The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.709 of 2016 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 06.04.2013 passed by the learned Sessions Judge, Nabarangpur in Criminal Trial No.92 of 2011. ---- Kasa Santa & Another …. Appellants -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================= For Appellants - Mr. P. Rama Krishna Patra, Advocate. For Respondent - Mr. S.S. Kanungo, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 19.05.2023 : Date of Judgment:21.06.2023
Legal Reasoning
D.Dash,J. The Appellants, by filing this Appeal, have challenged the judgment of conviction and order of sentence dated 06.04.2013 passed by the learned Sessions Judge, Nabarangpur in Criminal Trial No.92 of 2011 arising out of G.R. Case No.511 of 2011 corresponding to Tentulikhunti P.S. Case No.67 of 2011 of the Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Nabarangpur. CRLA No.709 of 2016 Page 1 of 9 {{ 2 }} By the same, the Appellants (accused persons) have been convicted for commission of offence under section-302/34 of the Indian Penal Code (for short called as ‘the IPC’). Accordingly, they have been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- each, in default to undergo rigorous imprisonment for one year each. 2. The prosecution case is that on 13.08.2011 one Sadan Santa, who is the nephew of the Informant namely, Jayaram Santa (P.W.2) enquired from the accused persons as to why they had assaulted his wife on the day of last “Uansa”. At this, the accused persons who are two brothers got annoyed, they went to the house of the deceased, dragged him out to the courtyard and assaulted him by means of a thenga. It is also stated that when he fell on the ground, the accused persons threw a stone on his belly. After the said incident, a meeting had been convened in the village where the accused persons confessed to have committed the said act. At that time, the local gentries decided to put a full stop to the matter. However, as the condition of the deceased became serious and he was shifted to Nabarangpur Hospital for treatment and there he died on 18.08.2011; the Informant (P.W.2) lodged a written report with the Sub-Inspector (SI) of Police attached to Tentulikhunti Police Station, who, in the absence of Inspector-In- Charge (IIC) of the Police Station, was in charge of the P.S. This S.I. of police (P.W.19) receiving the said written report from P.W.2 treated the same as F.I.R. and registering the case, took up investigation. 3. In course of investigation, the I.O. (P.W.19) examined the Informant (P.W.2) and other witnesses. He had held inquest over the CRLA No.709 of 2016 Page 2 of 9 {{ 3 }} dead body of the deceased and prepared inquest report, Ext.4. He sent the dead body of Sadan Santa for postmortem examination. Proceeding to the spot, he searched for accused persons apprehending them. He also seized some incriminating articles including the stick. On completion of investigation, the I.O.(P.W.19) submitted the Final Form, placing the accused persons to face the Trial for commission of offence under Section-302/34 of the IPC. 4. The learned SDJM, Nabarangpur having received the Final Form as above took cognizance of said 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. 5. In the Trial, the prosecution has examined in total nineteen (19) witnesses, who are P.W.1 to P.W.19. As already stated, the Informant who is the uncle of the deceased has been examined as P.W.2 and P.W.3 is the Sarapanch of the village; whereas the wife of the deceased has come to the witness box as P.W.4, their son is P.W.5 and their daughter is P.W.13. The scribe of the F.I.R. lodged by P.W.2 has been examined as P.W.6. The Doctor who had conducted autopsy over the dead body of the deceased has been examined at first as P.W.1. The Investigating Officer has come to the witness box as P.W.19. The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 13. Out of those as already stated the F.I.R., Ext.3 and the inquest report and postmortem report have been marked Exts.1 to 4 respectively and the bed head ticket is CRLA No.709 of 2016 Page 3 of 9 {{ 4 }} Ext.8. In the Trial, some incriminating articles having been produced, as the Material Objects, those are M.O.I to M.O.III. 6. The plea of the defence is that of complete denial and false implication. The accused persons have examined three witnesses from their side, who are D.Ws.1 to 3. 7. The Trial Court on going through the evidence of the Doctor, P.W.1, who had conducted autopsy over the dead body of the deceased and his report, Ext.1 as well as the evidence of P.Ws. 2, 4, 5 and 13 as also the I.O.-P.W.19, who had held inquest over the dead body of the deceased and prepared the report to that effect as Ext.4 has arrived at a conclusion that the death of Sandan Santa was homicidal in nature. In fact this aspect was not under challenge before the Trial Court and that is also the situation before us. It has been stated by P.W.1 that he had noted the following injuries:- “(A) External Injuries: i) Abrasion of size 1/4!! X 1/4!! on the left shoulder, ii) One bruise of size 4!! X 6!! on the left upper abdomen, iii) Left eye blacken, conjecture of eye red in colour, The above injuries were simple in nature. (B) Internal Injuries: i) Peritoneum was full of blood, ii) Small intestine distended with tears, iii) Liver was ruptured, iv) Spleen ruptured, v) Left kidney blacken.” He has stated that all the above injuries are ante-mortem in nature and the death was caused due to trauma to abdomen for the injuries in the abdominal organs and bleeding into peritoneum. He has also noted all these above in detail in his report, Ext.4. The CRLA No.709 of 2016 Page 4 of 9 {{ 5 }} Investigating Officer, P.W.19 has also noted the injuries which had also seen over the dead body and those have been reflected in his report, Ext.4. Other witnesses have also stated that they had seen the deceased with injuries and he was taken to the hospital and while undergoing treatment, there had died. With such evidence on record which have not been questioned, we without least hesitation concur with the view taken by the Trial Court that Sadan Santa met homicidal death resulting from the injuries received by him. 8. Learned Counsel for the Appellants from the beginning instead of impeaching the finding of the Trial Court as regards the role played by the accused persons in assaulting deceased and the act done confined his submission as to conversion of the conviction to one under section 304-II of the I.P.C. He contended that even accepting the prosecution case as emerged from the evidence of the witnesses examined on its behalf as well as the medical evidence tendered by P.W.1 and regard being had to the report Ext.1, when the other circumstances stand that the death took place on 18.08.2011 as against the incident which had happened on 13.08.2011, the Trial Court ought not to have convicted the accused persons for the offence punishable under section 302 of the I.P.C. He further submitted that the prosecution evidence being accepted in entirety do not go to show that the accused persons had the intention to cause the death and rather the facts and circumstances of the case clearly go to show that they totally negate the case of intention. He thus submitted that it is a fit case for alteration of the conviction to one under section-304-Part-II of the IPC warranting and appropriate reduction of sentence. He submitted that even accepting the prosecution evidence as placed; the accused persons CRLA No.709 of 2016 Page 5 of 9 {{ 6 }} would at best be held liable for committing the offence under section- 304 Part-II of the IPC but not under section-302 of the IPC and accordingly they be made to suffer the sentence as commensurate the crime. 9. Learned Counsel for the Respondent-State contended all in favour of the finding of the Trial Court holding the accused persons guilty for commission of offence under section-302/34 of the IPC. He submitted that merely because the death has taken place five days after the incident, when the injuries received by the deceased are taken into account and the manner in which those had been caused by the accused persons, they cannot wriggle out for their criminal liability for commission of offence under section-302 of the IPC. 10. Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.19 and have perused the documents which have been marked as Exts.1 to 13. 11. In order to appreciate the rival submission, as for what offence the accused persons for their said act against the deceased and the role played by them would be liable for, we shall have to go through the evidence of the prosecution witnesses. P.W.2 has stated that on the relevant evening, he had seen the accused persons assaulting the deceased by means of lathi and stone. It is stated that accused Lai Santa assaulted by means of lathi where as accused Kasa Santa by a stone. He further states that they assaulted the deceased, dragging him to the village road from his cowshed, which had been seen by the wife and son of the deceased. The FIR CRLA No.709 of 2016 Page 6 of 9 {{ 7 }} version was slightly exaggerated that these two accused persons, after assaulting the deceased, thrashed him on the ground and then gave blows by the stone on the belly. The wife of the deceased (P.W.4) has stated that the accused persons dragged her husband to the road and accused Lai Santa assaulted the deceased by means of lathi where as Dadar @ Kasa assaulted the deceased and pressed the abdomen of the deceased by means of stone. It has also been the evidence of P.W.5 (son of the deceased) that accused Lai assaulted by means of lathi whereas the accused Kasa by stone. The evidence of P.W.13, the daughter of the deceased is however to the effect that both the accused persons assaulted by means of thenga. 12. The evidence goes to show that the deceased after the incident was kept at home for two days and thereafter taken to the hospital. The incident having taken place on 13.08.2011, he was taken to Hospital on 15.08.2011. The Doctor (P.W.1), who had conducted autopsy over the dead body of the deceased states is that the death is due to trauma to abdomen causing injury to abdominal organs and bleeding into peritoneum. It is not stated by any of the witnesses that the stone was threshed upon the belly of the deceased from a height and thus with force. Most of the witnesses when generally say that deceased was assaulted by stone. P.W. 1 has externally noticed only one bruise on the left upper abdomen. He, however, on dissection has found the peritoneum to be full of blood, small intestine distended with tears and liver was ruptured. P.W. 2 does not show that the hit, with the stone, was hit on the abdomen and it is the evidence of P.W.4 that the abdomen of the deceased was pressed by means of stone. CRLA No.709 of 2016 Page 7 of 9 {{ 8 }} When the weight of the seized stone is said to be 10 kgs as assessed by P.W.1, he except noticing one bruise over the said left upper abdomen has not noted any other external injury on that area. The deceased on one hand and accused on the other were not pulling on well which have been indicated in the F.I.R. citing prior incident wherein the accused persons had assaulted the wife of the deceased, that is now not stated by any of the witnesses and it is also not stated by P.W.2 as to how the occurrence began and what was the immediate reason for the accused persons being enraged and entered into the house. The death has taken place after five days of the occurrence. The accused persons hail from rural background and from scheduled area. This P.W.1, having conducted the autopsy, has, however, stated that the external injury and internal injury are sufficient to cause death. With all these above, when the injury is judged objectively from the nature of it and other opinion of P.W.1, the Court cannot draw an inference that the intended injury caused with the intention of causing such bodily injury by the accused persons, which was sufficient in ordinary course of nature to cause death so as to attract clause (3) of section 300 of the I.P.C. Taking a cumulative view of all these above circumstances, this Court is of the view that the offence could be properly categorized as one punishable under section-304 Part-I of the IPC. We are thus of the considered opinion that for the role played by the accused persons, they would be liable for conviction under section-304 Part-I of the IPC. 13. In that view of the matter, the conviction is altered to one under section 304 Part-I of the IPC and consequently, the Appellants CRLA No.709 of 2016 Page 8 of 9 {{ 9 }} (accused persons) are sentenced to undergo rigorous imprisonment for a period of ten (10) years and pay fine of Rs.5,000/- (Rupees Five Thousand) each in default to undergo rigorous imprisonment for one (1) year each. 14. With the above modification as to the judgment of conviction and order of sentence dated 6th April, 2013 passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.92 of 2011, the
Decision
Appeal stands disposed of. Dr. S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Personal Assistant Reason: Authentication Location: OHC Date: 26-Jun-2023 13:54:52 CRLA No.709 of 2016 Page 9 of 9