The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.58 of 2012 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 30.09.2011 in S.T. No.19 of 2011 by the learned Sessions Judge, Mayurbhanj, Baripada and was sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/- in default to undergo R.I. for two months. Raj Kumar Dehury State of Odisha -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.C.R.Sahoo, Advocate. For Respondent - Mr.S.K.Nayak, Additional Government Advocate. CORAM:
Legal Reasoning
doctor (P.W.8), we find that, Chhatish met a homicidal death. 11. P.Ws.-2 & 3 are the eye witnesses to the incident. The accused is not a stranger to the P.Ws.-2 & 3 and they are the co-villager. It appears Page 5 of 7 JCRLA No.58 of 2012 {{ 6 }} from the evidence of P.Ws.-2 & 3 that, when they (P.Ws.2 & 3) along with the deceased were returning to their house and had reached in front of the house of the accused, the accused suddenly shot the arrow at the abdomen of the deceased from a very close distance and the said arrow pierced into the belly of the deceased, as a result of which, the deceased fell down sustaining injury. They state that, when they (P.Ws.2& 3) raised hullah, P.Ws.-1, 5 and others of their village came. The above evidence of P.Ws.-2& 3 against the accused has not been shaken in any manner during cross-examination. Accordingly, the evidence of P.Ws.2 & 3, which connect the accused with the authorship of the injury and death of the deceased have remained unassailed. 12. The deceased was taken to the hospital for his treatment on the next day of the incident and there he died, one day after his admission into the hospital. There appears no evidence as any motive on the part of the accused and it is also not stated that the accused was having any animosity with the deceased. The parties hail from rural background and we find that the witnesses (P.Ws.2&3) are suppressing some happenings before the accused shot the arrow. Taking a cumulative view of all these above circumstances appearing in the evidence as discussed above, we are of the view that, the offence committed by the accused can be categorized as one punishable U/s 304-I of the I.P.C., 1860. Therefore, we are inclined to modify the impugned judgment in convicting the accused for the offence punishable U/s 302 of the IPC by holding the accused liable to be convicted for the offence punishable U/s 304-I of the IPC. JCRLA No.58 of 2012 Page 6 of 7 {{ 7 }} 13. Accordingly, the accused is convicted for commission of the said offence U/s 304-I of the IPC and sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.2000/- in default to undergo R.I. for two months. The Appeal is accordingly allowed in part with the above modification of the judgment of conviction and order of sentence dated 30th September, 2011 passed by learned Sessions Judge, the Mayurbhanj, Baripada in S.T. No. 19 of 2011. (A.C. Behera), Judge. (D. Dash), Judge. D. Dash, J. I Agree. Orissa High Court, Cuttack. The 3rd October, 2023//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Oct-2023 14:51:56 JCRLA No.58 of 2012 Page 7 of 7
Arguments
MR. JUSTICE D.DASH MR. JUSTICE A.C.BEHERA Date of Hearing :13.09.2023 :: Date of Judgment : 03.10.2023 A.C. Behera, J. The Appellant, from inside the jail, has assailed the judgment of conviction and order of sentence dated 30th September, 2011 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. No. 19 of 2011 arising out of G.R. Case No. 274 of 2010 corresponding to Jashipur P.S. Case No. 70 of 2010 of the Court of learned Sub-Divisional Magistrate, Karanjia, Mayurbhanj. JCRLA No.58 of 2012 Page 1 of 7 {{ 2 }} In the aforesaid judgment passed on 30th September, 2011 in S.T. No.19 of 2011 by the learned Sessions Judge, Mayurbhanj, Baripada, the Appellant (accused) has been convicted for the offence U/s 302 of the Indian Penal Code, 1860 (in short called as IPC). Accordingly, he has been sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/- (rupees two thousand) in default to undergo R.I. for two months more for the offence U/s 302 of the IPC, 1860. 2. The case of the prosecution before the learned Trial Court below was as under:- On 22.08.2010, at about 6 P.M., while Chhatish Dehury, Baishnab Dehury and Saheb Dehury were returning to their village Kiajhari, on the way in front of the house of accused Rajkumar Dehury of their village, the accused suddenly shot the arrow on Chhatish Dehury and the said arrow pierced into the right side abdomen of Chhatish, as a result of which, he (Chhatish) fell down sustaining the injury. Then the injured Chhatish Dehury was taken to the house of his neighbour namely Ranjit Dehury in that night. On its next day i.e. on 23.08.2010, he was taken to the nearest Sub-Divisional Hospital, Karanjia for treatment and there while undergoing treatment, he expired on 24.08.2010 at 2 P.M. After the death of the deceased Chhatish Dehury, his uncle Sridhar Dehury lodged written report (Ext.-3) before the IIC, Jashipur Police Station alleging commission of murder of his nephew Chhatish Dehury by the accused. Basing upon that report (Ext.-3), the IIC, Jashipur P.S. registered the case and took up the investigation of the case. JCRLA No.58 of 2012 Page 2 of 7 {{ 3 }} 3. During investigation, the I.O.(P.W.9) examined the informant, visited the spot, prepared the spot map, vide Ext.4. He (P.W.9) examined other witnesses, held inquest over the dead body of the deceased and prepared the inquest report, vide Ext.5. He then sent the dead body of the deceased issuing dead body challan, vide Ext.6 for postmortem examination and accordingly, postmortem examination over the dead body of the deceased was conducted by the Doctor(P.W.8) and Postmortem report, vide Ext.1 was prepared. She (I.O) (P.W.9) seized the wearing apparels of the deceased under seizure list, vide Ext.7 and then arrested the accused, seized the bow and arrow, vide M.O.-II & I and forwarded the accused to the Court. The seized articles including the seized bow and arrow, vide M.O.-II & I were sent to the R.F.S.L., Balasore for chemical examination through Court. The bed head ticket of the deceased was seized from Sub-Divisional Hospital, Karanjia under seizure list (Ext.-15) and accordingly, after completing investigation, the (I.O) (P.W.9) submitted Final Form placing the accused to face trial for commission of offence U/s 302 of the I.P.C. in intentionally causing the death of Chhatish Dehury. 4. Accordingly, after commitment of the case to the Court of Sessions, from the Court of S.D.J.M., Karanjia, the accused having been charged under Section 302 of the I.P.C., 1860 for commission of murder of Chhatish Dehury faced the trial. The plea of the defense was one of complete denial and false implication. 5. In order to substantiate the aforesaid charge under Section 302 of the I.P.C., 1860 against the accused, altogether 9 (nine) witnesses were Page 3 of 7 JCRLA No.58 of 2012 {{ 4 }} examined and documents vide Exts.1 to 16 including the F.I.R. and Postmortem Report vide Exts.1 to 3 were marked on behalf of the prosecution. 6. Out of the 9 (nine) witnesses of the prosecution, P.W.-1 is the informant, P.Ws.2 & 3 are the eye witnesses to the alleged incident, as they (P.Ws. 2 & 3) were present at the time of incident. P.Ws.4 & 5 are the co-villagers of the accused and the deceased and one among them i.e. P.W.5 was the ward member. P.W.6 is the driver of the vehicle, in which the deceased was taken to the Hospital. P.W.7 is the owner of that vehicle. P.W.8 is the Doctor, who had conducted postmortem examination over the dead body of the deceased and P.W.9 is the Investigating Officer. 7. Upon examination of the evidence available on record, the Trial Court by placing much reliance on the evidence of the direct eye witnesses i.e. P.Ws.2 & 3 disbelieving the plea of the defence has found the accused guilty for the offence under Section 302 of the I.P.C., 1860 and sentenced him as aforestated. 8. Learned Counsel for the Appellant/Accused inviting our attention to the depositions of the P.Ws.-2& 3 submitted that, their evidence should not have been made the basis for conviction of the accused, as the alleged incident had occurred during darkness, for which, there was no scope for them (P.Ws.2 & 3) to witness the incident. Therefore, according to him, the impugned judgment of conviction and order of sentence passed against the accused by the Trial Court cannot be sustained. He further contended that, even though, for the sake of argument, the evidence of P.Ws.2 & 3 shall be accepted as reliable, still Page 4 of 7 JCRLA No.58 of 2012 {{ 5 }} then, the Trial Court ought to have convicted the accused for the offence under Section 304-I of the I.P.C. but not under Section 302 of the I.P.C. He, accordingly, urged for modification of conviction and appropriate order of sentence. 9. On the contrary, the learned Additional Standing Counsel contended in support of the impugned judgment of conviction and order of sentence passed by the Trial Court by arguing that, the unimpeachable evidence of two direct eye witnesses i.e. P.Ws.-2 & 3 corroborated by the evidence of P.Ws.-1, 5, 8 & 9 is clearly establishing that, the death of the deceased was homicidal in nature being the outcome of injury in his abdomen caused by the accused by shooting the arrow. Thus, according to him, the impugned judgment of conviction and order of sentence passed against the accused by the Trial Court under Section 302 of the I.P.C., 1860 is not liable to be interfered with. 10. It appears from the evidence of the Doctor (P.W.8) as also the postmortem examination report, vide Ext.-1 and the opinion to the quarry, vide Ext.2 that, the cause of the death of the deceased was due to haemorrhage and shock resulting from the ante mortem cut injury of size 5c.m. x 1c.m. x 5c.m. with clots adherent to its margin. According to the doctor (P.W.8) said injury is possible by the weapon i.e. arrow, vide M.O.-II. It was his evidence that, the nature of death of the deceased was homicidal. During trial, defence has not disputed/denied this aspect of the case. So, from the above unassailed testimony of the