The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.545 of 2012 In the matter of an Appeal under section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 6th September, 2012 passed by the learned Sessions Judge, Balangir in S.C. No.66/20 of 2007. Kesaba Sahu; Siba Sahu; and Balmukunda Sahu -versus- …. Appellants State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Ms.Deepali Mohapatra, Advocate For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing :08.12.2023 : Date of Judgment : 19.12.2023 D.Dash, J. The Appellants, by filing this Appeal, have challenged the judgment of conviction and order of sentence dated 6th September, 2012 passed by the learned Sessions Judge, Balangir in S.C. No.66/20 of 2007 arising out of G.R Case No.178 of 2006, corresponding to Loisingha P.S. Case No.177 of 2006 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Loisingha. CRLA No.545 of 2012 Page 1 of 12 {{ 2 }} The Appellants (accused persons) thereunder have been convicted for commission of offence under sections 323/325/302/34 of the Indian Penal Code, 1860 (in short, ‘the IPC’) and accordingly, each of them 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 five (5) months for commission of the offence under section 302/34 of the IPC with an observation that since all the accused persons have been sentenced to imprisonment for life for commission of the offence under section 302/34 of the IPC, no separate sentence is imposed on them for commission of the offence under section 323/325/34 of the IPC. 2. PROSECUTION CASE:- On 07.10.2006 around 1.00 p.m., Debaki Sahu (P.W.1) of Village-Badipali presented a written report with the Assistant Sub-Inspector (A.S.I.) of Police (P.W.10) attached to Agalpur Police Out Post under Loisingha Police Station. It was stated therein that during evening hour, the accused persons came to her house and quarreled with her husband, namely, Dinabandhu Sahu. The allegation was made that when Dinabandhu denied everything, the accused Siba Sahu and Balmukunda Sahu caught hold of Dinabandhu and then accused Kesaba assaulted him by means of a lathi on his head and leg and thereafter hullah being CRLA No.545 of 2012 Page 2 of 12 {{ 3 }} raised, as co-villager, namely, Biren Sahu came, the accused persons left the place by giving threat. When the Informant (P.W.1) had gone to the Police Out Post, her husband Dinabandhu had also accompanied. The A.S.I. of Police (P.W.10), having received the said report, entered the said fact in the Station Diary Book maintained at the Police Out Post and took up investigation while simultaneously sending the report to the Officer-in-Charge of Loisingha P.S. for registration of the case and further direction. The O.I.C., receiving the written
Legal Reasoning
report, treated the same as FIR (Ext.1) and registering the case, directed the A.S.I. of Police (P.W.10) to continue with the investigation. After being preliminarily treated at C.H.C., Agalpur, the injured (Dinabandhu) was referred to District Headquarters Hospital, Balangir for better treatment. On 9.10.2003, while undergoing treatment, the injured (Dinabandhu) died. Since the case turned to 302 of the I.P.C., the Sub-Inspector (S.I.) of Police (P.W.13) as per the direction of the O.I.C. took charge of the investigation from P.W.10. 3. The Investigating Officer (A.S.I.-P.W.10) examined the informant (P.W.1) and Bhanu Sahu at Police Out Post. He (P.W.10) sent the injured to C.H.C Agalpur for treatment. He also recorded the statement of one Ambika Sahu, who had accompanied P.W.1 to the Police Out Post. He having visited the CRLA No.545 of 2012 Page 3 of 12 {{ 4 }} spot, prepared the spot map (Ext.6). He (P.W.10) seized the blood stained earth and lathi from the spot under seizure list (Ext.5). The second I.O (P.W.13), in course of his investigation, held inquest over the dead body of the deceased and prepared the report to that effect (Ext.2). He sent the dead body of Dinabandhu for post mortem examination by issuing necessary requisition. The wearing apparels of the deceased were seized under seizure list (Ext.6). On 19.12.2006, he (P.W.13) handed over the charge of the investigation to S.I. of Police (P.W.12), who had apprehended the accused and sent the seized incriminating articles for chemical examination through Court. After completing the investigation, he (P.W.12) submitted the Final Form placing the accused persons to face the Trial for commission of offence under section 341/323/325/ 302/34 of the IPC. 4. Learned J.M.F.C., Loisingha, on receipt of the Final Form, took cognizance of the offence under section 341/323/325/302/34 of the IPC 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 these accused persons. 5. In the trial, the prosecution examined in total fourteen (14) witnesses. Out of them, as already stated, P.W.1, who happens to CRLA No.545 of 2012 Page 4 of 12 {{ 5 }} be the wife of the deceased, is the informant and had lodged the FIR (Ext.1) being scribed by P.W.11. P.W.2 is a witness to the seizure. P.W.3 is the father of the deceased whereas P.Ws.4, 5 & 6 are the daughters of the deceased. P.W.7, who is the uncle of the deceased, is an eye witness to the occurrence as projected by the prosecution. The Doctor, who conducted autopsy over the dead body of the deceased, is P.W.9. The A.S.I of Police, who made the Station Diary Entry and first had taken up the investigation is P.W.10. P.Ws.12 & 13 are the I.O.s and P.W.14 is the Doctor of the C.H.C. Agalpur, who examined the accused initially. 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in evidence and marked Ext. 1 to 7. Important of those, are the F.I.R. (Ext.1), Inquest Report (Ext.2) and Postmortem Examination Report (Ext.4). The spot map prepared by the I.O. has been admitted in evidence and marked Ext.6. 7. The accused persons, having taken the plea of denial and false implication, have, however examined four witnesses in support of said plea. Accused persons, namely, Kesaba Sahu and Balamukunda Sahu @ Makunda have taken the plea of alibi. CRLA No.545 of 2012 Page 5 of 12 {{ 6 }}
Legal Reasoning
8. Ms.D.Mohapatra, learned counsel for the Appellants (accused persons) submitted that even accepting the evidence let in by the prosecution, the Trial court ought not to have convicted accused Siba and Balamukunda against whom absolutely no overt act is proved beyond reasonable doubt. She submitted that simply for the reasons that they had gone together with the other accused Kesaba, who had given the assault, in so far as these two accused persons, namely, Siba and Balamukunda are concerned, the Trial Court is not at all right in holding them guilty for commission of the principal offence with the aid of section 34 of the IPC. As according to her, they having together gone, simply for that and for their presence when the accused Kesaba is said to have assaulted the deceased, it ought not to be held that these two accused persons had shared the common intention with accused Kesaba, who assaulted Dinabandhu. She then confined her submission as regards accused Kesaba in contending that accepting the version as have fallen from the lips of the witnesses examined on behalf of the prosecution with the role said to have been played by this accused and the act done by him at the spot as against Dinabandhu, the Trial Court ought not to have convicted him for commission of the offence under section 302 of the IPC and the accused Kesaba ought to have been held guilty for commission of the offence under section 304-II of the IPC. She, CRLA No.545 of 2012 Page 6 of 12 {{ 7 }} therefore, urged that the judgment of conviction and order of sentence, impugned in this Appeal in so far as accused Siba and Balamukunda are concerned are vulnerable and in respect of accused Kesaba, the conviction need be altered to one under section 304-II of the IPC and the sentence be appropriately reduced. 9. Mr. S. Nayak, learned Additional Government Advocate, while supporting the finding returned by the Trial Court, submitted that it is there in the evidence that all the three accused persons had gone to the house of Dinabandhu together and there, all quarreled with Dinabandhu and thereafter, although it is stated that accused Kesaba assaulted Dinabandhu by means of lathi on his head, the other two accused persons, being present, had provided all the encouragement in that regard in indirectly participating by catching hod Dinabandhu, as stated to by the witnesses. He, therefore, submitted that the Trial Court has rightly convicted the accused persons for the aforesaid offences and accordingly, they have been visited with appropriate sentence. 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 CRLA No.545 of 2012 Page 7 of 12 {{ 8 }} witnesses (P.W.1 to P.W.14) as also the defence (D.Ws.1 to 4) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.7. 11. The FIR (Ext.1) has been lodged by none other than the wife of the deceased and she has been examined as P.W.1. She is one of the important witnesses for the prosecution. Although it is stated in the FIR (Ext.1) that the accused persons, namely, Siba and Balamukunda caught hold of the deceased and then accused Kesaba assaulted on his head, chest and leg by means of a Thenga, her evidence is also to the effect that accused Siba and Balamukunda when caught hold of the deceased, accused Kesaba, holding a thenga, dealt successive blows on the head, chest and legs of his husband (deceased). However, she does not state that the accused persons, namely, Siba and Balamukunda were also armed with any weapon. It is also not stated by her that accused Kesaba holding a thenga, had gone to their house from the very beginning. She states that accused Kesaba gave three blows on the head of the deceased. The evidence of the Doctor (P.W.9), who had conducted the autopsy over the dead body of the deceased, is that he had noticed one stitched wound over left parietal bone, left parietal area of scalp and the other one was a stitched wound over the cheek and contusion over left leg below knee. His evidence is that the parietal wound was bone depth CRLA No.545 of 2012 Page 8 of 12 {{ 9 }} with soft quianeous hematoma and there was also a big hematoma below the left knee with fracture of tibia and fibula. When the medical evidence is simultaneously viewed with the evidence of P.W.1, the incident, as has been narrated by P.W.1 in so far as the roles of the accused persons, namely, Siba and Balamukunda are concerned becomes doubtful. As per the evidence of P.W.1, these two accused persons had caught hold of Dinabandhu and then accused Kesaba assaulted. So, at that position, when Dinabandhu was under restraint of accused Siba and Balamukunda, if we accept the evidence of P.W.1, it would be extremely difficult to further accept that all these blows, which had given by accused Kesaba on the head and other parts of the body of Dinabandhu, as receiving the blow on head, he must have fallen on the ground. Furthermore, two when would be holding the man closely, to deal blow on chest, let etc. is hardly possible. Her evidence is also to the effect that they had a quarrel before said assault was made by accused Kesaba. The other independent witness is P.W.5. She states that when there was ho hullah and exchange of words between Kesaba and Dinabandhu, she came out of her house and saw accused Kesaba dealing thenga blow on the head of Dinabandhu as a result of which, Dinabandhu fell flat on the ground. As per her evidence, accused Balamukunda and Siba were then standing CRLA No.545 of 2012 Page 9 of 12 {{ 10 }} near Dinabandhu. She is not attributing any overt act upon accused Siba and Balamukunda. P.W.3 is the father of the deceased and father-in-law of the Informant (P.W.1). It is his evidence that when he came out, he saw accused Siba and Balamukunda to have caught hold of his son Dinabandhu (deceased) and accused Kesaba assault him by thenga. So, when two witnesses (P.Ws.1 & 3) are starting about the role of these two accused persons, namely, Siba and Balamukunda that they had caught hold of the deceased and during then the other accused Kesaba assaulted him by means of a lathi, we not only find that the same is not stated by P.W.5 but also their version as to the seat of injury do not conform with evidence, which rather belies their version as to the overt act being committed by these two accused persons, namely, Siba and Balamukunda. In support of this view, we find the evidence of P.W.7, who does not at all state about any role to have been played by accused Siba and Balamukunda. Therefore, we are of the view that the judgment of conviction and order of sentence passed against the accused persons, namely, Siba and Balamukunda cannot be sustained. 12. Now, coming to the role of accused Kesaba, it has been stated by the prosecution witnesses that he had assaulted the deceased by means of a lathi. The evidence is not on the score CRLA No.545 of 2012 Page 10 of 12 {{ 11 }} that he had gone carrying the lathi in his hand. Why the incident took place is not stated by even by the wife of the deceased (P.W.1). P.W.1, having stated in the FIR (Ext.1) that first there was a quarrel between the accused persons and the deceased, during evidence, she is silent. She straightway says that the accused persons came and committed the overt act. She is suppressing the part as to quarrel. The father of the deceased is P.W.3, who has also not stated anything about the quarrel. However, it is so stated by P.W.5 that he had heard ho hullah and exchange of words between the accused Kesaba and Dinabandhu. As per the evidence of the Doctor (P.W.9), who had conducted the autopsy over the dead body of Dinabandhu, the cause of death was on account of neurogenic and haemorrhage shock resulting from the head injury. 13. Cumulatively viewing the entire evidence, as above, it is also found that the incident took place all of a sudden. There was no prior planning behind the incident nor any requisite motive. The accused persons and the deceased hail from rural background. It is also not there in the evidence that there was any enmity between them for which the accused persons were bearing any grudge against the deceased. CRLA No.545 of 2012 Page 11 of 12 {{ 12 }} 14. In the facts and circumstances as discussed, we are of the view that the offence could be properly categorized as one punishable under section 304-II of the IPC. We are thus of the considered opinion that for the role played by accused Kesaba Sahu and the act done, he would be liable for conviction under Section 304-II of the IPC. In that view of the matter, this Court alters the conviction under Section 302 of the IPC to one under section 304-II of the IPC. Consequently, the Appellant (Kesaba Sahu) is sentenced to undergo rigorous imprisonment for a period of seven (7) years. So far as the judgment of conviction and order of sentence passed against accused persons, namely, Siba Sahu and Balamukunda Sahu are concerned, the same is hereby set aside.
Decision
15. The Appeal is allowed in part with the above modification as to the judgment of conviction and order of sentence dated 6th September, 2012 passed by the learned Sessions Judge, Balangir in S.C. No.66/20 of 2007. Judge. (D. Dash), G.Satapathy, J. I Agree. Signature Not Verified Judge (G.Satapathy), Basu Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 20-Dec-2023 15:59:18 CRLA No.545 of 2012 Page 12 of 12