MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.570 of 2022 In the matter of Appeals under section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 21st June, 2022 passed by the learned Sessions Judge, Malkangiri in C.T. No.48 of 2020. Laikhan Bhumia …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant For Respondent - Mr.A.K. Nath, Advocate. - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 02.09.2024 :: Date of Judgment: 09.10.2024 D. Dash, J The Appellant, by filing this Appeal has assailed the judgment of conviction and order of sentence dated 21st June, 2022 passed by the learned Sessions Judge, Malkangiri in Criminal Trial No.48 of 2020 arising out of Mathili P.S. Case No.105 of 2019 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Malkangiri. The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- (Rupees CRLA No.570 of 2022 Page 1 of 11 Twenty Thousand) with the default stipulation to undergo rigorous imprisonment for one year. 2. Prosecution case:- On 08.07.2019 around 9.46 p.m., one Durjan Bhumia (Informant-P.W.1) lodged a written report with the Inspector-In- Charge (I.I.C.), Mathili Police Station stating therein that around 5 p.m. on that day his father Sania Bhumia had gone to village- Mundaguda, Bodo Sahi to leave his grandfather Hari Bhumia in his house. At that place, the accused seeing Sania Bhumia came in front of the house of Hari Bhumia and assaulted Sania by means of a Shovel (Kodala) on his head. Receiving such assault, Sania fell on the ground and lost his sense. It is stated that the incident being witnessed by the sister-in-law of Durjan Bhumia, namely, Radha Bhumia (P.W.8), she came to the house of Durjan (Informant- P.W.1) and informed them about the same. Durjan immediately getting the information from Radha (P.W.8) went to the spot along with his elder brother Raghunath (P.W.4) and found their father lying unconscious on the ground sustaining bleeding injuries on his person. It is mentioned in the said report that on account of previous enmity, accused Laxman Bhumia bearing grudge had assaulted Sania with an intention to kill. The said information being received by the IIC (P.W.21), he treated the same as F.I.R. and registering the case, took up investigation. He (I.O.-P.W.21) examined the Informant and having come to know that Sania had by then being admitted in the Community Health Centre (CHC), Mathili, he rushed to the Center. There he came to know from the Medical Officer attached to the Mathili CRLA No.570 of 2022 Page 2 of 11 CHC that Sania had succumbed to the injuries. The Investigation Officer (I.O.-P.W.21) then examined other witnesses and having held inquest over the dead body of the deceased, prepared the report (Ext.2/2) in presence of the witnesses. The dead body was sent for Post Mortem Examination by issuing necessary requisition. The I.O. also seized the incriminating articles under seizure list and after arresting the accused forwarded him in custody to Court. It is stated that the accused while in police custody disclosed to have kept the Shovel (Kodala) in the courtyard of his house and if he was taken there, he would give recovery of the same. The statement of the accused being recorded by the I.O. (P.W.21) vide Ext.11, the accused then led the police and other witnesses to the courtyard of his house and bringing out the Shovel (Kodala) gave to the I.O. (P.W21) who then seized it under seizure list (Ext.12) in presence of the witnesses. The wearing apparels of the deceased as well as the accused were also seized under seizure list and the seized weapon as also other incriminating articles were sent for Chemical Examination through the Court. On completion of investigation, the I.O (P.W.21) 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., Malkangiri 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 them, as already stated, the son of the deceased who had lodged the written report (Ext.1) with the IIC, Page 3 of 11 CRLA No.570 of 2022 Mathili Police Station (P.W.21) has been examined as P.W.1. The sister-in-law of P.W.1 who had informed about the incident to P.W.1 has come to the witness box as P.W.8. The eye-witness to the occurrence, who had gone with the deceased to his house where the incident took place is P.W.2 whereas P.W.3 is the mother of P.W.1 and wife of the deceased. P.W.4 is an after occurrence witness who says to have heard the incident from P.W.8 and P.W.1 whereas P.W.5 is the uncle of the accused and the deceased. Similarly, P.W.6 is another uncle of the accused and the deceased and P.W.7 is the brother of the accused and the deceased. One nephew of P.W.8 has been examined as P.W.10 and P.W.12 is an after occurrence witness so also P.W.15, P.W.16, P.W.17 and P.W.18. The Doctor, who had conducted autopsy over the dead body of the deceased, has been examined as P.W.22 and the I.O. who had conducted the investigation right from the beginning till submission of the Final Form is P.W.21. 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
Facts
of those, the important are the FIR (Ext.1); inquest report (Ext.2/2), spot map prepared by the I.O. (Ext.9), the statement of the accused in leading the police and other witnesses in giving recovery of the Shovel (Kodala) has been admitted in evidence and marked Ext.11 whereas the Post Mortem Examination Report is Ext.13. The seized incriminating articles having been produced before the Trial Court have been marked as M.O.-I to M.O.-VII. CRLA No.570 of 2022 Page 4 of 11 6. The plea of defence is that of complete denial No evidence has however been let in from the side of defence despite opportunity. 7. The Trial Court upon examination of the evidence of the prosecution witnesses and scrutiny of evidence of eye-witnesses- P.W.2 and P.W.8 has held the prosecution to have established the fact that it was the accused who had assaulted the deceased by means of a Shovel (Kodala) on his head which has led to his death. Having found that the Trial Court has held the accused guilty for commission of offence under section 302 of the IPC and the accused has been sentenced as afore-stated. 8. Learned counsel for the Appellant (accused) submitted that the Trial Court ought not to have relied upon the solitary testimony of P.W.2 and P.W.8 in fastening the guilt upon the accused as to have murdered Sania. He submitted that P.W.2 is a highly interested witness and his evidence is cryptic. He also submitted that the manner in which this P.W.2 says that the accused assaulted the deceased is not safe to be relied upon and so also the role played by the accused as he has stated. He also submitted that the response of P.W.2 in the said place of occurrence when is viewed that creates doubt in the mind as to his presence right at the moment. He then submitted that the evidence of P.W.2 and P.W.8 being put to strict scrutiny cannot be held as safe to be relied upon to fasten the guilt upon the accused as regards his role in assaulting the deceased by means of a Shovel (Kodala) and, therefore, the other evidence are of no avail so as to stand to corroborate. He thus submitted with the the finding that the deceased met a homicidal death in view of the evidence of the Doctor (P.W.22) and other evidence available, the Page 5 of 11 CRLA No.570 of 2022 prosecution cannot be said to have established the fact that it was the accused who had assaulted Sania to death by giving blows by means of that Shovel (Kodala) on his head. He in the alternative submits that even accepting the role of the accused in assaulting the deceased even upon acceptance when the surrounding circumstances are viewed in their proper prospective, the Trial Court ought not to have held the accused for commission of offence under section 302 of the IPC and it ought to have been one under section 304, Part-I of the IPC. 9. Learned Counsel for the Respondent-State while submitting all in favour of the finding of guilt against the accused as has been returned by the Trial Court has contended that the evidence of P.W.2 and P.W.8 are wholly reliable as they from the beginning states to have arrived in his house with the deceased when the accused came and assaulted the deceased by means of that Shovel (Kodala) on his head. He further submitted that no such material having been elicited to doubt the fact that this P.W.2 being accompanied by the deceased had gone to his house so as to be left there, his evidence as regards the happenings soon after their arrival in attributing the role to the accused in assaulting the deceased can never be disbelieved. He submitted that there being no evidence on record to point the finger at P.W.8 in suspecting the evidence, the same has been rightly relied upon. He further submitted that the evidence of other prosecution witnesses provides full corroboration to the evidence of P.W.2 and P.W.8 and the medical evidence too provide support to the same when the Doctor (P.W.22) has stated about the seat of injury has also opined that with the weapon, i.e., Shovel (Kodala), the injury noticed on the head are possible. CRLA No.570 of 2022 Page 6 of 11 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.P-14. 11. In order to address the rival submissions in ascertaining the sustainability of the finding of the Trial Court that the accused had assaulted the deceased on his head by means of Shovel (Kodala) which had led to his death, we are required to undertake the exercise of examination of the evidence on record. The son of the deceased who had lodged the F.I.R. (Ext.1) being examined as P.W.1 has stated that when he was in his house, his sister-in-law-Radha (P.W.8) came and informed that Sania (father of P.W.1) having gone to leave Hari (P.W.2) in his hosue at village-Mundaguda, Bodo Sahi, accused assaulted him by means of Shovel on his head. This, P.W.1 is not an eye-witness to the occurrence and he states to have gone to the spot after hearing from P.W.8 and saw his father lying in an unconscious state on the ground with injuries and then shifted him to the Hospital. P.W.8 who had informed P.W.1, however, states to have seen the incident. It is her evidence that it was around 5 p.m., the incident took place when accused assaulted Sania by means of a Kodiki and it was in front of her house. He of course does not state about the arrival of Sania (deceased) and presence of Hari (P.W.2). Nonetheless, she states to have immediately informed about the incident to P.W.1 and Raghu (P.W.4). At this juncture, when we turn to the evidence of P.W.4, we find him to have also stated that having heard about the incident from P.W.8 and taht he with P.W.1 immediately rushed to Page 7 of 11 CRLA No.570 of 2022 the spot and saw Sania lying on the ground with bleeding injuries and blood oozing from his head and face. At par with the evidence of P.W.1, he also states that thereafter immediately Sania was taken to the Hospital. The evidence of P.W.8 as to have seen the incident wherein the accused assaulted Sania by means of a Kodiki appears to have gone unchallenged during the cross-examination. This P.W.8 has denied the suggestion as to have not seen the incident. The above being the evidence of P.W.8 now we too find the evidence of P.W.2, which is very important. This P.W.2 in a natural manner states that he had gone to the house of Sania as his wife was ill. He has next stated that the purpose of his visit to perform some “Jhada Phunka” which they in their Community believe as a tool for curing the ailment. He further states that Sania came and left him at his house in a Motorcycle and when he was in front of his house; just at that time the accused came there and assaulted by means of a Kodala on his head and also near the mouth. He has then stated about the fatal consequences. During cross-examination, he has reasserted his presence near the spot. The demenure of the witness has also been noted by the Trial Court that every time during his examination, he was stating that he was speaking the truth. Despite cross-examination absolutely no such material has surfaced to raise any sort of doubt in mind with regard to the presence of this witness at the spot after having come with the deceased from his house immediately whereafter the accused came and assaulted. It is true that P.W.2 is a close to the deceased. But his evidence appears to be receiving corroboration from the evidence of P.W.8 and others, i.e., P.W.1 and P.W.4 who have immediately come. The evidence of the Doctor (P.W.22) provides full corroboration to the evidence of all these witnesses. Thus, even for a moment discarding the evidence as Page 8 of 11 CRLA No.570 of 2022 to the recovery of the weapon at the instance of the accused while in police custody accepting the submission that the evidence on that score is highly discrepant; we with the above discussed ocular testimony to be enough to record the finding of guilt as against the accused. Therefore, we are in agreement with the finding of the Trial Court that it was the accused who had assaulted the deceased by means of Shovel (Kodala/Kodki) and the injuries resulting therefrom has led to the death of Sania. 12. Having held as above, let us turn our attention to the
Legal Reasoning
alternative submission. We find that right from the beginning in the F.I.R. (Ext.1), it finds mention that there was previous enmity between the deceased and the accused and that the assault was made by the accused out of anger. P.W.2, the eye-witness whose evidence, we have found to be reliable has stated as if no sooner did he and the deceased arrived in front of his house; the accused came and assaulted the deceased by means of a Kodki on his head. But then his evidence is silent as to whether the deceased then was on the Motorcycle or standing on the road or was entering into the house. When it is there in the very F.I.R. lodged by the son of the deceased (P.W.1) that there was prior enmity, this P.W.2 is silent about the same. He is also not stating that when the accused came, whether he came to the spot carrying that weapon. P.W.3, however, states that there was dispute between her husband (deceased) and the accused with regard to the landed property and the accused was quarreling with her husband. When this P.W.2 does not state that the accused after the incident went to his house, she is also not stating that whether the accused had carried that weapon with him while leaving the place of occurrence. P.W.5, however, states that CRLA No.570 of 2022 Page 9 of 11 the deceased came driving the Motorcycle and P.W.2 was sitting as the pillion rider. His further evidence is that just at that time when the Motorcycle stopped in front of the house, accused came by holding the Kodaki and assaulted the deceased on his head. He is not stating that the accused having given one blow; had also repeated the same. But this witness has honestly stated that there was dispute between the accused and the deceased relating to their landed property and he states that the deceased had carried that weapon while leaving the place. P.W.8 has not narrated any happenings prior to the actual assault. He does not say that after the deceased and P.W.2 arrived in the Motorcycle, the incident took place. Thus, on overall analysis of evidence of all these witnesses, it appears to us that some happenings before the actual assault are not stated and we too find from the evidence of P.W.21, the I.O. that in course of investigation, he had ascertained that there was subsisting dispute between the accused and the deceased and in that connection there was earlier a criminal case. At this stage, when we glance at the evidence of the Doctor (P.W.22), we find him to have stated that the fatal injury which he noticed on the dead body of the deceased was the incised wound of size 3” x 2” over the parietal bone of the head and the other injuries are fracture of mandibular bone and parietal bone of head which stiches over chin and nose. However, when he states that the injuries sustained by the deceased was possible by infliction by means of the Shovel that he examined, it is not brought out from him by the prosecution that the injuries which he noticed on the head and face region were on account of repeated blows and could not have resulted from one blow. CRLA No.570 of 2022 Page 10 of 11 The parties hail from remote rural background of the Scheduled Area of the State. Judicial notice of the fact can be taken that the parties, who are members of the Scheduled Tribe Community often react aggressively in silly matters and their behavior is unexpected many a time when their tamper usually run high. 13. Taking a cumulative view of all the circumstances emanating from evidence as discussed above; 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. 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, which according to us would serve and meet the ends of justice. 14. In the result the Appeal is allowed in part with the above alteration of conviction and modification of sentence to the extent as indicated. I agree Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Himansu Location: OHC Date: 09-Oct-2024 15:24:24 CRLA No.570 of 2022 (D. Dash), Judge (V. Narasingh) Judge Page 11 of 11