The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.682 of 2024 (An application U/S. 374(2) of the Code of Criminal Procedure, 1973 against the order dated 20.05.2024 passed by Shri R.K. Lenka, Addl. District & Sessions Judge, Kuchinda in S.T. Case No.12 of 2019 arising out of Mahulpali P.S. Case No.61 of 2019) Sardar Bagh & Another …. Appellants State of Orissa …. Respondent -versus- For Appellants : Mr. D.K. Mohanty, Advocate For Respondent : Mr. S.S. Pradhan, AGA CORAM: JUSTICE G. SATAPATHY DATE OF HEARING : 12.08.2024 DATE OF JUDGMENT: 21.08.2024 G. Satapathy, J. 1. This appeal is directed against the judgment dated 20.05.2024 passed by the learned Additional District & Sessions Judge, Kuchinda in S.T. Case No.12 of 2019 convicting the appellant No.1-Sardar Bagh for commission of offence punishable U/S.304 Part-II of the Indian Penal Code (in short, “the IPC”) and appellant No.2-Sabita Bagh for offence U/S.323 CRLA No.682 of 2024 Page 1 of 11 of IPC while acquitting the appellants of the charges U/Ss.302/307/34 of IPC. 2. By the aforesaid conviction, appellant No.1 was sentenced to undergo Rigorous Imprisonment (R.I.) for seven years and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand) only in default whereof, to undergo R.I. for further four months and appellant No.2-Sabita Bagh was sentenced to undergo Simple Imprisonment (S.I.) for one year and to pay a fine of Rs.1,000/-(Rupees One Thousand) only in default whereof, to undergo S.I. for two weeks. The pre-trial detention of the appellants is directed by the aforesaid order to be set off against the substantive sentence already undergone by them U/S. 428 of the IPC. 3.
Legal Reasoning
After having considered the rival submission upon perusal of record, it appears from the evidence on record that there was a quarrel between the deceased and the appellants and in such quarrel, the appellant No.1 assaulted the deceased by means of a pidha (low wooden stool) and when PW14, the injured eye witness-cum-wife of the deceased intervened, the appellant No.2 assaulted her and the deceased by means of a wooden stick(lathi), but the medical evidence available on record clearly suggests that the deceased had sustained one lacerated injury CRLA No.682 of 2024 Page 7 of 11 over right forehead and bruise over right maxillary area of the face. It is, therefore, very clear that the deceased had sustained one fatal injury on his head which caused his death as per the medical evidence. On the other hand, the sole eye witness to the occurrence-cum-PW14 has vividly described about the incident in her testimony which remains unshaken and therefore, there appears no doubt in the mind of the Court to concur with the findings of the learned trial Court that the deceased died on account of blow given by the appellant No.1 on the head of the deceased by means of a low wooden stool(pidha) and accordingly, the deceased died, but the learned trial Court after taking into consideration different factors has rightly considered/appreciated the evidence and accordingly, held the appellant No.1 guilty of the offence U/S.304 Part-II of the IPC and appellant No.2 for offence U/S. 323 of the IPC. 8. It, however, appears that the learned counsel for the appellants never challenges the conviction of the appellants, but his limited prayer is CRLA No.682 of 2024 Page 8 of 11 for reduction of the sentence of the appellant No.1 to the period already undergone. In addressing such issue/contention, it appears from the evidence on record that the deceased and the appellant No.1 were two brothers and they had land dispute and the learned trial Court has also taken into consideration about the assault and counter assault by the convict Sardar Bagh and the deceased against each other, while awarding sentence to the appellants-convicts. It is also not brought on record or to the knowledge of the Court that the convicts are having any past criminal antecedents or have they been sentenced in any other case? On the other hand, the convict- appellant No.1 had already undergone imprisonment for five years and one month as on the date of his conviction and three months after post-conviction and therefore, all total he has already suffered in jail custody for near about five years and four months out of the awarded sentence of seven years. It is also not in dispute that the appellant No.1 is aged about 40 years and he is having a family consisting of his CRLA No.682 of 2024 Page 9 of 11 wife and children who need his care and guidance. Further, the convicts-appellants are rustic villagers and they by nature short tempered and pick up quarrel on very silly matter. In the aforesaid backdrop, especially when the convict-appellant No.1 has already suffered incarceration for a period of near about five years and four months out of the substantive sentence of seven years and taking into consideration his past conduct and no criminal antecedent having been reported against him and the convict being the brother of the deceased and the occurrence having occurred on a spur of moment in a sudden quarrel, this Court by taking into consideration the sum totality of mitigating and attending circumstance vis-(cid:224)-vis aggravated circumstance, considers it appropriate to reduce the sentence of the appellant No.1 to R.I. for six years and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand) only, in default whereof, he is further directed to undergo R.I. for one month with further CRLA No.682 of 2024 Page 10 of 11 direction for setting off substantive sentence against the pre-trial detention. 9. In the result, the appeal stands dismissed, but in the circumstance, the sentence of the appellant No.1 stands modified to the extent indicated above. The judgment of conviction of the appellants is hereby confirmed. It is further made clear that this Court has not interfered with the sentence of appellant No.2, who according to the learned counsel for the appellants has already suffered the sentence. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 21st day of August, 2024/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2024 19:28:26 CRLA No.682 of 2024 Page 11 of 11
Arguments
Mr. Dinesh Kumar Mohanty, learned counsel for the appellants informed the Court that appellant No.2-Sabita Bagh has already been released from jail after serving out the sentence. 4. The prosecution case in precise is that the convicts are the husband and wife, whereas Pradip CRLA No.682 of 2024 Page 2 of 11 Bagh (hereinafter referred to as “the deceased”) was the younger brother of the convict-Sardar Bagh and the informant (P.W.14)-Ranjita Bagh, is the wife of the deceased. On 18.04.2019 at about 9.30 P.M. in the night, there was a quarrel between the deceased and convicts over some land dispute pertaining to their courtyard and in the course of such quarrel, the convict-Sardar Bagh assaulted the deceased by means of a pidha (low wooden stool), whereas convict-Sabita Bagh assaulted the deceased by means of a bamboo lathi, but when P.W.14-Ranjita Bagh came to rescue the deceased, the convict- Sabita Bagh also assaulted her by means of said bamboo lathi on her head causing bleeding injuries. Due to such assault, the deceased and the informant lost their sense, but later on P.W.14 regains sense only to find out the death of the deceased due to assault. On this incident, P.W.14 lodged an F.I.R. before P.W.15, the I.I.C, Mahulpali Police Station which came to be registered as F.I.R. No.61 of 2019 CRLA No.682 of 2024 Page 3 of 11 and P.W.15 proceeded with the investigation by visiting the spot, conducting inquest over the dead body of the deceased, sending the dead body for autopsy examination and examining the witnesses. In the course of investigation, P.W.15 arrested the convicts and seized the weapon of offence as well as collected the biological samples of the deceased and the convicts. On completion of investigation, P.W.15 submitted charge sheet against the convicts resulting in trial in the present case. 5. In support of its case, the prosecution examined altogether sixteen witnesses vide P.Ws.1 to 16, proved twenty four documents vide Ext.1 to Ext. 24 and identified eleven material objects under MOI to MOXI as against the sole oral evidence of D.W.1- Umakanta Bagh for the defence. Of the prosecution witnesses, PW14 is the informant-cum-sole eye witness to the occurrence, PW1&2 are the two witnesses who visited the place of occurrence first, whereas PW4 to 7,9 are also post occurrence witnesses. PW16 is the Doctor who conducted CRLA No.682 of 2024 Page 4 of 11 autopsy over the dead body of the deceased and apart from the IO-cum-PW15, other witnesses had been examined to prove the seizure and other insignificant fact. 5.1. In addition to the plea of complete denial and false implication, the convicts took further plea that at the time of incident, the deceased being in an inebriated condition fought with the informant and in the course of such tussle, the informant assaulted the deceased to death, but they while intervening the fight sustained injuries. 5.2. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted both the appellants for separate offences and sentenced them individually as indicated in the first paragraph. 6. At the outset, Mr. Dinesh Kumar Mohanty, learned counsel for the appellants has submitted that he is not pressing the appeal on merits, but his only endeavor is to persuade this Court to alter/modify the sentence of the appellants to the period already CRLA No.682 of 2024 Page 5 of 11 undergone by them, since the appellant No.2 having been detained in custody for more than five years and one month as on the date of conviction, she came out of the jail serving out of her sentence on the ground that she was only sentenced to undergo S.I. for one year and to pay a fine of Rs.1,000/- (Rupees One Thousand), in default whereof, to undergo S.I. for further period of two weeks. It is further submitted by Mr. Mohanty that appellant No.1 is not only the elder brother of the deceased, but also there was consistent land dispute between him and his deceased brother and the deceased had assaulted the convicts first which is very much palpable from the evidence of the prosecution witnesses and, therefore, taking into consideration the past conduct of the appellant No.1 and incident having occurred in a fit state of anger and the appellant No.1 having already undergone R.I. for five years and four months, his sentence may kindly be reduced to the period already undergone by maintaining his conviction for offence U/S. 304 Part-II of IPC. CRLA No.682 of 2024 Page 6 of 11 6.1. On the contrary, Mr. S.S. Pradhan, learned AGA, however, has seriously opposed the prayer of the appellants by inter alia contending that the act of the appellant No.1 is not only heinous, but also gruesome and therefore, the sentence as awarded to him is commensurate to the crime. Mr. Pradhan has accordingly, prayed to dismiss the appeal contending that in the aforesaid situation, the conviction and sentence of the appellant No.1 need no interference by this Court. 7.