The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.96 of 2012 (An appeal U/S. 383 of the Code of Criminal Procedure against the judgment passed by Sri D.C.Barik, Addl. Sessions Judge(FT), Bargarh in C.T. No.189/31/58 of 2011 corresponding to G.R. Case No. 29 of 2011, arising out of Barpali PS Case No. 29 of 2011 of the Court of JMFC, Barpali) Kalia @ Jayasingh Chhatria … Appellant -versus- State of Orissa … Respondent For Appellant : For Respondent : Mr.S.Hota, Amicus Curiae Mr.G.N.Rout, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :30.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This is an appeal by the convict challenging his conviction and sentence to undergo imprisonment for life with fine of Rs.1,000/- in default whereof, to undergo for rigorous imprisonment for a further period of one month JCRLA No.96 of 2012 Page 1 of 15 for offence U/S. 302 of IPC with stipulation of setting off pretrial detention against the substantive sentence as awarded on 7th July, 2012 by learned Additional Sessions Judge(F.T.), Bargarh in C.T. Case No. 189/31/58 of 2011. 2. The prosecution case in brief is on 07.03.2011 at about 8 A.M. in the morning at the water channel situated near the canal road of Barpali to Kumbhari, the convict bearing previous grudge on account of enmity abused Madhu Nayak (hereinafter referred to as the “deceased”) in filthy language and in order to kill him assaulted his two hands, neck and different parts of the body by means of an axe. When Bibachha Sahu(P.W.7) and one Rohita Sahu reached there, the convict thinking the deceased to have died fled away from the spot. On hearing this news, the son of the deceased P.W.1-Aruna Nayak shifted the deceased to PHC, Barpali and subsequently to VSS & MCH, Burla wherein the deceased succumbed to the injuries at about 2 P.M. in the afternoon. JCRLA No.96 of 2012 Page 2 of 15 On the aforesaid incident, P.W.1 after returning
Legal Reasoning
from Burla lodged a FIR(Ext.2) against the convict on the same day at about 6 P.M. by getting the FIR scribed by Minaketan Nayak, before the IIC, Barpali Police Station P.W.12-Prasant Kumar Meher who registered Barpali P.S. Case No. 29 of 2011 for offence U/Ss. 294/302 of IPC and investigated into the matter. In the course of investigation, P.W.12 arrested the convict on the same day and seized his wearing apparels under seizure list Ext.4 and also seized the weapon of offence on production by the informant under Ext.3 as well as received Burla P.S. UD Case No. 125 of 2011. As usual on completion of investigation, P.W.12 submitted charge sheet against the convict resulting in trial in the present case after denial of the convict to the charge for commission of offence U/Ss. 294/302 of IPC. 3. In support of its case, the prosecution examined altogether 13 witnesses and relied upon documents under Exts. 1 to 14 as against no evidence whatsoever by the defence. The plea of the convict in the JCRLA No.96 of 2012 Page 3 of 15 course of trial was of denial simplicitor and false implication. 4. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted and sentenced the appellant to the punishment indicated supra by the impugned judgment by mainly relying upon the evidence of P.W.7 who reached to the spot immediate after the occurrence and the oral dying declaration of the deceased. 5. In the course of hearing of the appeal,
Legal Reasoning
Mr.S.Hota, learned Amicus Curiae although argued on merit to disbelieve the evidence of P.W.7, but he mainly has confined his submission to modify the conviction of the appellant for offence U/S. 304 Part-I of IPC and his sentence to the period already undergone by taking this Court through the evidence that the deceased was carrying the axe which was snatched away by the convict and assaulted the deceased by such weapon of offence after an altercation and thereby the requisite intention to kill the deceased was absent on the part of the appellant. JCRLA No.96 of 2012 Page 4 of 15 On the other hand, Mr.G.N.Rout, learned ASC has, however, refuted the submission advanced by the learned Amicus Curiae by inter alia submitting that the medical evidence clearly reveals a case of homicidal death of the deceased and thereby the nature of injuries sustained by the deceased would put the act of the convict within the four corners of the ingredients of offence U/S. 300 of IPC and thereby, the learned ASC has prayed to confirm the conviction and sentence of the appellant by dismissing the appeal. 6. After having bestowed an anxious and careful consideration to the rival submissions, this Court, however, considers it apt to scrutinize the evidence available on record to find out as to whether the appellant was guilty of killing the deceased or not. Indisputably, the prosecution had projected P.W.7 as eye witness to the occurrence, but his evidence transpired that on the relevant morning, while he was going to his field, on the way near Majhi Munda, he found the deceased lying on the road and convict standing by his JCRLA No.96 of 2012 Page 5 of 15 side and on his arrival, the convict fled away and he also found an axe lying on the spot and there was bleeding injury on the face of the deceased. What is more significant is the testimony of P.W.7 discloses an oral dying declaration of the deceased in following words “on being asked, the deceased told him that the convict assaulted him by means of an axe causing injuries to his person and he(deceased) would not survive”. The cross- examination of P.W.7, however, had not yielded any result for the convict, but it supported the prosecution case as elicited from his mouth that the accused(convict) and deceased were jointly selling liquor in village Remta and there was enmity between the parties. Further, the evidence “the deceased was able to speak” as elicited in cross examination of P.W.7 lends assurance to the oral dying declaration of the deceased. 7. PW10-Kaira Pradhan had also testified in his evidence that he found the deceased lying injured at the spot by the side of the road and he noticed injuries on his neck, backside of neck and back and hand with bleeding. JCRLA No.96 of 2012 Page 6 of 15 It was the specific evidence of PW10 that on being asked, the deceased told that the convict demanded money from him and when he could not give, convict assaulted him by means of an axe causing such injuries. The evidence of PW10 corroborates the evidence of PW7 in material particulars and nothing was elicited from the mouth of PW10 to discredit his evidence. 8. In the backdrop of evidence of PWs.7 and 10, now this Court proceeds to examine the evidence of doctor-PW11 to know the cause of death of the deceased. PW11-Dr. Punyansu Mohanty had testified in the Court that on 07.03.2011 at about 4.45 PM, he conducted autopsy over the dead body of the deceased and found the following injuries: External injury (i) Abrasion below left knee 2cm x 2cm (ii) Abrasion left leg middle one-third front side 1 cm x 1 cm (iii) Abrasion medial aspect right knee of size 1cm x 1 cm (iv) Abrasion on left elbow of size 0.5cm diametre (v) Abrasion on left fore-arm unar border middle 1/3rd of size 1cm x 0.5cm JCRLA No.96 of 2012 Page 7 of 15 (vi) Abrasion back of base of neck of size 4cm x 3cm (vii) Abrasion on right scapular and supra scapular regior of size 5cm x 3cm (viii) Abrasion on right flank of abdomen of size 3cm x 2cm. All the abrasions redish in colour. (ix) Contusion on right fore-arm, ulnar border of size 4cm x 2cm Internal Injury (i) Contusion on left chest wall of size 8cm x 4cm over six to nine feet mid auxiliary line; (ii) Fracture rib left side seven and eight at mid- auxiliary line; (iii) Puncture left lungs with fractured end of rib with left haemothroax”. According to the testimony of PW11, the death of the deceased was due to shock resulting from haemorrhage due to left haemothroax and all the injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature and the injuries were possible by blow of a hard and blunt object. PW11 had also opined that the injuries found on the body of the deceased were possible by the blow with the handle of a weapon, which was an axe with iron blade with wooden handle in this case. JCRLA No.96 of 2012 Page 8 of 15 9. A careful scrutiny and analysis of above evidence would go to indicate that the deceased had sustained injuries on his persons due to assault of the convict by means of an iron axe and the deceased had accordingly suffered death. There is nothing on record to disbelieve the evidence of PWs.7, 10 and 11. It is, therefore, very clear that the prosecution has established beyond all shadow of doubt that the deceased died due to the assault of the convict by means of an axe. Although, the learned trial Court has observed that the convict had the requisite intention to cause such bodily injuries as he knew it to be likely to cause death and such injuries were also sufficient in ordinary course of nature to cause death of a person, but the same was being arrived at without any analysis of evidence of prosecution witnesses. It is also equally strange that the learned trial Court has observed that the accused had dealt repeated successive blows by the blunt side of the axe to the person of the deceased including on some vital parts like neck and chest, but such finding is without any legally admissible JCRLA No.96 of 2012 Page 9 of 15 evidence inasmuch as none of the witnesses had ever stated to have seen the convict dealing successive blows by means of an axe on the deceased. Probably, the learned trial Court had swayed away by the evidence of Doctor-PW11, who had testified in the Court about deceased sustaining number of abrasions. Further, PW11 had admitted in cross-examination that the abrasions could be possible by fall on a rough surface and it were not sufficient to cause death as well as the contusions sustained by the deceased were also not sufficient to cause death. 10. Albeit, PW2 had testified in the Court that on being asked, the deceased told him “he (deceased) was assaulted repeatedly by the accused by means of an axe causing serious injuries to him”, but the same assumes great significance in view of the evidence of PW4 that on being asked, the deceased told him (PW4) that the convict snatched away the axe from him (deceased) and assaulted him (deceased) on the blunt side of axe causing such injuries. Similar is the evidence of PW5, who JCRLA No.96 of 2012 Page 10 of 15 had testified in the Court that the convict assaulted the deceased by the blunt side of an axe causing injuries to his person. PW11, the doctor in his cross examination had admitted that if somebody is assaulted by the sharp side of an axe, the injuries likely to be caused would be different from the injuries detected on the deceased as stated in his report and if somebody is assaulted on the blunt side of an axe, he might sustain abrasions and contusions. Besides, the learned trial Court in the impugned judgment has clearly observed that from the evidence of above witnesses (PWs.2 to 6 and 10), one point is clear that they all have heard that the deceased was assaulted by the convict by the blunt side of an axe and causing such injuries to him. It is, therefore, clear from the evidence that the prosecution has found to have established that the convict had assaulted the deceased by the blunt side of weapon of offence “axe” and evidence of PW4 makes it clear that before assaulting, the convict had snatched away the axe from the deceased and therefore, the convict was not carrying any JCRLA No.96 of 2012 Page 11 of 15 weapon of offence at the time of assault, rather the deceased was carrying the weapon of offence as per the evidence. Hence, the requisite intention of the convict to cause death was conspicuously absent, but it is to be now seen as to whether the convict was having the intention of causing such bodily injuries as is likely to cause death. 11. For attracting clause thirdly to Section 300 of the IPC, the prosecution is required to establish objectively that the act is done with intention of causing bodily injury to any person and the bodily injury intended to inflicted is sufficient in ordinary course of nature to cause death, but if the act caused by the offender is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner, his act would fall within the meaning of culpable homicide not amounting to murder. In this case, admittedly the convict was not carrying any weapon of offence and thereby, it cannot be said that prior to the occurrence, the convict was having any JCRLA No.96 of 2012 Page 12 of 15 intention to cause such bodily injury on the person of the deceased as is likely to cause death, but the evidence of P.W.2 clearly suggests that the deceased was working as a laborer under the convict and the convict had given him Rs.3,000/- and when the convict demanded the amount, the deceased told that it was adjusted towards his remuneration which was the cause of dispute between them. On the other hand, P.W.10 had stated that the convict demanded money from the deceased, but when the later could not give, the convict assaulted him by means of an axe causing such injuries. It, therefore, presupposes that there was a sudden quarrel between the convict and the deceased for demand of money and the convict assaulted the deceased without premeditation in heat of passion as well as in a fit state of anger inasmuch as the convict was neither carrying any weapon of offence nor had he assaulted the deceased by the sharp side of the weapon. However, the act by which the convict caused such bodily injury to the deceased attributes his intention at that moment of causing such JCRLA No.96 of 2012 Page 13 of 15 bodily injury as is likely to cause death and thereby, the act of the convict is squarely covered by the offence punishable U/S. 304 Part-I of IPC. 12. This Court, therefore, finds force in the submission of the learned counsel for the appellant that the act of the convict would squarely fall U/S. 304 Part-I of the IPC. Hence, the conviction of the appellant for offence U/S. 302 of IPC is required to be altered and modified to one U/S. 304 Part-I of the IPC. It is also found from the record that the convict belongs to a lower strata of society and appears to be poor person which is apparent from the fact that he could not engage a defence counsel and his case was conducted by a State defence counsel in the trial. It also appears from the evidence that the convict was arrested on 07.03.2011 and he is in custody since then till today as he has not moved any application for bail and the appeal was conducted by the Amicus Curiae engaged by this Court. In the aforesaid facts and circumstance, this Court alter the conviction of the appellant from Section 302 of IPC to JCRLA No.96 of 2012 Page 14 of 15 Section 304 Part-I of IPC and accordingly, reduces the sentences of the appellant to undergo rigorous imprisonment for ten years. 13.
Decision
In the result, the appeal is allowed in part. The conviction and sentence of the appellant is accordingly modified to the extent indicated above. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 17:58:41 JCRLA No.96 of 2012 Page 15 of 15