The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.62 of 2013 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 24TH September, 2010 passed by the learned Sessions Judge, Dhenkanal, in C.T./Ss Case No.147 of 2007. Sushant Padhan ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Chandan Samantaray (Advocate) For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 15.11.2023 : Date of Judgment : 04.12.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 24TH September, 2010 passed by the learned Sessions Judge, Dhenkanal, in C.T./Ss Case No.147 of 2007 arising out of G.R. Case No.131 of 2007 corresponding to Rasol P.S. Case JCRLA No.62 of 2013 Page 1 of 11 - 2 - No.39 of 2007 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Hindol. The Appellant (accused) thereunder has been convicted for committing the offence under sections 302/324 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for whole life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year; undergo rigorous imprisonment for one (1) year for commission of the offence under section 324 of the IPC with the stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- On 21.05.2007 around 7.00 a.m, Narad Padhan (Informant- P.W.2) orally reported before the Officer-in-Charge (O.I.C.) of Rasol Police Station that on 19.05.2007, he with Jitu Padhan
Legal Reasoning
324 of the IPC in our view is sustainable. 11. Having held as above, when we turn our attention to the sentence imposed by the Trial Court for the offence under section 302 of the IPC directing the accused to undergo imprisonment for whole life, it is seen that said stipulation ‘whole’ is without assignment of any reason whatever. The Trial Court has taken a clear view that the case at hand does not fall within the category of rarest of rare cases. But then while sentencing the accused to undergo rigorous imprisonment for life, the stipulation indicated is that it should be for the whole life. The Trial Court has not found that the circumstances of the crime and the circumstances of the criminal being cumulatively viewed, the sentence of imprisonment for life is not foreclosed and grossly disproportionate. But then it has also not been stated by the Trial Court that the sentence of life imprisonment simpliciter would not be proportionate to the gravity of the offence committed and would not meet the end to respond to the crime. Having noticed the circumstances of the crime and the circumstances of the criminal, we are unable to concur with the stipulation imposed by the Trial Court that the imprisonment JCRLA No.62 of 2013 Page 10 of 11 - 11 - would be for the whole life as that without being supported by the required reason which we are unable to cull out, may stand to restrict the right of the accused in claiming remission in the sentence of life imprisonment simpliciter as provided in law and policy holding the field.
Arguments
(deceased), Srikant Padhan (since absconding), this accused (Sushant Padhan) and Dibakar Padhan had collected five Mana of honey. Lahunirani Padhan, the wife of accused Srikant Padhan (since absconding) had sold the said honey to one Raja Pingua of their village for a sum of Rs.150/-. Out of the sale proceeds, Narad Padhan (Informant-P.W.2) received Rs.20/- towards his share. Since Jitu was not paid with his share, on 20.05.2007 around 7.00 p.m. evening, he had been to the accused persons for his share of money and when he demanded his share altercation took place JCRLA No.62 of 2013 Page 2 of 11 - 3 - between them. At that time, accused Srikant (since absconding) caught hold of Jitu in his courtyard when this accused Sushant is said to have dealt tangia blows on him causing bleeding injuries. Seeing this, when Gandu Padhan, the brother of Jitu Padhan, came rushing to the place and protested, accused persons threatened him to kill and also dealt a blow by means of that Tangia on his back near the right shoulder, which resulted his fall on the ground with bleeding injury. It was further stated that Jitu, having received the Tangia blows, succumbed to the injuries. During the night he could not come to the P.S. and, therefore, arrived there in the morning. The O.I.C. (P.W.7) reduced the said version of Narad Padhan (P.W.2) into writing and treated the same as FIR (Ext.5). He then registering the case, took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.7) examined the Informant (P.W.2) and recorded his statement under section 161 of Cr.P.C. Having visited the spot, the I.O. (P.W.7) prepared the spot map (Ext.6). The I.O. (P.W.7) held inquest over the dead body of the deceased and prepared the report (Ext.2) and sent the same for post mortem examination by issuing necessary requisition. He (P.W.7) seized the sample earth and blood stained earth from the spot and the same were seized under seizure list (Ext.8). The wearing apparels of the deceased were seized under seizure list (Ext.10). The seized JCRLA No.62 of 2013 Page 3 of 11 - 4 - incriminating articles were sent for chemical examination through Court. On completion of the investigation, Final Form was submitted placing the accused to face the Trial for commission of the offence under section 302/307/34 of the IPC. 4. Learned S.D.J.M., Hindol, on receipt of the Final Form, took cognizance of 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 for the aforesaid offence against the accused. 5. The prosecution, in support of its case, has examined in total eight (8) witnesses during Trial. As already stated, the informant, who happens to be the uncle of the deceased persons, is P.W.2 whereas P.W.1 is the mother of the deceased. P.W.3 is a witness to the extra judicial confession as to the assault on the deceased. P.W.4 is the Doctor, who had medically examined the injured Gandu Padhan and the Doctor, who had conducted the autopsy over the dead body of the deceased, having appeared in the witness box, has been examined as P.W.6. P.W.5 is a witness to the inquest held by the I.O. whereas P.W.8 is the brother of the deceased. The I.O. has been examined as P.W.7. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 14. JCRLA No.62 of 2013 Page 4 of 11 - 5 - Out of those; important are the FIR (Ext.5); inquest report (Ext.2); spot map (Ext.6); and the post mortem report (Ext.3). The reports of the Chemical Examiner’s has been admitted in evidence and marked Ext.13. 6. The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence. 7. Mr.C.Samantray, learned counsel for the Appellant (accused) submitted that the case of the prosecution is resting upon the evidence of P.Ws.1 & 8 when P.W.1 is the mother of the deceased Jitu Padhan whereas P.W.8 is the nephew (sister’s son) of Narad (Informant-P.W.2) and in that way, is the younger brother of Jitu. He submitted that the Trial Court, without properly scanning the evidence of these two witnesses, who have been projected as the eye witnesses from the side of the prosecution and without taking note of the infirmities surfacing therein as also not viewing the surrounding circumstances emanating from the evidence of other witnesses, has committed the error in holding the accused guilty of commission of murder of Jitu in further relying on the testimony of P.Ws.1 & 10 when all other witnesses, who have examined are either post occurrence witnesses or to have assisted the I.O. (P.W.13) in course of investigation. It was submitted that the Trial Court, without proper appreciation of the evidence of both these witnesses and JCRLA No.62 of 2013 Page 5 of 11 - 6 - having not analyzed the same with the surrounding circumstances, which have emerged from the prosecution version falling from the lips of other witnesses, has erroneously concluded that the prosecution has established the guilt of the accused beyond reasonable doubt. In view of all these above, he urged that the judgment of conviction and order of sentence, which are impugned in this Appeal, are liable to be set aside. 8. Mrs.S. Patnaik, learned Additional Government Advocate for the Respondent-State, submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court. According to her, the evidence of P.Ws.1 & 8 are wholly reliable and no such infirmity surfaces therein to raise any doubt with regard to their version in implicating this accused in the crime scenario as presented by them. She also submitted that the prosecution case has been fully established through the evidence of these two witnesses, whose presence in the place has been established and there remains no reason to even raise any suspicion with regard to that when they too have narrated the incident in a natural manner leaving no such improbability to be viewed upon. 9. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined JCRLA No.62 of 2013 Page 6 of 11 - 7 - from the side of the prosecution (P.Ws.1 to 8) and have perused the documents admitted in evidence marked as Exts.1 to 14. 10. Prosecution case, as laid in the FIR (Ext.5) lodged by Narad (P.W.2) is that when the incident took place, he was absent in his house and he heard it from the other members of the family when he returned home on the next morning and found his nephew Jitu lying dead and Gandhu to have received bleeding injuries on his right shoulder. It has been his version before the I.O. (P.W.7) while he lodged the FIR (Ext.5) that his sister-Chanchala, wife of Jitu, namely, Jhuni and younger brother Jitu, namely, Goura had seen the incident, which happened in their presence. The matter being orally reported by Narad (P.W.2), it has been reduced into writing and that has been admitted in evidence and marked Ext.5 as per the statement of the I.O. (P.W.7). The mother of the deceased, namely, Chanchala has been examined as P.W.1. She has stated that when her son Jitu asked for his share money, instead of paying money to him, accused Srikant (since absconding) caught hold of him and this accused inflicted blow on his back causing bleeding injury and leading to his instantaneous death. It is also her statement that her other son, namely, Gandhu when tried to rescue Jitu, this accused inflicted Tangia (axe) blow on his right hand causing bleeding injury. The incident, having taken place around 7.00 p.m, she has also stated that the light was sufficient to identify the Appellant, JCRLA No.62 of 2013 Page 7 of 11 - 8 - i.e., this accused and the other one, who is absconding. As regards her presence, when she had stated nothing during her examination in chief, filling that blank, it has been elicited during cross-examination that then she was sitting in her pindha and the place where the incident took place was very near to that pindha. It has also been stated that her son Gandhu and Goura were also present there. Suggestions being given to her that her son was not injured on account of Tangia (axe) blow, she has flatly denied the same. The evidence of P.W.1. receives full corroboration from the evidence of the Doctor (P.W.6), who had conducted autopsy over the dead body of the deceased. His evidence is that he had seen penetrating injury in between L-1 and L-2 vertebra of the dead body of Jitu. It is also stated that the injuries pierced to the posterior surface of the spleen and the underlying tissues along with splenic vessels were torn causing massive haemorrhage and about one liter of blood clots were present over the injured on the entire splenic surface. He has stated the death to have taken place on account of shock due to massive haemorrhage caused by splenic rupture. The finding of this Doctor (P.W.6) finds mention in his report (Ext.3) and he having the occasion to examine the weapon, had opined in the affirmative that by the same, the injures noticed by him on the body of the deceased were possible. JCRLA No.62 of 2013 Page 8 of 11 - 9 - The evidence of P.W.1 with regard to the weapon used and the seat of injuries are quite consistent with the evidence of the Doctor (P.W.6). With the above evidence, we also find the evidence of P.W.8, who has stated about the dispute as regards the share of money between Jitu and accused persons as well as Dibakar. It is his further evidence that when Jitu demanded his share out of the sale proceeds of honey, a quarrel ensued and thereafter this accused assaulted his brother by means of Tangia (axe). He of course is not stating about the role of that absconding accused (Srikant) but he has gone to say that this accused had also assaulted on the right shoulder of Gandhu by means of that Tangia (axe). He has denied the suggestion that this accused had not assaulted Jitu and also the suggestion that there was a scuffle between the accused and Jitu. The weapon of offence (M.O.I), having been shown to him during his examination, he has identified the same to have been used by this accused. Although this witness states that some others had also seen the incident but he, at the same time, does not say that P.W.1 had not seen the incident. A careful reading of the depositions of P.Ws.1 & 8 does not reveal any such material to have been elicited so as to discredit their version as to have not seen the actual incident as to the role of this accused in assaulting Jitu by means of Tangia (axe). However, the deficiency in the prosecution case remains in so far JCRLA No.62 of 2013 Page 9 of 11 - 10 - as the charge under section 324 of the IPC in causing injury upon Gandhu when that Gandhu has not been examined from the side of the prosecution and no explanation appears to have been tendered. Therefore, the conviction of this accused under section
Decision
12. Accordingly, the Appeal stands disposed of. The judgment of conviction and the order of sentence dated 24TH September, 2010 passed by the learned Sessions Judge, Dhenkanal, in C.T./Ss Case No.147 of 2007 passed under section 324 of the IPC being set aside, the same passed under section 302 of the IPC is confirmed. Consequently, the order of sentence passed thereunder stands modified to the extent as indicated above that Appellant (accused) shall undergo imprisonment for life for the offence under section 302 of the IPC. Since the Appellant (accused), namely, Sushant Padhan is on bail, he is directed to surrender before the Trial Court forthwith to serve out the sentence. G.Satapathy, J. I Agree. (D. Dash) Judge (G.Satapathy) Judge Signature Not Verified Basu Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 07-Dec-2023 12:31:12 JCRLA No.62 of 2013 Page 11 of 11