The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.1177 of 2024 (An application U/S. 374 of the Code of Criminal Procedure, 1973 against the order dated 02.11.2024 passed by Shri Sanjeev Ranjan Samanta, learned 3rd Addl. Sessions Judge, Balasore in S.T. Case No.78 of 2021 arising out of Khantapada P.S. Case No. 305 of 2020). Sasikanta Malik @ Sashikanta Malik State of Orissa -versus- … … Appellant Respondent For Appellant : Mr. S. Dwibedi, Advocate For Respondent : Mr. A.K. Apat, Addl. PP CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:21.02.2025(ORAL) G. Satapathy, J. 1. This criminal appeal is directed against the impugned judgment dated 02.11.2024 passed by learned 3rd Additional Sessions Judge, Balasore in
Legal Reasoning
S.T. Case No.78 of 2021 arising out of Khantapada P.S. Case No.305 of 2020 convicting the Appellant for commission of offence punishable U/S. 304 Part- II of IPC and sentencing him to undergo rigorous CRLA No.1177 of 2024 Page 1 of 11 imprisonment for seven years with payment of fine Rs.50,000/- in default whereof, to undergo rigorous imprisonment for six months with benefit of set off of the pre-trial detention against the substantive sentence. 2. Facts in precise are that on 21.09.2020 morning, a quarrel took place between one Ratikanta Malik (hereinafter referred to as “the deceased”) and his elder brother Sasikanta Malik (hereinafter referred to as “the convict”) regarding the water coming out through staircase of their joint family house and out of anger, the convict threw one plastic chair towards the son of the deceased who is aged about seven months and at this, the deceased tried to pick up his son and getting opportunity, the convict stabbed on the lower abdomen of the deceased by means of a knife as well as assaulted on his head. Accordingly, the family members present there rescued the deceased and took him to Gopalpur CHC where he was declared as received dead. CRLA No.1177 of 2024 Page 2 of 11 On this incident, the wife of the deceased namely Devi Archana Dhamudia lodged an F.I.R. before the IIC, Khantapada P.S., who registered P.S. Case No.305 of 2020 against the convict for commission of offence punishable U/S. 302 of IPC and took up the investigation of the case which ultimately resulted in submission of charge sheet against the convict for offence punishable U/S. 302 of the IPC. Accordingly, cognizance was taken for the said offence and the convict faced the trial after being charged for offence punishable U/S. 302 of IPC. 3. In support of its case, the prosecution examined altogether 15 witnesses, proved 27 documents vide Ext.P/1 to P/27 and identified 11 material objects under MO-I to MO-XI as against no evidence whosoever by the defence. The plea of the convict in the course of trial was denial simplicitor and false implication. In addition, the convict in his statement U/S. 313 CrPC further took the plea that the deceased was trying to assault him by means of CRLA No.1177 of 2024 Page 3 of 11 a knife and he in order to save his life caught hold of both hands of the deceased and in the process, there was push and pull and he sustained injury to his head, but he could not know as to what happened to the deceased. 4. On conclusion of trial, the learned trial Court after analyzing the evidence on record upon hearing the parties passed the impugned judgment convicting the Appellant for offence punishable U/S. 304 Part-II of the IPC and sentencing him to the punishment indicated supra, but the learned trial Court has found the convict to be not guilty of the charge for offence U/S. 302 of the IPC and accordingly, acquitted him of the said charge. 5.
Legal Reasoning
In the course of hearing, Mr. Suryakanta Dwibedi, learned counsel appearing for the convict- Appellant while not disputing about the facts of the case and not pressing the appeal on merit, confines his submission only with respect to the quantum of sentence. Accordingly, Mr. Dwibedi, by taking this Court through the factors which are required for CRLA No.1177 of 2024 Page 4 of 11 sentencing a convict submits that the sentence of the Appellant may kindly be modified to the period already undergone. In reply Mr. A.K. Apat, learned Additional Public Prosecutor, however, submits that the sentence awarded to the Appellant is neither excessive nor unjust, but it is commensurate to the crime and, therefore, there is no need to interfere in the sentence of the convict. 6. The Appellant albeit does not challenge his conviction, but this Court as abundant precaution and considering the primacy of right to life and liberty of a person considers it in the interest of justice to examine the findings of the learned trial Court with regard to the conviction of the Appellant. It is not in dispute that PW.3 is not only the informant, but also the star eye witness to the occurrence and she has consistently deposed that there was quarrel between the deceased and the convict and in the course of such quarrel, the convict stabbed the deceased, but the defence has not challenged the act of convicts in stabbing the CRLA No.1177 of 2024 Page 5 of 11 deceased, however, it only challenged the situation that led the convict to stab the deceased which is apparent from the cross-examination of PW.3 by the defence which reads as under:- “Soon after throwing the chair, Sashikanta (the convict) stabbed my husband by that knife leaving no scope for any protest. My husband was standing towards my eastern direction closer to our son. It is a fact that as Sashikant came from western side, after crossing me he proceeded towards my son and stabbed my husband. First, Sashikanta stabbed on the left side head of my husband. Immediately after that, he stabbed above his waist on right side.” In addition, the defence took a plea in the cross- examination of PW3 that Ratikanta(deceased) by means of a steel knife tried to attack Sashikanta(convict) and in order to save him, Sashikanta(convict) made tussle with Ratikanta(deceased) by holding his hand and during that process, both sustained injuries and due to push and pull, the steel knife entered into the abdomen of Ratikanta(convict) and due to fall, Ratikanta(deceased) as well as Sashikanta(convict) sustained injuries in their respective heads. CRLA No.1177 of 2024 Page 6 of 11 When the above plea of the defence is considered the evidence of PW3, it clearly goes to show that the convict stabbed the deceased and the evidence of other witness also strengthen the fact that the convict had stabbed the deceased, but the facts remain that before stabbing the deceased, there was an altercation and quarrel between both the deceased and the convict relating to flowing of water from roof top. It is also not in dispute that both the convict and deceased are two brothers and there was also prior dispute with regard to the property in question which is a joint family house. On a close scrutiny of evidence on record together with the impugned judgment, it appears that the learned trial Court has rightly appreciated the evidence and found the convict guilty of offence U/S.304 Part-II of IPC, while considering that the convict is not guilty of offence U/S. 302 of IPC. 7. Since the learned counsel for the appellant has made it clear earlier that the convict does not CRLA No.1177 of 2024 Page 7 of 11 challenge his conviction for offence U/S.304 Part-II of IPC, but confines his challenge only to the quantum of sentence, this Court has also called for a report from the jail authority about the conduct of the convict in jail. Accordingly, the jail authority has submitted the instruction through the learned Addl. Public Prosecutor in which it has been stated that during the stay of convict in the jail, he has maintained proper discipline in jail and he is very much cooperative and friendly with co-inmates, he obeys the jail rules and motivates other inmates to abide by all the rules and regulation of the jail and there is no adverse report forthcoming against the convict on verification of relevant records of the jail. In such report, the jail authority has also confirmed that the convict has completed training programme on making LED bulb and phenyl inside the jail. The above report of the jail is a reflection of the positive attitude of the convict, but it is always considered that the object of punishment is not to finish the criminal, but to finish the crimes CRLA No.1177 of 2024 Page 8 of 11 and justice demands that the convict be reformed because our punishment theory is based on deterrent and reformative. 8. It is obviously found from the record that the incident occurred on a spur of moment without any premeditation and on a sudden fight between two brothers, but the crime which has been committed in which an innocent life of a person was lost which is not acceptable to any civilized society, but at the same time, it is to be seen as to why the crime was committed. In this case, there was no intention on the part of the convict to commit murder of the deceased, who was his younger brother, but the same had been done in a heat of passion on a sudden quarrel and free fight by two brothers. Further, the convict is aged about 36 years at present and he has already suffered a sentence of more than four years. Looking at the overall aggravated, mitigating and extenuating circumstance and judging the same in the backdrop of the admitted facts and no adverse report having CRLA No.1177 of 2024 Page 9 of 11 been submitted against the convict about his conduct in jail, this Court finds that the convict deserves some leniency in sentence, since the objective and motto of the punishment is not to finish the criminal, but to finish the crime. However, by taking into account the adage of famous Scottish Economist & Philosopher Adam Smith “mercy to guilty is cruelty to innocent”, this Court considers that interest of justice would be best served, if the convict is sentenced to undergo RI for 5 years with payment of Rs. 5,000/- in default whereof, to undergo RI for a further period of one month for the commission of offence punishable U/S. 304 Part-II of the IPC. Further, the concerned DLSA shall also take up the issue of compensation to the victim of the crime which in this case is the infant son and wife of the deceased. Accordingly, the DLSA, Balasore shall take up the matter for awarding appropriate compensation to the wife and child of the deceased, if they have not been paid with any compensation. CRLA No.1177 of 2024 Page 10 of 11 9. In the result, the appeal sans any merit stands dismissed on contest, but there is no order as to costs and consequently, the judgment of conviction of the appellant stands maintained, but the sentence is reduced/modified to the extent indicated above. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 21st day of February, 2025/Jina Signature Not Verified Digitally Signed Signed by: JINA DIGAL Reason: Authentication Location: High Court of Orissa Date: 24-Feb-2025 16:18:06 CRLA No.1177 of 2024 Page 11 of 11