The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.71 OF 2012 From the judgment of conviction and order of sentence dated 03.02.2010 passed by the learned Adhoc Additional Sessions Judge, (FTC), Champua in Sessions Trial Case No.37/227 of 2009 arising out of G.R. Case No.238 of 2009 corresponding to Joda P.S. Case No.82 of 2009 of the Court of learned Judicial Magistrate First Class, Barbil. Ala Karua @ Tuna Munda ….. Appellant ---- State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant -
Legal Reasoning
Ms. B.L. Tripathy, Advocate, (Amicus Curie). For Respondent - Mr. Sitikant Mishra, Addl. Standing Counsel. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING :02.03.2023 : DATE OF JUDGMENT: 14.03.2023 D.Dash, J. The Appellant from inside the jail has assailed the judgment of conviction and order of sentence dated 03.02.2010 passed by the learned Adhoc Additional Sessions Judge, (FTC), Champua in Sessions Trial Case No.37/227 of 2009 arising out of G.R. Case No.238 of 2009 corresponding to Joda P.S. Case No.82 of 2009 of the Court of learned Judicial Magistrate First Class, Barbil. JCRLA NO.71 OF 2012 Page 1 of 7 {{ 2 }} By the same, the Appellant (accused) thereby 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.5,000/- in default to undergo simple imprisonment for a period of six months. 2. The prosecution case is that on 07.05.2009 around 9.00 pm, when Binati Lohar, the mother of the Informant (Nakula Lohar-P.W.2) having returned from her place of work was in her quarter and was cutting jokes with her grandson, the accused who happens to be the neighbour suddenly appeared and started quarreling with Binati Lohar (deceased). It is stated that the accused suddenly dealt blows on her chest by means of one split wood. The elder sister of the Informant namely, Bharati, P.W.1 forbade the accused from doing so, but he did not listen; the deceased-Binati ultimately died as a result thereof. Therefore, Nakula Lohar (P.W.2), who is the son of the deceased, lodged a written report with the Inspector-In- Charge (IIC), Joda Police Station. On receiving said written report, the IIC treated it as the F.I.R. Then having registered the case, he took up investigation immediately. In course of investigation, he examined the Informant(P.W.2) and visited the spot and held inquest over the dead body of the deceased, prepared report in presence of the witnesses and then sent the dead body JCRLA NO. 71 OF 2012 Page 2 of 7 {{ 3 }} of the deceased for postmortem examination by issuing required requisition. He also seized the incriminating articles including that split wood, which is said to have been used by the accused for causing injury upon the deceased and prepared seizure list to that effect. On completion of investigation, final form was submitted, placing the accused to face the trial for commission of offence under section-302 of the IPC. 3. Learned Judicial Magistrate First Class, Barbil on receiving 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. 4. In course of trial, the prosecution has examined in total nine (9) witnesses; out of whom the important are P.W.1 who is the daughter of the deceased and P.W.2, the Informant who is the son of the deceased. The Doctor who has conducted autopsy over the dead body of the deceased has come to the witness box as P.W.5. P.W.9 is the Investigating officer, who had done the major portion of the investigation and P.W.8 is another Investigating Officer who had the occasion to investigate the case for some time. The prosecution besides tendering evidence by examining the above witnesses has also proved several documents which have been admitted in JCRLA NO. 71 OF 2012 Page 3 of 7 {{ 4 }} evidence and marked Exts.1 to 11. Out of those important are the F.I.R., Ext.1, inquest report, Ext.2 and postmortem report, Ext.3. Defence case is that of denial and false implication. However, no such evidence has been tendered from the side of the accused in support of his defence. 5. The Trial Court on going through the evidence of the Investigating Officer i.e. P.W.9, who had held inquest over the dead body of the deceased and prepared the report, Ext.2 as also other witnesses, including the son and daughter of the deceased, who are P.Ws. 1 and 2 respectively and then having discussed in detail, the evidence of the Doctor, who has conducted autopsy over the dead body of the deceased i.e. P.W.5 has arrived at a conclusion that Binati met a homicidal death. In fact this aspect of the case was not under challenge before the Trial Court and that is also the situation before us. 6. The Doctor who had conducted the autopsy over the dead body of the deceased and has been examined as P.W.5. It is her evidence that during postmortem examination, she had seen two ante mortem bruises, one on the left side chest wall and the other on the left side of upper abdomen and on dissection, she noticed fracture of multiple ribs on both side and fracture of body of sternum with laceration of both lungs and presence of blood on the chest cavity. Importantly, she had found spleen JCRLA NO. 71 OF 2012 Page 4 of 7 {{ 5 }} to have been ruptured and good amount of blood was present in the peritoneal cavity. Her evidence is that the death is due to shock on account of hemorrhage resulting from the rupture of the spleen and laceration of lungs. The evidence of this witness on the above score, the deceased has received the injuries and died as to the consequence have not been shaken in any manner. Thus, We are wholly in agreement with the conclusion arrived at by the Trial Court that the deceased met a homicidal death. 7. Learned Counsel for the Appellant from the very beginning instead of questioning the finding of the Trial Court that the accused has assaulted the deceased by means of split wood, which has ultimately led to her death confined his submission as to alteration of the conviction to one under section-304-Part-II of the IPC and appropriate reduction of sentence. He submitted that even accepting the prosecution evidence as placed, the accused would be held liable for committing the offence under section-304 Part-II of the IPC but not under section-302 of the IPC. Inviting the attention of this Court to the evidence on record as to how the incident began and it ultimately took place as have been deposed by the witnesses, she submitted that there was no pre-meditation and it was all of a sudden, when the accused had not come holding that split wood, the Trial Court ought not to have convicted the accused for offence under section-302 of the IPC. JCRLA NO. 71 OF 2012 Page 5 of 7 {{ 6 }} 8. Learned Counsel for the State refuting the above submission, contended that the facts and circumstances which have emerged in the evidence of the witnesses who had seen the incident and also those who had arrived thereafter, being viewed with the evidence of the Doctor had been rightly convicted the accused under section-302 of the IPC. 9. 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 P.Ws. 1 to 9 and have perused the documents which have been admitted in evidence and marked as Exts. 1 to 11. 10. In order to address the above submission, the evidence of the Doctor, P.W.5, who had conducted autopsy over the dead body of the deceased, being looked into; it is seen that during external examination, she had noticed two ante-mortem bruises, one on the left side chest wall and the other on the left side of upper abdomen. On dissection, the fracture of multiple ribs and fracture of body sternum with laceration of both lungs had been detected. She has however not stated to have noticed that the spleen of the deceased was normal or enlarged. The evidence of P.W.1 is to the effect that when she came out with her sister, accused gave two blows on the chest of her sister. She is not stating that accused had used any weapon in order to give those two blows. JCRLA NO. 71 OF 2012 Page 6 of 7 {{ 7 }} P.W.2, who is the son of the deceased, is stating that the accused assaulted his mother by a lathi on her chest. He is not stating to have seen the accused simultaneously giving two successive blows. It is also not stated as to what was the reason for the accused on being aggrieved against the deceased. P.W.2 has also stated that deceased after having returned from work had consumed liquor by the time of her death. Taking a cumulative view of all these above circumstances, We are of the considered opinion that for the role played by the accused, he would be liable for conviction under section-304 Part-I of the IPC. 11. In that view of the matter, the conviction is altered to one under section-304 Part-I of the IPC and accordingly, the Appellant (accused) is sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months. 12. With the above modification as to the judgment of conviction and
Decision
order of sentence, the Appeal stands disposed of. Dr.S.K. Panigrahi, J. I Agree. Narayan (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. JCRLA NO. 71 OF 2012 Page 7 of 7