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2016 DIGILAW 105 (ORI)

Jayakrushna Parida v. State of Orissa

2016-02-08

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. 1. The appellant Jayakrushna Parida faced trial in the Court of learned Additional Sessions Judge, Nayagarh in S.T. Case No. 3/638 of 2004/2003 for offence punishable under section 302 of the Indian Penal Code for committing murder of Chhatia Mohapatra (hereafter "the deceased") on 15.06.2003 at about 4.30 p.m. in the backyard of the house of the deceased situated in village Khuntubandha under Nayagarh Police Station in the district of Nayagarh. The appellant was found guilty under section 304 Part-II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years vide judgment and order dated 13.06.2006. 2. The prosecution case as per the First Information Report lodged by Santosh Kumar Mohapatra (P.W.10), the son of the deceased on 15.06.2003 before Inspector-in-charge, Nayagarh Police Station is that in the year 2000, he was working at Surat and at that time, the appellant was also working there and the appellant had taken a hand loan of Rs.4,000/- from him and he was not refunding the same for about three years. On 15.06.2003 at about 4.30 p.m. while the deceased was going to the backyard of the house carrying manure, the appellant was present in the backside of his house and seeing the appellant, the deceased asked him as to why he was not refunding the money since last three years. At this, the appellant got enraged and picked up one ISHA (the wooden portion connected to plough) which was lying on the ground and dealt a blow on the head of the deceased as a result of which the deceased succumbed to the injuries. On the basis of such First Information Report, Inspector-in-charge of Nayagarh Police Station registered Nayagarh P.S. Case No.136 dated 15.06.2003 under section 302 of the Indian Penal Code. P.W.12 Alok Ranjan Ray who was the Junior Sub-Inspector attached to Nayagarh Police Station was entrusted with the investigation of the case who examined the informant, visited the spot which is the kitchen guarden of the deceased located at the backside of his house and also seized the ISHA under seizure list Ext.1. P.W.12 examined the witnesses and came to District Headquarters Hospital, Nayagarh and found the dead body lying there. On the next day, he held inquest report over the dead body and prepared inquest report Ext.2. He also forwarded the dead body for post mortem examination. P.W.7 Dr. P.W.12 examined the witnesses and came to District Headquarters Hospital, Nayagarh and found the dead body lying there. On the next day, he held inquest report over the dead body and prepared inquest report Ext.2. He also forwarded the dead body for post mortem examination. P.W.7 Dr. Suresh Chandra Mishra who was attached to District Headquarters Hospital, Nayagarh conducted post mortem examination on 16.6.2003. The appellant was arrested on 16.6.2003 and he was forwarded to the Court on the next day i.e. 17.06.2003. The I.O. seized blood stained gamuchha belonging to the deceased being produced by Havildar under seizure list Ext.6. On 26.07.2003 P.W.12 received the post mortem report. He made a query to the doctor who conducted the post mortem examination as to whether the injury sustained by the deceased could be possible by ISHA and got the reply in affirmative. On 30.08.2003 the Investigating Officer sent the ISHA as well as gamuchha stained with blood for chemical examination through S.D.J.M., Nayagarh and received the chemical examination report Ext.8. After completion of investigation, he submitted charge-sheet on 30.08.2003 under section 302 of the Indian Penal Code. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 302 of the Indian Penal Code on 7.8.2004 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to prove its case, the prosecution examined as many as twelve witnesses. P.W.1 Hrusikesh Lenka did not support the prosecution case, for which he was declared hostile by prosecution. P.W.2 Saratha Mahapatra is the nephew of the deceased and he stated that the widow of the deceased told him that a boy came and assaulted the deceased with an ISHA and ran away and further told that the appellant had borrowed some money and did not pay back and there was some dispute for which that boy assaulted the deceased. P.W.3 Kartika Sahu is a witness to the seizure of broken ISHA stained with blood under seizure list Ext.1. P.W.3 Kartika Sahu is a witness to the seizure of broken ISHA stained with blood under seizure list Ext.1. P.W.4 Tutu Pattanaik stated that about two years back, one day while he was going to his village, he found a gathering in village Khuntubandha where somebody told him that someone had killed a person. P.W.5 Lochan Mahapatra stated about the disclosure made by the widow of the deceased that the appellant assaulted the deceased by means of an ISHA on his head. He is also a witness to the inquest and proved inquest report Ext.2. P.W.6 Susila Mahapatra is the widow of the deceased who is an eye witness to the occurrence. P.W.7 Dr. Suresh Chandra Mishra was the Pediatric Specialist attached to District Headquarters Hospital, Nayagarh who on 16.06.2003 conducted post mortem examination over the dead body of the deceased and opined that the cause of death of the deceased was due to intracranial haemorrhage due to injury to brain and shock. He proved the post mortem examination report Ext.3. He opined to the query made by the Investigating Officer and stated that the injury noticed on the head of the deceased was possible by M.O.I. P.W.8 Pravakar Mohapatra is the son-in-law of the deceased and he stated that his mother-in-law (P.W.6) told that the appellant assaulted the deceased by means of an ISHA for which the deceased sustained injury and died. P.W.9 Kabiraj Mohapatra is the son of the deceased and he also stated about the disclosure made by his mother regarding assault on the deceased by the appellant by means of an ISHA. He further stated that the appellant had taken a loan of Rs.4,000/- from him as well as from his brother while they were working at Surat but did not pay back the same in spite of repeated demand. P.W.10 Santosh Kumar Mohapatra is another son of the deceased and he is the informant in the case and he has also stated about the disclosure made by his mother regarding assault by the appellant to the deceased by means of an ISHA. He also stated that the appellant had taken Rs.4,000/- from them while they were working at Surat. P.W.11 Bhikhyakari Pala was the constable attached to Nayagarh Police Station who produced blood stained gamuchha of the deceased after post mortem examination which was seized under seizure list Ext.6. He also stated that the appellant had taken Rs.4,000/- from them while they were working at Surat. P.W.11 Bhikhyakari Pala was the constable attached to Nayagarh Police Station who produced blood stained gamuchha of the deceased after post mortem examination which was seized under seizure list Ext.6. P.W.12 Alok Ranjan Ray was the Junior Sub-Inspector attached to Nayagarh Police Station who is the Investigating Officer in the case. The prosecution exhibited eight documents. Ext.1 is the seizure list, Ext.2 is the inquest report, Ext.3 is the post mortem report, Ext.4 is the opinion of the doctor (P.W.7), Ext.5 is the First Information Report, Ext.6 is the seizure list, Ext.7 is the dead body challan and Ext.8 is the chemical examination report. The prosecution also proved two material objects. M.O.I is the ISHA and M.O.II is the gamuchha. 5. The defence plea of the appellant was one of denial and it was pleaded that while the deceased was drawing hay from the heap, he fell down and sustained injury and died. 6. The learned Trial Court vide impugned judgment has been pleased to hold that the evidence of P.W.9 and P.W.10, the two brothers appear to be quite probable. It was further held that the FIR which was filed immediately after the occurrence substantially corroborates the evidence of P.Ws. 6, 9 and 10. It was further held that the evidence of P.W.6 who is the only eye witness to the occurrence gets corroboration from the other evidence. It was further held that the appellant assaulted the deceased by an 'Isha' (M.O.I) when he asked to return the money which the appellant had taken for which the deceased sustained injuries and subsequently died, has been proved beyond all reasonable doubt by ocular and medical evidence. The learned Trial Court however taking into account that the occurrence occurred out of sudden provocation and the appellant dealt a single blow on the head of the deceased has been pleased to held that the appellant had never intended to cause the death of the deceased but he had knowledge that the injury which he inflicted could cause the death of the deceased and accordingly held him liable under section 304 Part-II of the Indian Penal Code. 7. Mr. Suryanarayan Mishra, learned counsel was engaged as amicus curiae on behalf of the appellant. 7. Mr. Suryanarayan Mishra, learned counsel was engaged as amicus curiae on behalf of the appellant. After going through the paper book supplied in Court, he placed the evidence of the witnesses and impugned judgment and contended that the impugned judgment and order of conviction is not sustainable in the eye of law and the solitary eye witness to the occurrence i.e. P.W.6 is a highly interested witness and her evidence cannot be said to be clear, cogent and truthful and therefore implicit reliance cannot be placed on the same. He further contended that there was previous dispute between the parties on the allegation that the appellant had not refunded back the money taken from the sons of the deceased and due to such dispute, the possibility of false implication cannot be ruled out. The learned counsel further urged that even though the weapon of offence was seized at the spot and sent for chemical examination, no blood stain was detected as per the chemical examination report and therefore, the prosecution case becomes doubtful. Learned counsel for the petitioner submitted that the petitioner was in custody for about three years and eight months during the pendency of the trial as well as during pendency of the appeal and since in the meantime about more than twelve and half years have already passed, even if this Court was of the view that there is no infirmity in the impugned judgment and order of conviction under section 304 Part-II of I.P.C., the sentence imposed by the learned Trial Court be reduced to the period already undergone. Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand submitted that the presence of P.W.6 who is the widow of the deceased at the spot cannot be doubted and she is a truthful witness and her evidence is above board and therefore the learned Trial Court was justified in placing reliance on her testimony. He further contended that the evidence of P.W.6 is corroborated by the other witnesses before whom she had made immediate disclosure about the occurrence which is admissible under section 6 of the Evidence Act as res gestae. He further contended that there is no infirmity in the impugned judgment and order of conviction and therefore the appeal should be dismissed. 8. He further contended that there is no infirmity in the impugned judgment and order of conviction and therefore the appeal should be dismissed. 8. Adverting over the nature and cause of death of the deceased, apart from inquest report Ext.2, it appears that P.W.7 Dr. Suresh Chandra Mishra conducted post mortem examination on 16.6.2003 at District Headquarters Hospital, Nayagarh and he found the following external injuries:- (1) Lacerated injury of size 2" x ½" x scalp depth over the anterior aspect of vault of skull which was ante mortem in nature. Blood clot was present with crack fracture of the underlying skull bone. (2) Contusion of size 2" x 2" over the left temporal area which was ante mortem in nature. Blood clot present with fracture of the left temporal bone into three pieces with rupture of the underlying membrane. On dissection of the contusion, he found fracture of the left temporal bone into three pieces with rupture of the underlying membrane. He opined the cause of death was due to intracranial haemorrhage due to injury to the brain and shock. The post mortem report has been marked as Ext.3. The learned Trial Court has also analysed the evidence of doctor and found no infirmity in his evidence. Learned counsel appearing for the appellant has also not challenged the evidence of the doctor. In view of the evidence of the doctor and the post mortem report findings, it is clear that the deceased met a homicidal death and his death was due to intracranial haemorrhage due to injury to the brain and shock. 9. Coming to the evidence of the sole eye witness to the occurrence P.W.6 Susila Mohapatra, she has stated that on the date of occurrence when the deceased asked the appellant as to why he was not refunding the money, the appellant came with an ISHA and dealt a blow on the head of the deceased and ran away as a result of which the deceased fell down. She has identified M.O.I as the weapon of offence by which the appellant assaulted her husband. P.W.6 has further stated that her sons were working at Surat and the appellant was also working at Surat and the appellant had taken Rs.4000/- from them but he did not refund the money in spite of repeated demands. She has identified M.O.I as the weapon of offence by which the appellant assaulted her husband. P.W.6 has further stated that her sons were working at Surat and the appellant was also working at Surat and the appellant had taken Rs.4000/- from them but he did not refund the money in spite of repeated demands. In the cross-examination, P.W.6 has stated that the appellant dealt only a single blow on the head of the deceased. Nothing substantial has been elicited in the cross-examination to discredit the evidence of P.W.6. The evidence of P.W.6 gets corroboration from the medical evidence inasmuch as P.W.7 has stated that the injury found on the head of the deceased was possible by M.O.I. P.W.6 disclosed about the occurrence immediately thereafter before her sons P.W.9 and P.W.10 who have stated that on hearing hullah of their mother, they rushed to their bari and found their father lying injured and their mother was holding him and shouting that the appellant assaulted the deceased and they also noticed that the appellant running away with an ISHA from the bari. The other witnesses who also stated that P.W.6 disclosed about the incident implicating the appellant in the assault of the deceased are P.W.2 Saratha Mohapatra and P.W.5 Lochan Mohapatra. The conduct of P.W.6 in disclosing before a number of persons immediately after the occurrence implicating the appellant is admissible under section 6 of the Evidence Act. The evidence of P.W.9 and P.W.10 that they had seen the appellant running away from the spot with an ISHA is an additional factor which is the conduct of the appellant soon after the occurrence and the same is admissible under section 8 of the Evidence Act. In view of the evidence of the eye witness P.W.6, the corroborative medical evidence, the statements of the other witnesses before whom P.W.6 disclosed about the incident as well as the statements of the two sons of the deceased that they had seen the appellant running away from the spot with the weapon of offence clearly establishes that it is the appellant who had committed the crime. 10. 10. Even though the chemical examination report indicates that no blood stain was detected on the wooden piece marked as 'A' but that would not falsify the prosecution case, in view of the clear evidence of P.W.6 that it is the appellant who assaulted the deceased by means of M.O.I and also the medical evidence given by P.W.7 that the injury sustained by the deceased on the head is possible by M.O.I. 11. The learned Trial Court has held that there is no evidence on record that the appellant ever came shouting to finish the deceased or had a pre-plan and he had dealt a single blow when the deceased asked him to refund the money taken from his sons. The learned Trial Court further held that it could be gathered from the circumstances that the appellant never intended to cause the death of the deceased however he had the knowledge that the injury which he inflicted might cause the death of the deceased and accordingly the appellant was held guilty for culpable homicide not amounting to murder punishable under section 304 Part-II of the Indian Penal Code. I am, therefore, in complete agreement with the findings of the learned Trial Court in coming to the conclusion that the offence comes within the purview of section 304 Part-II of the Indian Penal Code. So far as the sentence part is concerned, it is found from record that the appellant was produced before the Court after being taken into custody on 17.06.2003 and he was released on bail during trial on 01.10.2004. After the judgment was pronounced on 13.06.2006, he was again taken into custody and during pendency of the appeal, he was granted bail on 7.11.2008 and therefore the appellant has remained in custody for about three years and eight months. From the record, it appears that there is no criminal antecedents against the appellant and more than twelve and half years have already been passed since the date of occurrence. Taking note of the surrounding circumstances, the genesis of the occurrence, the age of the appellant as well as the fact that the appellant is a mechanic having no criminal antecedent, I am of the view that the sentence of rigorous imprisonment of five years would meet the ends of justice. Taking note of the surrounding circumstances, the genesis of the occurrence, the age of the appellant as well as the fact that the appellant is a mechanic having no criminal antecedent, I am of the view that the sentence of rigorous imprisonment of five years would meet the ends of justice. Accordingly the impugned judgment and order of conviction of the appellant under section 304 Part-II of the Indian Penal Code is confirmed but his sentence is reduced from rigorous imprisonment for seven years to rigorous imprisonment for five years. Since the appellant has already been released on bail, he should surrender forthwith before the Trial Court to serve out the remaining part of the sentence, failing which the learned Trial Court shall proceed against the appellant in accordance with law. Subject to the modification of the sentence, the appeal fails and stands dismissed. Before parting with the case, I would like to put on record my appreciation to Mr. Suryanarayan Mishra, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.2,500/-. The Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action. Appeal dismissed.