MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.11 of 2006 In the matter of Appeal under section 374(2) of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 18th November 2005 passed by the learned Additional Sessions Judge, Nabarangpur in C.T. Case No.01 of 2004 (C.T. Case No.518 of 2003). Chaitan Harijan …. Appellant ---- State of Orissa …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ==================================================== Mr. Jugal Kishore Panda, Advocate. For Appellant - For Respondent - Mr. P.K. Mohanty, Addl. Standing Counsel. CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING:21.08.2024 : DATE OF JUDGMENT: 04.09.2024
Legal Reasoning
The Appellant, by filing this Appeal, has challenged the judgment of conviction and order of sentence 18th November 2005 passed by the learned Additional Sessions Judge, Nabarangpur in C.T. Case No.01 of 2004 (C.T. Case No.518 of 2003) arising out of G.R. Case No.224 of 2003 corresponding to CRLA No.11 of 2006 Page 1 of 11 Papadahandi P.S. Case 54 of 2003 of the file of learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Nabarangpur. The Appellant thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life. 2. The Prosecution Case is that the accused was having dispute concerning the land with his brother Prakash. It is stated that on 26.07.2003, around 10 am, when Prakash was sitting with his wife, accused came and suddenly gave an axe blow on his back, causing severe bleeding. Prakash being removed to the hospital, met his death. Information in writing to the above effect being given by one Jaisingh Mirgan (Informant-P.W.1) at Papdahandi Police Station. In absence of the IIC, the Asst. Sub-Inspector (ASI) was the in-charge of the concerned P.S. receiving the said written report, treated the same as F.I.R. (Ext.1), registered the case and took up investigation. In course of investigation, the I.O. (P.W.15) examined the Informant (P.W.1), visited the spot, issued requisition (Ext.5) for examination of the injured. He also examined other witnesses. He (P.W.15) then handed over the charge of investigation to the O.I.C. of the concerned P.S. The second I.O. (P.W.16), during further investigation held inquest over the dead body of the CRLA No.11 of 2006 Page 2 of 11 deceased and prepared inquest report (Ext.2), visited the spot, and collected blood-stained earth and sample earth under the seizure list (Ext.3). He (P.W.16) prepared the spot map (Ext.6). The I.O. (P.W.16) also seized the wearing apparels of the deceased on production of the same by the Constable as also the command certificate under the seizure list (Ext.7). He (P.W.16) received the injury report of the deceased. He (I.O.) next arrested the accused who while in the police custody is stated to have disclosed that he had kept blood-stained axe concealed in a bush behind his house. The statement of the accused under Ext.8 being recorded by the I.O. (P.W.16), the accused led the I.O. (P.W.16) and witnesses near the said bush and gave recovery of blood-stained axe and blood-stained towel which were seized under seizure list, Ext.4. The I.O. (P.W.16) forwarded the accused in custody to Court. Having received the postmortem report, the I.O. made query to the Medical Officer sending axe for examination and opinion as regards its user in causing the injuries noticed during postmortem examination. The seized incriminating articles were sent to RFSL, Berhampur for Chemical Examination through Court. On completion of investigation, the Final Form was submitted placing the accused to face the Trial for commission of offence under section-302 of the IPC. CRLA No.11 of 2006 Page 3 of 11 3. Learned S.D.J.M., Nabarangpur, having received the Final Form as above, took cognizance of the said offence and after observing the formalities, committed the case to the Court of Sessions for Trial. That is how, the Trial commenced by framing the charge against this accused for the said offence. 4. In the Trial, the prosecution has examined in total eighteen (18) witnesses. As already stated P.W.1 is the Informant, who had lodged the F.I.R., Ext.1 being scribed by P.W.11 and he is the father of the accused and the deceased; whereas P.W.2 is the eye witness to the occurrence and the wife of the deceased and she is the sister-in-law of the accused. P.W.3 is another sister-in-law of the accused, whereas P.W.4 is the mother of the accused and the deceased. P.W.5 is the co- villager and post occurrence witness. P.Ws.6, 8 and 9 are the co- villagers and witnesses to the seizure list and W.P.17 is a Police Constable who too is a witness to seizure. P.Ws.7 and 13, the brothers of the deceased and the accused. P.W.12 is another co- villager who took the deceased (Prakash) in an injured condition to the Hospital at Koraput. P.W.15 is the first I.O. who registered the case on being reported by the father of the deceased and accused; whereas P.W. 16 is the second I.O. finally submitted the Final Form P.W.18 is the Doctor who had conducted autopsy over the dead body of the deceased. CRLA No.11 of 2006 Page 4 of 11 5. The defence plea is that of complete denial. Being called upon, the accused has not led any evidence in support of his defence. 6. The Trial Court, on going through the evidence of the prosecution witnesses and scrutinizing the same at its level has held that the prosecution has established the charge against the accused beyond reasonable doubt. 7. Learned Counsel for the Appellant (accused) submitted that the evidence of P.W.2 ought not to have been relied upon by the Trial Court in holding the prosecution case to have been established against the accused as the author of the fatal injuries inflicted upon the deceased, resulting her death. He further submitted that the Trial Court has not properly scanned the evidence of P.W.2 before accepting the same as gospel truth, when admittedly P.W.2 being the wife of the deceased was in enmical terms with this accused for the land dispute existing between them. He in the alternative submitted that even accepting the role played by the accused in causing the injury upon the deceased who is none other than his brother since they were locked in dispute; the Trial Court ought not to have convicted the accused for the offence under section-302 of the IPC and the accused, ought to have been convicted for commission of CRLA No.11 of 2006 Page 5 of 11 offence under section-304-II of the IPC and sentenced accordingly. 8. Learned Counsel for the Respondent-State refuting the above submission contended all in favour of the finding of the Trial Court, holding the accused guilty of committing the offence under section-302 of the IPC for having intentionally causing the death of his brother-Prakash by giving axe blow on the back, which was with force as would be evident from the dimension of the injury as stated by the Doctor (P.W.18), who had conducted autopsy over the dead body of the deceased. He further submitted that in view of the evidence of record and the surrounding circumstances emanating therefrom, the conviction of the accused has to be only under section-302 of the IPC. He, therefore, submitted that the finding of the Trial Court holding the accused guilty for commission of offence under section-302 of the IPC is unassailable. 9. Keeping in view the submissions made, we have carefully read the judgment of conviction passed by the Trial Court. We have also gone through the depositions of the witnesses, P.Ws. 1 to 18 examined from the side of the prosecution and have perused the documents admitted in evidence and marked Exts.1 to 13. 10. There is no dispute on the point that Prakash met homicidal death as has been proved by the prosecution through CRLA No.11 of 2006 Page 6 of 11 the Doctor, who had held autopsy over the dead body of the deceased and also other witnesses, seeing the deceased with such injuries on his back. P.W.18 has stated to have noticed one incised wound of the size of 10cm X 7cm X 5cm on the back with serious discharge from the wound according to him, the death was on account of said injuries. These aspects had not challenged during trial and that is also the position before us. The postmortem report of the Doctor, Ext.12 clearly finds mention of the nature of the injury, its seat and dimension. That has also been stated by the first I.O. (P.W.15), who had held inquest over the dead body of the deceased-Prakash and prepared Ext.2 which too finds mention all said injuries. Besides the above, there remains other evidence including that of P.W.2, the wife of the deceased that such injuries had been caused on the back of the deceased. So, with all these evidences, we in agreement with the finding of the Trial Court are led to hold that Prakash met homicidal death. 11. The next step arises to undertake the examination and evaluation of the evidence of the prosecution witnesses in finding out the complicity of the accused as being the author of said injury. 12. The important witness for the purpose is P.W.2, who is the wife of the deceased. Her evidence is that she on that day around 10 am, was sitting with Prakash and her son, when CRLA No.11 of 2006 Page 7 of 11 accused came and gave the blow by means of axe on the back of Prakash, leading to his fall. She has categorically stated that blow was given in such a manner that the axe remain stuck on the back of Prakash and that had to be pulled out by the accused who thereafter fled away carrying the axe. The response of this P.W.2 appears to be very natural when she states to have raised hullah, hearing which her brother Habal Harijan (P.W.5) arrived and so also her father-in-law (P.W.1) and other villagers. She no doubt has stated about prior dispute between her husband and accused who are two brothers but then she has stated that accused was creating disturbances for the said reason. 13. The evidence of P.W.1 receive corroboration from the evidence of the Doctor (P.W.18) who had conducted postmortem examination over the dead body of the deceased stating the nature of the injury received by Prakash. Merely because, the P.W.2 is the wife of the deceased, her evidence cannot be thrown aside, when we find absolutely no such material to have surfaced during cross-examination so as to raise any suspicion over her testimony in doubting her presence at the relevant time or stating something exaggerated. Her evidence appears to have quite natural, when we also find her to have stated that immediately on arrival of the neighbours at the spot, she disclosed about the happenings to them. CRLA No.11 of 2006 Page 8 of 11 P.W.1 is none other than father of the deceased and the accused whose status as such does not stated that P.W.1 was siding suggest that he would support the deceased going against the accused who are equal before him. A father is not ordinarily expected to resort to falsehood at the cost of the life of one son. He has rather stated that partition of the immovable property being made by him, the accused had been given good variety of lands which too is found to have been impeached by the defence in any manner during cross-examination. We again find the evidence of P.W.1 providing good support to the evidence of P.W.2 as P.W.1 has stated to have seen the accused running away from that spot holding an axe. This P.W.1 has honestly stated to have exactly not seen the accused dealing the axe blow upon Prakash he has rather stated that when he came out, Prakash had already been assaulted which runs consistent with the evidence of P.W.2. P.W.5, who is a neighbour has again stated that when he found Prakash lying dead with bleeding injuries, it was P.W.2 who told before him that accused had given the blow on her husband. This P.W.5 has stated to have seen Prakash lying with the injuries on the middle portion of his back which is in tune with the evidence of the Doctor (P.W.18). For the aforesaid discussion, we find the above evidence to be quite clear and CRLA No.11 of 2006 Page 9 of 11 consistent containing no such infirmity facing any doubtful feature. 14. In view of the evidence as discussed above, we arrive at the same conclusion as has been taken by the Trial Court that the injuries received by the deceased on his back leading to his death had been caused by this accused by means of axe which as per the evidence of P.W.2 is of that type which they ordinarily use to cut the goats. 15. Coming to address the alternative submission touching upon the alteration of conviction, we here find from the evidence of P.W.2 which we have already held to be reliable that the accused suddenly came and gave the blow by means of an axe on the back of the deceased. Thus, it appears to be a pre- planned one, when nothing is stated by P.W.2 and other witnesses that there was any quarrel before them shortly before the incident followed by alteration of words and the axe blow upon the deceased was shortly thereafter. It has also been stated by P.W.2 that the accused came from backside and gave the blow upon Prakash which is of quite significant to be taken note of to say that the accused stealthily coming and dealing the axe blow on the back of the deceased. The weapon used is a heavy sharp cutting one which as per the evidence of P.W.2 is ordinarily used in killing the goats. The dimension of injury is of quite significance, when the Doctor, P.W.18, gives its CRLA No.11 of 2006 Page 10 of 11 dimension as 10cm X 7cm X 5cm; and from that the force used is quite evident and that also emerges from the evidence of P.W.2 who has stated that when accused gave the blow, the axe remain stuck and the accused had to pull it in carrying the same with him while leaving the place. With all these background facts as we find from the evidence; we are of the considered view that the accused is to be held liable for committing for the offence under section-302 of the IPC and the Trial Court has very rightly held so. 16.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 18th November 2005 passed by the learned Additional Sessions Judge, Nabarangpur in C.T. Case No.01 of 2004 (C.T. Case No.518 of 2003) are hereby confirmed. The accused, namely, Chaitan Harijan, being on bail, is directed to surrender before the Trial Court forthwith to serve out the sentence. (V. Narasingh) Judge Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 04-Sep-2024 16:46:26 CRLA No.11 of 2006 (D. Dash) Judge Page 11 of 11