Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1072 (ORI)

Jada @ Jagabandhu Malik v. State of Orissa

2017-09-16

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant Jada @ Jagabandhu Malik faced trial in the Court of learned Addl. Sessions Judge, Bhadrak in Sessions Trial No. 46/85 of 2012-13 for offence punishable under section 302 of the Indian Penal Code for committing murder of one Ranjit Tarei (hereafter ‘the deceased’) on 15.02.2012 at 1.30 p.m. by means of a knife at village Chudamani under Basudevpur police station in the district of Bhadrak. The learned trial Court vide impugned judgment and order dated 13.11.2013 held the appellant guilty under section 304 Part-I of the Indian Penal Code and accordingly convicted him of such offence and sentenced him to undergo R.I. for a period of 8 years. 2. It is the prosecution case that on 15.02.2012 at about 1.30 p.m. the appellant along with his wife and daughter were taking away earth from the road. The deceased opposed to the same for which the accused along with his family members abused the deceased and there was quarrel between them. Thereafter the appellant rushed to his house and brought one knife and dealt a blow on the right side chest of the deceased with that knife and ran away. The deceased was shifted to the hospital where he was declared dead. The father of the deceased namely Arjun Tarei (P.W.1) lodged the written report before the Inspector in charge of Basudevpur Police Station, on the basis of which Basudevpur P.S. Case No.64 of 2012 dated 15.02.2012 was registered under section 302 of the Indian Penal Code. P.W.10 Kaberi Pradhan, Sub-Inspector of police, Basudevpur police station took up investigation of the case and during course of investigation, the I.O. visited the spot, prepared the spot map, held inquest over the dead body and sent the dead body for post mortem examination, arrested the appellant and seized one knife at his instance and then forwarded him to Court and on completion of investigation, he submitted charge sheet on 13.06.2012 under section 302 of the Indian Penal Code. 3. 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 11.10.2012 and since the appellant refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. The defence plea of the appellant is that the informant and other co-villagers wanted to evict the appellant from the Government land and they burnt the house of the appellant and falsely foisted the case against him. 5. In order to prove its case, the prosecution examined twelve witnesses. P.W.1 Arjun Tarei is the informant in the case and he is the father of the deceased. He is a witness to the seizure of the wearing apparels of the deceased and the knife. He is also a witness to inquest report vide Ext.2. P.W.2 Bhimsen Tarei is the brother of the informant. He is an eye witness to the occurrence and stated about the seizure of one knife at the instance of the appellant. P.W.3 Ajit Tarei is the younger brother of the deceased. He is an eye witness to the occurrence. P.W.4 Sandip Kumar Ray expressed his ignorance about the occurrence. P.W.5 Kasimuddin Khan is an eye witness to the occurrence and he stated about the seizure of knife under seizure list Ext.3. P.W.6 Sunanda Kumar Malik is the co-villager of the deceased who is a post-occurrence witness and he is the scribe of the F.I.R. P.W.7 Smt. Sambari Pradhan is another eye witness who stated about the assault on the deceased by the appellant. P.W.8 Dhusasan Tarei is the younger brother of the informant and he is an eye witness to the occurrence and also a witness to the inquest over the dead body of the deceased. P.W.9 Dr. Pravas Kumar Mohanty was the Asst. Surgeon at D.H.H., Bhadrak who conducted autopsy over the dead body of the deceased and proved his report Ext.5. P.W.10 Kaberi Pradhan was the S.I. of Police, Basudevpur Police Station who is the Investigating Officer. P.W.11 Kailash Chandra Rath was working as toll collector at the toll gate at Chudamani but he did not support the prosecution case for which he was declared hostile. P.W.12 Gayadhar Majhi is the witness to the inquest. P.W.10 Kaberi Pradhan was the S.I. of Police, Basudevpur Police Station who is the Investigating Officer. P.W.11 Kailash Chandra Rath was working as toll collector at the toll gate at Chudamani but he did not support the prosecution case for which he was declared hostile. P.W.12 Gayadhar Majhi is the witness to the inquest. The prosecution exhibited fourteen documents. Ext.1 is the first information report, Ext.2 is the inquest report, Exts.3, 9, 10 and 11 are the seizure lists, Ext.4 is the disclosure statement of the appellant, Ext.5 is the post mortem examination report, Ext.6 is the dead body challan, Ext.7 is the opinion of the doctor, Ext.8 is the spot map, Ext.12 is the prayer to R.F.S.L., Balasore, Ext.13 is the forwarding report and Ext.14 is the chemical examination report. The prosecution also proved five material objects. M.O.I is a knife, M.O.II is the sky colour banion of the deceased, M.O.III is the dark brown colour half pant of the deceased, M.O.IV is the blue and white colour check lungi of the appellant and M.O.V is the faded brown colour shirt of the appellant. 6. Mr. Sangram Keshari Rout, who was engaged by this Court as the counsel for the appellant, while challenging the impugned judgment and order of conviction contended that it appears that relating to the lifting of earth at the spot, there was sudden quarrel between the appellant and the deceased and there was push and pull and during such push and pull, the possibility of the deceased falling on the pointed weapon available at the spot cannot be ruled out inasmuch as the doctor conducting post mortem examination report has also stated that in a case of fall on a pointed both sides sharp iron object, penetrating injury is possible. He further contended that most of the witnesses who have deposed about the occurrence are related to the deceased and therefore, they are highly interested witnesses and in view of the fact that the appellant had instituted a case against the family members of the deceased, the possibility of his false implication cannot be ruled out. The learned counsel for the appellant further contended that under the facts and circumstances of the case, it cannot be said that the ingredients of the offence under section 304 Part-I of the Indian Penal Code are made out and therefore, the appellant should be given benefit of doubt. The learned counsel for the appellant further contended that under the facts and circumstances of the case, it cannot be said that the ingredients of the offence under section 304 Part-I of the Indian Penal Code are made out and therefore, the appellant should be given benefit of doubt. Mr. Chitta Ranjan Swain, learned counsel for the State on the other hand contended that the number of eye witnesses have deposed about the occurrence and all of them have consistently stated that it is the appellant who gave the knife blow on the right side chest of the deceased and the doctor conducting post mortem examination not only found the corroborating injury on the chest but also opined after examining the knife that the injury on the chest of the deceased is possible by such knife. It is further contended that relationship of the witnesses to the deceased is not a ground to discard their evidence and in fact relations are the best persons who would not spare the real assailant and implicate somebody falsely. The learned counsel further contended that the manner in which during course of the quarrel, the appellant left the spot, went to his house, brought the knife and stabbed on the right side chest clearly proves the intention part of the appellant. He further contended that the depth of the wound on the chest of the deceased was 17 c.m. which shows that with much force, the injury has been caused and therefore, there is no illegality in the impugned judgment and order of conviction. 7. Coming first to the evidence of the doctor (P.W.9) who conducted the post mortem examination, it appears that on 16.02.2012 he conducted autopsy over the dead body of the deceased and found one ante mortem penetrating injury over epigastrium area transversely eliptical opening with length 3.5 c.m. x breadth 1.5 c.m. x depth 17 c.m. directed towards left and back 9 c.m. below and medial to the right nipple and it was opined to be an ante mortem one and homicidal in nature and the cause of death has been opined to be haemorrhage and shock. The doctor has further opined that the ante mortem penetrating injury caused injury to liver, major abdominal vessels and caused excess intra-peritoneal bleeding to cause death. The doctor has further opined that the ante mortem penetrating injury caused injury to liver, major abdominal vessels and caused excess intra-peritoneal bleeding to cause death. The doctor has categorically stated that the injury found on the deceased is not possible usually in case of accidental fall on a pointed object but in the exceptional case, this may be possible. Nothing has been brought out in the cross examination of the doctor (P.W.9) to discard his evidence. The learned trial Court after analysing the evidence of the doctor, post mortem report (Ext.5) and inquest report (Ext.2) has also come to a finding that it is a case of homicidal death. Therefore, the prosecution case that the deceased met with a homicidal death on the date of occurrence is proved by the prosecution. 8. Coming to the ocular testimony of the eye witnesses P.W.2, P.W.3, P.W.5, P.W.7 and P.W.8, they have narrated the incident in detail. P.W.2 Bhimsen Tarai who is the paternal uncle of the deceased has stated that on the date of occurrence when the appellant took away earth from the hip, the deceased prevented him as it was meant from the construction of the road but the appellant abused the deceased in filthy language and when the deceased protested, the appellant went to his house and brought one knife and stabbed the deceased on his right side chest for which the deceased fell down on the ground and sustained bleeding injury and thereafter, the deceased was shifted to Basudevpur Govt. Hospital where he was declared dead. The other eye witnesses P.W.3, P.W.5, P.W.7 and P.W.8 have also stated about the assault by the appellant on the deceased and all of them have stated that the appellant dealt a single blow on the right side of chest of the deceased. Nothing has been brought out in the cross-examination of any of these witnesses to discard such evidence. The Investigating Officer has stated about the seizure of the knife at the instance of the appellant under seizure list Ext.3 which was sent to the doctor conducting post mortem examination and the doctor after verifying the weapon of offence opined that the injury found on the body of the deceased can be possible by such knife. Therefore, the ocular testimony of the eye witnesses gets corroboration from the medical evidence. Therefore, the ocular testimony of the eye witnesses gets corroboration from the medical evidence. No doubt, out of the five eye witnesses, P.W.2, P.W.3 and P.W.8 are related to the deceased but mere relationship is not a ground to discard the testimony of a witness which is otherwise clear, cogent and trustworthy. The Court is required to scrutinise such evidence meticulously with a little care as a rule of prudence, not as a rule of law and if after such scrutiny, it is found that it does not suffer from any infirmity as such then it can be acted upon. It would not be proper to conclude that the related witnesses would shield the real culprit and rope in innocent persons. The truth or otherwise of their evidence has to be weighed pragmatically. Moreover, apart from the related witnesses, two independent witnesses i.e. P.W.5 and 7 have also stated about the occurrence and the assault on the deceased by the appellant. The learned counsel for the appellant contended that after the seizure of the knife, it was sent for chemical analysis but no blood was found thereon and therefore, it cannot be said that the weapon seized was the weapon of offence. The occurrence in question took place on 15.02.2017 and on the next day when the appellant was arrested, the statement of the appellant was recorded under section 27 of the Evidence Act and in pursuance of such statement, the knife was found concealed under the Bhadi of his house. The possibility of removing the blood stains from such knife by the appellant cannot be ruled out. Even though P.W.2 has stated that when the knife was seized, it was stained with blood but the seizure list (Ext.3) does not indicate the same. It only reflects the seizure of one iron knife and mentions about its size. Therefore, the statements of the eye witnesses coupled with the recovery of the weapon of offence and the opinion of the doctor who conducted post mortem examination clearly establishes that it is the appellant who had caused the injury on the chest of the deceased by a knife on the date of occurrence which resulted in his death. Therefore, the statements of the eye witnesses coupled with the recovery of the weapon of offence and the opinion of the doctor who conducted post mortem examination clearly establishes that it is the appellant who had caused the injury on the chest of the deceased by a knife on the date of occurrence which resulted in his death. The argument by the learned counsel for the appellant that the appellant had no intention of causing death of the deceased cannot be accepted particularly when the evidence on record indicates that when there was quarrel, the appellant left the spot, entered into the house, brought out a knife and thereafter stabbed on the right side chest of the deceased. The depth of the injury as noticed by the doctor conducting post mortem examination is 17 cm. which itself a factor to show that much force was applied on the vital part of the body for causing such injury. The penetrative injury on the chest of the deceased affected not only the liver, abdominal vessels but also caused excess intra-peritoneal bleeding which resulted in the death of the deceased according to the doctor. 9. Section 304 Part-I of the Indian Penal Code applies where the accused causes culpable homicide not amounting to murder, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. There was sudden quarrel and push and pull between the appellant and the deceased relating to lifting of earth just before the actual assault and thereafter at the spur of the moment in the heat of passion, the manner in which the appellant assaulted the deceased, taking into account the Exception 4 to section 300 of the Indian Penal Code, I am of the view that the learned Trial Court has rightly convicted the appellant under section 304 Part-I of the Indian Penal Code. The appellant is in custody since 16.02.2012. He was not granted bail by the learned Trial Court and also by this Court during pendency of the appeal. Therefore, it appears that the petitioner has already undergone substantive sentence of more than five years and six months. The learned Trial Court has imposed a substantive sentence of eight years. The appellant is in custody since 16.02.2012. He was not granted bail by the learned Trial Court and also by this Court during pendency of the appeal. Therefore, it appears that the petitioner has already undergone substantive sentence of more than five years and six months. The learned Trial Court has imposed a substantive sentence of eight years. Considering the background of the case, the surrounding circumstances under which the offence has taken place and the age of the appellant, while upholding the order of conviction under section 304 Part-I of the Indian Penal Code, I think it proper to reduce the substantive sentence to R.I. for a period of six years. With the aforesaid modification in the sentence, the JCRLA stands dismissed. The hearing fee for this criminal appeal is assessed to be Rs.2,500/-(two thousand five hundred only) which would be paid to the learned counsel for the appellant immediately.