The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.07 OF 2017 In the matter of an Appeal under section-383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 11.03.2016 passed by the learned Additional District & Sessions Judge, Jajpur in Criminal Trial Case No.225 of 2014. Nidhia Champia ….. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================= For Appellant - Mr. Vivekananda Jena, Advocate, For Respondent - Mr. Sitikant Mishra, Additional Standing Counsel. CORAM:
Legal Reasoning
MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:07.07.2023::DATE OF JUDGMENT:24.07.2023 D.Dash, J. The Appellant from inside the jail has assailed the judgment of conviction and order of sentence dated 11.03.2016 passed by the learned Additional District & Sessions Judge, Jajpur in Criminal Trial No.225 of 2014 arising out of G.R. Case No.52 of 2014 corresponding to Jenapur P.S. Case No.05 of 2014 of the Court of learned Judicial Magistrate First Class, Chandikhole. JCRLA NO.07 OF 2017 Page 1 of 10 {{ 2 }} The Appellant (accused), thereunder, has been convicted for committing the offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and accordingly, has been sentenced to undergo imprisonment for life with payment of fine of Rs.25,000/- in default to undergo rigorous imprisonment for a period of two years. 2. The prosecution case is on 14.01.2014, one Sukumari, the daughter-in-law of one Sagar Sidhu had gone to the house of the accused for threshing paddy sheaves. Pandaba , son of Sagar and husband of Sukumari having returned home from his work place, in the afternoon, went to the house of the accused in search of his wife. Finding his wife in the house of the accused-Pandaba , he scolded her as to why she had come to work therein threshing the paddy sheaves on that ‘Makara Sankaranti Day’. At that time, it is said that the accused came to the place from his house by holding an axe and it is stated that he then dealt blow on the head of the Pandaba on its blunt side of the axe, which resulted the fall of Pandaba on the ground. Sagar (Pandaba’s father) and others then rushed to the spot and after sprinkling water, the deceased was shifted to the house, where he succumbed to the injuries. A written report to the above effect being lodged by Sagar, the father of Pandaba (deceased) with the Inspector-In-Charge (IIC), Page 2 of 10 JCRLA NO. 07 OF 2017 {{ 3 }} Jenapur Police Station, the same was treated as F.I.R. and case being registered, the Investigating officer (I.O.-P.W.21) took up the investigation. 3. In course of investigation, the I.O. (P.W.21) examined the Informant (P.W.1) who had lodged the F.I.R., Ext.3, as also other witnesses including Sukumari, the wife of the deceased. He then proceeded to the spot and prepared spot map, Ext.12. Finding the dead body in the house, the I.O. (P.WQ.21) held inquest over the same and prepared his report (Ext.1) in presence of the witnesses. The dead body was then sent for postmortem examination. He also seized the napkin, which was tied on the neck of the deceased to prevent the bleeding and that was noted down in the seizure list under Ext.2/1. The accused surrendered at the Police Station, when the I.O. (P.W.21) was visiting the spot. It is stated that the accused then stated that he had kept the axe inside the bush behind his house which he would give recovery if taken to that place. The statement of the accused led the I.O. (P.W.21) and others in giving recovery of that axe from near the bushes on the backside of the house of the accused which was then seized under seizure list, Ext.5. Some incriminating articles including wearing apparels of the deceased were seized by the I.O. (P.W.21) and those were sent for chemical examination through Page 3 of 10 JCRLA NO. 07 OF 2017 {{ 4 }} Court. The I.O. (P.W.21) on transfer, handed over the charge of investigation of the case to his successor in Office i.e. P.W.20. The subsequent I.O. (P.W.20), then examined some other witnesses and finally on completion of investigation submitted the Final Form, placing the accused to face the trial for commission of offence under section-A/302 of the IPC. 4. Learned Judicial Magistrate First Class (J.M.F.C.), Chandikhole having received the final form as above, took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge against the accused for the said offences. The plea of defence is that of complete denial and false implication has tendered no evidence. 5. In the trial, the prosecution examined in total twenty one (21) witnesses, who are P.Ws.1 to 21. The Informant, who happens to be the father of the deceased is P.W.1 and the F.I.R. which he had lodged Ext.3 being scribed by another, he has been examined as P.W.8. The eye witnesses to the occurrence are P.Ws. 6, 7, 10, 11 and 19. The witness to the extra-judicial confession is P.W.4 and the witnesses to the recovery of the axe at the instance of the accused are P.W.9 and P.W.10. When the Doctor who had conducted autopsy over the dead Page 4 of 10 JCRLA NO. 07 OF 2017 {{ 5 }} body of the deceased has come to the witness box as P.W.13; as already stated the two I.Os. are P.Ws. 20 and 21. The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 13. Important of those are the F.I.R., Ext.3, whereas the inquest report and postmortem report are Exts.1 and 6 respectively. The so called statement of the accused has been admitted in evidence and marked as Ext.4 and the spot map is Ext.12. The other important document i.e. Ext.11 which is the Chemical Examiner’s report. 6. Learned Counsel for the Appellant (accused) at the beginning without disputing the nature of death of Pandaba to be homicidal as is his evident from the overwhelming evidence on record coming from the lips of the Doctor, P.Ws. 13, the I.O.(P.W.20) and other witnesses as also the concerned reports prepared in that connection and without proceeding the impeach the evidence of the witnesses with regard to the role of the accused and the act done by him 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 contended that when the evidence of P.Ws. 6, 7, 10, 11 and 19 are read together, the circumstances Page 5 of 10 JCRLA NO. 07 OF 2017 {{ 6 }} under which the incident took place and the manner in which the accused is said to have dealt the blow upon the deceased, their relationship as well as the fact 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 under section-302 of the IPC. In this connection, he has invited our attention to the depositions for all those witnesses and also had taken to the F.I.R., Ext.3. He thus urged for appropriate reduction in the sentence. 7. 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 dealt blow on the head of the deceased by a heavy sharp cutting weapon even though it was a single blow, the offence committed by the accused would stand categorized under section-302 of the IPC. 8. 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 13 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 21. Page 6 of 10 JCRLA NO. 07 OF 2017 {{ 7 }} 9. The deceased is the brother-in-law (wife’s brother of the deceased). The incident took place in the village on the threshing floor near the house of the accused on Makara Sankranti Day. P.W.6, the wife of the deceased has stated that on that day, her sister-in-law (sister of the accused) had called her to their threshing floor for threshing paddy sheaves and accepting the request, she had gone there. She has further stated to have been working there for three days prior to the day when the incident took place and her husband (deceased), was absent at home, being engaged in work in another village. She further states that when she was there on the threshing floor, the accused went to met her after returning from work and asked her as to why she was working on that ‘Makara Sankranti Day’. This P.W.6 then wanted to convince the deceased, but the deceased then wanted to assault her. From this evidence of P.w.6, it is quite clear that the deceased then was in an aggressive mood. She has then implicated the accused in saying that he from his house with an axe and assaulted her husband (deceased) on the blunt side of the axe on his head and went away. This witness, P.W.6 has further stated that her husband (deceased) then had consumed liquor and the accused too had consumed liquor. It being a Makar Sankranti Day, looking at the status of the parties and the background from which they hail, judicial Page 7 of 10 JCRLA NO. 07 OF 2017 {{ 8 }} notice of the fact can be taken that of such a day, these people observe the festival with pomp and gaiety by consuming liquor and other food items. The accused had given only one blow. When P.W.6 and other witnesses which we would discuss later in detail do not state that from the beginning such blow was aimed at the head of the deceased, the blow has not been given on the sharp side of the axe, but its blunt side has been used. When this P.W.6 had stated that the deceased in the said incident had abused the accused and his wife that being denied during trial, the defence has proved the same during examination of the first I.O. (P.W.21) after drawing the attention of P.W.6 to that part of her statement during trial as to have not been stated in course of investigation to the I.O. (P.W.21). This touches facet the genesis, the omission would stand as contradiction. Thus, there appears the suppression as to the initial happenings in the said incident especially; the role of the accused, The other wife of the deceased has been examined as P.W.7. She has simply stated that when the deceased asked as to why she had come to work on that Makara Sankranti Day, the accused came with an axe and assaulted her husband. This witness although has not stated in her previous statement to have followed the deceased to the threshing floor of the accused, which she has denied the same during trial, that has however been proved through the I.O. Page 8 of 10 JCRLA NO. 07 OF 2017 {{ 9 }} P.W.21, which being an omission of the material aspect of the occurrence, amounts to contradiction. P.W.10 has stated that there had occurred a quarrel between the deceased and P.W.6 first. This accused had admitted during cross- examination to have not seen the assault. When P.W.10 states to have gone to the threshing floor of the accused at the relevant time to call P.W.9; P.W. 9 is however not stating so. This P.W.11 had also not stated in her previous statement as to have seen the actual assault being made by the accused upon the head of the deceased by means of that axe, using its blunt side. Cumulatively viewing all these circumstances appearing in the entire evidence as above discussed, we are of the view that the offence could be properly categorized as one punishable under section-304 Part-I of the IPC and thus the accused is liable for commission of offence punishable under section-304 Part-I of the IPC. Accordingly, he is to be visited with the sentence which commensurate with the act done by him. 10.
Decision
In the result, the Appeal stands allowed in part. The conviction recorded against the accused under section-302 of the IPC is modified to one under section-304 Part-I of the IPC and consequentially, we are of the considered opinion that the sentence to undergo rigorous Page 9 of 10 JCRLA NO. 07 OF 2017 {{ 10 }} imprisonment for a period of 10 (ten) years would be just and proper and meet the ends of justice. 11. With the above modification as to the judgment of conviction and order of sentence, the Appeal stands disposed of. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 24-Jul-2023 15:08:57 JCRLA NO. 07 OF 2017 Page 10 of 10