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2017 DIGILAW 1119 (ORI)

Lambodar @ Mahendra Sahoo v. State of Orissa

2017-10-09

S.PUJAHARI, SANJU PANDA

body2017
JUDGMENT : S. Panda, J. 1. This Criminal Appeal is directed against the judgment dated 17.5.2003 passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in S.T. No. 28-D of 1996/S.T. No. 49-D of 1998 in convicting the appellant for commission of offence under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and rigorous imprisonment for one year under Section 323 of the I.P.C. The sentences are to run concurrently subject to set off. Initially father and son faced the trial, however court below acquitted his son from the charges. 2. The learned counsel for the appellant submits that the court below has not considered the prosecution case regarding sudden quarrel between the son of appellant and the deceased while preparing to put temporary sheds for Kartika Purnima in the village wherein the appellant intervened and occurrence took place. Since the appellant has no motive to kill the deceased the court below should have considered the said fact along with the materials available on record. Thus, the judgment and sentence passed by the court below need be interfered with. 3. The learned Addl. Government Advocate however supported the prosecution case and submits that P.W.1 and P.W.4 are the two independent witnesses. They supported the prosecution case. P.W.3 is the informant. Even if he is the father of the deceased, he has corroborated the fact narrated in the F.I.R. The trial court considering the same passed a reasoned judgment and sentence which need not be interfered with as there was no serious discrepancy in the evidence of witnesses on material facts. 4. On the above submission of the learned counsel for the appellant, we gone through the evidence on record and the judgment and sentence passed by the trial court. It reveals that P.W.3 is the informant and father of the deceased who has lodged the F.I.R. One Baikuntha Behera (P.W.6) at about 8 A.M. on 16.11.1994 while making hole for temporary shed, accused Abhi came to the spot. He has abused the deceased in filthy languages due to statement made on previous day in presence of P.Ws. 3, 8 and P.W.6. While the deceased explained regarding nothing told by him, the appellant who is the father of accused Abhi reached at the spot being armed with one sickle. Suddenly Abhi snatched the sickle from the hand of appellant in order to assault the deceased. 3, 8 and P.W.6. While the deceased explained regarding nothing told by him, the appellant who is the father of accused Abhi reached at the spot being armed with one sickle. Suddenly Abhi snatched the sickle from the hand of appellant in order to assault the deceased. However the informant managed to snatch away the sickle from him. Then the present appellant assaulted the deceased on his head and other parts of the body by means of a crow-bar which was lying there. Abhi give blows by means of a hammer to the leg of the deceased. P.W.5, the mother of the deceased came to the spot to rescue her son. The appellant pushed her and she sustained injuries. P.Ws. 1 and 4 who were present at the spot tried to intervene in the matter but the appellant pushed P.W.1 as a result of which he fell down on the ground. Thereafter accused persons left the spot. 5. The deceased sustained bleeding injuries due to such assault and shifted to local P.H.C. hospital by the Sarpanch. The F.I.R. was lodged at about 11.30 A.M. in the local Police Station and prosecution case set into motion. The deceased was referred to S.C.B. Medical College & Hospital, Cuttack as his condition was serious where he succumbed to the injuries. U.D. Case No. 537 of 1994 was registered at Mangalabag Police Station, Cuttack. Thereafter the O.I.C. Parjang Police Station got information about the death of the deceased and brought the U.D. case record and report to the Court. Charge framed under Sections 302/307 read with Section 34 of the I.P.C. against the appellant and his son who have faced the trial. 6. In order to bring home the charge, during trial the prosecution examined as many as eleven witnesses including the I.O. P.W.11 and the doctor P.W.7 who conducted the post mortem examination and also the doctor who has given treatment to the deceased at Parjang Community Health Center who has referred the matter to S.C.B. Medical College & Hospital, Cuttack when the condition of the deceased was serious. Prosecution also exhibited the documents i.e. exhibit 1 to exhibit 15. Ext. 5 is the F.I.R. and Ext.7 is the postmortem report. 7. The defence plea is one of complete denial. Accused Abhi take a plea of alibi while his statement recorded under Section 313 Cr.P.C. 8. Prosecution also exhibited the documents i.e. exhibit 1 to exhibit 15. Ext. 5 is the F.I.R. and Ext.7 is the postmortem report. 7. The defence plea is one of complete denial. Accused Abhi take a plea of alibi while his statement recorded under Section 313 Cr.P.C. 8. The trial Court taken into consideration the evidence of P.Ws.1, 3 and 4 who are the eye witnesses to the occurrence and the post mortem report which reveals eight external injuries and twelve internal injuries on dissection found by the doctor who conducted the autopsy and his evidence regarding depressed fracture having the entire skull contused. The Court below considering the manner of assault, the weapon used, the circumstances under which the appellant assaulted the deceased, recorded a conclusion that the appellant has the intention to kill the deceased, while discarding the defence plea regarding sudden quarrel. Deceased was unarmed and appellant had not sustained any injury. So far as co-accused is concerned there was no evidence that he has assaulted P.W.5 or in furtherance of his common intention he has assaulted the deceased. On such finding the trial court acquitted the other accused person. So far as appellant is concerned the trial Court convicted him for commission of offence under Section 302 read with Section 323 of the Indian Penal Code and sentenced him to undergo imprisonment for life under Section 302 of I.P.C. and rigorous imprisonment for one year under Section 323 of the I.P.C. 9. In view of the above discussion of evidence on record, prosecution relied on the evidence of P.Ws. 1, 3 and 4 who are the eye witnesses to the occurrence. The trial Court has discussed the evidence of such witnesses and also the exaggeration made by P.W.5 who has came to the spot after the assault made by the appellant to the deceased. The court below on threadbare discussion of evidences on record convicted the appellant and passed the sentence. Prosecution has proved its case beyond reasonable doubt and there is nothing to interfere with the judgment and sentence passed by the court below. Accordingly, we confirm the same. It is submitted that in the meantime the State Government has remitted the sentence of the appellant. Lower Court records along with copy of judgment be sent forthwith to the trial Court. S. Pujahari, J. I agree.