MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.70 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 24th June, 2010 passed by the learned Additional Sessions Judge, Nabarangpur, Camp at Umerkote in C.T. No.14 of 2009. Nawal Kallar ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ashok Kumar Behera, Advocate. For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 22.08.2024 Date of Judgment: 04.09.2024 The Appellant, by filing this Appeal from inside the jail, has assailed the judgment of conviction and order of sentence dated 24th June, 2010 passed by the learned Additional Sessions Judge, Nabarangpur, Camp at Umerkote in C.T. No.14 of 2009 arising out of G.R Case No.255 of 2007, corresponding to Raighar P.S. JCRLA No.70 of 2010 Page 1 of 9 Case No.59 of 2007 of the Court of the learned Judicial Magistrate
Legal Reasoning
First Class (J.M.F.C.), Umerkote. The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for a period of two (2) years for commission of the said offence. 2. PROSECUTION CASE:- On 08.06.2009, it was around 8.30 a.m. when Ankalu Kasaria was sitting in front of his house, this accused came and suddenly started abusing him and then after a short while, threw bricks, which hit his chest, abdomen resulting injuries thereof. Receiving the said injuries, when Ankalu Kasaria was being shifted to hospital, he died on the way. The written report to the above effect, being presented with
Legal Reasoning
Sri A.M. Dakua, the Assistant Sub-Inspector (A.S.I.) of Police, Kundei Police Out-Post, he made an entry in the Station Diary Book maintained at the Police Outpost and took up the investigation. He sent the written report to the Officer-in-charge of Raighar Police Station (P.S.) for registration of the case and took up investigation. JCRLA No.70 of 2010 Page 2 of 9 The O.I.C. (P.W.10), receiving the above report, registered the criminal case and took the charge of investigation of the case from the ASI. 3. In course of the investigation made by the A.S.I. of Police, he (A.S.I), having visited the spot, held inquest over the dead body of the deceased and prepared the report to that effect (Ext.6) and sent the dead body of the deceased for post mortem examination by issuing necessary requisition. The A.S.I. also had seized four bricks under the seizure list (Ext.4). The O.I.C. (I.O.-P.W.10), taking up the investigation, examined the informant and witnesses and seized the wearing apparels of the deceased and he (P.W.10), being transferred, handed over the charge of the investigation to the Inspector-in- Charge (I.I.C.-P.W.9), who, after arresting the accused, forwarded him in custody to Court and on completion of the investigation, the I.O (P.W.9) submitted the Final Form placing this accused to face the trial under section 302 of the IPC. 4. Learned J.M.F.C., Umerkote on receipt of the Final Form, took cognizance of the offence 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 said offence against the accused. JCRLA No.70 of 2010 Page 3 of 9 5. In the trial, the prosecution examined in total ten witnesses. Out of them, as already stated, the informant, who happens to the brother of the deceased, is P.W.3. The Doctor, who had conducted the autopsy over the dead body of the deceased is P.W.1. P.W.2 is a child witness and the son of the deceased. P.Ws.4, 5, 6 & 7 are the co-villagers of the accused. The O.I.C. of the P.S. has come to the witness box as P.W.10 whereas the I.I.C. of the said P.S., who has submitted the Final Form, has been examined as P.W.9. 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in the evidence and marked Ext. 1 to 6. Important of those are the F.I.R. (Ext.2), Inquest Report (Ext.3) and Postmortem Examination Report (Ext.1). The spot map had been admitted in evidence and marked Ext.6. 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea. 8. Mr.Ashok Kumar Behera, learned counsel for the Appellant (accused), from the very beginning, instead of impeaching the prosecution evidence falling from the lips of P.Ws.2, 5 & 6 that it is the accused, who caused the injuries upon the deceased and the evidence of the Doctor (P.W.1) that the death of the deceased has been caused on account of said injuries, confined his submission JCRLA No.70 of 2010 Page 4 of 9 on the point of alteration of conviction and appropriate modification of the sentence. It was submitted that the circumstances surrounding the incident both post and pre, when are taken into account in the backdrop of the prevailing circumstances, for the said role played by the accused, he ought not to have been held liable for commission of the offence under section 302 of the IPC. According to him, the Trial Court, having kept all those circumstances in view, ought to have held the accused liable for commission of the offence under section 304-II of the IPC. He, therefore, urged in favour alteration of conviction of the accused to one under section 304-II of the IPC and contended that the accused be accordingly visited with the sentence as deemed appropriate for the said offence. 9. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial Court for commission of the offence under section 302 of the IPC, submited that the manner in which the incident has taken place, as has been deposed to by the prosecution witnesses and the role of this accused in assaulting the deceased by throwing bricks, being cumulative viewed with other surrounding circumstances, as have emerged in evidence, the conclusion of the Trial court that the accused is guilty of commission of the offence under section 302 of the IPC is not liable to be interfered with. He, therefore JCRLA No.70 of 2010 Page 5 of 9 contended that in the facts and circumstances of the case, alteration of the conviction of the accused to one under section 304-I or 304-II of the IPC is not warranted. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the prosecution witnesses (P.Ws.1 to P.W.10) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.6. 11. In order to address the rival submission confined to the alteration of the conviction, as aforesaid, let us have a glance at the evidence of the Doctor (P.W.1), who had held the post mortem examination over the dead body of the deceased. He has stated to have noticed one abrasion on the left side of the buttock of size 2” X 1” and one bruise on the right side chest of size 2” X 2” and more importantly bruise on the right side chest with hematoma with fracture of 3rd and 4th rib with the swelling of the abdominal wall. With all these external injuries during internal examination, the Doctor (P.W.1) has detected one perforation in the small intestine and three perforations on the large intestine. His positive evidence is that the death was on account of bleeding and shock due to such intestinal perforations. These injuries upon the deceased have resulted in the incident, which has been narrated by P.W.2, who is the daughter of the deceased. P.W.2 is JCRLA No.70 of 2010 Page 6 of 9 a girl of eight years old when deposed in the year 2010 against the incident, which had taken place in the mid of the year 2007 when her age was around five years or so. Her evidence is that when her father (deceased) was sitting, the accused came and declaring to kill, dealt a blow by means of a brick on the lower part of the abdomen. This is the only role that she attributes to the accused when she too has stated that at the relevant time, her father (deceased) had taken liquor as usual as he takes daily. It is also stated by her that after the incident, her father went to sleep and the matter was not further disclosed to anybody. 12. The other witness, P.W.5 states that when he came out of the house hearing the hullah, he saw the accused dealing a blow by means of a brick on the lower part of the abdomen. Next witness P.W.6 states that the brick was thrown by the accused towards the deceased. It is also the evidence of P.W.5 that it was a dark night when the incident took place and the accused was then standing in front of his house whereas the deceased was also standing in front of his house. It is specifically stated during cross-examination that the accused threw the bricks by standing in front of his house towards the deceased, who was then sitting on his verandah. The evidence of P.W.6 also runs at par with the evidence of P.W.5 that it was a dark night when the incident took place. The death of the deceased has taken place on the next morning. It further appears that the FIR version with regard to JCRLA No.70 of 2010 Page 7 of 9 some exchange of hot words between the accused and the deceased has been given a go-bye by P.W.3, who, while narrating the incident during trial, appears to have suppressed that part as stated in the FIR that the deceased, who is his brother was asked by the accused regarding sale of palms and that thereafter the accused had thrown a piece of unburnt brick at the deceased. Thus, it is seen that some part of the happenings prior to the incident are not being presented during the Trial leading to an inference that it was not a case that the accused straight away came and threw the brick at the deceased. As the evidence goes, we find no prior planning behind the incident and everything seem to have happened all of a sudden. The death has been caused on account of the injuries received due to hitting of the brick, which was even unburnt on the lower part of the abdomen of the deceased resulting internal perforations. The parties hail from rural background and are residents of a scheduled area of the State; they too belong to Scheduled Tribe Community and ordinarily their temper run high and for silly reasons, they many a time behave differently, at times in a quite unexpected manner of which judicial notice can be taken. Cumulatively view all these aforesaid, we are of the view that the offence could be properly categorized as one punishable under section 304-I of the IPC. We are thus of the considered opinion that for the role played by this JCRLA No.70 of 2010 Page 8 of 9 accused and the act done, he would be liable for conviction under Section 304-I of the IPC. 13. In that view of the matter, the conviction of the accused is altered to one under section 304 Part-I of the IPC. We are told at the Bar that the accused has remained in custody in serving out the sentence for a period of more than ten (10) years. We, therefore, are of the considered opinion that at this distance of time for the conviction of the accused for the said offence under section 304-I of the IPC; if he is sentenced to the period undergone, that would serve the interest of justice and meet its end. 14. With the above alteration of conviction and order of sentence dated 24th June, 2010 passed by the learned Additional Sessions Judge, Nabarangpur, Camp at Umerkote in C.T. No.14
Decision
of 2009, the Appeal stands disposed of. (V. Narasingh) Judge (D. Dash) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 05-Sep-2024 12:32:47 JCRLA No.70 of 2010 Page 9 of 9