MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.111 of 2022 In the matter of an Appeal under section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 26th October, 2021 passed by the learned Sessions Judge, Nabarangpur in C.T. No.12 of 2019. ---- Purna Bhatra …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Debidutta Mohapatra Advocate as Amicus Curiae For Respondent - Mr. P. K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing :22.08.2024 : Date of Judgment: 04.09.2024 The Appellant, namely, Purna Bhatra, by filing this Appeal from inside the jail, has assailed the judgment of conviction and order of sentence dated 26th October, 2021 passed by the learned Sessions Judge, Nabarangpur in C.T. No.12 of 2019 arising out of G.R. Case No.724 of 2018, corresponding to Nabarangpur P.S. JCRLA No.111 of 2022 Page 1 of 12 Case No.215 of 2018 of the Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M), Nabarangpur. The above noted Appellant, by the impugned judgment of conviction, has been convicted for commission of offence under section 302 of Indian Penal Code, 1860 (in short, ‘the IPC’) and 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 1 (one) month for commission of the said offence. Prosecution Case :- 2. On 24.10.2018 around 8.00 a.m., when the accused was taking paddy from the field of Sada Bhatra, protest was made from the side of said Sada Bhatra and then the accused assaulted Sada by means of an iron rod and stone. Said Sada, receiving the injuries, fell down on the ground and lost his sense. Thereafter, Sada, being taken to the Hospital, was declared dead by the Medical Officer, who examined him. A written report to the above effect, being lodged by Bhuban Bhatra (Informant-P.W.2), who happens to be the son of Sada (deceased), namely, Bhuban Bhatra before the Inspector-in- Charge (I.I.C.) of Nabarangpur Police Station, he treated the same
Legal Reasoning
as FIR (Ext.1) and upon registration of the case, directed the Sub- Inspector (S.I.) of Police (P.W.20) to take up the investigation. JCRLA No.111 of 2022 Page 2 of 12 3. In course of investigation, the Investigating Officer (I.O- P.W.20) examined the informant (P.W.2) and other witnesses and recorded their statements under section 161 Cr.P.C. He (P.W.20), visiting the spot, prepared the spot map (Ext.12). From the spot, the I.O. (P.W.20), after having seized sample earth under seizure list (Ext.8), proceeded to District Headquarters Hospital, Nabarangpur, where the dead body of the deceased was lying. There, he (P.W.20) held inquest over the dead body of the deceased and prepared the report to that effect (Ext.2) and then sent the dead body for post mortem examination by issuing necessary requisition. The wearing apparels of the deceased and accused were seized by the I.O. (P.W.20) under seizure lists marked as Exts.6 & 3 respectively. On the same day, i.e., on 24.10.2018, the I.O. (P.W.20) apprehended the accused and it is stated that he, while in police custody, stated to have kept concealed an iron rod and a piece of stone under the ridge of the land of ne Rajmohan Bhatra of Village-Nisnahandi and further told that if he would be taken to that place, he would give recovery of the same. Pursuant to the said statement, which was recorded vide Ext.4, the accused, having led the I.O. (P.W.20) and others to said place, he is said to have given the recovery of the iron rod and piece of stone, which were seized under seizure list (Ext.5). The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, JCRLA No.111 of 2022 Page 3 of 12 the I.O. (P.W.20) submitted the Final Form placing this accused to face the Trial for commission of offence under section 302 of the IPC. 4. Learned S.D.J.M., Nabarangpur, having received the Final Form as above, took cognizance of the offence under section 302 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 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.2, who happens to be the son of the deceased, is the informant and had lodged the FIR (Ext.1) being scribed by P.W.1. P.Ws.3 and 4 are the wife and younger sister of the deceased respectively and the post occurrence witnesses. P.Ws.5, 6, 7, 15 & 17 are the co-villagers of the accused as well as deceased and they too are the post occurrence witnesses. P.W.9 is a witness to the statement of the accused before the I.O. (P.W.20), while in police custody in leading them to the place and giving recovery of the iron rod and stone. The Doctor, who had conducted autopsy over the dead body of the deceased, has been examined as P.W.19 whereas the I.O, at the end, has come to the witness box as P.W.20. JCRLA No.111 of 2022 Page 4 of 12 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.17. Out of those, the important are the FIR (Ext.1), Inquest Report (Ext.2), confessional statement of the accused (Ext.4), Spot Map (Ext.12) and the Post Mortem Report (Ext.10). The Chemical Examiner’s Report which has been admitted in evidence and marked as Ext.17. Some of the incriminating articles having been produced during Trial, those have been marked as Material Objects (M.O.-I to M.O.-VIII) and out of those, that iron rod is (M.O.I) whereas M.O.II is the piece of stone, which are said to have been 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.
Legal Reasoning
7. Mr. Debidutta Mohapatra, learned Counsel for the Appellant (accused) submitted that the entire case of the prosecution is resting upon the solitary testimony of the son of the deceased, who has been examined as P.W.2. Taking us through the deposition of P.W.2, he contended that the Trial Court, without examining the evidence of P.W.2 in a just and proper manner, has committed the error in accepting the same in JCRLA No.111 of 2022 Page 5 of 12 holding that the son of the deceased (P.W.2) is a reliable witness and his version to be trustworthy. It was submitted that P.W.2, being the son of the deceased, his evidence ought to have been strictly scrutinized and when he has given prevaricating statements with regard to the happenings in the incident, the Trial Court is not right in relying upon the version of P.W.2 to fasten the guilt upon the accused. He further submitted that when the evidence of P.W.14 is of no significance so as to establish the nexus between any act of the accused with the injuries received by the deceased, said evidence is of no aid to the prosecution case. He, therefore, submitted that the conviction recorded by the Trial Court basing upon the evidence of P.Ws.2 & 14 and those of other witnesses cannot be sustained. It was alternatively submitted by the learned Counsel for the Appellant (accused) that even accepting the prosecution case, 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 held him liable for commission of offence under section 304-II of the IPC. 8. Mr. P. K. Mohanty, learned counsel for the Respondent- State while supporting the finding of guilt against the accused, as has been recorded by the Trial Court, submitted that in so far as the role played by this accused and the act done by him in the said incident upon the deceased, the evidence of the son of the JCRLA No.111 of 2022 Page 6 of 12 deceased (P.W.2) stands rock solid. Inviting our attention to the evidence of P.W.2, first of all, he contended that merely because he is the son of the deceased, since he is a natural witness to the occurrence and no material has been elicited to throw any doubt as regards his presence at the relevant time at the incident, nor when he is said to have given an exaggarated version of the incident, the same is not required to approached with suspicion and as such not liable to be rejected. He, however, submitted that reading the evidence of P.W.2 in its entirety, it would appear that he has remained firm in his version that the accused assaulted the deceased by means of an iron rod and then by a stone for which the deceased lost his sense. He thus submitted that the accused is not coming with any plea that it was the deceased, who was the aggressor and it was either a case of threat to his person or property at the instance of the deceased for which the accused had to respond in that way and when it has been proved from the side of the prosecution that in the said incident, the heart of the deceased was ruptured resulting from blunt trauma over the chest area on account of striking of the stone, the conviction of the accused under section 302 of the IPC is not liable to be interfered with. 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. JCRLA No.111 of 2022 Page 7 of 12 P.W.1 to P.W.20 and have perused the documents admitted in evidence and marked Ext.1 to Ext.17. 10. Before proceeding to address the rival submission as regards the acceptability of the son of the deceased, who has been examined as P.W.2, we feel it appropriate to have a glance at the evidence of the Doctor (P.W.19), who had conducted the post mortem examination over the dead body of the deceased (Sada Bhatra). The external injuries such as abrasion with ecchymosis over middle of the chest of the size of 2” X 1” and abrasion over supra clavicular area of size 1cm X 1cm have been noticed during post mortem examination. On dissection, the Doctor (P.W.19) has noticed the pericardia to have ruptured over upper part and also the rupture of the heart. He has stated that the death of the deceased was on account of rupture of the heart resulting from blunt trauma over the chest wall, which may be on account of striking of the stone upon the chest wall. His positive evidence is that the above injuries have resulted the death of the deceased. There is no challenge to the above from the side of the defence. The I.O. (P.W.20) has noted all these injuries in his report (Ext.2) besides the witnesses, P.W.2 & others, having stated to have notified said external injuries upon the deceased. Thus, we find that the death of Sada Bhatra has been established through evidence to be homicidal. JCRLA No.111 of 2022 Page 8 of 12 11. Next as regards the authorship of such injuries, the evidence of the son of the deceased (P.W.2) matters much. He has stated that the incident took place on their paddy field in Village- Nishahandi and at that time, he had gone to the field with his father (deceased) to bring paddy. His further evidence is that when the accused arrived there, he, staking his demand over the land, asked them to take the paddy staking his demand over the land. He further states that when they protested, the accused assaulted his father by means of a stone and receiving that blow by means of the stone from the accused, his father lost the sense. However, we do not find the defence to have taken the plea that the land in question had been cultivated by the accused and he had grown the paddy, over there which the deceased and his son (P.W.2) were taking. But, then it appears from the evidence of P.W.2 that when they had gone to bring the paddy from the field, the accused asked them that he would take the paddy as it is his land. During cross-examination, he has, however, stated that the accused was taking the paddy by using “Bhara” made of “Suli Danga” to which the deceased protested. He further states that the accused had shifted six bundles of paddy. So, analyzing the evidence of P.W.2, a doubt arises in mind as to the accused coming and asking the deceased and P.W.2 to take paddy and that part of the evidence of P.W.2, according to us, cannot be safely relied upon. But then we find P.W.2 to have stated that the JCRLA No.111 of 2022 Page 9 of 12 accused assaulted the deceased by means of a stone. He does not state as to how the deceased assaulted, whether he did so by throwing from distance or directly threshing at the chest of the deceased being closer. P.W.14, who is a co-villager, has stated that when he with some other villagers arrived at the place, they found the deceased lying with bleeding injuries and the accused standing there holding an iron rod and the accused then fled away from the spot. Despite searching cross-examination, we, however, find the role of the accused in causing the injuries on the chest of the deceased by means of a stone, as has been stated by the son of the deceased (P.W.2), stands unshaken. The said evidence of P.W.2 to some extent receives corroboration from the evidence of P.W.14, who had seen the accused near the deceased at the relevant time when he soonafter arrived at the spot hearing the occurrence. Thus, with the available evidence on record, we are of the considered view that the prosecution has successfully established its case that the accused in the said incident had assaulted the deceased by means of a stone, which had caused the injuries on his chest area leading to rupture of the heart etc. resulting the death. 12. This, now takes us to address the submission relating to alteration of the conviction. The evidence of P.W.2 and other witnesses clearly show that a land dispute was prevailing JCRLA No.111 of 2022 Page 10 of 12 between the accused on one hand and the deceased on the other. Although we find the evidence to be not so specific that the dispute was in relation to the land over which the incident took place, yet, as it has been stated by P.W.2, the demand of the accused over the paddy was based on his claim over the said land. It is not the evidence of P.W.2 or other witnesses that the accused had gone carrying the stone with him rather it has been stated by P.W.2 that some stone pieces were lying near the threshing floor. He also does not state that the accused had gone to the place with the iron rod. How the strike with that stone was made on the frontal part of the body of the deceased is not forthcoming in the evidnece. 13. Cumulatively viewing all these circumstances appearing in the entire evidence as above discussed, we are of the view that the offence could be properly categorized as one punishable under section 304-II of the IPC. In that view of the matter, the accused is liable for commission of offence punishable under section 304-II of the IPC. Accordingly, he is to be visited with the sentence commensurate the act done by him in committed the offence as aforesaid. 14. In the result, the Appeal stands allowed in part. The conviction recorded against the accused Purna Bhatra under section 302 of the IPC is altered to one under section 304-II of the JCRLA No.111 of 2022 Page 11 of 12 IPC. Consequentially, we are of the considered opinion that imposition of the sentence upon the accused to undergo rigorous imprisonment for a period of six (06) years would be just and proper in the interest of justice serving its end. 15. With the above alteration of the judgment of conviction and modification of the sentence dated 26th October, 2021 passed by the learned Sessions Judge, Nabarangpur in C.T. No.12 of 2019,
Decision
the Appeal stands disposed of. (V. Narasingh) Judge (D. Dash) Judge Basu JCRLA No.111 of 2022 Page 12 of 12