MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.794 of 2017 : CRLA No.797 of 2017 : (A); (B); AND CRLA No.803 of 2017 : (C) In the matter of Appeals under section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 14th September, 2017 passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No.10 of 2013. ---- …. Appellants Smt. Dhanamati Bag (In CRLA No.794/2017) Dhiraja @ Dhiraj Bag (In CRLA No.797/2017) Sambaru Bag (In CRLA No.803/2017) -versus- State of Odisha (In three CRLAs) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): - For Appellants M/s.Manoj Kumar Pati, R.K. Mohapatra & R. Mohapatra (In three CRLAs) For Respondent - Mr.Sailaja N. Das (In three CRLAs) CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 20.03.2024 : Date of Judgment : 15.04.2024 CRLA Nos.794, 797 & 803 of 2017 Page 1 of 14 D.Dash,J. The Appellants, in the above three Appeals as at (A), (B) & (C), have faced the trial in the Court of the learned Additional Sessions Judge, Titilagarh in Sessions Case No.10 of 2013 arising out of G.R. Case No.412 of 2012 corresponding to Titilagarh P.S. Case No.177 of 2012 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Titilagarh standing charged for commission of the offence under sections 449/302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). The Trial Court has convicted all the Appellants (accused persons) for committing the offences under section 449/302/34 of the IPC. Accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for three (3) months for commission of the offence under section 302/34 of the IPC. The Trial Court, however, has not passed any separate sentence for commission of the offence under section 449 of the IPC as all the Appellants have been convicted under section 302/34 of the IPC and sentenced with imprisonment of life with fine, as above. At this stage, it be stated that the Appellant of the Appeal as at (C) is the son of the Appellants of the Appeals as at (B) & (C). The Appellants, namely, Dhanmati Bag has filed the Appeal as at (A) whereas her husband, namely, Dhiraja @ Dhiraj Bag has Page 2 of 14 CRLA Nos.794, 797 & 803 of 2017 filed the Appeal as at (B) whereas son of the above two Appellants, namely, Sambaru Bag has filed the Appeal as at (C) in challenging the aforesaid judgment of conviction and the order of sentence. In view of the above, all the three Appeals were heard together for their disposal by this common judgment. 2. Prosecution Case:- On 18.09.2012 around 7.30 p.m., these accused persons entered into the house of Durga Adjued. Having so entered into the house of Durga, the accused Dhiraja @ Dhiraj & Dhanamati caught hold of Durga when Sambaru stabbed him at five different locations of his chest and abdomen by means of a sharp cutting weapon. Durga, sustaining severe bleeding injuries, was
Legal Reasoning
first taken to Sub-Divisional Hospital, Titilagarh and on the next day, as advised by the Doctor, to V.S.S. Medical College & Hospital, Burla. On the same day, Markanda son of Durga lodged a written report with the Inspector-in-Charge (I.I.C.) of Titilagarh Police Station, which led to the registration of the case. On 21.09.2022, Durga, while undergoing treatment at V.S.S. Medical College & Hospital, Burla, died and there the post mortem examination over his dead body was conducted basing upon the requisition made in connection with the Unnatural Death (U.D.) case No.397 of 2012 of Burla P.S. CRLA Nos.794, 797 & 803 of 2017 Page 3 of 14 Receiving the written report, the IIC (P.W.30), Titiligarh P.S treated the said report as FIR (Ext.1/2) and upon registration of the case, directed the Assistant Sub-Inspector (A.S.I.) of Police (P.W.28) to take up the investigation. 3. In course of investigation, the A.S.I. of Police (I.O.-P.W.28) examined the Informant (P.W.13) and other witnesses. He (P.W.28), having visited the spot, prepared spot map (Ext.21). He (P.W.28) too seized one blood stained scrapping, one knife and cement scraping from the spot under seizure list (Ext.4/1). On 20.10.2012, the I.O. (P.W.28) handed over the charge of the investigation to the I.I.C. (P.W.30). The Sub-Inspector (S.I.) of Police (P.W.27) at Burla Medical Police Out Post took up the inquiry of the case after registration of the U.D. Case. He (P.W.27) visited the spot, held inquest over the dead body of the deceased and prepared the report to the above effect (Ext.2/1). He (P.W.27) then sent the dead body of Durga for post mortem examination by issuing necessary requisition. The I.I.C. (I.O.-P.W.30), after getting information from Burla Medical that Durga died while undergoing treatment, converted to the case to one under section 302 of the IPC and arrested all the accused persons and sent them for their medical examination. The wearing apparels of accused persons have been seized by the CRLA Nos.794, 797 & 803 of 2017 Page 4 of 14 I.O. (P.W.30) under seizure lists (Exts.3 & 10). The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.30) submitted the Final Form placing these accused persons to face the Trial for commission of the aforesaid offences. 4. Learned S.D.J.M., Titilagarh, on receipt of the Final Form, took cognizance of said offences 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 aforesaid offence against these accused persons. 5. The prosecution, in support of its case, has examined in total thirty (30) witnesses during Trial. As already stated, the informant who happens to be the son of the deceased is P.W.13 whereas P.W.18 is the wife of the deceased. P.W.20 is another son of the deceased and P.W.18. P.W.21 is the witness, who had taken the injured Durga to Titilagarh hospital. P.Ws.1, 2, 3, 5, 6, 7, 9, 11 & 12 are the occurrence witnesses. The Doctor, who first medically examined the injured Durga is P.W.24 and the Doctor, who has conducted the post mortem examination over the dead body of Durga, has been examined as P.W.22. The A.S.I. of Police is P.W.28, the S.I. of Police of Burla Medical Out Post is P.W.27 whereas the I.I.C., who submitted the Final Form, has been examined as P.W.30. CRLA Nos.794, 797 & 803 of 2017 Page 5 of 14 Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 26. Out of those; important are the FIR (Ext.1/2); inquest report (Ext.2/1); the post mortem report (Ext.11) and the spot map (Ext.21). The Chemical Examiner’s report has been admitted in evidence and marked Ext.26. 6. The accused persons, having taken the plea of complete denial and false implication have, however, not tendered any evidence.
Legal Reasoning
7. Mr.M.K. Pati, learned counsel for the Appellants (accused persons), first of all, submitted that the evidence let in by the prosecution with regard to the complicity of the accused Dhanamati and Dhiraj, who are the parents of the accused Sambaru is not at all believable. Inviting our attention to the evidence of the son of the deceased (P.W.13) and the wife of the deceased (P.W.18), who are the eye witnesses to the occurrence. It was submitted that when P.W.13 states that in course of quarrel, accused Sambaru and Dhiraja arrived at the spot and scolded his parents (Durga and his wife) and then all the accused persons, having entered again quarreled with his parents and when he intervened, accused Sambaru assaulted him and thereafter, accused Dhanamati and Dhiraja caught hold of Durga and then CRLA Nos.794, 797 & 803 of 2017 Page 6 of 14 accused Sambaru gave knife blows on the chest of belly of his father (Durga); P.W.18 gives complete different picture altogether as regards the role of accused Dhiraja and Dhanamati by stating that accused Sambaru came to their house and asked the whereabout of her son Markanda (P.W.13) and her husband (Durga) and thereafter Durga and Sambaru caught hold of each other for which she (P.W.18) and her son Markand (P.W.13) separated and it is only thereafter accused Sambaru pushed her (P.W.18) for which she fell down and then accused Sambaru stabbed at the stomach of Durga whereafter the parents of accused Sambaru assaulted Durga . He, therefore, submitted that it is not the consistent evidence of the prosecution that accused Dhanamati and Dhiraja, having arrived t the spot, had caught hold of Durga in facilitating accused Sambaru in causing the stab injury on his chest and belly so as to be held liable for the act of accused Sambaru with the aid of section 34 of the IPC. He further submitted that when the quarrel took place, the parents of the accused Sambaru were there and for that reason of their mere presence when the role said to have been played by them greatly varies as per the evidence of P.W.13 and P.W.18, who are the son and wife of Durga and the occurrence witnesses; their conviction for commission of the offence under section 302/34 of the IPC is not wanted. CRLA Nos.794, 797 & 803 of 2017 Page 7 of 14 Coming to the finding of the Trial Court as against accused Sambaru holding him guilty for commission of the offence under section 302 of the IPC, he contended that if the evidence of P.Ws.13 & 18 are simultaneously read and appreciated, their version as to the happenings in the occurrence clearly run contradictory to one another and remain inconsistent and so also as the matter goes, their evidence as against accused Dhiraja and Dhanamati cannot be believed. He, therefore, submitted that with such state of affair, it would be highly unsafe to place reliance upon their evidence in so far as they implicate accused Sambaru. He, in the alternative, submitted that even accepting the evidence of P.Ws.13 & 18 as against accused Sambaru, when the surrounding circumstances as have emanated in evidence are viewed together, the offence committed by the accused Sambaru would stand categorized under section 304-I of the IPC. 8. Mr.S.N. Das, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused persons, as has been returned by the Trial Court, submitted that as per the version of P.Ws.13 & 18 when all the accused person had gone together and when the incident took place in the house of the deceased, accused Sambaru gave knife blows on the chest and belly of the deceased in presence of his parents, who as per the evidence of P.W.18, had assaulted Durga CRLA Nos.794, 797 & 803 of 2017 Page 8 of 14 and had also caught hold of him, their conviction under section 302/34 of the IPC does not warrant interference. He further submitted that the evidence as against accused Sambaru falling from the lips of P.Ws.13 & 18, who are the eye witnesses to the occurrence have remained unshaken and both of them consistently have stated that the accused Sambaru repeatedly gave the blows by knife on the chest and belly of the deceased, which find full corroboration from the evidence of the Doctor (P.W.24), who had first examined the deceased as well as the Doctor (P.W.21), who had conducted the autopsy over the dead body of the deceased. He thus submitted that the accused Sambaru has been rightly held guilty of commission of the offence under section 302 of the IPC. In refuting the alternative submission of the learned counsel for Appellant Sambaru, he contended that accused Sambaru, having given repeated blows on the chest and belly of Durga by means of a knife, even though it is taken that the incident had initially arisen on account of some quarrel between the deceased, his wife (P.W.13) and the parents of accused Sambaru, that would not at all lead to categorize the offence to have been committed by accused Sambaru is one under section 304 of the IPC. 9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also CRLA Nos.794, 797 & 803 of 2017 Page 9 of 14 extensively travelled through the depositions of the witnesses (P.W.1 to P.W.30) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.26. 10. The son of Durga (deceased) is the informant in the case and he has lodged the FIR (Ext.1/2). It has been stated in the FIR (Ext.1/2) that accused Sambaru came with a sharp cutting weapon and stabbed Durga five times on his chest and belly region. The FIR (Ext.1/2) narration is to the effect that following accused Sambaru, his parents (Dhiraja & Dhanamati) had come and they caught hold of Durga (deceased) whereafter accused Sambaru gave the blows. The son of Durga, namely, Markanda has been examined as P.W.13. He is an eye witness to the occurrence. As against the above narration in the FIR (Ext.1/2), his evidence is that on that day, he with others were engaged in decoration work of a stage near their house where Ganesh Puja was being performed. He states that accused Dhanamati was then seen scolding Durga in obscene words and that was because the parties had dispute relating to the boundary of their respective land. He further states that prior to that, the daughter of accused Sambaru, namely, Priyanka was playing near the borewell and when Durga and Priyanka told to go to her house, she went and in turn told accused Dhanamati and others that Durga (deceased) had CRLA Nos.794, 797 & 803 of 2017 Page 10 of 14 scolded her. So, accused Dhanamati came out and scolded Durga (deceased) and his wife (P.W.18, i.e., the mother of P.W.13). During that quarrel, as per his evidence, accused Sambaru and Dhiraja arrived and they started scolding his parents. It is also his version that then, all the accused persons entered into the house, quarreled with her parents and he, having intervened, the accused Sambaru pushed him was pushed by accused Sambaru and at that point of time when accused Dhanamati and Dhiraja caught hold of Durga, it is the the accused Sambaru, who gave the blows by knife on his chest and belly. The evidence of P.W.18 now at this juncture matters much. She is none other than the wife of Durga (deceased), who, as per her evidence, was very much present in the house and her son (P.W.13) came from a little distance. Her evidence, therefore, is more important than the evidence of the son (P.W.13) as regards the role of the accused persons in the sense that she was there from the beginning. It has been stated by her that accused Sambaru came to their house and asked the whereabout of Markanda (P.W.13) and thereafter, there was a scuffle between her husband (Durga) and accused Sambaru, which she and P.W.13 could separate them. She has further stated that during that course, being pushed by the accused, she fell down. She has again stated that the parents of accused Sambaru also came there and accused Sambaru stabbed in the stomach of Durga and the CRLA Nos.794, 797 & 803 of 2017 Page 11 of 14 parents of accused Sambaru also assaulted her husband, namely, Durga. Thus, the arrival of accused Dhanamati and Dhiraj at the spot, the role that they played and the act which they did, as has been stated by P.Ws.13 & 18 are in great variance with one another and not at all consistent. However, we find that their evidence have remained rock solid as regards accused Sambaru causing five blows by means of knife on the chest and belly of Durga, having arrived at the spot and after the quarrel, which had taken place. The evidence of P.Ws.13 & 18 are not found to be consistent on the point that it is only after accused Dhanamati and Dhiraja caught hold of deceased Durga, accused Sambaru gave knife blows on his chest and belly repeatedly P.W.18 when has stated that the parents of the accused Sambaru assaulted the deceased, that is, however, not stated by P.W.13. In such state of affairs in the evidence, we find that the prosecution failed to establish the charge against accused Dhiraja and Dhanamati, the parents of accused Sambaru beyond reasonable doubt and as such, we are of the considered view that the conviction of accused Dhiraja and Dhanamati for commission of the offence under section 449/302/34 of the IPC cannot be sustained. However, as already stated, we find the prosecution evidence falling from the lips of P.Ws.13 & 18 to be wholly consistent and reliable, the way they have narrated that the Page 12 of 14 CRLA Nos.794, 797 & 803 of 2017 accused Sambaru giving repeated knife blows on the chest and belly of Durga (deceased). It is their consistent version that accused Sambaru, having arrived at the spot, which is the house of Durga (deceased) after hearing the quarrel gave repeated blows by means of knife on the belly and chest of Durga (deceased), which receive corroboration from the evidence of the Doctor (P.W.24), who first medically examined Durga (deceased) and also the Doctor (P.W.22), who had conducted the autopsy over the dead body of Durga as they have stated and noted in their reports to have seen several such cut injuries on the chest and belly of Durga (deceased). The evidence of P.Ws.13 & 18, being taken together as they have stated about the arrival of accused Sambaru in playing the role by causing injuries by means of knife on vital parts of the body of Durga, who was then having no arm with him, we are afraid to accept the alternative submission of the learned counsel for the Appellant (accused-Sambaru) that the conviction of accused Sambaru would stand categorized as one under section 304-I of the IPC. We, therefore, unhesitatingly put the seal of confirmation to the finding of the Trial Court holding accused Sambaru to be guilty of commission of offence under section 449/302 of the IPC. CRLA Nos.794, 797 & 803 of 2017 Page 13 of 14 Accordingly, the conviction of the accused Sambaru for the offence under section 302/449 of the IPC and the sentence awarded upon him stand confirmed. Since we have held that the prosecution has not established the charges against accused Dhanamati Bag & Dhiraja @ Dhiraj Bag for commission of the offence under section 499/302 of the IPC, they are acquitted of the said charges. 11. In the result, the judgment of conviction and the order of sentence dated 14th September, 2017 passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No.10 of 2013 as against accused Sambaru Bag, being confirmed, the Appeal as at (C) stands dismissed and those passed against accused persons, namely, Dhanamati Bag and Dhiraja @ Dhiraj Bag, being set aside, the Appeals as at (A) & (B), are hereby allowed. Since the Appellants of the Appeals as at (A) & (B), namely, Dhanamati Bag and Dhiraja @ Dhiraj Bag are on bail, their bail bonds shall stand discharged. (D. Dash) Judge V. Narasingh, J. I Agree. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 16-Apr-2024 14:39:42 Basu CRLA Nos.794, 797 & 803 of 2017 (V. Narasingh) Judge Page 14 of 14