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2014 DIGILAW 697 (ORI)

Pramod Pradhan v. State of Odisha

2014-10-22

S.K.MISHRA

body2014
JUDGMENT S.K. MISHRA, J. : The appellants, who have been convicted for the offence under Section 304 Part-I/34 of the I.P.C. by the learned Addl.Sessions Judge, Boudh in his judgment dated 20.06.2007, have assailed their conviction. 2.The informant, who happens to be the father of the deceased, P.W.2, lodged an F.I.R. to the effect that on 17.04.2006, his youngest son Basista Pradhan (deceased) had been to their field locally known as “Barakana Kheta” for earth work. At about 1 P.M. when the informant returned after grazing his goats, his daughter-in-law intimated him that Basista was dealt with cut injuries at Barakana Kheta and his wife has gone in search of him. The informant went to Barakana Kheta and found none there and on return to house his wife intimated about the sustaining of cut injuries on their son Basista caused by his relations. On enquiry, the informant learned that at about 11 A.M., Pramod Pradhan and Bisikesan Pradhan, the appellants, sons of his younger and elder brother respectively attacked his son Basista. First Buthi alias Bisikesan dealt blows with axe, for which his son Basista sustained injuries in his right shoulder and out of fear as he ran to the house of Ajamila Mahakud, both the accused persons chased him and again dealt cut blows at the house of Ajamila in spite of protests of Gurubari, wife of Ajamila, as a result the deceased was drenched with blood and accused fled away with their axes. 3.On being asked by the informant, his son the deceased said that Buthi and Pramod dealt blows with an axes causing cut injuries. On the basis of said report, Police registered the case under Sections 341, 326 and 324/34 of the I.P.C. and took up investigation. As the deceased succumbed to the injuries, police converted the case to a case under Section 302/34 of the I.P.C. After completion of investigation, the Investigating Officer submitted charge-sheet. Thereafter, the appellants faced trial for the offence under Section 302/34 of the I.P.C. The defence plea is of complete denial of the allegations. 4.In support of his case, prosecution has examined eleven witnesses, exhibited 14 documents and marked four M.Os. P.W.8- Thakur Pradhan, a child witness, is the witness to the incident that took place at Barakana Kheta. Thereafter, the appellants faced trial for the offence under Section 302/34 of the I.P.C. The defence plea is of complete denial of the allegations. 4.In support of his case, prosecution has examined eleven witnesses, exhibited 14 documents and marked four M.Os. P.W.8- Thakur Pradhan, a child witness, is the witness to the incident that took place at Barakana Kheta. P.W.7 Smt. Gurubari Mahakud, who happens to be the wife of Ajamila, states about the assault on the deceased in her house. P.W.2 is the informant of the case, he also happens to the father of the deceased. P.W.1 is the Police Constable, who guarded the injured and escorted the dead body for post-mortem examination. P.W.3 is the scribe of the F.I.R. P.W.4 is a witness to the inquest made by the Police Officer. P.W.5 is a witness to the search and seizure of axes from the houses of both the accused as per Exts.6 and 7 respectively. P.W.6 is a witness to the seizure of sample and blood-stained earth as per Ext.8. P.W.9 happens to be the A.S.I. of Police, who registered the case on 17.04.2006 and took up preliminary investigation. P.W.10 is the I.I.C. of Boudh P.S. who subsequently took charge of the investigation and submitted charge sheet against the accused persons. P.W.11 is the Doctor, who conducted postmortem examination on the dead body of the deceased. The defence on the other hand has neither examined any witness nor led any material object or exhibited any document into evidence. 5.Taking into consideration the statements of P.Ws.7 and 8, who are eye witnesses to the occurrence that took place at two different places and dying declaration made before the P.W.2 the informant, the learned Addl.Sessions Judge has come to the conclusion that the prosecution has proved that both the accused in furtherance of their common intention have committed culpable homicide not amounting to murder. He therefore proceeded to convict both the accused under Sections 304, Part I read with Section 34 of the I.P.C. and sentenced both the appellants to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- each in default to undergo rigorous imprisonment for one year more. He therefore proceeded to convict both the accused under Sections 304, Part I read with Section 34 of the I.P.C. and sentenced both the appellants to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- each in default to undergo rigorous imprisonment for one year more. 6.Learned counsel for the appellants argued at length and submitted that there is not enough evidence on record to come to the conclusion that prosecution has proved the case beyond all reasonable doubt and, therefore, the appellants should have been acquitted by the learned Addl.Sessions Judge. Learned Addl.Standing Counsel, on the other hand, supported the findings recorded by the learned Addl.Sessions Judge and has urged to dismissed the appeal. Learned counsel for the appellants, in alternative, has argued that the sentence imposed on both the appellants is excessive keeping in view the various factors of the case. Hence, it is urged that the Court may take a lenient view on the question of sentence and pass a lesser sentence on the appellants. 7.There is no dispute regarding the identity of the dead body, which was put to postmortem examination. P.W.1 has categorically stated that he has identified the dead body of the deceased before the doctor, who conducted the post-mortem examination. P.W.11- Dr. Bibhuti Bhusan Padhi has conducted the post-mortem examination on the dead body of the deceased on 17.04.2006 and 18.04.2006 and found the following injuries : (i)A cut injury on the right shoulder 3” X 2” and 1”. (ii)Incised injury extending from right ear to back of the skull of size 4”x3” and 1”. On further disSection, the doctor found the following injuries : (i)On disSection occipital bone was found fractured; (ii)Cut injury on occipital bone was found of the size ½” x ½”; (iii)Membranes torn; (iv)Subdural haemorrhage which was massive in nature was found; (v)Haemorrhage was also present over occipital lobe of the brain. The doctor opined that the cause of the death was due to haemorrhage in the brain and the time since death was within 24 hours as per his report Ext.13 and on query by the police on production of the weapon of offence i..e axes, opined that the said injuries were possible with the axes as per his report Ext.14. The doctor opined that the cause of the death was due to haemorrhage in the brain and the time since death was within 24 hours as per his report Ext.13 and on query by the police on production of the weapon of offence i..e axes, opined that the said injuries were possible with the axes as per his report Ext.14. Thus, it is clear that the death of the deceased is homicidal which was caused due to blows by the axes, marked as M.Os. III and IV. 7.Prosecution rests his case on three witnesses to prove the incident. Firstly, P.W.8 Thakur Pradhan is a witness to the first incident that took place at Barakana Kheta. P.W.7 Gurubari Mahakud is a witness to the second assault at her house. P.W.2 is the informant and father of the deceased before whom he deceased made a dying declaration. The evidence of all these witnesses finds corroboration from the statements of P.W.11 Dr. Bibhuti Bhusan Padhi. P.W.8 Thakur Pradhan, though a child witness, he has been found by the learned Sessions Judge to be matured enough to depose in the case and, therefore, he has recorded his statement. He has stated that while he was at the field along with deceased Basista, accused Pramod dealt axe blow to Basista, who was carrying out the earth work. Seeing that incident, this witness ran to his house crying. P.W.7, the other eye witness to the occurrence, has stated that the deceased with bleeding cut injury on his shoulder rushed to her house and closed the bamboo shutter as he was being chased by the accused persons and then the accused persons being armed with axes forcibly entered into her house and dealt axe blow on his neck. Though, she has been cross-examined at length, learned Addl.Sessions Judge has come to the conclusion that her evidence is acceptable and it has not been shaken in the cross examination. 8.The third component of evidence which is relied upon by the prosecution is the statement (dying declaration) given by Basista before his father. P.W.2, the father of the deceased, has stated that the deceased deposed before him that both Buthi and Pramod dealt blows to him by axes, ultimately he succumbed to the injuries in the afternoon. That statement of P.W.2 regarding his dying declaration made by the deceased before him has not been assailed in the cross-examination. P.W.2, the father of the deceased, has stated that the deceased deposed before him that both Buthi and Pramod dealt blows to him by axes, ultimately he succumbed to the injuries in the afternoon. That statement of P.W.2 regarding his dying declaration made by the deceased before him has not been assailed in the cross-examination. In fact, no suggestion has been given to him that he has not made any such dying declaration before this witness. Thus, on the basis of the statements of these witnesses, objective determination of the spot of occurrence of the Investigating Officer, which is clear from the sot map and the chemical examination report, this Court is of the opinion that the prosecution has proved its case beyond all reasonable doubt and there is no reason to interfere with the findings recorded by the learned trial Judge. Hence, the conviction does not require any interference. 9.Learned counsel for the appellants, relying upon the case of State of Punjab v. Tejinder Singh and another, AIR 1995 SC 2466 , has contended that if the offence has been committed long ago, a lesser sentence should be awarded than they would have normally deserved. It is seen that both the appellants are matured persons. The occurrence took place more than seven years back. It further appears that the deceased and the accused are relations. The occurrence took place because of certain family disputes regarding use of land. Hence, this Court comes to the conclusion that instead of awarding 10 years, a lesser sentence of 7 years rigorous imprisonment and fine of Rs.5,000/- each will subs serve the interest of justice. 10.Accordingly, it is held that both the appellants are found guilty of the offence under Section 304, Part I of the I.P.C. and are sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- (Rupees five thousand) each in default to undergo rigorous imprisonment for six months more. Accordingly, the Criminal Appeal is dismissed with modification of sentence. Appeal dismissed.