The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.340 of 2011 (An appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Shri G.C. Panigrahi, Addl. Sessions Judge, Deogarh in S.T. No.42 of 2009 corresponding to C.T. Case No. 32 of 2009, arising out of Deogarh PS Case No. 11 of 2009 of the Court of SDJM, Deogarh) Sidheswar Pradhan … Appellant State of Orissa -versus- … Respondent For Appellant For Respondent : Mr.A. Sahoo,Advocate : Mr.P.K. Mohanty, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :06.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This appeal U/S. 374(2) of the Cr.P.C. by the convict assails the judgment of conviction and order of sentence passed on 25.11.2010 by learned Additional Sessions Judge, Deogarh in S.T. Case No. 42 of 2009 convicting the Appellant for commission of offence CRLA No.340 of 2011 Page 1 of 11 punishable U/S. 302 of IPC and sentencing him to the punishment of rigorous imprisonment for life with fine of Rs. 10,000/- in default whereof, to undergo rigorous imprisonment for a further period of six months with stipulation of setting up the pre trial detention against the substantive sentence. 2. The prosecution case in short was, on 13.01.2009 at about 7:30pm while Nilamani Pradhan (hereinafter referred to as the “deceased”) was sleeping on a cot in the house of his grandson PW1 Pratap Kumar Pradhan, the convict Sidheswar Pradhan who is another grandson of the deceased entered inside the house and demanded some money from the deceased who replied to have no money and told as to where from he would bring money, to which the convict being annoyed, pull down the deceased from the cot and broke down his both legs by assaulting with a bamboo stick. The above incident was witnessed by the mother, sister and cousin of the PW1 who with much difficulty rescued the deceased by bolting the door from inside and thereafter, shifted the CRLA No.340 of 2011 Page 2 of 11 deceased to DHH, Deogarh by a Rickshaw, but the deceased succumbed to injury on the next date at 9:30am in the morning. 3. After the death of the deceased, on 14.01.2009
Legal Reasoning
at about 10am, PW 1 lodged an FIR against the convict under Ext.1 before the IIC, Deogarh who registered Deogarh PS Case No. 11 of 2009 for commission of offence punishable U/S. 302 of IPC and directed SI of Police PW 11 M.R. Pradhan to investigate the matter. Accordingly, PW 11 in the course of investigation examined the informant and other witnesses, conducted inquest over the dead body under Ext.2 and sent the dead body for Post Mortem Examination. PW 11 also arrested the convict at about 1:00pm on 14.01.2009 and seized the weapon of offence i.e. one bamboo stick vide seizure list Ext.3. PW 11 also seized the wearing apparels and blood sample of the deceased under Ext.9 as well as seized the wearing apparels of the convict as well as his nail clippings under Ext.10. As usual on conclusion of investigation, the charge-sheet was submitted against the CRLA No.340 of 2011 Page 3 of 11 convict for offence U/S.302 of IPC under which cognizance was taken and the case of the convict was committed to the Court of Sessions where the convict faced the trial after denying to the charge. 4. In the course of trial, the plea of the convict was of complete denial of the occurrence. 5. In support of the charge, the prosecution examined altogether 11 witnesses and proved 10 documents vide Ext. 1 to 10 as well as identified five material objects vide MO I to V as against no evidence whatsoever by the defence. 6. After appreciating the evidence on record upon hearing the parties, the learned Additional Sessions Judge, Deogarh convicted the Appellant by mainly relying upon the evidence of PW Nos. 3, 6 and 7. 7.
Legal Reasoning
Mr. A. Sahoo, learned counsel for the Appellant at the inception has submitted not on merit, but only to persuade this Court to alter the conviction of the Appellant for the offence punishable U/S. 302 of IPC to 304-II IPC and for reduction of the sentence accordingly. CRLA No.340 of 2011 Page 4 of 11 It is, accordingly, submitted by the learned counsel for the Appellant that considering the manner in which incident had occurred and the role attributed to the Appellant, the conviction of the Appellant deserves to be altered. According to Mr. Sahoo, the case does not fall within the first clause of Section 300 of IPC and all that can be attributed to the Appellant to “his knowledge, but not intention”. 8. On the other hand, Mr. P.K. Mohanty, learned ASC has submitted that the learned trial Court has rightly held the Appellant guilty of offence punishable U/S. 302 of IPC since the act of the Appellant does not fall any of the exception to Section 300 of IPC so as to make him liable for culpable homicide not amounting to murder. It is, accordingly, prayed by Mr. P.K. Mohanty to dismiss the appeal. 9. After having bestowed an anxious consideration to the rival submissions and on going through the impugned judgment of conviction keeping in view the evidence available on record, the moot question that CRLA No.340 of 2011 Page 5 of 11 arises out for consideration is whether the conviction of the Appellant for offence U/S. 302 of IPC is liable to be altered to one U/S. 304-I or II of IPC since the Appellant has made a limited prayer for alteration of his conviction and reduction in sentence. A careful and meticulous scrutiny of evidence on record including the evidence of PW Nos.3, 6 and 7, indisputably it appears that the Appellant demanded money from the deceased, but when the later replied to have no money with him, the Appellant assaulted the deceased by means of bamboo lathi on the legs of the deceased causing fracture. In addition, it transpires from the evidence of PW No.7 that the Appellant had also dragged the deceased while he was sleeping on a cot and made the deceased fall on the ground before assaulting. 10. In the above situation, the evidence of Doctor would throw some more light to find out as to whether the Appellant was having requisite intention to kill the deceased or the knowledge of the Appellant as to his act likely to cause death. In this case, the Doctor PW8 had CRLA No.340 of 2011 Page 6 of 11 conducted autopsy over the dead body and in his evidence, PW8 had found two lacerated wound with bone deep on the left leg and right knee as external injuries, but he further testified to have noticed fracture of left & right “tibia and fibula” bones as well as fracture of left second and third ridge and rupture of legs vessels. The cause of death of the deceased was opined by PW8 to be on account of shock due to injuries of leg bones and vessels. Further, PW8 had also answered to the query about possibility of injuries by split bamboo lathi produced before him in affirmatively. 11. Since only argument canvassed before this Court is that the act of the Appellant was at best can be considered to be culpable homicide not amounting to murder, it would be appropriate to see as to whether the act of the Appellant squarely false within the scope or ambit of third clause of Section 299 of IPC which speaks of the knowledge of the offender that he is likely by such act to cause death, but had no intention to kill the deceased. There is a fine distinction between intention CRLA No.340 of 2011 Page 7 of 11 and knowledge. In arriving at finding whether the offender was having requisite intention or knowledge, it can be inferred from various facts and circumstance, like the nature of weapon used, the seat of assault, the nature of injuries caused, the circumstance preceding to the assault, the weapon used was carried or not and the manner of weapon used etc which are not exhaustive, but selective few. 12. In the present case at hand, the admission of Doctor in cross-examination that no external injury was found on the person of the deceased above the knees and the age of the deceased was about 105 years at the relevant time of death and the injuries might be possible due to fall from a reasonable height are indicative of the fact that the Appellant was not having any intention to cause death which get supports from the evidence of PW6 that the Appellant dragged the deceased from the cot and made him to fall on the ground. The above circumstance of evidence makes it more favourable to the Appellant while deducing his intention to cause death of the CRLA No.340 of 2011 Page 8 of 11 deceased when it is admittedly found from the evidence on record that he was not carrying any weapon of offence i.e. bamboo lathi herein. Besides, the evidence also suggests that the deceased was immediately taken to hospital where he died while undergoing treatment on the next day of occurrence. There is also absolutely no evidence to indicate that the Appellant was having any intention to cause such bodily injury as his likely to cause death, but certainly he can be attributed with knowledge that the injuries inflicted by him to the deceased was likely to cause death of the later. Had there been any intention on the part of the Appellant, he could have assaulted the deceased on his head, but that being not so, it would be inappropriate to attribute intention of the Appellant to commit murder of the deceased 13. Albeit, the learned trial Court had come to a finding that the Appellant had killed the deceased, but it has not directed itself to find out as to whether the act of the Appellant in killing the deceased would come under any of the exception to Sec. 300 of IPC which speaks of CRLA No.340 of 2011 Page 9 of 11 culpable homicide not amounting to murder and such act of the Appellant would make him liable for offence U/S. 304-I or II of IPC. The narration and discussion of evidence in the preceding paragraph coupled with analysis of evidence on record, this Court is of the considered view that since the deceased was a centenarian and he was found to have been assaulted by the Appellant on his legs causing fracture and he being dragged by the Appellant, the act of the Appellant in killing the deceased would come U/S. 304-II of IPC and this Court, therefore, altered the conviction of the Appellant to one U/S. 304-II of the IPC. It appears from the genesis of the case that the Appellant being a poor person and had faced the trial in custody and he remained in the custody w.e.f. the date of his arrest on 14.01.2009 till he was released on bail pursuant to an order passed by this Court on 18.04.2017. Thus, the Appellant is, accordingly, sentenced to the period already undergone for offence U/S. 304-II of IPC, but taking into CRLA No.340 of 2011 Page 10 of 11 consideration his poverty, no separate sentence of fine is awarded to the Appellant. 14. In the result, the appeal is allowed in part to the extent as indicated above. The judgment of conviction and order of sentence passed by learned Additional Sessions Judge, Deogarh in S.T. Case No. 42 of 2009 are accordingly modified to the extent indicated in the preceding paragraph. I Agree (G. Satapathy) Judge (D.Dash) Judge Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 05-Dec-2023 18:02:11 Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Priyajit CRLA No.340 of 2011 Page 11 of 11