MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.149 of 2005 In the matter of an Appeal under section 383 of the Code of Criminal Procedure,1973 from the judgment of conviction and order of sentence dated 25.08.2005 passed by the learned Adhoc Additional Sessions Judge, Bonai in Sessions Trial No.148/84 of 2001-2004. ---- Ghasiram Kisan …. Appellant -versus- State of Orissa …. Respondent For Appellant - Mr. B.L. Tripathy, Advocate For Respondent - Mr.P.K. Mohanty, ASC CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of hearing : 03.04.2024 Date of Judgment: 15.04.2024 V. Narasingh, J. 1.
Legal Reasoning
Heard Mr. B.L. Tripathy, learned counsel for the accused-Appellant and Mr. P.K. Mohanty, learned Public Prosecutor for the State. Page 1 of 9 JCRLA No.149 of 2005 2. Assailing the judgment of conviction and order of sentence dated 25th August, 2005 passed by the learned Adhoc Addl. Sessions Judge, Bonai in Sessions Trial Case No.148/84 of 2001-2004 arising out of Lahunipara P.S. Case No.21/114.02.2001 thereby adjudging him guilty under Section 302 of IPC and directing him to undergo R.I. for life and fine of Rs. 1,000/-(Rupees One Thousand) and to undergo further period of Rigorous Imprisonment for six months in default, the present appeal has been preferred by the Appellant from inside the jail. 3. It is the case of the prosecution that the Appellant along with two brothers stayed in the same house with his father Chamru Kisan. The Appellant is the second son of the said Chamru. 4. It is stated that the prior to the date of occurrence the accused-Appellant had taken the bullock of his father without his knowledge and tried selling it. But, since the father did not allow to do so, the sale could not be effected. 5. It is the further allegation on behalf of the prosecution that the accused was frequently demanding his share of the landed property from his father, alleging that his father alone was enjoying all its usufructs. And, on such demand, the father had agreed for partition and requested the villagers to effect the same. 6. On the fateful day that on 13.02.2021 around 4.30 P.M. when the informant(P.W.3) and his brother Bhajamana were absent from house, it is alleged that the accused- Page 2 of 9 JCRLA No.149 of 2005 Appellant armed with Dauli (agricultural implement) entered into the room of his father and assaulted him. 7. The blow was warded off by his father. It is alleged that the deceased was thrown on the ground by the accused- Appellant and he pressed the neck of his father by feet causing his death. Thereafter, accused-Appellant left along with the weapon of offence. 8. It is alleged that the incident was witnessed by the wife of the informant, Radha kisan-P.W.9 and sister-in-law, Jayetri Kisan-P.W.8. 9. It is the further case of prosecution that younger brother of informant (Bhaja mana) returned home and having come to know about the incident immediately proceeded to Kuruda market where the informant was present and told him about it. Thereafter they returned to the house where his sister- in-law(P.W.8) narrated about the incident. Then, the Grama Rakhi(P.W.10) was also informed and P.W.4 the son-in-law of the deceased also came to the spot. 10. On the next day 14.02.2001 the informant accompanied by the Grama Rakhi(P.W.10) and the son-in-law of the deceased went to Lahunipada P.S. and reported the incident which it was reduced to writing and Lahunipara P.S- 21/14.02.2001, under Section-302 of IPC was instituted citing the Appellant as the sole accused. 11. It is stated that during course of investigation, witnesses were examined and the accused was arrested from inside kurda jungle on 19.02.2001 after a week of the alleged occurrence and after his arrest he gave recovery of weapon of Page 3 of 9 JCRLA No.149 of 2005 offence in the presence of witnesses. The wearing apparels of the accused-Appellant was seized and after due investigation charge sheet was filed under Section-302 of IPC and after commitment learned Sessions Judge, Sundargarh Camp at Banoi framed the charge and accused faced trial for commission of offence under Section-302 of IPC. 11A. And to drive home the charge the prosecution relied on 13 witnesses of which P.W.8 & 9 are the most material ones and stated to be the eye witnesses. P.W.9 is the wife of the informant(P.W.3) and P.W.8 is his sister-in-law. 12. P.W.1 is the Medical Officer, who conducted autopsy of the deceased, P.W.2 is the lease holder of the Gamalei market, P.W.4 is the son-in-law of the deceased and P.W.5&12 are the Police constables respectively and witness to seizure, P.W.6 is the co-villager and witnesses to inquest P.W.7 & 11 are the co-villagers and witnesses to the seizure, P.W.10 is the villager chowkidar(Grama Rakhi) & P.W.13 is the I.O. 13. The daughter of the present Appellant was examined as defence witness, D.W.1. Several Exhibits were admitted into evidence of which Exhibit-1 is the P.M. report, Exhibit.2 the F.I.R., Exhibit-6/1 is the seizure list relating to the weapon of offence, CE and serological reports Exhibits-11 & 12 respectively are of significance. 14. The alleged weapon of offence DAULI was marked as M.O-I and Dhoti of the deceased as M.O.II and Lungi of the accused as M.O.III. 15. Learned counsel for the Appellant vehemently argued that there are discrepancy in the evidence of the eye witnesses. Page 4 of 9 JCRLA No.149 of 2005 The stand of the accused in his statement under Section-313 of IPC and that of D.W.1 was not considered in its proper prospective and hence the order of conviction being based on perverse appreciation and since the prosecution has signally failed to establish the charge against the accused-Appellant beyond the reasonable doubt, he is entitled to be acquitted. 16. Learned Public Prosecutor has supported the judgment of conviction with equal vehemence. 17. P.W.1 is the doctor, who conducted the post mortem. He found the following external injuries. “xxx xxx xxx One linear incised wound of Length 5 inches, present transversely over the neck blow thyroid cartilage, (ii) One laceration of size 2" X 1/2 X 1/2" over the left elbow (iii) One laceration of size 1" X 1/4" X 1/4" over the right elbow The injuries were ante mortem in nature. There was also post mortem avulsion of left ear lobule. One bruise of size 1" X 2 over mid neck with fracture thyroid and tracheal cartilages. xxx xxx xxx” 18. He opined that all the above injuries are ante mortem in nature and cause of death is due to respiratory failure because of mechanical asphyxia sustained due to pressure impact by a blunt object and time since death was approximately 24 hours before the post mortem examination. He ruled out the possibility of self infliction and further opined Page 5 of 9 JCRLA No.149 of 2005 that injury over neck which corresponds to internal injuries, may have caused the instantaneous death. 19. Hence it is established beyond any pale of doubt that the death of Chamaru, the father of the Appellant and P.W.3(informant) was homicidal in nature. 20. In order to prove its case the Prosecution has mainly relied on 2 witnesses, who were stated to be present at the spot. 21. P.W.9, the wife of the informant(P.W.3) and P.W.8 who is the wife of the other brother, who was staying in the same house. 22. It has been clearly stated in their evidence that on the evening of fateful day i.e. on 13.02.2021 the accused entered into the room of the deceased being armed with a Dauli and their father-in-law resisted and they also protested. But, the accused did not relent. And when the deceased raised his hand to ward off the blow, he was thrown to the ground and the accused-Appellant pressed the neck of the deceased, with his left leg resulting his instantaneous death and thereafter the accused left the place of occurrence along with the Dauli. 23. Nothing of significance was brought out in the cross- examination of both the witnesses. 24. The other factor which also lends credence to the case of the prosecution is the discovery of the weapon of offence. P.W.11 was one of the independent witnesses to such seizure and in his evidence he has clearly stated that while in custody the accused-Appellant lead them to the spot which is under a mango tree, where he had concealed the weapon of offence and gave recovery thereof and he has identified the same as M.O.I Page 6 of 9 JCRLA No.149 of 2005 and the seizure list was marked as Ext.6/1 and the signature thereon of the said P.W as Ext. 6/2. 25. In this context it is apposite to refer to the statement of P.W.10(Gramarakhi), who stated that he was immediately informed about the incident and it was also stated to him that the accused Appellant is the aggressor, as borne out from his evidence being examined as P.W.10, 26. The daughter of the accused-Appellant was examined as D.W.1, she has stated in her evidence that the assailant was an unknown person. After the unfortunate incident, a meeting of the family member was held, where they decided to falsely rope in the accused-Appellant (her father). 26A. It has been brought out in cross-examination that she has not stated the same before any of the villagers. And no evidence was let in to fortify her stand that the next day she presented a written report before the police station as claimed alleging false implication of her father. 26B. The Learned Trial Court has duly considered the evidence of D.W.1 and noted that such suggestion of the unknown person causing the death of the deceased was not given to any of the prosecution witnesses and the statement of the accused under Section-313 of the Cr.P.C also does not lend weight to such a defence stand. 26C. In his statement under Section-313 of the Cr.P.C the accused while denying the accusation shifted the blame unto his brothers. 27. Hence on a conspectus of evidence on record taking into account the evidence of P.Ws-8 & 9 coupled with other Page 7 of 9 JCRLA No.149 of 2005 evidence on record including discovery of weapon of offence, this Court does not find any infirmity in the judgment of conviction of the accused since the Prosecution has been able to prove the accusation beyond reasonable doubt that he caused the death of his father. 28. In the case at hand, there is evidence on record to indicate that the accused-Appellant nurtured a grievance regarding the property and he was so overcome by such annoyance that he lost his sanity and in a momentary fit of anger caused the offence. It is worth noting that after the deceased warded off the blow by Dauli(M.O.I), there was no attempt on the part of the accused-Appellant to inflict any injury with the said weapon of offence, on the deceased who was lying on the ground, defenseless. 29. Considering the same, this Court is of the considered view that, as rightly submitted, as an alternative submission by the learned counsel for the accused-Appellant that the case at hand cannot be construed as one under Section 302 of IPC and taking into account the manner in which the offence has been committed, this Court is persuaded to alter the conviction to one under Section-304 part-1. 30. The accused who was taken into custody on 19.02.2001 has spent almost 10 years in custody till he was released on bail in terms of order dated 13.01.2011 by this Court. At the time of trial he was aged about 43 years. Now, he is in early 60s. There is no adverse report regarding his conduct post his release. Page 8 of 9 JCRLA No.149 of 2005 31. The order of conviction is accordingly alleged to one under Section-304 of the IPC. And, this Court is of the considered view that imposition of period of incarceration of about 10 years already undergone as sentence of punishment would meet the ends of justice. 32.
Decision
Accordingly, the JCRLA stands disposed of. The bail bonds stand cancelled. (V. Narasingh) Judge (D. Dash) Judge Mr. D.Dash, J. I Agree. Orissa High Court, Cuttack Dated the 15th April, 2024/ Soumya Signature Not Verified Digitally Signed Signed by: SOUMYA RANJAN SAMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa,Cuttack Date: 09-May-2024 18:33:05 JCRLA No.149 of 2005 Page 9 of 9