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2017 DIGILAW 1337 (ORI)

Arjuna Bhoi v. State of Odisha

2017-11-21

K.R.MOHAPATRA, S.PANDA

body2017
JUDGMENT : K.R. Mohapatra, J. This is an appeal under Section 374(2) Cr.P.C. filed against the judgment and order of conviction and sentence dated 23.08.2000 passed by learned 2nd Addl. Sessions Judge, Puri in S.T. Case No. 4/288 of 1998/1997 and 5/350 of 1998/1997 (arising out of G.R. Case No. 1221 of 1996 of the court of learned S.D.J.M., Puri corresponding to Sadar P.S. Case No. 115 of 1996) convicting the appellant under Section 302 I.P.C. and sentencing him to undergo imprisonment for life. 2. The prosecution case in brief as revealed from the plain paper F.I.R. (Ext.7/1) lodged by one Dinabandhu Bhoi (P.W.8) is that the villagers of Bhoisahi of Paikapada village were utilizing a well dug on the land donated by one Bholi Jena of that village. The said land was adjacent to the residential house of Bira Bhoi. 15 days prior to the date of incident, i.e. on 13.09.1996, said Bira Bhoi encroached the land donated by Bholi Jena and enclosed it by green fence. In order to discuss about the same, a meeting was convened on 12.09.1996 at 9.00 P.M. All the members present there requested Bira Bhoi to vacate the said plot, but he did not agree. Subsequently, all the members present there went to the spot. Bira also accompanied them. Reaching earlier at the spot, Bira Bhoi brandished a lathi (wooden stick) and abused the villagers in filthy language and threatened them not to come upon the case land. At that movement, Arjuna Bhoi (the appellant), son of said Bira Bhoi, reached there with a sharp weapon and stabbed Khetra Bhoi at his neck. Consequently, said Khetra Bhoi fell down being unconscious, receiving bleeding injury. Immediately, the informant and other villagers present there rescued him and shifted him to Jaunli Pokhari Hospital. On the way, he breathed his last. Said Arjuna also assaulted Kabuli Bhoi, the brother of the informant. Accordingly, a plain paper F.I.R. was lodged by the informant and Puri Sadar P.S. Case No. 115 of 1996 was registered. 3. As the allegation made in the F.I.R. disclosed a cognizable offence, the O.I.C., Puri Sadar P.S. (P.W.10) took up investigation. He went to the spot, examined the witnesses and prepared the spot map (Ext.9). He also prepared inquest report (Ext.8/1) and sent the dead-body for postmortem vide dead-body challan (Ext.10). 3. As the allegation made in the F.I.R. disclosed a cognizable offence, the O.I.C., Puri Sadar P.S. (P.W.10) took up investigation. He went to the spot, examined the witnesses and prepared the spot map (Ext.9). He also prepared inquest report (Ext.8/1) and sent the dead-body for postmortem vide dead-body challan (Ext.10). He also seized the bloodstained earth and sample earth collected from the spot in presence of the witnesses as per seizure list (Ext.4/2). The appellant was arrested on 13.09.1996 at 10.00 A.M. While in custody, he led the investigating team to discover the weapon of offence (M.O.I), which was seized under seizure list (Ext.6/2). The statement under Section 27 of the Evidence Act was also recorded. After completion of the investigation, P.W.10 submitted the charge-sheet against the present appellant and his father, namely, Bira Bhoi under Sections 302/506/325/34 I.P.C. 4. The plea of defence was complete denial of his involvement in the crime. In the statement under Section 313 Cr.P.C., both the accused persons took a plea that at the time of occurrence, the villagers including the deceased (Khetra Bhoi) went to the spot being armed with Katari to remove the fence. Both the accused persons in exercise of their right of private defence of property and person tried to snatch away the Katari from the hands of the deceased and in that process, the deceased (Khetra Bhoi) and Kabuli Bhoi sustained injuries. 5. The prosecution in order to bring home the charges leveled against the accused persons examined ten witnesses and proved Exts. 1 to 13. The defence in order to prove the ownership of the case land exhibited R.O.R. of the case land as Ext. A. Basing upon the statements of the eye-witnesses, namely, P.Ws. 1, 2, 5, 7, 8 and 9 as well as the evidence of the I.O. (P.W. 10) and the Medical Officer (P.W. 4), learned 2nd Addl. Sessions Judge convicted the present appellant under Section 302 I.P.C. The appellant was acquitted from all other charges leveled against him. His father, namely, Bira Bhoi, was acquitted under Section 235 (I) Cr. P.C. 6. Mr. Sarathi Jyoti Mohanty, learned counsel for the appellant vehemently argued that the ocular witnesses are all co-villagers and were opposed to the family of the appellant for occupation of the case land. His father, namely, Bira Bhoi, was acquitted under Section 235 (I) Cr. P.C. 6. Mr. Sarathi Jyoti Mohanty, learned counsel for the appellant vehemently argued that the ocular witnesses are all co-villagers and were opposed to the family of the appellant for occupation of the case land. The appellant as well as his father in their statements under Section 313 Cr.P.C. have categorically stated that in exercise of their right of private defence of their property as well as person, they tried to snatch away the Katari from the hands of the deceased (Khetra Bhoi) and in that process, the handle of the Katari (M.O.I) pierced the left side neck of the deceased. They had no mens ria to commit the crime. Ext. A, the R.O.R., also disclosed that the case land has been recorded in their name and the villagers had no manner of right, title, interest and possession over the same. In the alternative, Mr. Mohanty contended that if the case of the prosecution is accepted in toto, it would end in convicting the appellant under Section 304, Part-II I.P.C. As such, the conviction under Section 302 I.P.C. and sentence of imprisonment for life are not sustainable in the eyes of law and are liable to be set aside. 7. Mr. S.S. Mohapatra, learned Additional Standing Counsel for the State, on the other hand, refuting the submissions of learned counsel for the appellant, contended that the eye-witnesses, namely, P.W. 1, 2, 5, 7, 8 and 9, who were present at the spot, clearly narrated the incident ascribing specific role to the appellant in committing the crime. It is his submission that the plea of right of private defence is not available to the appellant inasmuch as the appellant was not present at the spot when the villagers reached there. There was no aggression on the part of the villagers. When the villagers were discussing the matter with his father, namely, Bira Bhoi, the appellant arrived at the spot with M.O.I and at once, pierced the handle of the Katari at the left side neck of the deceased, as a result of which he died instantaneously. The handle of the weapon of offence (M.O.I) was sharp enough to cause the fatal injury. The handle of the weapon of offence (M.O.I) was sharp enough to cause the fatal injury. The evidence of the Medical Officers, namely, P.W. 3, who declared the deceased dead and P.W.4, who conducted the autopsy, clearly reveals that injury on the back of the trunk over right scapula of the deceased measuring 1’’ X ½’’ X ¼’’ was caused by sharp cutting weapon. The age of the injury relates back to the time of occurrence. The evidence of the eye-witnesses as well as the Medical Officer was not successfully challenged in the cross-examination. Hence, the impugned judgment of conviction and sentence needs no interference and the appeal is liable to be dismissed. 8. We have heard learned counsel for the parties in detail and perused the materials available on record including the evidence of the witnesses. 9. Admittedly, the death of the deceased was homicidal. There are as many as six eye-witnesses to the occurrence. Although all the eye-witnesses have vividly described the incident and complicity of the appellant in the incident ascribing specific role and assaulting the deceased by means of M.O.1, no specific question was put to them by the defence with regard to innocence of the appellant. Although a plea of exercise of the right of private defence has been taken by the appellant, no such suggestion was put to the witnesses examined on behalf of the prosecution. Perusal of the evidence of the witnesses in its entirety discloses that on the date of incident, i.e. on 13.09.1996, a meeting was convened in the village to discuss about the celebration of Ganesh Puja. Bira Bhoi, the father of the appellant, was also present in the meeting. Incidentally, he was asked as to why he had encroached the land donated by Bholi Jena on which the villagers have dug a well and were utilizing the water since last 25 years. When Bira Bhoi denied to have encroached upon the case land, the deceased along with others including the eye-witnesses to the occurrence went to the spot to ascertain as to whether said Bira Bhoi had, in fact, encroached upon the common well of the village. The unchallenged evidence of the witnesses also discloses that said Bira Bhoi went ahead of the villagers and brandished a lathi abusing and threatening the villagers with dire consequence, if they come upon the case land. The unchallenged evidence of the witnesses also discloses that said Bira Bhoi went ahead of the villagers and brandished a lathi abusing and threatening the villagers with dire consequence, if they come upon the case land. At that point of time, Arjuna Bhoi (the appellant) reached at the spot with the weapon of offence (M.O.I) and pounced upon the deceased and pierced the handle, which had a sharp edge, on the left side neck of the deceased. P.W. 4, the Doctor, who conducted autopsy over the dead-body, in his evidence, deposed that the cause of death of the deceased was due to shock and hemorrhage caused by the injury to the vital organ and the injuries to the vessels on the neck. He also confirmed that the injury on the dead-body can be caused by a Katari without handle. He also categorically stated that on 02.12.1996, the I.O. had sent the weapon of offence (M.O.I) to him for his opinion and on examination of M.O.I, he opined that the injury could be possible by the handle of M.O.1, which had a sharp edge. 10. Taking into consideration the materials available on record in its entirety, the involvement of the appellant in committing the offence cannot be ruled out. Hence, we are of the view that the appellant is guilty of culpable homicide of the deceased. 11. The next question that arises for consideration is whether the culpable homicide committed by the appellant does not amount to murder. The evidence of the prosecution witnesses unequivocally reveals that there was a meeting in the village to discuss about the celebration of Ganesh Puja on 13.09.1996. Bira Bhoi, the father of the appellant, was present there. In course of discussion, the deceased, who was the headman of the village, asked Bira Bhoi as to why he had encroached upon the common well of the villagers. As he denied the same, all the villagers including said Bira Bhoi went to the spot, where the appellant arrived with M.O.I and committed the crime. 12. Learned counsel for the appellant desperately tried to bring the action of the appellant under the fold of Exception (2) to Section 300 I.P.C. contending that the incident occurred as the appellant in exercise of good-faith of the right of private defence of the property and person tried to snatch away the M.O.I from the hands of the deceased. 12. Learned counsel for the appellant desperately tried to bring the action of the appellant under the fold of Exception (2) to Section 300 I.P.C. contending that the incident occurred as the appellant in exercise of good-faith of the right of private defence of the property and person tried to snatch away the M.O.I from the hands of the deceased. In view of the discussion made above, the plea of private defence does not hold good, inasmuch as all the eye-witnesses in all unambiguous terms have deposed that the appellant was not present when his father, Bira, brandished Lathi at the villagers. He subsequently arrived at the spot with M.O.I and attacked the deceased by piercing the handle, which had a sharp edge in the neck of the deceased. As such, the only conclusion that can be drawn from the circumstances that the appellant had caused the injury on the deceased with the knowledge that such bodily injury sufficient to cause death in ordinary course of nature. The appellant had only dealt a single blow although at the vital part of the body. As such, the appellant had no mens ria to commit murder of the deceased. It was only due to a sudden anger. Hence, the conviction of the appellant under Section 302 I.P.C and sentence of imprisonment for life are not sustainable in law. 13. Taking into consideration the discussion made above, we modify the conviction and convict the appellant under Section 304, Part-I I.P.C. and sentence him to undergo R.I. for ten years. 14. In the instant case, the appellant was arrested on 13.09.1996 and has been released on bail by this Court on 16.01.2009. As such, the appellant was in custody for more than twelve years. Hence, he has already undergone the period of sentence. Accordingly, it is directed that the appellant be set at liberty forthwith, if his detention is not required in any other case. Follow up steps be taken immediately. The Criminal Appeal is allowed to the extent stated above. L.C.R. be sent back forthwith.