The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.29 of 2016 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 31st March, 2016 passed by the learned Sessions Judge, Boudh, in Sessions Trial No.18 of 2013. Kesan Bisi ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms.B.L. Tripathy (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 11.07.2023 : Date of Judgment:24.07.2023 The Appellant, by filing this Appeal from inside the D.Dash,J. jail, has called in question the judgment of conviction and order of sentence dated 31st March, 2016 passed by the learned Sessions Judge, Boudh, in Sessions Trial No.18 of 2013 arising out of G.R. Case No.415 of 2012 corresponding to Purunakata P.S. Case No.88 of 2012 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Boudh. JCRLA No.29 of 2016 Page 1 of 12 {{ 2 }} The Appellant (accused) thereunder has been convicted for committing the offence under sections 302/307/323 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months for the offence under section 302 of the IPC; undergo rigorous imprisonment for ten (10) years and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for two (2) months for the offence under section 307 of the IPC; and undergo simple imprisonment for a period of six (6) months for the offence under section 323 of the IPC with a direction that the substantive sentences would run concurrently. 2. Prosecution Case:- On 03.12.2012 at around 8.00 a.m. in the morning, Pratima Bisi (informant-P.W.5) along with her daughter Binodini were cutting paddy crops from their land at Village-Jharkata. At that time, accused Kesan Bisi and two others, namely, Prafulla Bhukta (P.W.1) and Jadu Bhukta (P.W.2) of Village-Baghuakata were present in the hut situated near that agricultural land where Pratima (informant-P.W.5) and her daughter Binodini were engaged in cutting paddy crops. It was around 9.00 a.m., Sabitri, another daughter of Pratima, wife of Kesan (accused) came there and entered inside the hut where the accused was present. Seeing JCRLA No.29 of 2016 Page 2 of 12 {{ 3 }} Sabitri (P.W.6) at that place, accused got enraged and started beating her. Having seen this act of the accused, his wife Pratima (informant-P.W.5) and her daughter Binodini protested. They, confronted the accused as to why he was beating Sabitri (P.W.6). Hearing this, it is said that the accused got enraged and dealt a blow on the neck of his daughter Binodini by means of an axe. When Pratima (informant-P.W.5), wife of the accused tried to snatch away the said axe from the accused, she was given a blow. Binodini, receiving the blow, when succumbed to the injury, Pratima (informant-P.W.5) sustained injuries on the left side of her back as well as left palm. She, however, could take away the axe from the accused. The accused was then having a Katara (sharp cutting weapon) with him, which he had kept with a rope used for climbing Khajuri Tree, Pratima (informant-P.W.5), apprehending further danger to her life, shouted for help. Prafulla (P.W.1), who was present there snatched away the Katara from him, but when the accused followed him, he (P.W.1), out of fear, again handed over the Katara to him again. Hearing the hulla, Sanatan Bisi (P.W.3) reached there and before whom, Pratima (informant-P.W.5) told everything about the incident to him and she then requested him to scribe a report for her to be presented to the Police. Accordingly, Sanatan (P.W.3) scribed the written report. The Sub-Inspector (S.I.) of Police (P.W.13), who during then was at the Police Station (P.S.), having received a JCRLA No.29 of 2016 Page 3 of 12 {{ 4 }} telephone call from the villagers of Village-Jharkata that the accused had murdered his daughter Binodini; had already entered the said fact in the Station Diary Book maintained at the P.S. and arrived at the spot. There, Pratima (informant-P.W.5) presented a written report before the S.I. of Police (P.W.13). This report (Ext.1) was sent to the P.S. for registration of the case. The Inspector-in-Charge (I.I.C.), having received the written report, registered the case and having come to know that the S.I. of Police (P.W.13) was already there at the spot, directed that the investigation to be made by her. The investigating Officer (I.O.- P.W.13), having visited the spot, prepared the spot map (Ext.16). She then seized the weapons form the spot in presence of the witnesses under seizure list (Ext.2). She had examined the informant (P.W.5). After presentation of the written report and thereafter she examined other witnesses. The I.O. (P.W.13) also held inquest over the dead body of the deceased and seized the sample earth and blood stained earth from the spot under the seizure list (Ext.3). Requisition was issued for medical examination of Pratima (P.W.5) and she also issued requisition for post mortem examination over the dead body of Binodini (deceased). Some other incriminating articles were seized and then on 04.12.2012, the accused was arrested. It is stated that the accused, while in custody, stated to have kept the Saju (rope) and Katara (sharp cutting weapon) in a particular place and he JCRLA No.29 of 2016 Page 4 of 12 {{ 5 }} expressed that he would produce the same on being taken to that place. It is stated that the accused, pursuant to the statement, led P.W.13 and others to a place near the garden of one Laxman Behera of Village-Tarusingh and gave recovery of that Saju (rope) and Katara, which were then seized under seizure list (Ext.13). The I.O. (P.W.13) made a prayer before the learned S.D.J.M., Boudh for recording of the statement of the informant (P.W.5) under section 164 of the Code of Criminal Procedure and also prayed for sending the seized incriminating articles for chemical examination. The prayers, being allowed, actions were taken in that regard. That I.O. (P.W.13) then handed over the charge of the investigation to the Officer-in-Charge (O.I.C.) of the P.S. He (P.W.14) and on completion of the investigation, submitted the Final Form placing the accused to face the Trial for commission of offence under sections 302/302/323 of the IPC. 3. Learned S.D.J.M., Boudh, on receipt of above Final Form, took cognizance of the said offence and after observing all the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offences against this accused. 4. In the Trial, the prosecution, in support of its case, has examined in total fourteen (14) witnesses. As already stated, P.W.5 is the informant of the case and she is the wife of the JCRLA No.29 of 2016 Page 5 of 12 {{ 6 }}
Legal Reasoning
accused, who had lodged the FIR (Ext.1) whereas P.W.6 is the daughter of P.W.5 and the accused. Two persons, who were with the accused at the relevant time, have been examined as P.Ws.1 & 2. The Doctor, who had held autopsy over the dead body of the deceased is P.W.7 and P.W.12 is the Doctor, who had examined Pratima (informant-P.W.5). The two I.Os are P.Ws.13 and 14. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents, which have been admitted in evidence and marked Exts.1 to 20. Out of those, the important are the FIR (Ext.1), the post mortem report (Ext.10), inquest report (Ext.4) and the Chemical Examination Report (Ext.19). The seizure list showing the seizure of axe at the spot is Ext.2 whereas the statement of the accused prior to leading P.W.13 and others to the place of giving recovery of Saju (rope) and Katara (sharp cutting weapon) has been admitted in evidence and marked Ext.14. The injury report of P.W.5 has been proved through the Doctor (P.W.12) is Ext.7/1. 5. The defence has not tendered any evidence in support of the plea of denial and false implication. 6.
Legal Reasoning
Learned Counsel for the Appellant (accused), from the very beginning, instead of attacking the finding as to the authorship of the injury upon the deceased attributed to the accused as has been recorded by the Trial Court, confined the submission that JCRLA No.29 of 2016 Page 6 of 12 {{ 7 }} viewing the happenings in the incident as also the subsequent events, the relationship etc. when are kept in view with the fact that the parties belong to Scheduled Tribe community hailing from remote rural background whose tamper usually run high and behaviour for silly reasons, often becomes abnormal, the Trial Court ought not to have convicted the accused for commission of offence under section 302/307/323 of the IPC. He, therefore, urged for alteration of the conviction for commission of offence under section 302 of the IPC to offence under section 304-I of the IPC and accordingly, she contended that the accused be visited with the sentence as would be appropriate for the said offences. 7. Learned Additional Standing Counsel submitted all in favour of the finding returned by the Trial Court that the accused is liable for commission of the offence under section 302/307/323 of the I.P.C. He further submitted that the blow being by an axe, which is a heavy sharp cutting weapon, when has been given near the neck of the deceased, the Trial Court did commit no mistake in holding the accused guilty for commission of the offence under section 302/307/323 of the IPC. 8. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined JCRLA No.29 of 2016 Page 7 of 12 {{ 8 }} from the side of the prosecution as P.Ws.1 to 14 and have perused the documents admitted in evidence marked as Exts.1 to 20. 9. In view of the above rival submission surrounding the categorization of the offence for which the accused would be held liable for the role played and the act done by him in the incident, let us first have a glance at the evidence of the wife of the accused (P.W.5) and her daughter (P.W.6). It is stated by P.W.5 that when Sabitri (P.W.6) was assaulted by the accused, she cried and, therefore, she (P.W.5) came and asked the accused as to why he assaulted Sabitri (P.W.6). It is stated that hearing from her (P.W.5) and her other daughter, Binodini, the accused, being enraged, gave a blow by that axe on the back of the neck of their daughter Binodini (deceased), who had accompanied the informant (P.W.5) and when P.W.5 protested the accused, he attempted to kill her and in the process of thwarting the blow when the axe was caught hold of, she sustained cut injury on her left back and left palm. It has been further stated by P.W.5 that the accused was in the habit of taking liquor and that, in course of time, had increased. She has also stated that at the relevant time, the accused and two others, i.e., Prafulla (P.W.1) and Jadu (P.W.2) were taking Khajuri Rasa (locally called s TADI, a local natural intoxicant). At the same time, it has been stated by P.W.5 that the accused was affectionate towards the children including Binodini (deceased). JCRLA No.29 of 2016 Page 8 of 12 {{ 9 }} Sabitri (P.W.6), another daughter of the accused and the informant has stated that when she entered into the hut, accused assaulted her on back and then P.W.5 protested as to why he was assaulting her and her other sister Binodini (deceased) also joined them in that confrontation. It has been her evidence that at that stage, accused got enraged and gave a blow by means of an axe on the backside of her sister Binodini (deceased), which resulted her death and ultimately led to her death. She has also stated that when her mother Pratima (informant-P.W.5) tried to intervene, the accused gave blow my means of an axe causing injury on her left back and left palm. This part of evidence of P.W.6 is in slight variance with the evidence of P.W.5 as regards the receipt of the injuries by P.W.5, which she states to have been sustained when she attempted to snatch away the axe from the accused. P.W.1 then has stated that as Sabitri (P.W.6) entered inside the hut, the accused gave a blow by his hand on her back and then P.Ws.5 & 6 came there and asked the accused as to why he assaulted P.W.6. It is his further evidence that the accused then told P.W.5 and the other daughter Binodini (deceased) to stop and thereafter, he ran towards them and gave a blow by means of an axe on the back of Binodini (deceased) whereafter P.Ws.5 & 6 tried to snatch away the axe. At this juncture, the evidence of P.W.2 also bears much importance. He has stated that when P.W.5 and her daughter JCRLA No.29 of 2016 Page 9 of 12 {{ 10 }} Binodini (deceased) rushed towards the accused and confronted with him as to why he assaulted Sabitri (P.W.6), there was tussle between the accused on one hand and P.W.5 and Binodini (deceased) on the other and he tried to sub-side the matter by asking both of them to keep quiet and thereafter, left the place. Thus, the evidence of this P.W.1 would show that the incident continued for quite some time and there was a tussle and that stood aggravated in culminating with causation of the injury upon Binodini (deceased). The Doctor, during post mortem examination, had noticed one chopped wound of size 2‰99 X 199 X 2‰” over the back of left lateral side of second thoracis vertebrae alignment. According to him, the cause of death was on account of massive haemorrhage as a result of the chopped wound. He has stated that such injures has been the result of single stroke. It is, however, not stated that the solitary external injury, which he noticed, was sufficient in ordinary course of nature to cause the death. The parties hail from rural background under a tribal dominated district of the State and they too are the members of the Scheduled Tribe Community. Judicial notice of the fact can be taken that the tamper of the members of such community run high and their behaviour many a times for a silly reason becomes abnormal and unexpected. Furthermore, the accused at that time was under the influence of some intoxicant when ordinarily JCRLA No.29 of 2016 Page 10 of 12 {{ 11 }} anyone who challenges or confronts, takes the risk of any sort of harm to his/her. The incident happened all of a sudden and there was no prior planning for the same. It is also said by the mother (P.W.5) that the accused was affectionate towards her children including Binodini (deceased). All these clearly shows that the accused had no such motive behind. 10. Taking a cumulative view of all these above circumstances appearing in the evidence, as discussed; we are of the view that the offence under section 302 of the IPC 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 the accused and the act done, he would be liable for conviction under section 304-I of the IPC. 11. In that view of the matter, this Court, while confirming the judgment of conviction and order of sentence passed against the accused under section 307/323 of the IPC, the conviction under section 302 of the IPC is altered to one under section 304-I of the IPC. Consequently, the Appellant (accused) is sentenced to undergo rigorous imprisonment for a period of ten (10) years and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months for the said offence. We also accept the submission of the learned counsel for the Appellant (accused) as to the disproportionally of the JCRLA No.29 of 2016 Page 11 of 12 {{ 12 }} sentence awarded in respect of the offence under section 307 of the IPC. Accordingly, sentenced imposed by the Trial Court for commission of the offence under section 307 of the IPC is reduced to rigorous imprisonment for a period of five (5) years and fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for two (2) months. 12. With the modification as to the judgment of conviction and order of sentence dated 31st March, 2016 passed by the learned Sessions Judge, Boudh, in Sessions Trial No.18 of 2013 to the
Decision
extent, as indicated above, the Appeal stands disposed of. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 24-Jul-2023 14:48:45 JCRLA No.29 of 2016 Page 12 of 12