The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.770 of 2019 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 22.07.2019 passed by the learned Additional Sessions Judge, Boudh in Sessions Trial No.83 of 2017 (T). ---- Santosh @ Barakhandia Barik; & …. Appellants Dukhu @ Chhuta Barik State of Odisha -versus- …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.Trilochan Nanda, Mr. B. K. Panda Advocates For Respondent - Mr. P. K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing :03.11.2023 :: Date of Judgment: 13 .11.2023 D.Dash,J. The Appellant, namely, Dukhu @ Chhuta Barik in this Appeal, has assailed the judgment of conviction and the order of sentence dated 22.07.2019 passed by the learned Additional Sessions Judge, Boudh in Sessions Trial No.83 of 2017 (T) which arises out of C.T. Case No.88 of CRLA No.770 of 2019 Page 1 of 10 {{ 2 }} 2017, corresponding to Manamunda P.S. Case No.76 of 2017 of the
Facts
Court of learned Judicial Magistrate First Class (JMFC), Kantamal. The Appellant, namely, Dukhu @ Chhuta Barik and accused Santosh @ Barakhandia Barik together had filed this Appeal. Said Santosh @ Barakhandia Barik having died during pendency of the Appeal, the Appeal has abated as against him. The above noted Appellant, namely, Dukhu @ Chhuta Barik has been convicted for commission of offence under section 302/34 of Indian Penal Code, 1860 (in short, ‘the IPC’) and have been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo Rigorous Imprisonment for 1 (one) year. Prosecution Case :- 2. On 26.04.2017 during noon hours, this accused Dukhu @ Chhuta Barik and the co-accused, namely, Santosh @ Barakhandia Barik (since dead) had gone to the house of Malia Barik to procure tari (locally available drink which causes intoxication). It is stated that they together consumed Khajuri tari. Sometime thereafter, they demanded more tari to be taken. Malia Barik refused to acceed to their demand. So it is stated that this accused with the co-accused Santosh @ Barakhandia Barik started quarreling with Malia. This accused then assaulted Malia by means of a lathi and the co-accused Santosh @ Barakhandia Barik (since dead) dealt a tangia blow on its blunt side upon the head of the deceased. Receiving the said injury, Malia died there. CRLA No.770 of 2019 Page 2 of 10 {{ 3 }} The Sub-Inspector of Police attached to Manamunda Police Station on that day around 3.30 p.m. received information regarding the incident leading to the death of Malia Barik in village Chamarabahal. Said fact being entered into the Station Diary Book of the Police Station vide Ext.16, the Inspector-in-Charge (IIC) of the said Police Station,
Legal Reasoning
entire evidence as above discussed, we are of the view that the offence could be properly categorized as one punishable under section-304 Part- II of the IPC. In that view of the matter, the accused is liable for commission of offence punishable under section-304 Part-II of the IPC. Accordingly, he is to be visited with the sentence commensurate the act done by him. CRLA No.770 of 2019 Page 9 of 10 {{ 10 }} 12. In the result, the Appeal stands allowed in part. The conviction recorded against the accused Dukhu @ Chhuta Barik under section- 302/34 of the IPC is modified to one under section-304 Part-II of the IPC and consequentially, we are of the considered opinion that imposition of the sentence to undergo rigorous imprisonment for a period of six (06) years with fine of Rs.2000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for three (03) months would be just and proper and meet the ends of justice. 13. With the above modification as to the judgment of conviction and
Arguments
namely, Sri Umakanta Pradhan and the S.I of Police (P.W.20) together proceeded to the spot. On their arrival at the spot, Sanjukta Barik, wife of Malia (Informant-P.W.15) lodged a report, being written by Nidhi Malik (P.W.2) with the IIC. Said report being treated as FIR (Ext.3), the Sub-Inspector of Police (P.W.20) was directed to take up investigation. 3. In course of investigation, the Investigating Officer (I.O-P.W.20) immediately examined the informant (P.W.15) and visiting the spot, prepared the spot map (Ext.17). He also examined the son of the deceased, namely, Hemanta (P.W.19). The dead body of Malia was found at the spot with bleeding injury near the left ear and the backside of his head and another bleeding injury on the backside of the head with contusion on the back carrying the mark of medha (lathi). The I.O (P.W.20) held inquest over the dead body of the deceased and prepared the report to that effect (Ext.12) and then sent the dead body for post mortem examination by issuing necessary requisition. He (P.W.20) seized the blood stained earth and sample earth from the spot under seizure list (Ext.4). The I.O (P.W.20) then seized some incriminating articles on 27.04.2017 and examined few more witnesses. On that day, he apprehended this accused and after his medical examination and seizure of his wearing apparels, forwarded him in custody to Court on 29.04.2017. On 30.04.2017, accused Santosh @ Barakhandia Barik (since dead) was apprehended. It is stated that he while in police CRLA No.770 of 2019 Page 3 of 10 {{ 4 }} custody, stated to have kept concealed the axe underneath the heap of palm leaves on the backside of his house and further told that if he would be taken to that place, he would give recovery of the said axe. Pursuant to the said statement, which was recorded vide Ext.7/2, accused Santosh @ Barakhandia Barik (since dead) having led P.W.20 and others to said place, he is said to have given recovery of that axe (tangia), which was seized under seizure list (Ext.8). Said accused Santosh @ Barakhandia Barik (since dead) being medically examined was forwarded in custody to Court on 01.05.2017. The seized incriminating articles were sent for chemical examination through Court and the I.O (P.W.20) having got the statements of Sanjukta Barik (P.W.15) Ranjita Barik (P.W.16) and Ulhasa Barik (P.W.14) rcorded by the Judicial Magistrate under section 164 of the Cr.P.C. finally submitted the Final Form placing this accused and accused Santosh @ Barakhandia Barik (since dead) to face the Trial for commission of offence under section 302/34 of the IPC. 4. Learned JMFC, Kantamal having received the Final Form as above, took cognizance of the offences under section 302/34 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against the accused persons by framing the charge for the said offence against the accused. 5. In the Trial, prosecution in total has examined twenty (20) witnesses. As already stated P.W.15 is the Informant, who is the wife of the deceased Malia Barik and who had lodged the FIR scribed by P.W.2, who is a co-villager, whereas P.W.19 is the daughter of the Informant. P.W.4, P.W.5, P.W.11, P.W.12 are the witnesses to the seizure. P.W.16 is the sister of the Informant whereas P.W.17 is the brother of the CRLA No.770 of 2019 Page 4 of 10 {{ 5 }} deceased. The Doctor, who had conducted autopsy over the dead body of the deceased, has been examined as P.W.18 whereas the Investigation Officer is P.W.20. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.24. Out of those, the important are the FIR (Ext.3), seizure list (Ext.1), Inquest Report (Ext.12), Spot Map (Ext.17), Post Mortem Report (Ext.13). The Chemical Examiner’s Report which has been admitted in evidence and marked as Ext.24. Some of the incriminating articles having been produced during Trial, those have been marked as Material Objects (M.O.-I to M.O.-VI) and out of those, the important one is that Axe (M.O.I) whereas M.O.II is the Cracked Medha (wooden cracked lathi) which are said to be the weapons used in causing the injuries upon the deceased leading to his death. 6. The accused being called upon has not tendered any evidence in support of his plea of denial and false implication. 7. Mr. Trilochan Nanda, learned Counsel for the Appellant (accused) Dukhu @ Chhuta Barik at the beginning instead advancing argument impeaching the prosecution evidence as regards the role played and the act done by this accused Dukhu @ Chhuta Barik contended that upon acceptance of the version of the prosecution witnesses and further keeping in view the surrounding circumstances which have emanated from the evidence when there was no motive behind the incident and everything happened all of a sudden when this accused and the other had taken tari (intoxicant) and as their demand for further tari was CRLA No.770 of 2019 Page 5 of 10 {{ 6 }} refused by the deceased and it is not stated that this accused and the other accused Santosh @ Barakhandia Barik were armed from the beginning, taken with their admitted relationship the Trial Court ought not to have convicted this accused for commission of offence under section 302 of the IPC and instead ought to have recorded the conviction for commission of offence under section 304-II of the IPC. In support of the same, he has invited our attention to the evidence of P.W.14, P.W.15, P.W.16 and and P.W.18, which would be discussed hereinafter. He thus contended for alteration of the conviction to one under section 304-II of the IPC and imposition of appropriate sentence upon this accused for commission of the said offence. 8. Mr. P. K. Mohanty, learned counsel for the State while supporting the finding of conviction of the accused for commission of offence under section 302/34 of the IPC submitted that the accused having caused the deceased to death by inflicting the injuries on his head, has rightly been held him guilty for commission of offence under section 302/34 of the IPC. 9. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.20 and have perused the documents admitted in evidence and marked Ext.1 to Ext.24. 10. Addressing the submission of the learned counsel for the Appellant (accused Dukhu @ Chhuta Barik) confined to the alteration of the conviction and appropriate reduction of the sentence, we are called upon to have a look at the evidence of P.W.14, P.W.15, P.W.16, P.W.17 CRLA No.770 of 2019 Page 6 of 10 {{ 7 }} and P.W.19. But before that for better appreciation we would go through the evidence of the Doctor, who had conducted the autopsy over the dead body of the deceased. The said Doctor being examined as P.W.18 has stated to have noticed one lacerated wound on the left frontal bone with skull fracture of the size of 5 cm x 3 cm x 2cm with blood stain. It is his evidence that on dissection, he found the membrane at the left frontal region of the brain to have been torn and there was a contusion with laceration at the left temporal region of the brain. He has stated the cause of death to be on account of fracture of left frontal bone with contusion of left frontal lobe of brain which according to him, have led to haemorrhagic shock and respiratory arrest. This has been clearly reflected in his report (Ext.13). Thus, his evidence is to the effect that there was one external injury on the left frontal bone with skull being fractured. The internal injuries corresponds to the lacerated wound on the left frontal bone with fracture of the skull. P.W.14 is the mother of the deceased and accused Santosh @ Chhuta Barik and this accused Dukhu @ Chhuta Barik is her brother-in- law. She has not supported the prosecution case. Similarly, P.W.16, who is the wife of the elder brother of the deceased Malia and the sister-in- law of the wife of the deceased (Sanjukta-P.W.15) has also not supported the prosecution case. Now comes the evidence of P.W.15, who is the wife of the deceased. She has stated that the accused persons went and asked her husband to provide tari which he denied and when her husband (deceased) expressed his inability, the accused persons abused him in obscene language which was objected to by her husband (deceased). She then states then accused Dukhu @ Chhuta Barik dealt a blow on the head of the deceased and cheek of her husband and CRLA No.770 of 2019 Page 7 of 10 {{ 8 }} thereafter accused Santosh (since dead) dealt a blow on the backside of the head of her husband with the blunt side of the axe (tangia) resulting his fall. Her further evidence is that this accused Dukhu @ Chhuta Barik thereafter assaulted on the head and back of her husband by means of a stout lathi (medha) and then again accused Santosh gave successive blow on the backside of the head of her husband. It has been stated by her that this accused Dukhu is the paternal uncle of this accused and he is lame from his childhood whereas accused Santosh (since dead) is the elder brother of her husband. When such is the evidence of P.W.15 with regard to the role of this accused as well as the other, accused Santosh (since dead), the son of the deceased examined as P.W.19, being 10 years of old at the time of his examination and was a boy of about 9 years during the incident has stated to have seen the incident which took place when he was playing in the nearby place in front of their house. As per his evidence, accused Santosh assaulted on the left side head of his father with the blunt side of the axe (tangia) and this accused Dukhu @ Chhuta Barik assaulted on the back side of his father by means of medha (lathi). His further evidence is that accused Santosh (since dead) first assaulted his father by means of axe and seeing this, his mother (P.W.15) and aunt went running to the spot. The accused persons fled away. As it reveals from the evidence of these two witnesses, who are the wife and son of the deceased, the role of this accused is confined to have dealt a blow by means of a medha (stout lathi) on the backside of the head of the deceased and that is after accused Santosh (since dead) dealt the blow on the head with the blunt side of the axe (tangia). When the Doctor P.W.18 states to have noticed one external injury on the CRLA No.770 of 2019 Page 8 of 10 {{ 9 }} backside of the head of the deceased, it thus cannot be said with certainty that whether the blow given by this accused has caused the fracture or that the fracture was caused after this accused dealt the blow. Be that as it may, the prosecution evidence as emanate is to the effect that this accused has dealt a blow by means of Medha (stout lathi) on the head of the deceased. As per the evidence of P.W.15, the accused persons had consumed tari after being provided by the deceased and the quarrel started when the deceased refused to accept the request of the accused persons to provide them more tari, which is locally taken by the people of the community as an intoxicant drink. These witnesses are not stating that the accused persons when had gone to the house of the deceased, they had carried the weapon. The incident took place all of a sudden and under the circumstances as already stated. The deceased and the accused persons are closely related. It is not stated by P.W.15 that there was any prior enmity between them and that the accused persons were nourishing grudge against the deceased. Had that been the situation, the accused would not have at the first instance provided tari to the accused persons, which itself shows that the relationship between them was cordial. Consumption of intoxicant (tari) when has provided the urge for the accused to drink more, quarrel had started. 11. Cumulatively viewing all these circumstances appearing in the
Decision
order of sentence, the Appeal stands disposed of. (D. Dash), Judge. G. Satapathy, J. I agree. Judge. (G. Satapathy), Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 14-Nov-2023 14:12:31 CRLA No.770 of 2019 Page 10 of 10