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2018 DIGILAW 707 (ORI)

Bangali Barik v. State Of Orissa

2018-07-31

K.R.MOHAPATRA, SANJU PANDA

body2018
JUDGMENT S.Panda, J. - This Criminal Appeal is directed against the judgment dated 21.6.1999 passed by the leaned Sessions Judge, Keonjhar in Sessions Trial Case No. 93 of 1997 in convicting the appellant for commission of offence under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life. 2. The prosecution case in short fact is that:- The accused was dealing with purchase and sale of buffaloes. Three to four days prior to the date of occurrence, which took place on 1.2.1997, he brought some customers for sell of his buffaloes to his village Talapada. But the customers returned as the price could not be settled. While the customers were returning Kuna Behera went and talked with them. This could be noticed by the accused and he entertained doubt that it was Kuna Behera who dissuaded the customers not to purchase the buffaloes of the accused. This enraged the accused and he bore grudge against Kuna Behera. On 1.2.1997 at about 6.30 P.M. when Kuna Behera was enjoying heat of the fire with others near the house of Bangali Barik, accused suddenly reached there with a 'Bala' and dealt a blow to the right shoulder of Kuna Behera causing his instant death. Pita Behera, Mita Behera, Chakra Barik were also present there near the fire place and witnessed the occurrence. After the assault the accused went away with the 'Bala'. The said fact was reported in writing by Paramananda Behera, son of deceased at Daitari Police Station on 2.2.1997 at 2 A.M. The said report has been treated as F.I.R. During investigation inquest was held over the dead body, postmortem examination was conducted over the dead body, seizure of articles were made from the spot, statement of witnesses were recorded under section 164 Cr.P.C. The weapon of offence was seized at the instance of accused and after receipt of post mortem examination report, chemical examination report of the seized articles, charge sheet was submitted against the accused under Section 302 of the I.P.C. to face his trial. 3. Prosecution has examined as many as ten witnesses to prove its case. Out of which, P.W.1 is the doctor who conducted postmortem examination of the deceased. P.W.3 is the doctor who collected the nail clippings of the accused. P.W.2 Chakradhar Barik, the uterine brother of the accused. P.Ws. 4 and 5 are eye witnesses to the occurrence. 3. Prosecution has examined as many as ten witnesses to prove its case. Out of which, P.W.1 is the doctor who conducted postmortem examination of the deceased. P.W.3 is the doctor who collected the nail clippings of the accused. P.W.2 Chakradhar Barik, the uterine brother of the accused. P.Ws. 4 and 5 are eye witnesses to the occurrence. P.W.6 is a post occurrence witness. P.W.7 is the scribe of the F.I.R.(Ext.6) and a witness to the inquest. P.W.8 who is a seizure witness to the seizure of articles like blood stained earth, burnt ashes, date-palm mattress from the spot and proves the seizure list vide Ext. 8,9, and 10. P.W.9 is a witness to the leading to recovery and seizure of Tangia (M.O.I) at the instance of the accused. P.W.10 is the Investigating Officer. The case of the defence is one of complete denial and he has taken a stand that the case has been foisted at the instance of Pita Behera, Mita Behera and Paramananda Behera due to business rivalry. 4. The learned counsel for the appellant submits that the impugned judgment of conviction and sentence is based on erroneous appreciation of evidence and the Trial Court convicted the appellant on the basis of contradictory statements of the eye witnesses hence the impugned order is liable to be set aside and the appellant is entitled for acquittal. In support of his contention he has cited the decisions reported in Indrasan Vrs. State of Uttar Pradesh , (2009) 14 SCC 532 , Ranjit Sarkar Vrs. State of Tripura , (2016) 15 SCC 756 , Balbir Singh Vrs. State of Punjab , (1995) Supp3 SCC 472, Johny Vrs. State of Kerala , (2011) 14 SCC 158, Thangaiya Vrs. State of Tamilnadu , (2005) 9 SCC 650 . 5. The learned Addl. Standing Counsel strenuously contended that the trial Court considering the evidence of eye witnesses i.e., P.W.4 and P.W.5 as well as the post mortem examination report under Ext.1 passed the impugned judgment of conviction. Therefore the sentence imposed on the appellant has been properly assessed by the trial court and as such calls for no interference. 6. P.W.1 is the doctor who conducted postmortem examination on the dead body of the deceased. In his deposition he has stated that on 3.2.1997 he was working as Specialist in Surgery attached to SubDivisional Hospital, Anandapur. Therefore the sentence imposed on the appellant has been properly assessed by the trial court and as such calls for no interference. 6. P.W.1 is the doctor who conducted postmortem examination on the dead body of the deceased. In his deposition he has stated that on 3.2.1997 he was working as Specialist in Surgery attached to SubDivisional Hospital, Anandapur. On police requisition he has conducted the postmortem examination of the dead body of Kuna Behera son of Ghana Behera of Talapada. On examination of the dead body he found the following external injury over the dead body:- One antemortem incised wound of 10cm. x 5 cm. x bone deep over right shoulder adjacent to neck situated transversely and cutting T-1, T-2 vertibra along with spinal cord, left scapula has been fractured, right scapula spine fractured, left lung coming through the wound. The cause of death was due to haemorrhage and shock due to injury to the vital organ like spinal cord and lungs. The injuries are antemortem in nature. P.W.3 also stated that on 4.2.1997 he was attached to Bhagamunda P.H.C. as Asst. Surgeon. On that day on police requisition he has examined one Bangali Barik of village Talapada. He has collected the blood sample of Bangali Barik as per the requisition of police and also the nail clippings. The sample blood and the nail clippings were collected in vials and were duly sealed by him and handed over to the accompanying constable who brought the requisition. P.W.4 is the eye witness to the occurrence. He has stated in his evidence that the occurrence took place on the homestead of accused Bangali. On the day of occurrence he was sitting besides the fire place along with Mita Behera, Chakra Bari, deceased Kuna Behera. All of a sudden the accused brought an axe and dealt a blow on the left shoulder of Kuna Behera and ran away. Kuna fell down due to the assault and instantly succumbed to the injuries. P.W.5 who is an eye witness to the occurrence also corroborates the evidence of P.W.4. P.W.2 is a hostile witness. P.W.6 is a post occurrence witness. P.W.7 is a co-villager who has only scribed the F.I.R. Ext.6. P.W.8 is a seizure witness. In his deposition he has stated that in his presence police seized some blood stained earth. P.W.10 is the A.S.I. of Daitari Police Station. P.W.2 is a hostile witness. P.W.6 is a post occurrence witness. P.W.7 is a co-villager who has only scribed the F.I.R. Ext.6. P.W.8 is a seizure witness. In his deposition he has stated that in his presence police seized some blood stained earth. P.W.10 is the A.S.I. of Daitari Police Station. In his deposition he has stated in absence of O.I.C. he had registered Daitari P.S. Case No.5 of 1997 and took up investigation. During investigation he has examined the complainant Paramananda Behera and reached the spot. He has also examined the occurrence witnesses and seized the blood stained earth. He further stated that he has sent the dead body for postmortem examination through constable Binod Bihari Barik, Gramarakhi Bhola Behera. He has also arrested the accused. On completion investigation submitted charge sheet against the accused. 7. Learned counsel for the appellant submits that even if the prosecution case is entirely accepted, the case is not coming under the purview of Section 302 IPC, but at best the same can be a case under Section 304 Part-II IPC. According to him, there is no prior intention of the appellant to assault the deceased and due to sudden provocation he assaulted the deceased. In the case of Indrasan Vrs. State of Uttar Pradesh , (2009) 14 SCC 532 wherein the Apex Court held that there was no possibility of any concoction of the incident as there was no scope for framing anybody unnecessarily and without reason within short span of time. As such lathi blow was given so forceful that consequent thereto deceased died within one hour before he could be taken to the hospital. Thus there was direct nexus between blow inflicted and death of the deceased. Hence though the case is of culpable homicide not amounting to murder but considering the nature of injury caused on a vital part of the body intention to cause death can be inferred. Conviction altered from Section 302 to Section 304 Part-I and custodial sentence of 10 years imposed. Similarly in the case of Ranjit Sarkar Vrs. State of Tripura , (2016) 15 SCC 756 wherein the Apex Court held that whether the offence committed by the appellant is murder or culpable homicide not amounting to murder. Conviction altered from Section 302 to Section 304 Part-I and custodial sentence of 10 years imposed. Similarly in the case of Ranjit Sarkar Vrs. State of Tripura , (2016) 15 SCC 756 wherein the Apex Court held that whether the offence committed by the appellant is murder or culpable homicide not amounting to murder. While determining the said fact it is to be considered number of injuries altercation in the morning, single blow inflicted later at night, weapon used in the crime and the motive. Evidence on record suggests only one blow given by the appellant on the head of the deceased which appears to have been given with full force. Appellant convicted under Section 304 Part-I and sentenced to 10 years R.I. In the case of Balbir Singh Vrs. State of Punjab , (1995) Supp3 SCC 472 the Court has considered the single head injury caused by Kirpan and no attempt made to give another blow. Absence of premeditation injury not caused intentionally. In the circumstances held that the offence falls under Section 304 Part-I and not under Section 302 of the I.P.C. 8. In view of the above discussion, we set aside the order of conviction under Section 302 IPC and sentence of imprisonment for life passed by the learned Sessions Judge, Keonjhar in S.T. Case No. 93 of 1997 and convict the appellant under Section 304, Part-II of the IPC and sentence him to undergo imprisonment for 10 years. The Criminal Appeal is accordingly allowed in part by modifying the impugned judgment of conviction and sentence to the extent indicated above. 9. It appears that pursuant to the order dated 29.9.2005 passed in Misc. Case No. 80 of 2005 the appellant was released on bail. The Trial Court is directed to apprehend the appellant to serve the rest of the sentence. The bail bond furnished by the appellant stands cancelled. Lower Court records along with copy of judgment be sent forthwith to the trial Court for necessary action.