The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.335 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 22nd July, 2010 passed by the learned Sessions Judge, Keonjhar in S.T Case No.159 of 2009. Kendu @ Chandra Pradhan -versus- State of Odisha …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Sri Chitta Ranjan Sahu (Advocate) For Respondent - Mrs.Saswata Pattnaik, Additional Government Advocate.
Legal Reasoning
CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing :03.01.2024 : Date of Judgment :08.01.2024 D.Dash, J. The Appellant, by filing this Appeal, has challenged the judgment of conviction and order of sentence dated 22nd July, 2010 passed by the learned Sessions Judge, Keonjhar in S.T Case No.159 of 2009 arising out of G.R Case No.34 of 2009, corresponding to Keonjhar Sadar P.S. Case No.8 of 2009 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Keonjhar. The Appellant (accused person) thereunder has been convicted for commission of offence under section 302 of the Page 1 of 7 CRLA No.335 of 2012 {{ 2 }} Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 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 three (3) years. 2. PROSECUTION CASE:- On 17.01.2009 at about 3.50 p.m., one Rusi Mohanta, working as a supervisor under the contractor, namely, Dillip Kumar Naik, when was proceeding to his worksite from his quarter at Labour Colony at Uparjagara Mines, the accused assaulted him by means of an axe in front of the shop of one Debananda Kesari and thus, having cased his death, fled away. The occurrence had been seen by Dambarudhar Patra (P.W.2), who is the son-in-law of the shop keeper Debananda Kesari. Then P.W.2 informed about the incident to Khageswar Mahanta (P.W.1), who happens to be the younger brother of Rusi. Khageswar Mahanta (P.W.1) lodged a written report with the Inspector-in-Charge (IIC), Keonjhar Sadar Police Station. On receiving the said report, the IIC (P.W.6) treated the same as F.I.R. (Ext.4) and upon registration of the case, took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.6) examined the informant (P.W.1) and other witnesses. The I.O. (P.W.6), having visited the spot, prepared the spot map (Ext.5). He (P.W.6) arrested the accused. It is stated that the CRLA No.335 of 2012 Page 2 of 7 {{ 3 }} Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 accused, while in police custody, gave the statement to have concealed the axe and stated that if he would be taken to the place, he would give recovery of the same. Pursuant to the statement (Ext.1), the accused is said to have led the I.O. (P.W.6) and other witnesses in giving recovery of the axe, which was seized under seizure list (Ext.2). He held inquest over the dead body of the deceased and prepared the report (Ext.4) to that effect in presence of witnesses. The dead body was then sent for post mortem examination by issuing necessary requisition. The wearing apparels of the accused were seized by the I.O. (P.W.6) under seizure list (Ext.8). The I.O. (P.W.6) sent the seized incriminating articles for chemical examination through Court. 4. On completion of investigation, Final Form was submitted placing this accused to face the Trial for commission of offence under section 302 of the IPC. 5. Learned S.D.J.M., Keonjhar on receipt of the Final Form, took cognizance of the offence under section 302 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 this accused. 6. In the trial, the prosecution examined in total seven witnesses. Out of them, as already stated, P.W.1 is the informant. P.Ws.2 & 3 are an eye witnesses to the occurrence. P.W.4 is a CRLA No.335 of 2012 Page 3 of 7 {{ 4 }} Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 witness to the seizure of the axe. P.W.5 is the scribe of the FIR (Ext.3) whereas P.W.6 is the I.O. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.7. 7. 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 13. Important of those are the F.I.R. (Ext.3), Inquest Report (Ext.4) and Postmortem Examination Report (Ext.13). The spot map prepared by the I.O. (P.W.6) has been admitted in evidence and marked as Ext.5 whereas Chemical Examination report is Ext.12. 8. The accused, having taken the plea of denial and false implication, has, however, not tendered any evidence in support of the defense. 9. Mr.C.R.Sahu, learned counsel for the Appellant (accused), from 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 viewing the happenings in the incident as also the subsequent events, when are kept in view with the fact that the parties hail from rural back ground whose tamper usually run high and behavior for silly reasons, often becomes abnormal, the Trial Court ought not to have convicted the accused for CRLA No.335 of 2012 Page 4 of 7 {{ 5 }} Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 commission of offence under section 302 of the IPC. He, therefore, urged for alteration of conviction for commission of offence under Section 302 of the IPC to one under Section 304-I of the IPC and accordingly, he contended that the accused be visited with the sentence as appropriate for the said offence. 10. Mrs.S. Patanaik, learned Additional Government Advocate submitted all favour of the finding returned by the Trial Court that the accused is liable for commission of the offence under Section 302 of the I.P.C. She further submitted that the blow being by an axe, on 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 of the IPC. 11. 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 witnesses (P.W.1 to P.W.7) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.13. 12. Addressing the submission, confined on the point of alteration of conviction and reduction of sentence imposed upon the accused, we find it from the evidence of the Doctor (P.W.7), who had conducted the autopsy over the dead body of the deceased that the death was on account of the injury on the neck on posterior aspect, which was extending to the right side. It has CRLA No.335 of 2012 Page 5 of 7 {{ 6 }} Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 been the evidence of the Doctor (P.W.7) that the death was on account of excessive haemorrhage due to the injuries to vertebral arteries, jugular vein and external carotid arteries caused by incised injuries on the neck. It is not his evidence that the said injury is the result of several blows. It is stated by P.W.2, who is an eye witness to the occurrence that during the relevant time, he heard the shout near his shop and the shout was among Rusi and the accused. He further states to have gone near them and asked them to leave. His evidence is that thereafter in front of his shop, accused assaulted the deceased by a tangia on his neck. His further evidence is that the shout between them was in relation to taking of articles on credit from the shop and during that shout, the accused was looking offended. His evidence is again to the effect that the deceased used to take liquor at times. His positive evidence, however, is that he had not seen the accused coming to the spot carrying the axe, which leads to an inference that he had come there with prior planning. This P.W.2 is the solitary witness to the occurrence. So, his evidence, being taken with the evidence of the Doctor (P.W.7) and those being cumulatively viewed, with the facts that the parties hail from rural pocket situated within the scheduled are of the district of the State where ordinarily their tamper run high and for silly reasons, they many a times behave differently, at times quite in an unexpected manner; we are of the view that the offence could be properly categorized as one CRLA No.335 of 2012 Page 6 of 7 {{ 7 }} Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 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. 13. In that view of the matter, this Court, alters the conviction under Section 302 of the IPC 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. 14.
Decision
In the result, the Appeal is allowed in part. With the above modification as to the judgment of conviction and order of sentence dated 22nd July, 2010 passed by the learned Sessions Judge, Keonjhar in S.T Case No.159 of 2009, the Appeal stands disposed of. G. Satapathy, J. I Agree. (D. Dash), Judge. (G.Satapathy), Judge. Basu CRLA No.335 of 2012 Page 7 of 7