MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.1328 of 2023 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 25th July, 2023 passed by the learned Sessions Judge, Boudh in Sessions Trial No.47 of 2018. Sushil Sahu State of Odisha ---- -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Jugal Kishore Panda, S.S. Dash & B. Karna (Advocates) For Respondent - Mr.S.K. Nayak, Additional Government Advocate
Legal Reasoning
Keeping in view all these aforesaid; we are of the view that the offence could be properly categorized as one punishable under section 304-II of the IPC. We are thus of the considered opinion that for the role played this accused and the act done, he would be liable for conviction under Section 304-II of the IPC. CRLA No.1328 of 2023 Page 8 of 9 Having held as above, we find that the accused to have remained in custody from 24.12.2014 to 19.08.2017 during trial and then is undergoing the sentence since conclusion of the Trial. In the facts and circumstances, for the offence committed by this accused as we have held, he is hereby sentenced to undergo rigorous imprisonment for five (5) years. 12. In the result, the Appeal is allowed in part with the altercation as to the judgment of conviction and modification of the order of sentence dated 25th July, 2023 passed by the learned Sessions Judge, Boudh in Sessions Trial No.47 of 2018 to the extent as indicated above. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 27-Aug-2024 12:15:12 CRLA No.1328 of 2023 Page 9 of 9
Arguments
CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 23.07.2024 : Date of Judgment :20.08.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 25th July, 2023 passed by the learned Sessions Judge, Boudh in Sessions Trial No.47 of 2018 arising out of C.T. Case No.738 of 2017 corresponding to Boudh Police Station (P.S.) Case No.299 of 2017 pending in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Boudh. Page 1 of 9 CRLA No.1328 of 2023 The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for six (6) months. 2. PROSECUTION CASE:- On 23.12.2017, it was around 6.30 p.m, one Girish Kumr Sahu (Informant-P.W.6) lodged a written report with Sub- Inspector (S.I.) of Police (P.W.14) attached to Boudh P.S., who was then in-charge of the P.S., that when his father around 1.00 p.m. on that day was standing in front of his house, this accused and two others, who are his wife and son, assaulted him by means of a Thenga on account of previous grudge due to the dispute. They also abused him in filthy language giving threat to kill him. The father of Girish, namely, Khetrabasi, being injured, in the incident when was taken to the Boudh Medical in an Ambulance for his treatment, he met his death while undergoing treatment. The S.I. of Police (P.W.14), having received the above written report from the Informant (P.W.6), treated the same as FIR (Ext.1), registered the criminal case under section 302/34 of the IPC and took up the investigation. CRLA No.1328 of 2023 Page 2 of 9 3. The I.O (P.W.14), in course of the investigation, has examined the Informant (P.W.6) and other witnesses and recorded their statement. He (P.W.14), having visited the spot, prepared the spot map (Ext.P-11). He (P.W.14), during the course of his investigation, has collected blood stained earth, sample earth, one lathi, one wooden piece, one sishu lathi and one axe from the spot and seized those under seizure list (Ext.P-14). The I.O. (P.W.14) held inquest over the dead body of the deceased and prepared his report (Ext.P-2). He (P.W.14) sent the dead body of the deceased for post mortem examination by issuing necessary requisition. All those seized articles were sent for chemical examination through Court and on final completion of the investigation, the I.O. (P.W.14) submitted the Final Form placing this accused and his wife and son to face the trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Boudh, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused and two others (since acquitted). 5. The prosecution, in support of its case, has examined in total fourteen (14) witnesses where P.W.1 to P.W.14. Out of CRLA No.1328 of 2023 Page 3 of 9 whom, as already stated, P.W.6 is the Informant, who happens to be the son of the deceased, who had lodged the FIR (Ext.1), being scribed by the witness (P.W.3). P.W.5 is the wife of P.W.6 and P.Ws.7 & 8 are two independent witnesses. The Doctor, who had held the autopsy over the dead body of the deceased has been examined as P.W.10 whereas P.W.4 is the father-in-law of P.W.6 and father of P.W.5. P.W.9 is the auto rickshaw driver, who had carried the deceased for some distance from the spot for being finally taken in an Ambulance to the Hospital. The I.O. is P.W.14 whereas the P.Ws.11, 12 & 13 are the witnesses to the seizures in course of the witnesses. The prosecution, besides leading the evidence through the above witnesses, has also proved several documents, which have been admitted in evidence and marked (ExtP-1 to P-15). Out of those, the important are the FIR (Ext.1), inquest report (Ext.P-2), post mortem report (Ext.P-6) and the chemical report (Ext.P-15). 6. The Trial Court, upon examination of the evidence of the prosecution witnesses as also the documents admitted in evidence on their behalf, has held the prosecution to have established the charge against this accused under section 302 of the IPC in saying that it is he, who, by giving a lathi blow on the head of the deceased, has intentionally caused his death. Having said so, the evidence as against other accused persons, who are CRLA No.1328 of 2023 Page 4 of 9 the son and wife of the deceased have been found to be deficient to fasten the guilt upon them with the aid of section 34 of the IPC and, therefore, they have been acquitted of the charge. 7. The accused has taken the plea of complete denial and false implication. He, however, has examined one witness (D.W.1) in support of such plea. 8. Mr.J.K.Panda, learned counsel for the Appellant (accused), from the very beginning, without questioning the finding of the Trial Court based upon the evidence of P.Ws.1, 2, 4, 5 & 6 that the accused has assaulted the deceased by means of a lathi on his head, which led to his death on the next date while undergoing treatment, contended that accepting the role played by this accused in the incident and taking into account the surrounding circumstances such as the prevalence of dispute between the parties as also the rural background from which they hail and their status as such, the Trial Court ought not to have convicted this accused for commission of section 302 of the IPC and the criminal liability of the Appellant (accused) ought to have been held to be under section 304-II of the IPC. He accordingly urged for altercation of the judgment of conviction and modification of the sentence as as would be deemed just and proper. CRLA No.1328 of 2023 Page 5 of 9 9. Mr.S.K. Nayak, learned Additional Government Advocate for the Respondent-State, refuting the above, contended that the accused, having dealt a blow by means of a wooden lathi on the head of the deceased since that has caused the death of the deceased on the very next day while undergoing treatment as a result of the complications due to brain injuries, the Trial Court has rightly convicted the accused under section 302 of the IPC. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.14 and D.W.1) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.15. 11. The evidence on record firmly stand that the injury sustained by the deceased on his head has led to his death on the next day of the occurrence when he was undergoing treatment. The Doctor, who had conducted the autopsy over the dead body of the deceased is P.W.10. His evidence is that he had noticed only one swelling of the size of 4 cm X 4 cm being present on the vertex of the scalp region when no other external injury had been found by him on any part of the body of the deceased. It is his evidence that on dissection, he found diffuse subscalpal haematoma in the area corresponding to the external injury with CRLA No.1328 of 2023 Page 6 of 9 fracture of the parietal bone. It is his evidence that the injuries noticed being ante mortem in nature, the death is homicidal in nature on account of said injury. The age of the deceased was found to be around 70 years. His further evidence is that the Sishu stick examined by him may cause such injury. It has been stated by P.W.5, the wife of the Informant (P.W.6) that at the relevant time, she and her husband (P.W.6) were engaged in carrying paddy bundles in their threshing floor and the accused persons were there in their respective threshing floor. At that time when P.W.5 was cutting jokes with another lady and after that lady left the place, the accused abused her in filthy language and other accused persons (since acquitted) joined. After some time, when her father-in-law (deceased) was standing in front of the verandah of the accused, accused Susila being armed with Sisu Medha came and threatened the deceased to assault him. She has further stated that hearing the hullah, when she left with her husband, they saw this accused assaulting the deceased by that Sishu Medha and on account of the same, the deceased fell down. It is the evidence of P.W.6 that on account of said blow by this accused, the deceased sustained bleeding injury on his head. It is not the evidence of the prosecution that this accused had also dealt any other blow on any other parts of the body of the CRLA No.1328 of 2023 Page 7 of 9 accused and in fact it has not been so noticed by the Doctor although it is said by P.Ws.2, 5 & 6 that the other accused persons had also assaulted the deceased, no such injuries have been noticed on the body of the deceased other than the head, which lead to show some exaggeration being made by them in that regard and thus the way they say that accused assaulted appears to be in suppression of some happenings before that. All these when cumulatively viewed gives rise to a thinking in mind that some happenings prior to the incident are being suppressed. It is there in the evidence that there was dispute between the parties and civil litigation was pending. The above witnesses, having stated that this accused, after coming, had abused the deceased and threatened him to kill and then assaulted him on his head, they do not state anything about the reaction of the deceased. The parties hail from rural pocket of the Scheduled Area of the State where ordinarily their temper run high and for silly reasons, they many a time behave differently, at times in a quite unexpected manner.