MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.524 of 2024 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 6th May, 2024 passed by the learned 1st Additional Sessions Judge, Sambalpur in Sessions Trial No.234/25/102 of 2013-14 the Court of learned Sub-Divisional Judicial Magistrate, Rairakhol. Nilakantha @ Kurkutu Biswal …. Appellant State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant For Respondent - Mr.A. Mishra, Advocate. - Mr.P.K. Maharaj, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 14.08.2024 :: Date of Judgment:04.09.2024 The Appellant, in this Appeal, has challenged the judgment of conviction and order of sentence dated 6th May, 2024 passed by the learned 1st Additional Sessions Judge, Sambalpur in Sessions Trial No.234/25/102 of 2013-14, corresponding to Charmal P.S. Case No.23 of 2013 of the Court of the learned Sub-Divisional Judicial Magistrate, Rairakhol. The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and sentenced to undergo imprisonment for life CRLA No.524 of 2024 Page 1 of 10 and pay a fine of Rs.50,000/- (Rupees Fifty Thousand) in default to undergo rigorous imprisonment for period of one year. 2. Prosecution Case:- On 14.04.2013 around 5.30 p.m. one Sasmita Biswal (Informant- P.W.1) lodged a written report with the Officer-in-Charge (OIC), Charmal Police Station in the District of Sambalpur stating therein that on the previous evening around 8 p.m. when her husband Premananda Biswal was discussing with this friends near his variety shop for playing cards; the accused came there and he requested to allow him to play with them. Said Premananda and his friends did not accept the request of that accused. So, there was exchange of hot words between Premananda and the accused. The accused then left the spot being annoyed. It was around 9.00 p.m., the accused again went to the shop carrying a wooden plank and dealt a blow on the head of Premananda and then fled away from the spot. It is said that on account of such assault, Premananda sustained severe bleeding injury on his head for
Legal Reasoning
which first of all, he was shifted to Community Health Center (C.H.C.), Charmal for treatment and then as advised by the Doctor to V.S.S. Medical College and Hospital, Burla, for better treatment. Premananda while undergoing the treatment died in the hospital. The O.I.C. receiving the said report (Ext.1), treated the same as FIR (Ext.1) and upon registration of the case, directed one Sub-Inspector of Police (S.I.) attached to the police station (P.W.22) to take up investigation. In course of investigation, the Investigating Officer (I.O.-P.W.22) then examined the Informant (P.W.2), recorded her statement and visited the spot where he prepared the spot map (Ext.11). He also CRLA No.524 of 2024 Page 2 of 10 collected the blood stained earth and sample earth from the spot and seized those under seizure list (Ext.2). It was on 15.04.2013, the I.O. (P.W.22) received an information from V.S.S. Medical College and Hospital that Premananda in course of treatment died. He, therefore, proceeded to the hospital and held inquest over the dead body of the deceased and prepared the report (Ext.3) in presence of witnesses. The dead body was then sent for Post Mortem Examination by issuing necessary requisition. The other incriminating articles were also seized and also other witnesses were examined by the I.O. (P.W.22). On 17.04.2013, the accused being arrested was forwarded in custody to Court. It is stated that the accused while in police custody, pursuant to his statement, led the police and other witnesses in giving recovery of the wooden plunk which was seized by the I.O. (P.W.22) under seizure list (Ext.5). The seized incriminating articles were sent for chemical examination through court. On completion of investigation, the I.O (P.W.22) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC. 3. Learned S.D.J.M., Rairakhol 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 the accused. 4. In the trial, the prosecution in total has examined twenty-two (22) witnesses. Out of whom, as already stated, the Informant who is the wife of the deceased and had lodged the F.I.R. (Ext.1) is P.W.1. P.W.3, CRLA No.524 of 2024 Page 3 of 10 P.W.4, P.W.5. P.W.8 and P.W.10 are the occurrence witnesses whereas P.W.6, P.W.11. P.W.12. P.W.13, P.W.15 and P.W.18 are the post occurrence witnesses. P.W.2, P.W.7 and P.W.17 are the seizure witnesses. The Doctor, who had examined the accsued and conducted the Post Mortem Examination over the dead body of the deceased, are P.W.20 and P.W.19 respectively whereas the Investigating Officer has come to the witness box as P.W.22. 5. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.14. Out of those, the important are the FIR, Ext.1; spot map is Ext.11. The inquest report and post mortem examination report are Ext.3 and Ext.9 respectively. The statement of the accused pursuant to which the I.O. (P.W.22) and others had gone to the place and wooden plank was recovered, has been admitted in evidence and marked Ext.6 and the relevant seizure list is Ext.5. 6. The accused has tendered no evidence in support of his plea of denial and false implication. 7. The Trial Court, upon examination of evidence and their evaluation has held the prosecution to have successfully established the charge against the accused beyond reasonable doubt that he intentionally caused the death of Premananda Biswal. Accordingly, the accused has been convicted for commission of offence under section 302 of the IPC and sentenced as aforestated. 8.
Legal Reasoning
Learned Counsel for the Appellant (accused) while not disputing the fact that Premananda met a homicidal death on account of injury CRLA No.524 of 2024 Page 4 of 10 sustained by him on his head contended that the evidence on record upon proper examination and appreciation in their proper prospective ought not to have been held by the Trial Court as enough to record the finding that this accused was the author of the head injury upon Premananda and had caused the same by means of that wooden plank. In support of the same, he has invited our attention to the depositions of all the prosecution witnesses in further elaborating as to how those are doubtful. He in the alternative submitted that in case this Court even accepts the prosecution evidence to be sufficient to conclude that the accused had dealt the blow on the head of the deceased by means of a wooden plank which has led to his death two days thereafter, in view of the surrounding circumstances prior to that assault and subsequent thereto, the conviction is liable to be altered to one under section 304 Part-I of the IPC. He submitted that the evidence on record do not reveal that there was prior dispute between the accused and the deceased, save and except that the accused was having some reason to be annoyed when he was not accepted at the instance of Premananda in joining them for playing the cards. It was also submitted that the evidence is not forthcoming to the effect that the accused had any prior planning for the incident and it is stated that he in order to give the blow on the head of the deceased had come to the spot carrying that wooden plank. He further submitted that when it is stated that some others were also present there with the deceased, it is not believable that the accused straight away came and dealt the blow on the head of the deceased when some happenings prior to that clearly appear to have been suppressed. He thus submitted that in the event this Court accepts the prosecution evidence that the death of Premananda two days before the death was on CRLA No.524 of 2024 Page 5 of 10 account of the head injury caused by this accused,; the accused would be liable for conviction under section 304-II of the IPC and sentenced accordingly as deem just and proper, commensurate the offence committed under the circumstance. 9. Learned Counsel for the Respondent-State submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court. According to him, the evidence of P.W.3 who is the eye- witness is very clear that it is the accused, who came and attacked Premananda by a lathi and when Premananda shouted, he found him to be sitting on the ground holding his head with profuse bleeding therefrom. He further submitted the evidence of P.W.3 as above has not been shaken nor any such material has been elicited despite searching cross-examination to entertain a doubt in mind as regards his presence at the relevant time, discrediting his version. He, therefore, submitted that when that head injury has led to the death of the deceased, the Trial Court has rightly held the accused guilty for commission of offence under section 302 of the IPC 10. 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.22) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.14. 11. It is not in dispute that the incident having occurred on 13.04.2013 night around 9 p.m., Premananda died on 15.03.2013 when he was undergoing treatment in the hospital for the said head injury. The wife of the deceased examined as P.W.1, who had lodged the F.I.R. although has mentioned in the F.I.R. that her husband was assaulted by Page 6 of 10 CRLA No.524 of 2024 the accused on his head by means of a split wood; she does not state to be present at the relevant time and had seen the incident of assault by the accused upon he husband. During her Examination-in-Chief, although she has reiterates the same version presented in the F.I.R. (Ext.1); during cross-examination she has admitted to have gone to the shop of her husband where the incident took place after getting the telephone call from a person as regards the incident. 12. The important witness for the prosecution is P.W.3. He has stated that the incident occurred in front of the shop of Premananda on 13.04.2013 in between 8.30 p.m. to 9.00 p.m. He has asserted his presence by stating that he was then watching the playing of cards. His evidence is that in the evening, there was fighting between the accused and Premananda and he had separated them. He next states that after sometime, accused attacked Premananda with a lathi and on hearing the cry of Premananda as “Marigali” he saw Premananda sitting on the ground with profuse bleeding injury. The witness being cross-examined has stated that the playing of cards was going on in front of the shop of one Ratnamani Behera, which is situated near the shop of deceased- Premananda and it was at a distance of only 20 ft. When no such materal has been elicited from him to doubt his evidence as regards his presence at the spot and the shop of the accused as well as the spot being very close to one another, we are not in a position to accept the submission of the learned counsel for the accused that this P.W.3 had not seen the incident but had arrived there later and is posing him to be the eye- witnesses. The defence we find has not cross-examined P.W.3 to demolish his evidence that it was the accused who had dealt the blow on his head CRLA No.524 of 2024 Page 7 of 10 by a wooden plank. In addition to the evidence of P.W.3, we find the evidence of P.W.4 to be also very important. He states that the accused was running a tailoring shop near the shop and the witness has electric shop adjacent to the shop of the deceased Premananda. It is his evidence that when after closing his shop, he was going home, he stood for some time for watching the cutting of the concrete road when he heard the shout as “Dhara, Dhara” He further states that hearing the shout when he looked back, he found the accused running towards him and he caught hold the accused, who told that he was being chased by others to be assaulted. The witness says that hearing from the accused that he was being chased for being assaulted, he set him free and came to the shop of Premananda and saw Rama Biswal (P.W.15) holding a lathi and he threw the same to the road. Rama Biswal (P.W.15) who is none other than the brother of the accused was holding that lathi and he threw the same to the road. He also states to have heard from the persons present there that it was the accused who had assaulted Premananda. 13. P.W.5 is a witness who states to have heard about the happenings in the incident from P.W.4. P.W.8 has further stated that accused assaulted Premananda by means of a wooden plank causing bleeding injury on his head and he with others shifted Pemananda to the Hospital. But this witness admits that he had not stated before the I.O. during investigation that it was the accused who had assaulted the deceased by means of a wood plank. P.W.10, P.W.11, P.W.13, P.W.14, P.W.15, P.W.16, P.W.18 and P.W.21 have not supported the prosecution case and their evidence do not come to the aid of the prosecution. 14. On a detail scrutiny of evidence of P.W.3, we find the same to be having the ring of truth and that was also receive corroboration from the CRLA No.524 of 2024 Page 8 of 10 other evidence as stated besides the evidence of the Doctor examined as P.W.20. We are, therefore, of the view that the prosecution has successfully proved its case that the accused had assaulted the deceased by means of wooden plank on his head beyond reasonable through clear, cogent and acceptable evidence. 15. Having held as above, we are now called upon to address the alternative submission of the learned counsel for the accused that the said act of the accused would not attract his culpability for commission of offence under section 302 of the IPC but 304-II of the IPC. The parties hail from rural background. No evidence is forthcoming that there was any prior planning by the accused for the same. The first part of the incident which is said to have caused annoyance in the mind of the accused and the reason is as his request to participate in the playing of card was not accepted at the instance of the accused. In the second phase, it is said that the accused assaulted the deceased. As per the evidence let in, the two phases almost seen to have happened at a time. The incident having taken place on 13.04.2013 night, the death was occasioned on 15.04.2013 when the deceased was undergoing treatment. The evidence of P.W.3 is to the effect that the accused had once assaulted the deceased on his head. The seized wooden plank has not been produced in the trial for being marked as material object. Be that as it may, P.W.20, the Doctor who had conducted the autopsy over the dead body of the deceased has stated that the head injury noticed on the head of the deceased could be possible by that wooden plank and that injury is on the left parietal region and he has clearly stated that other injuries was not possible by that wooden plank. Page 9 of 10 CRLA No.524 of 2024 It is the evidence of P.W.3 that accused had assaulted the deceased once on the wooden plank. Prior to the same as the evidence goes, the accused having requested the deceased and others to allow him to participate in the playing of cards, his request was turned down. In such circumstances, since besides the deceased, other persons were also present there at a close distance were watching, it appears that some happenings before the assault on the head of the deceased are being suppressed as in that situation it is not easily acceptable that the accused went away after the first phase and coming back straightway assaulted the deceased. 16. 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 and act done by the accused, he would be liable for conviction under section 304 Part-I of the IPC. 17. In that view of the matter, the conviction of the accused is altered to one under section 304 Part-I of the IPC and accordingly, he is sentenced to undergo rigorous imprisonment for a period of seven (7) years. 18. With the above alteration as to the judgment of conviction and modification of the order of sentence to the extent as above, the Appeal
Decision
stands disposed of. (V. Narasingh), Judge Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Himansu Reason: Authentication Location: OHC Date: 05-Sep-2024 12:21:53 CRLA No.524 of 2024 (D. Dash), Judge Page 10 of 10