.6 and brother of the deceased (Chittaranjan), P.W.5 is the friend of the deceased and P.W.8 is a co-villager, who are the eye witnesses to the occurrence; whereas P.W.9 is the Doctor, who had conducted autopsy over the dead body of the deceased. The I.O. has come to the witness box at the end has been examined as P.W.11. JCRLA No.30 of 2013 Page 4 of 9 {{ 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 10. Out of those, as already stated the F.I.R. is Ext.3 whereas the inquest report is Ext.1, postmortem examination report, Ext.2. The spot map has been admitted in evidence and marked Ext.6, whereas diatomic test and viscera report is marked as Ext.10. 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 the eye witnesses P.W.5 and 8 and the medical evidence coming from the lips of P.W.9 has concluded that the prosecution has proved the charge against this accused as to have intentionally caused the death of Chittaranjan by assaulting and drowning him 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 Chittaranjan to be homicidal as has been held by the Trial Court basing upon the evidence of Doctor, P.W.9, who had conducted postmortem JCRLA No.30 of 2013 Page 5 of 9 {{ 6 }} examination of the dead body of Chittaranjan, the I.O. (P.W.11), 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 quarreled 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 F.I.R., Ext.3. He thus urged for modification of conviction to one under section 304-I of the IPC and appropriate reduction of sentence. JCRLA No.30 of 2013 Page 6 of 9 {{ 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 drowned him in the tank, 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 11 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 10. 11. Addressing the submission of the learned Counsel for the accused, let us first have a look at the evidence of the Doctor (P.W.9), who had conducted postmortem examination over the dead body of the deceased. It is seen that he had noticed the abrasions; one over the front of right lower chest and two others over the back of right elbow. His finding is that the death was homicidal and on account of being forcibly drowned. With such medical evidence, we find the evidence of P.W.3, who has stated to have seen the accused assaulting the deceased inside the water of the tank. It is also his JCRLA No.30 of 2013 Page 7 of 9 {{ 8 }} evidence that he was told by Prasanta (P.W.5) that accused and the deceased were the quarreling. P.W.4 has stated that first accused and deceased quarreled and thereafter in Chatendunguri tank, accused was found assaulting the deceased. P.W.8 has stated that when he with others went to the Chatendunguri tank and there he saw the accused too giving a push to the deceased which resulted the fall inside the water of the tank. He has further stated that accused was then abusing the deceased. A careful reading of the evidence of above witnesses reveals that they are suppressing some other happenings between the accused and the deceased near that tank. It is also not the prosecution case that the accused had gone there carrying any weapon and the witnesses say that the accused was using his hands in assaulting the deceased. 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, JCRLA No.30 of 2013 Page 8 of 9 {{ 9 }} the accused is 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 17th October, 2012 passed by the learned Adhoc Additional Sessions Judge, (FTC), Padampur in C.T. (Sessions) Case No.243/85/89 of 2011, the Appeal
Decision
stands disposed of. Mr. A.C. Behera, J. I Agree. - (D. Dash), Judge. (A.C. Behera), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 11-Oct-2023 17:43:44 JCRLA No.30 of 2013 Page 9 of 9