Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 795 (ORI)

PADIA @ PRADEEP KUMAR SAMAL v. STATE OF ORISSA

2009-10-15

A.S.NAIDU, L.K.MISHRA

body2009
JUDGMENT : L.K. Mishra, J. - In these appeals judgment of conviction and order of sentence dated 10.03.2004 passed by Sri P.K. Panigrahi, Adhoc Additional Sessions Judge, F.T.C. No. I, Cuttack in Sessions Trial No. 631 of 2002 in which he while acquitting one of the accused namely Raghu Sahoo of offence u/s 302/109 I.P.C. convicted the present Appellants namely Padia@Pradeep Kumar Samal, Sibuna@Siba Parija and Bulu@Abhimanyu Mishra u/s 302 I.P.C. read with Section 34 of I.P.C. and sentenced them to undergo imprisonment for life is under challenge. Therefore, all the aforesaid appeals were heard together and are being disposed of by this common judgment. 2. The prosecution case, in brief, is that on 11.04.2002 at about 2 PM, Nabina@ Nabakishre Samal (here-in-after called "the deceased") was taken forcibly by the Appellants to a nearby 'Sulabha Souchalaya' where a stab blow was given on his abdomen. The deceased somehow managed to escape in an injured condition to the house of the informant Jebani Samal, who is the brother-in-law of-the deceased. The deceased disclosed before the informant and his family members and others that the Appellants forcibly took him and injured him by giving a stab blow. Thereafter, the deceased was taken to the hospital where he was pronounced dead. F.I.R. having been lodged, police registered a P.S. Case and took up investigation, during the course of which witnesses were examined, inquest was held, the dead body was sent for post-mortem, seizures were made and ultimately, charge sheet was submitted. All the accused persons stood indicted u/s 302/34 I.P.C. In addition one of the accused namely Raghu Sahoo stood indicted u/s 302 read with Section 109 I.P.C. During the course of trial the plea of the accused persons was one of the total denial. 3. The prosecution examined a total of 18 witnesses whereas the defense examined one. On scanning of evidence, the learned Court below acquitted Raghu Sahoo of the charge as aforesaid but convicted and sentenced the present Appellants u/s 302/34 I.P.C. occasioning the present appeals. 4. The learned advocates for the Appellants have stated in unison that the prosecution has not been able to prove its case beyond reasonable doubt and therefore, the conviction and sentence imposed on the present Appellants are not justified. 4. The learned advocates for the Appellants have stated in unison that the prosecution has not been able to prove its case beyond reasonable doubt and therefore, the conviction and sentence imposed on the present Appellants are not justified. Specifically it is stated that since there was no eye witness to the occurrence and the evidence of the other witnesses, who allegedly saw a part of the occurrence, is not trustworthy consequently no conviction should have been recorded. Alternately, it is argued that at the worst this is a case u/s 304 Part-I I.P.C. and not u/s 302 I.P.C. Learned Additional Government Advocate on the other hand has supported vehemently the judgment of conviction and order of sentence. 5. P.W.17-Dr. Nirupama Samantaray conducted the post-mortem examination on the dead body of the deceased on police requisition and the injuries found were as follows: i. One stab would on the left, side inguinal region situated 15 cm. below the left anterior illiac spine spindle shape with sharp cut margins, both angles acute, medial end being more acute than latteral and it was punctured into the abdominal cavity at the medial aspect of the wound, directed medially inwards. ii. On dissection, it was found that corresponding to the stab wound the abdominal muscle was cut, cutting the femoral artery entering into the abdominal cavity, where it punctures the urinary bladder at its left lateral wall. The peritorial cavity contains about 500 c.c. of blood around and inside the bladder. The stomach contained about 100 gms of rice food semi-digested, which is indicative of recent intake of food. 6. She opined the injury to be antemortem in nature and to have been caused by sharp edged pointed weapon and fatal in ordinary course of life. According to her, death was due to haemorrage and shock. She further opined that the patient can speak for some time after infliction of the injury. Her evidence was not challenged in cross-examination and therefore, it is to be accepted that the deceased died a homicidal death. At the time of hearing of the appeal also this point has not been challenged. Now it is remained to be seen whether it was the Appellants who caused the death of the deceased. 7. Admittedly, no body saw the occurrence. At the time of hearing of the appeal also this point has not been challenged. Now it is remained to be seen whether it was the Appellants who caused the death of the deceased. 7. Admittedly, no body saw the occurrence. However, P.W.7 (Bubula Samal) and P.W. 8 (Rama Chandra Behera) saw accused Padia @ Pradeep Samal and Sibuna@Siba Parija, who called and took the deceased with them. P.W.7 (Bubula Samal) has stated that while he was in his betel shop Nabina (the deceased) came and took two pieces of Pan. Accused Padia and Sibuna called the deceased to accompany them towards the canal embankment. 10 minutes thereafter the deceased came running from the side of the canal embankment towards his house with bleeding injuries on his body. P.W.8 (Rama Chandra Behera) has stated that he saw the deceased while he was in his cycle repairing shop. According to him, the deceased entered into the "Sulabha Souchalaya" in the company of the above named accused persons and came out from the "Souchalaya" after 10 minutes with bleeding injury on his belly and the deceased was shouting "Bulu Nana Mote Mari Dela". P.W. 12 (Papy @ Ranjan Samal) who is the son of the deceased has also stated that the accused persons dragged the deceased from a betel shop to the Souchalaya. Though there is some discrepancy as to whether the deceased was dragged to the Souchalaya or was taken to the Souchalaya, it does not make much difference. P.W.9 (Sanju Samal), who is the sister of the informant and wife of the deceased has stated that the deceased had sustained a stab injury on his lower abdomen. The deceased told her that the present accused persons dragged him and gave stab blow on his abdomen. The deceased had told her that "Bulu Nana Mote Bhusi Dela". P.W. 10 (Jibani Samal) is the informant himself. P.W. 11 (Renu Prava Samal), a niece of the deceased who was staying in the house of the informant and P.W. 12 (Papy@Ranjan Samal), the son of the deceased have stated that the deceased disclosed before them before his death that Padia and Sibun took him inside the Souchalaya and Bulu gave a stab blow on his abdomen by a knife. 8. So far as the dying declaration of the deceased is concerned, it was made soon after the occurrence. 8. So far as the dying declaration of the deceased is concerned, it was made soon after the occurrence. A point has been raised on behalf of the Appellants that the deceased could not have been in a position to give such dying declaration since he would have died instantaneously. However, the evidence of the doctor-P.W.17 shows to the contrary. She has stated that "in such cases death may occur at the spot or a few minutes later. Thus, the medical evidence does not rule out the evidence of these witnesses with regard to the dying declaration. 9. On the above analysis it stands proved that the Appellants took the deceased inside the "Souchalaya". Though three of them were present a single blow was given to the abdomen of the deceased and thereafter the deceased was allowed to go away. If the Appellants had the intention to commit murder of the deceased they had the opportunity and the required weapon. Nevertheless they let the deceased to runaway and did not chase him. Thus it appears that they wanted to teach the deceased a lesson only and did not intend to kill him. However, the deceased died due to excessive bleeding, haemorrhage and shock. 10. Having regard to the facts and circumstances, we feel that the case is one u/s 304 Part-II of the I.P.C. since the Appellants had knowledge that the injury may cause the death of the deceased but did not have the intention to cause death or to cause such bodily injury as is likely to cause death. The conviction is therefore, altered to Section 304 Part-II of the I.P.C read with Section 34 I.P.C. The record reveals that the Appellants are by now in jail for a period of more than 6 years, we feel that if the period of sentence undergone by the Appellants is set off, it would serve the ends of justice. It is so ordered. The appeals are allowed in part with the aforesaid result.