The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.52 of 2012 (From the judgment of conviction and order of sentence dated 04.12.2009 passed by the learned Ad hoc Additional Sessions Judge (FTC), Athagarh in Sessions Trial No.244 of 2007) Sura @ Suresh Naik …. Appellant -versus- State of Odisha …. Respondent Advocates appeared in the case: For Appellant : -versus- Mr. B.K. Ragada, Adv. For Respondent : Mr. S.K. Nayak, AGA CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-06.07.2023 DATE OF JUDGMENT:-24.07.2023 Dr. S.K. Panigrahi, J. 1. In this JCRLA, the convict/ Appellant (Suresh Naik) challenges the judgment of conviction and order of sentence dated 04.12.2009 passed by the learned Ad hoc Additional Sessions Judge (FTC), Athagarh in Sessions Trial No.244 of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 1 of 17 2007, whereby the Appellant was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo further R.I. for six months for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the I.P.C.” for brevity). I. CASE OF THE PROSECUTION: 2. The case of the prosecution is that on 02.08.2006, the informant (P.W.3) who is the resident of village Sagara under Narasinghpur P.S. in the district of Cuttack lodged a written report before the OIC Narasinghpur to the effect that on that day at about 7 pm, his younger brother (deceased) was present in the house of his elder brother. Subsequently, Suresh Naik (accused) and Sarat Kumar Naik who are brothers assaulted the deceased by means of a ‘thenga’ on his head. The prosecution has mentioned that this altercation bore out of previous enmity. Thereafter, they threw him in injured condition and fled. Subsequently, the informant
Facts
brought the injured to Narasinghpur hospital and after first aid shifted him to SCBMCH, Cuttack, when he succumbed to his injuries. Based on this written report, PS case No.79/06 was registered and after completion of investigation, charge- sheet was submitted against the present accused and another. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 2 of 17 3. After the charge was framed, the trial was completed by the Learned Ad hoc Addl. Sessions Judge (FTC), Athagarh and the Appellant was convicted under Section 302 of IPC and sentenced to undergo imprisonment for life. Hence, this appeal. II. SUBMISSION OF THE APPELLANT: 4. Learned Counsel for the Appellant strenuously argued that the appellant is innocent. The plea of the defence is one of complete denial and false implication. The specific case/plea of the defence as it borne out from the statement of the accused under Section 313 of the Cr.PC. is that he (accused) is in no way connected or concerned with the death of the deceased. He had further deposed that he cannot say who has killed the deceased, however, he was not involved in the incident. 5. Learned Counsel has submitted that the doctor who has conducted the Post-mortem examination has not been examined which acts as a major discrepancy in the case of the prosecution. Additionally, there are major contradictions in the statements of P.W.1, 2, and 4 who have proclaimed to be the eye witnesses of the occurrence.
Legal Reasoning
mortem report. It is well settled by the Supreme Court that in cases where there is a relation between the witness and the deceased, it is the duty of the court to scrutinize the evidence with proper caution. In the case of State of Uttar Pradesh v. Jagdeo8, the court held that the testimony of the witness cannot be discarded on the ground that the witness is connected to the deceased if the evidence given by him is consistent and supported with other witnesses. 19. In this regard, the Trial Court concluded that the post mortem report prepared by the doctor corroborated through the evidence of P.Ws.1, 2 and 4 coupled with the plea of the defence i.e. no dispute to the homicidal nature of death of the 8 2003 AIR 660 SC Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 11 of 17 deceased points to the irresistible conclusion that, the nature of death suffered by the deceased is neither accidental nor suicidal, rather the same is purely homicidal one. Therefore, this Court is of the view that the prosecution has been able to prove beyond reasonable doubt that the act of the appellant has led to the death of the deceased. VII. Whether the act of the appellant was premeditated and with an intention to cause the death of the deceased? 20. With regards to the second issue, the prosecution witnesses i.e. P.Ws 1 to 5 have not been able to provide information as to whether there was any kind of existing quarrel between the two parties. In addition to this, the prosecution has not established that the act of the accused shall not fall under the Exception 4 of Section 300 of IPC. The exception provides that that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 21. P.W.11, the preliminary I.O. has admitted during his evidence that his investigation reveals that just prior to the assault on Surendra there was push and pull on the verandah of Arjuna Naik in between accused and the deceased while they were taking liquor. Furthermore, P.W.1 has deposed in his examination in chief that in the evening of the occurrence day Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 12 of 17 he himself, the deceased, the accused alongwith Sanjaya Naik Narayan Senapati and Sudhakara Jena sat on the verandah of Arjuna of their village in order to take liquor. While in an inebriated state. The deceased asked the appellant to provide more liquor on his denial both engaged in a scuffle. During cross-examination his evidence was that when they were taking liquor it would be at about 6 to 7 P.M. This has been corroborated by P.W.1. Therefore, the occurrence has originated while the consumption of liquor was going on and the deceased and the accused were almost intoxicated. 22. In this regard, it has been well established by law that culpable homicide becomes murder if the case comes under any one of the clauses out of the four defined in section 300 of the I.P.C. and the same becomes punishable under Section 302 of the I.P.C. But the culpable homicide is not murder if the case falls within any one of the exceptions out of five of the said Section 300 of the I.P.C. and then the same becomes culpable homicide not amounting to murder and punishable under Section 304 of the I.P.C., but not under Section 302 of the I.P.C. 23. However, if an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I IPC and not under Section 302 IPC. In this Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 13 of 17 regard, the Supreme Court in Virsa Singh v. State of Punjab9 as also in Shankar Narayan Bhadolkar v. State of Maharashtra10, opined : it "Applying the principles of law, as noticed hereinafter, I am of the considered opinion, that the offence committed by the appellants does not fall within the definition of Section 300 of the IPC, nor does fall within the definition of offence, punishable under Section 304II of the Indian Penal Code. In my considered opinion, the learned trial Court rightly held that the nature of the offence, falls within the definition of Section 304-I of the IPC Section 304 deals with situations, where culpable homicide does not amount to murder, i.e. does not fall within the definition of murder, as contained in Section 300 of the IPC. Section 304 is sub-divided into two parts. If an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I, however, if there is no intention to cause such an injury, but there is knowledge that such an injury can cause death, the offence would fall within the definition of Section 304-II. Thus, is intention. If intention to cause such an injury as is likely to cause death, is established, the offence would fall under Part-I but where no such intention is established and only knowledge that the injury is likely to cause death, it would fall under Part-II." "However, the nature of the injury, the weapon of intention and knowledge of the offence, the 9 AIR 1958 SC 465 10 (2005) (9) SCC 71 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 14 of 17 assailants, in my considered opinion, clearly places the offence as one under Section 304-I of the IPC. Appellant No.1 inflicted the injury with knowledge and intention that the injury, if inflicted is likely to cause death, but with no intention to cause death. However, as from the facts and circumstances of the present case, and the fact that it was a sudden fight, a single blow inflicted with the reverse side of a Kassi, it cannot be stated that he had an intention to cause death, as required to make out an offence under Section 300 of the IPC." 24. Reliance has also been placed on the decision of the Supreme Court in the case of State of Punjab v. Tejinder Singh & Anr.11 In this case, two persons inflicted Gandasa blows on the deceased. The altercation had already taken place four days prior to the incident over the boundary line of the plots of the parties. The accused persons came heavily armed shouting that the deceased should not be spared at a point of time when his wife had brought breakfast for him and he had gone to hand pump to bring water in a pitcher. It was even in the aforementioned situation, this Court held: "In view of our above findings we have now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to 11 AIR 1995 SC 2466 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 15 of 17 commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC." 25. In the present case, it has been clearly established by the prosecution that the accused inflicted a serious injury on the deceased. This has been established owing to the deposition of the three eye-witnesses P.W.1, 2 and 4; due corroboration of the medical report (Ext.15) submitted by the medical officer. The prosecution has further established that the injury was inflicted upon the deceased with the knowledge and intention that it is likely to cause death. However, he has not been able to prove whether the attack was premeditated and with an intention to cause death. Therefore, even if the injury inflicted was a serious one, it by itself may not be decisive but is one of the relevant factors in regards to the application of fourthly of Section 300. Application of the said provisions must be made keeping in mind the fact situation emanating therefrom and the legal principles noticed hereinbefore. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 16 of 17 26. For the reasons aforementioned, we are of the opinion that the appellant is guilty of commission of the offence under Section 304, Part-I and not Section 302 IPC thereof. 27. Therefore, we allow the appeal in part. Accordingly, the conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo further R.I. for six months for commission of offence under Section 302 of the I.P.C. recorded by the learned Ad hoc Additional Sessions Judge (FTC), Athagarh in Sessions Trial No.244 of 2007, as per the judgment of conviction and order of sentence dated 04.12.2009 are hereby set aside and modified the conviction under Section 304, Part-I of the Penal Code and sentenced to undergo R.I. for 10 years. The period of detention already undergone by the appellant during investigation, the trial as an U.T.P. and during the pendency of the appeal be set off under Section 428 of the Cr.P.C. 28. Accordingly, this JCRLA is allowed in part. ( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree. Judge Orissa High Court, Cuttack, Dated the 24th July, 2023 ( D. Dash ) Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 17 of 17
Arguments
6. Learned Counsel further contended that if at all, the accused should be charged, it should be under culpable homicide not amounting to murder. He submitted that P.W.11 has stated in Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 3 of 17 their respective deposition that there was quarrel between the accused and the deceased on the spot and both had consumed liquor. Therefore, the attack on the deceased by the accused was not premeditated, rather, it was sudden and in the spur of the moment. III. SUBMISSIONS OF THE STATE/ RESPONDENT 7. The prosecution in order to bring home the charges has examined as many as 12 witnesses. Among the prosecution witnesses, P.W.3 is the informant and one among the elder brothers of the deceased and a post occurrence witness as well. P.W.2 is the mother of the deceased and an eye witness to the occurrence, P.W.1 and P.W.4 are also eye witnesses to the occurrence, P.W.5 is a post occurrence witness and P.W.6 is a resident of the spot village. P.W.8 is the doctor of Narasinghpur hospital who provided first aid to the deceased on 02.08.2006. P.W.12 is the CMO of SCBMCH, Cuttack, P.W.11 is the preliminary I.O. and P.W.10 is the I.O. 8. Learned Counsel for the State submitted that in the post mortem report (Ext.15), the doctor has clearly stated that, the nature of death suffered by the deceased is homicidal one and possible by blow by hard and blunt object and the cause of death is due to coma as a result of injuries to the head and brain and the injuries are sufficient to cause death in the ordinary course of nature. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 4 of 17 9. Learned Counsel for the State submitted that from the unassailed testimony of the eye witnesses i.e. P.Ws.1, 2 and 4 which finds ample corroboration with each other coupled with the medical evidence i.e. the evidence of the doctor (P.W.1), it can be safely concluded that, none else but the accused is the author of the injuries found on the body of the deceased. IV. COURT’S REASONING AND ANALYSIS: 10. Heard both the parties and went through the judgement of the Trial Court. After extensively perusing the documents adduced by the prosecution and the depositions of the witnesses, this Court is of the view that there are three points of determination in the present case: i. Whether the death of the deceased is homicidal in nature? ii. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellant led to the death of the deceased? iii. Whether the act of the appellant was premeditated and with an intention to cause the death of the deceased? Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 5 of 17 V. Whether the death of the deceased is homicidal in nature? 11. As established by the learned Trial Court, it is the consistent evidence of P.Ws.1 to 5 that the deceased had sustained injuries and was taken to Narasinghpur hospital and from Narasinghpur hospital he was referred to SCB MCH, Cuttack which also corroborated by P.W.8, who has provided the first aid at Narasinghpur hospital to the deceased, so also by P.W.12 the CMO of SCB MCH, Cuttack. 12. In Ext 15 it is mentioned that all the injuries are ante- mortem in nature and possible by blow by hard and blunt object and the cause of death is due to coma as a result of injuries to the head and brain and the injuries are sufficient to cause death in the ordinary course of nature. In the post mortem report of the deceased, Ext.15, it has further been reported that there is: (i) One contusion of size 22cm x 1cm found on the left side chest wall. (ii) One contusion of size 15cm x 1cm found at a distance of 6 cm from injury no.1 towards its right and parallel to it (iii) One contusion of size 20 cm x 1cm found on the back, (iv) One stitched wound placed anterior/posterior on the top of head having length of 6 cm. (v) One stitched would similarly situated 4 cm behind and to right of the other head injury having length of 3 cm. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 6 of 17 13. In this regard, learned counsel for the Appellant has contended that the doctor who prepared the post mortem report has not been cross-examined by the prosecution which evidently makes the case of the prosecution weak. However, in Kanistha Barik v. State1 and Basu Harijana v. State of Orissa2, this Court has iterated that if the attendance of the doctor who has conducted the P.M. examination could not be procured for his evidence his report can be admitted into evidence under Section 32 of the Evidence Act. Therefore, reliance can be placed on the post mortem report (Ext.15) even though the doctor was not examined by the prosecution. VI. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellant led to the death of the deceased? 14. The case of the prosecution mainly rests upon the testimony of eyewitnesses i.e., P.W.1, 2 and 4. P.W.1 has deposed that the present accused has dealt 2 to 3 blows by means of a bamboo ‘thenga’ to the deceased while his elder brother was instigating. P.W.2 has also deposed that the present accused was assaulting by a bamboo thenga while his elder brother was instigating when she arrived. P.W.4 has corroborated the statement of the P.W.1 and P.W.2. He has further deposed that the accused persons left the spot only after his 1 (2002) 23 OCR 547 2 95 (2003) CLT 477 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 7 of 17 intervention. He further deposed categorically that the accused Sura assaulted on head. The consistent evidence of P.Ws.1, 2 and 4 is that in the presence of his elder brother, the accused assaulted the deceased by means of bamboo thenga when the deceased was lying below the verandah of Arjuna Naik. 15. P.W.2. has deposed that the deceased sustained bleeding injury on the back of his neck including the area adjacent to lower part of head and swelling injury on his chest. This deposition has been corroborated by P.W.4 wherein he has deposed that that the deceased sustained injuries on the back side of his head as well as on the upper part of his head and chest. 16. P.W.4 has deposed during his cross-examination that when he arrived at the spot he found P.W.1, the appellant, his elder brother and P.W.2. However, he has not stated before the I.O. that he had seen P.W.1 in the place of occurrence. Therefore, there are minor contradictions in the statements of the P.Ws. However, this minor discrepancy does not discredit the testimony of the witness considering that these do not pertain to any material particulars of the facts of the incident. It has been well established by law that only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. In the case of Narayan Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 8 of 17 Chetanram Chaudhary & Anr. v. State of Maharashtra3, the Supreme Court observed: the such amount “Only to omissions which contradiction in material particulars can be used to discredit the testimony of the witness. The omission itself would not in the police statement by necessarily render testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person.” Similarly, in State of Himachal Pradesh v. Lekh Raj & Anr4, dealing with discrepancies, contradictions and omissions, the Supreme Court held: in to be distinguished contradiction from "Discrepancy has contradiction. Whereas the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the 3(2000) 8 SCC 457 4 1999 Supp(4) SCR 286 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 9 of 17 circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala5 held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish vs. State of Madhya Pradesh6 this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan vs. Kalki & Anr.7 held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.” 17. It is pertinent to mention that both the eye-witnesses i.e. P.Ws.1, 2 and 4 have fully corroborated the facts of the case, the involvement of the appellant and the occurrence of the event. In this regard, the contention of the learned defence counsel with respect to non-reliability of prosecution witness does not stand. This Court is of the opinion that it is the quality and not the quantity of evidence which is necessary 5 (1974) (3) SCC 767 6 (1981) SCC (Crl.) 676 7 (1981) (2) SCC 752 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2023 18:08:40 Page 10 of 17 for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. 18. This Court is of the opinion that the Trial Court has rightly relied on the deposition of the P.W.2 even after the said person being directly related to the deceased. P.W.2 is the mother of the deceased. It is pertinent to note that the deposition of P.W.2 has been corroborated by eye-witnesses P.W.1 and 4 who are not related to the deceased and the post-