MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.96 of 2010 In the matter of an Appeal under section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 25.09.2010 passed by the learned Additional Sessions Judge, Nabarangpur in C.T No.102 of 2009. Bhima Soura …. Appellant ---- State of Odisha -versus- …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. S.C. Mekap Advocate For Respondent- Mr. P. K. Maharaj, Additional Standing Counsel CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of Hearing :23.07.2024 :: Date of Judgment: 20.08.2024 D.Dash,J. The Appellant, by filing this Appeal from inside the Jail, has assailed the judgment of conviction and order of sentence dated 25.09.2010 passed by the learned Additional Sessions Judge,
Facts
Nabarangpur in C.T No.102 of 2009, arising out of G.R. Case No.237 of 2009, corresponding to Nabarangpur P.S. Case No.72 of 2009 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Nabarangpur. JCRLA No.96 of 2010 Page 1 of 8 The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860 (in short, ‘the IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- (Rupees Twenty Thousand), in default to undergo Rigorous Imprisonment for a period of 2 (two) years. 2. Prosecution case is that the accused having married the daughter of one Somanath was residing in his house in village Khuntia. Frequently there was quarrel between the accused and his father-in-law (Somanath) as Somanath was questioning as to why the accused without doing any work was sitting idle at home and whiling away the time like that. On 14.04.2009 after the quarrel, Somanath left for his agricultural field. However, he did not return thereafter. In this way, night passed and on the next morning, dead body of Somanath was detected in the cashew field where he was found lying with injury on his head. The accused having not returned home, suspicion arose in the minds of the members of the family as regards the complicity of the accused. An information in writing being lodged by another son-in-law of Somanath, namely Sukadev (P.W.1) being scribed by Subash Chandra Jakhya (P.W.14), the same was treated as FIR (Ext.10) by the then Inspector-in- Charge of Nabarangpur Police Station (P.W.16) and upon registration of the case, investigation commenced. 3. In course of investigation, the Investigating Officer (I.O-P.W.16) examined the informant (P.W.1) and other independent witnesses. He visited the spot, prepared the spot map (Ext.12). The I.O (P.W.16) held inquest over the dead body of the deceased in presence of witnesses and prepared the report to that effect (Ext.1) and then sent the dead body for JCRLA No.96 of 2010 Page 2 of 8 post mortem examination by issuing necessary requisition. He also examined the inquest witnesses. He (P.W.16) seized blood stained earth and sample earth from the spot in presence of witnesses under seizure list (Ext.14). On 15.04.2009, the I.O (P.W.16) received intimation from one police constable that the accused had surrendered in the Dangarbhaeja Police Out Post and then he (P.W.16) examined the accused and arrested him. The I.O (P.W.16) brought the accused to Nabarangpur Police Station where the accused is said to have confessed his guilt. The I.O (P.W.16) recorded the statement of the accused under section 27 of the Evidence Act in presence of the witnesses, namely, Raju Saura and Damburudhar Bhatra. It is stated that the accused told to have kept the stone piece in a place and if he would be taken there, he would give recovery of the same. The accused while in police custody then led the police to the place locally known as “Dainichamia Khandan” in giving recovery of the incriminating articles such as the stone piece and his statement to the above effect was recorded by the I.O (P.W.16). The I.O then seized the stone piece stained with blood in presence of the witnesses. He also seized the wearing apparels of the accused and prepared the seizure list. On 16.04.2009, the I.O (P.W.16) forwarded him in custody to Court. The I.O (P.W.16) sent all the seized incriminating articles to R.F.S.L., Berhampur for Chemical Examination through Court. 3. On completion of investigation, the I.O (P.W.16), submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302 of the IPC. JCRLA No.96 of 2010 Page 3 of 8 4. Learned SDJM, Nabarangpur having received the Final Form as above, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against the accused by framing the charge for the said offence against the accused. 5. In the Trial, prosecution in total has examined sixteen (16) witnesses; out of whom P.W.1 is the Informant, who is the son-in-law of the deceased and had lodged the FIR (Ext.10) scribed by P.W.14, whereas P.W.2 is the wife of the deceased. P.W.3 is the brother-in-law of the deceased. P.W.7 is the wife of the accused. P.W.5 is the post occurrence witness. P.Ws.9, 10 and 11 are the witnesses to the statement given by the accused while in police custody. P.W.12 is the person before whom the accused had made the confession. P.W.15 and P.W.16 are the police personnels who had assisted in the investigation. The Doctor, who had conducted autopsy over the dead body of the deceased, has been examined as P.W.6 whereas the Investigation Officer is P.W.16. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.16. Out of those, the important are the FIR (Ext.10), Inquest Report (Ext.1), Post Mortem Report (Ext.2), seizure lists (Ext.4 & Ext.7), Spot Map (Ext.12) and Chemical Examiner’s Report which has been admitted in evidence and marked as Ext.16. Some of the incriminating articles having been produced during Trial, those have been marked as Material Objects (M.O.-I to M.O.-V) and out of those, the important one is that stone JCRLA No.96 of 2010 Page 4 of 8 piece (M.O.I) which is said to have been used in causing the injuries upon the deceased leading to his death. 6. The accused being called upon has not tendered any evidence in support of his plea of denial and false implication. 7.
Legal Reasoning
entire evidence as above discussed, we are of the view that the offence could be properly categorized as one punishable under section-304 Part- II of the IPC. In that view of the matter, the accused is liable for commission of offence punishable under section-304 Part-II of the IPC. Accordingly, he is to be visited with the sentence commensurate the act done by him. 12. In the result, the Appeal stands allowed in part. The conviction recorded against the accused Bhima Soura under section 302 of the IPC is altered to one under section-304 Part-II of the IPC. We were told at the Bar that the accused has undergone in custody for more than 5 years and 9 months and no report is forthcoming as regards his adverse conduct since his release on bail and it was submitted that he lives on cultivation and maintains his family, we are, therefore, of the considered opinion that imposition of sentence of period of incarceration as undergone, at this distance of time would serve and meet the end of justice. And it is so directed. JCRLA No.96 of 2010 Page 7 of 8 13. With the above alteration as to the judgment of conviction and
Arguments
Learned Counsel for the Appellant (accused) from the beginning instead of impeaching the evidence let in by the prosecution as regards the complicity of the accused in causing the injuries upon the deceased submitted that upon acceptance of the evidence that it was the accused, who had assaulted the deceased on his head, which had led to his death contended that the same being cumulatively viewed with all other surrounding circumstances and taking note of judicial note of the fact that the parties hail from the Scheduled Area of the State being members of the Scheduled Tribe where usually their temper run high and for silly reason, they behave unexpectedly and react aggressively, the conviction of the accused can well be categorized as one under section 304-II of the IPC. He submitted that accordingly the conviction be altered and the accused be visited with the sentence as deemed just and proper for commission of said offence. 8. Learned counsel for the State opposed the move. According to him, with the available evidence on record, the Trial Court has rightly held the accused guilty for commission of offence under section 302 of the IPC. 9. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.16 JCRLA No.96 of 2010 Page 5 of 8 and have perused the documents admitted in evidence and marked Ext.1 to Ext.16. 10. The Doctor (P.W.6), who had conducted autopsy over the dead body of the deceased has found one lacerated wound of the size of 2 cm x 2 cm x 3 cm over the left ear of the deceased with an abrasion of the size of 3 cm x 1 cm, which is above the right eyebrow. His evidence is that there was fracture of right temporal bone, right parietal bone, left parietal bone and frontal bone and the death is on account of head injury. It is the case of the prosecution that the assault was by means of stone, which has been produced during the trial and marked M.O-I. It is again been stated by P.W.6 that if anybody falls over that stone, that consequence may happen. His positive evidence is that he had ascertained one injury over the scalp. P.W.12 is the witness before whom, the accused has confessed as regards the authorship of the said injury upon the deceased. As stated by P.W.12, this accused straightway came to him around 5 p.m. and asked him to show the police station and on being questioned, he straight forwardly disclosed before him to have caused the injury upon the deceased by that stone. It appears that the accused has not taken any step to hide his presence and abscond and thereafter as stated by P.W.12, he went with him to the Police Out Post and surrendered there before the police officer in charge of the Police Out Post. That Police Constable (P.W.11) has also stated that the accused had gone to the Police Out Post with P.W.12 and confessed to have caused the injury on the head of his father-in-law by picking up a stone. When the above evidence is accepted, it becomes clear that JCRLA No.96 of 2010 Page 6 of 8 accused had not carried any weapon with him with prior planning to the spot. Evidence on record is available to show that the deceased was annoyed with the accused since he was whiling away the time without going to work and sitting idle. The parties belong to Schedule Tribe community and hail from the Scheduled Area of the State. They live on cultivation in the locality. Judicial notice of the fact can be taken that their temper usually run high and behaviour often, even for silly reasons seen as abnormal and totally unexpected when they too react aggressively in ordinary matters. 11. Cumulatively viewing all these circumstances appearing in the
Decision
modification of the order of sentence, the Appeal stands disposed of. (D. Dash), Judge. V. Narasingh, J. I agree. Judge. (V. Narasingh), Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 21-Aug-2024 11:18:23 JCRLA No.96 of 2010 Page 8 of 8