Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 378 (ORI)

Babula Patro v. State of Orissa

2010-05-22

PRADIP MOHANTY, SANJU PANDA

body2010
JUDGMENT S. PANDA, J. : This Criminal Appeal is directed against the judgment & order dated 24th November, 2000 passed by the learned Addl.Sessions Judge, Aska in Sessions Case No.2/1999 (32/95 ADJ-I) convicting the appellant-Babula Patro under Section 302 IPC and sentencing him to undergo imprisonment for life and to pay a fine of rupees one thousand in default, to undergo rigorous im¬prisonment for six months. 2. The case of the prosecution is that the informant who is the mother of the deceased, namely, Dasa Patro lodged a writ¬ten report at Patrapur P.S. at 3 A.M. on 05.09.1994 narrating that on 03.09.1994 at about 10 A.M., the appellant-Babula Patro abused and challenged her son Dasa as to why he had trespassed into his house in the night during his absence. By saying so, he tried to assault the deceased with a Kati. Due to intervention of the local people, the matter subsided. Next day at about 8 P.M. in the evening, deceased Dasa had gone to Gopinath temple to hear religious scripture. While he was coming from the said temple, accused persons, namely, Babula, Narasinga, Damburu, Sridhar and Nitei surrounded him and they caught hold of his legs. Some of the accused persons caught hold, pinned him to the ground near the said temple. Of them accused Narasingha and Damburu caught hold of his hands and Babula stabbed him with a knife as a result of which he died on the spot. On receipt of the FIR, the Officer-in-charge of Patrapur Police Station investigated the matter, held inquest and sent the dead body for post-mortem examination. He seized the incriminating materials from the spot and arrested the accused persons, namely, Babula and Nitei @ Nityananda on 07.09.1994. The informant thereafter made complaint to be Super¬intendent of Police as the investigation was not properly done. Hence, investigation was handed over to the Circle Inspector on 23.11.1994 as per the direction of the S.P. He took charge of the investigation and on completion of investigation filed charge sheet against all the accused persons under Sections 302/147/148/149 IPC showing Nara Singh and Sridhara as absconder. Therefore, the appellant-Dasa and Nitei @ Nityananda were put on trial. 3. The plea of the appellant is complete denial of the allegations. 4. Therefore, the appellant-Dasa and Nitei @ Nityananda were put on trial. 3. The plea of the appellant is complete denial of the allegations. 4. In order to bring home the charges, the prosecution examined as many as 17 witnesses and no one was examined on behalf of the defence. Out of 17 witnesses, P.W.1 is the inform¬ant. P.Ws.4 and 5 are the eye witnesses. P.Ws.2, 11, 14 and 16 are post-occurrence witnesses who came to the spot immediately after the occurrence. P.W.3 is a witness who had been the accused Babula quarreling with the deceased Dasa two days prior to the incident. P.W.10 is the seizure witness. P.W.8 is the doctor who conducted post-mortem over the dead body of the deceased. P.Ws.12 and 13 are the Investigating Officers. 5. On assessment of evidence on record, the learned Addl. Sessions Judge, Aska acquitted Nitei @ Nityananda Swain of the charge under Sections 302/147/148 IPC and acquitted the appel¬lant-Babula of the charge under Sections 147/148 IPC but found the present appellant-Babula guilty of the charge under Section 302 IPC. Hence, he convicted him thereunder and sentenced him to undergo rigorous imprisonment for life and pay a fine of rupees one thousand, in default, to undergo rigorous imprisonment for six months. Being aggrieved by the said sentence, the appellant has approached this Court by this Jail Criminal Appeal from the jail. 6. Learned counsel appearing for the appellant submitted that P.W.1 exaggerated her version while deposing in Court. Though she did not state in the FIR that she accompanied the deceased from the Gopinath temple to the spot, in her deposition she stated that she accompanied the deceased from the temple and the incident took place in her presence. Therefore, on that ground her statement is to be discarded. Since P.Ws.4, 5 and 6 were declared hostile, their statement are not reliable. Hence, there is no material to convict the appellant under Section 302 IPC. So, the learned counsel for the appellant pleaded for an acquittal of the appellant. 7. Learned counsel appearing for the State, on the other hand, submitted that P.W.1 was present at the spot when the occurrence took place and saw the entire incident. Therefore, her statement should not be discarded. He further submitted that no illegality has been committed by the trial Court in convicting the appellant under Section 302 IPC. 7. Learned counsel appearing for the State, on the other hand, submitted that P.W.1 was present at the spot when the occurrence took place and saw the entire incident. Therefore, her statement should not be discarded. He further submitted that no illegality has been committed by the trial Court in convicting the appellant under Section 302 IPC. Therefore, this Court should not interfere with the impugned judgment. 8. On the rival submission of the parties, as above, and on examination of the records, we find that P.Ws. 1, 4 and 5 are eye witnesses to the occurrence. P.W.1 is the mother of the deceased. She is also the informant. In her deposition she stated that while she was returning with the deceased son from the Gopinath Temple, the accused persons, namely, Dambura and Nara¬singh caught hold the legs and Sridhar and Nitei caught hold the hands of deceased-Dasa. Accused Babula stabbed the deceased with the knife on his abdomen. Prior to the incident, the deceased had gone to the house of the accused Babula and there was a quarrel between them. Due to such grudge, the accused persons assaulted the deceased as a result of which he died. She also proved the contents of the FIR. The evidence of P.W.1 is the most vital and incriminating material which proves the conspiracy of the appel¬lant in the alleged crime. P.W.1 is no one other than the mother of the deceased who had witnessed the assault resulting the death of her son. A mother in whose presence the deceased son was as¬saulted can never be expected to leave the actual assailant and implicate an innocent person. Her evidence is consistent and trustworthy. Nothing has been demolished in cross-examination. It is well settled in law that even a single witness whose evidence stands scrutiny of law is sufficient to hold a person guilty. P.W.3 supported the fact with regard to the prior quarrel between the deceased and Babula. P.W.5 also stated that on the date of incident, hearing noise he came out of his house and found that accused Babula and Narasingh going away after killing Dasa who fell down on the village road. P.W.4 is an eye-witness to the occurrence who deposed that he has a tea-stall. Deceased used to supply milk to his tea-stall. On the date of incident, Babula and Narasinga took tea and left his shop. P.W.4 is an eye-witness to the occurrence who deposed that he has a tea-stall. Deceased used to supply milk to his tea-stall. On the date of incident, Babula and Narasinga took tea and left his shop. Thereafter, deceased took his empty jug. After some time he returned and complained that somebody stabbed his abdomen. At that time Narasingh came to the tea-stall with a knife and shouted that anybody dared to catch hold of him, he would be stabbed. Narasinga dragged the deceased to the village road and called accused Babula and other accused persons to be present near the tea-stall. Thereafter, P.W.4 closed his tea-stall and found the deceased lying on the road. Deceased was crying for water. He handed over a jug of water to Mochia Swain and told him to give water to the deceased and left the place. 9. Considering the above evidence, we are satisfied that the prosecution has been able to prove the actual involvement of the appellant in the incident beyond all reasonable doubt. 10. Now we will examine the evidence of the Doctor (P.W.8) who conducted the post-mortem on the body of the deceased. It appears that the deceased succumbed to external injury No.13 and the death was homicidal in nature. The cause of death was due to shock and haemorrhage as a result of injury to vital organ like liver and the injuries were ante-mortem in nature. Though there were several injuries, the death was due to only one injury, i.e. injury No.13. P.W.1, the mother of the deceased, in her evidence stated that the appellant had given the blow to the abdomen of the deceased which caused the injury to the liver. If the liver had not been damaged, perhaps death would not have resulted. Thus, the question is whether on the above evidence on record, the offence committed by the accused is covered under Section 300 “thirdly” IPC, i.e., whether the appellant committed the act with the intention of causing bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. 11. Offence of culpable homicide not amounting to murder answers Part I if there is intention to cause death or to cause such bodily injury as is likely to cause death. 12. 11. Offence of culpable homicide not amounting to murder answers Part I if there is intention to cause death or to cause such bodily injury as is likely to cause death. 12. For conviction of the offence of culpable homicide not amounting to murder under Section 304, Part I IPC, the following two circumstances must be proved. The act by which the death is caused is done with the intention of causing death, or causing such bodily injury as is likely to cause death. Since in the present case, the prosecution has been able to prove the above two ingredients, the offence of culpable homicide not amounting to murder has been proved by the prosecution. 13. Keeping the aforesaid principles in mind and applying them to the facts of the present case, we find that the occurrence took place due to quarrel between the deceased and the appellant on the issue that the deceased had been to the house of the appellant in the previous night of the occurrence in his absence and threatened him in filthy languages to commit rape as a result of which accused persons were enraged. It is no doubt true that the accused persons assaulted the deceased in such a manner that the deceased suffered several injuries but it was the injury that was caused to the liver which perhaps proved fatal. Therefore, the case is covered under Section 300 “thirdly” IPC and the prosecution has been able to prove that the overt act committed by the appellant is culpable homicide not amounting to murder is coming under Section 304 Part I IPC. 14. The number of injuries is always not determinative of offence. At the fit of anger the accused might have given blows with quick succession but in the opinion of the doctor one injury is responsible for the death of the deceased. Lastly looking at the social background and the preceding circumstances which led to the occurrence, the conviction of the appellant would be under Section 304 Part-I, IPC, not under Section 302 IPC. In the present case, the appellant was in the custody till 2007. By that time, he was inside the custody for more than 12 years. 15. Lastly looking at the social background and the preceding circumstances which led to the occurrence, the conviction of the appellant would be under Section 304 Part-I, IPC, not under Section 302 IPC. In the present case, the appellant was in the custody till 2007. By that time, he was inside the custody for more than 12 years. 15. In the case of Adu Ram v. Mukna and others reported in (2005) 30 OCR (SC) 412, the apex Court has held that in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances were relevant facts which would enter into the area of consideration. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. 16. Taking into consideration the facts and circumstances of the present case and analyzing the touch stone principles set out in the above paragraphs the inevitable conclusion is that the offence committed by the accused appellant is not covered under Section 302 IPC but the same is coming under Section 304 Part-I IPC. We, accordingly, alter the conviction from Section 302 IPC to Section 304 Part-I IPC. 17. The accused already inside the custody for more than 12 years. But after he was released on bail by this Court on 13.07.2007, there was no complaint against him. We, accordingly, alter the conviction from Section 302 IPC to Section 304 Part-I IPC. 17. The accused already inside the custody for more than 12 years. But after he was released on bail by this Court on 13.07.2007, there was no complaint against him. Hence, we sen¬tence him for the period which he has already undergone. The bail bond furnished by the accused appellant be discharged. The Jail Criminal Appeal is accordingly allowed in part to the aforesaid extent. PRADIP MOHANTY, J. I agree. Appeal allowed in part.