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2008 DIGILAW 1043 (ORI)

ANU BEHERA v. STATE OF ORISSA

2008-11-20

P.K.TRIPATHY, R.N.BISWAL

body2008
JUDGMENT : 1. Heard argument and judgment is as follows: 2. According to the case of the prosecution, Manas Naik (hereinafter referred to as "deceased"), purchased a piece of land from the accused and constructed a house thereon and started living at Angul Town. The deceased wanted to put a compound wall but a tree standing on the border was creating obstruction. The deceased called the son of the accused and the later permitted the deceased to cut the standing tree and stated that he had obtained instruction from his father (accused). The deceased employed labourers to cut down the tree. After that the accused arrived and scolded the deceased for cutting the tree in his absence, though the deceased explained to him about the permission granted by the son of the accused but the accused was not satisfied with such explanation. He also scolded his son. The accused also wanted intervention of the gentlemen to intervene but he could not get their service. The accused being mentally disturbed in the evening hours when the deceased was returning from the market, attacked and assaulted him by means of lathi and dealt blows on his head and other parts of the body. On receiving the blow on head the deceased fell down. He was taken to Angul hospital, where he was declared dead by the doctors. Part of assault was seen by P.W. 1, i.e. widow of the deceased. She was informed about this occurrence by some children playing on the street but none of them have been examined as witness to occurrence. On the basis of aforesaid allegation, accused stood charge for the offence u/s 302 Indian Penal Code. To substantiate the charge, prosecution examined eight witnesses. Besides, P.W. 1 the other most relevant witness, P.W. 4 is the doctor, Sudhansu Shekar Suttar who proved postmortem report Ext. 4 so also the Investigating Officer, P.W. 8, who in course of investigation seized the Bamboo lathi, M.O.I, besides wearing apparels of the accused and the deceased. 3. On assessment of such evidence, Learned Sessions Judge, Dhenkanal recorded the findings that prosecution has been able to prove that the deceased suffered homicidal death and that the accused is the author of the injury. In that respect, he relied on the evidence of P. Ws. 3. On assessment of such evidence, Learned Sessions Judge, Dhenkanal recorded the findings that prosecution has been able to prove that the deceased suffered homicidal death and that the accused is the author of the injury. In that respect, he relied on the evidence of P. Ws. 1 and 4, seizure of weapon of offence and report from the serologist containing human-blood of same group from the wearing apparels of the accused and the deceased. Accordingly, Learned Sessions Judge convicted the Appellant u/s -302, Indian Penal Code and sentenced him to imprisonment of life. 4. Mr. G.S. Pani, Learned Counsel for the Appellant argues that P.W. 1 is not a reliable witness to the occurrence, inasmuch as, she could not have reached the spot of occurrence to see part of assault after being informed about the incident by some playing children. That argument bears no merit inasmuch as in course of the cross-examination of P.W. 1 or P.W. 8 nothing has been brought out to indicate the distance of spot from her house. Apart from that, if for the sake of discussion, she is eliminated as a witness to the part of the assault, then also the other part of her evidence not disputed by the defence that when she approached the accused, he ran away from the spot with the weapon of offence. The dispute was commenced on that date. The aggressive attitude of the accused and on seeing the condition of her husband who is lying on the road, when she rushed to the spot shouting, the accused ran away from the spot. As noted by the Trial Court, the corroborative evidence from the seizure list and the serologist report are sufficient to find the accused as the author of the injury. Therefore, we do not find any merit in the argument of the Appellant. 5. Mr. Pani further argues that regard being had to the facts and circumstances involved in the case, the complain of the accused was genuine because in his absence the tree was cut though there was no such urgency and under such circumstance, conviction of the Appellant may be converted for culpable homicidal not amounting to murder. We do not find any circumstance available on record to accept such a condition of the Appellant for his conviction u/s 304, Indian Penal Code. We do not find any circumstance available on record to accept such a condition of the Appellant for his conviction u/s 304, Indian Penal Code. The reason is simple because at about 3 to 4 p.m. the accused returned and started quarreling with the deceased for cutting of the tree. The explanation of the deceased was not at all considered by him. Then the accused went to seek intervention of the gentlemen of the locality after scolding his son. No gentlemen came for intervention and thereafter he came and prepared himself with a lathi and dealt the blow and therefore there was absolutely any provocation from the side of the deceased. The opinion of P.W. 4 indicates that the injury found on the dead body of the deceased may be due to assault by the weapon of offence. In ordinary course of nature, death of a person may be possible due to severe blow and none of the explanations provided in Section 304, I.P.C. are available to be invoked to convict the accused for the offence of culpable homicidal not amounting to murder. 6. Learned Counsel for the Appellant argues that the occurrence took place on 28.10.1994 and the accused is inside the jail custody from 30.10.1994 and therefore, by now he has already suffered a period of fourteen years inside the jail custody and in view of the provisions u/s 433 read with Section 433-A Code of Criminal Procedure., this Court may recommend for his premature release. Learned Standing Counsel, on the other hand, states that as the exercise is to be undertaken by the State after obtaining the report of Superintendent of Police and Collector of the district and if their report is favourable, then the State does not stand on the way for premature release of the accused. In view of such submission of Learned Standing Counsel and that being the legal position u/s 433 read with Section 433-A Code of Criminal Procedure., we leave it to the State Government to appropriately consider the case of the Petitioner for premature release. 7. With the said observation, the Jail Criminal Appeal is dismissed. Final Result : Dismissed