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2021 DIGILAW 238 (ORI)

Kailash Giri v. State of Odisha

2021-06-11

MISS SAVITRI RATHO, S.K.MISHRA

body2021
JUDGMENT : S.K.Mishra, J. In this case, the sole appellant-Kailash Giri calls in question his conviction under Section 302 of the Indian Penal Code, 1860, hereinafter referred to as ‘Penal Code’ for brevity, by the learned Addl. Sessions Judge, Talcher in S.T. Case No.21 of 2003 as per the judgment dated 30.08.2004. He has been sentenced to undergo imprisonment for life and pay a fine of Rs. 2,000/-for the aforesaid offence, in default to undergo rigorous imprisonment for six months. 2. On 15.06.2003, in the morning, at about 8 A.M., Kailash Giri, in inebriated condition, roomed in the street of village Bandhabhuin by holding a tangi (axe). He was declaring that he will kill somebody. He chased to assault his wife. She run away towards the village Basti. At that point of time, Rangadhar Giri, brother of the appellant-Kailash Giri was lying on the varendaha of his house. When the appellant went to assault Rangadhar, his wife Chithi Giri locked Rangadhar in a room and went away with her children. At about 1 P.M., the deceased, Bandhuram Giri was going towards the house of the Nandi Naik to look after the construction work under the Indira Awas Yojana (IAY). The appellant chased Bandhuram holding a hatchet. Then, the deceased entered into the half constructed house under IAY of Nandi Naik. The appellant entered into the house and gave blow by hatchet on the back side neck of Bandhuram. As a result of which, he fell down on the ground sustained bleeding injury. Thereafter, the appellant gave another blow on the throat of Bandhuram. Bandhuram succumbed to the injury in that half constructed house. Therefore, the appellant threatened to kill one or two other villagers. On such events, the informant Rajendra and his brother Khageswar pounced upon Kailash, snatched away the axe from his hand. Thereafter, he was tied and the people of the neighbourhood were asked to keep watch on him. Rajendra went and submitted a written report before the Officer In-Charge, Pallahara Police Station, who registered a case under Section 302 of the Penal Code, took up investigation, examined the witnesses, visited the spot and seized the material object, held inquest, dispatched the dead body for post-mortem examination and upon completion of investigation, submitted charge-sheet against the appellant under Section 302 of the Penal Code. 3. The accused took the plea of simple denial and false implication. 4. 3. The accused took the plea of simple denial and false implication. 4. The prosecution, in order to establish its case, examined ten witnesses. P.W.1-Rajendra Giri, the informant, P.W.2-Khageswar Giri, P.W.3-Nandi Naik, P.W.7-Kuhuru Giri claim to the witnesses to the assault by the appellant to the deceased, P.W.7 is also a witness to the inquest, P.W.4-Baneswar Naik, P.W.5-Parjani Giri, P.W.8-Siri Giri are post occurrence witnesses, P.W.6-Babu Pradhan, a witness to the inquest. Dr. Sailendranath Negi, P.W.9, conducted autopsy on the dead body of the deceased, and Prakash Kumar Patra, P.W.10, investigated into the case and submitted charge-sheet. Taking into evidence of PW.3-Nandi Naik, who has witnessed the occurrence of murder committed by the appellant, as supported by immediate witnesses like P.Ws.2, 3 and 7, the learned Addl. Sessions Judge came to the conclusion that the death of the deceased was homicidal. Such view is supported by the evidence of P.W.9, Dr. Sailendranath Negi. He has conducted post-mortem examination on the dead body of the deceased and found five incised injuries on the body of the deceased, out of which two injuries were on the head of the deceased exposing brain matter, one on the right side neck of the deceased, one on the right side back. Moreover, the evidence further reveals that the prosecution has established that injuries can be caused by the weapon of offence, which has been examined by the doctor as per Ext.6, the report of the doctor. 5. While the learned counsel for the petitioner does not dispute that the death of the deceased was homicidal in nature and that the prosecution has established that the appellant has done the deceased to death, he submits that this is not a case of culpable homicide amounting to murder. Rather, it is a case of culpable homicide not amounting to murder. He submits that the very prosecution case is that the appellant in an intoxicated condition committed the offence. So, as per the submissions of the learned counsel for the appellant, it is not a case of culpable homicide amounting to murder. Mrs. Saswata Pattnaik, learned Addl. Government Advocate submits that this is a case of murder and it should not be converted into a conviction under Section 304 of the Penal Code. So, as per the submissions of the learned counsel for the appellant, it is not a case of culpable homicide amounting to murder. Mrs. Saswata Pattnaik, learned Addl. Government Advocate submits that this is a case of murder and it should not be converted into a conviction under Section 304 of the Penal Code. It is also submitted by her that there is no exception under Section 300 of the Penal Code, to the effect that, if an offence is committed in an intoxicated condition, it shall become a lesser offence. 6. Section 85 of the Penal Code provides for such exception in which the Court can hold that no offence is committed. It is appropriate to take note of the aforesaid provision. It reads as follows. “85. Act of a person incapable of judgment by reason of intoxication caused against his will. - Nothing is an offence which is done by a person who, at the time of doing, it, it, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will. The aforesaid provision can be invoked if the following ingredients are satisfied:- i. The accused did an, which by a reason of intoxication, he was incapable of knowing the nature of act; or that ii. He was doing what is the wrong or contrary to law; iii. Most importantly, it must be established that the thing which intoxicated him was administered to him without his knowledge, or against his will. 7. So, the plea of incapability of judgment by reason of intoxication caused against the will can be accepted only when the intoxication was administered to him without his knowledge or against his will. It is not the case of the prosecution that the appellant was made to drink alcohol without his knowledge. It is not the case also that it was against his will. The learned counsel for the appellant also could not show that the appellant consumed liquor without knowing the same or against his will. So, this argument cannot be given much weightage. 8. Having carefully examined the evidence of witnesses, the impugned judgment, arguments advanced by the learned counsel for the appellant as well as the learned Addl. The learned counsel for the appellant also could not show that the appellant consumed liquor without knowing the same or against his will. So, this argument cannot be given much weightage. 8. Having carefully examined the evidence of witnesses, the impugned judgment, arguments advanced by the learned counsel for the appellant as well as the learned Addl. Government Advocate, we are of the opinion that the learned trial judge had a clear view of the evidences on record and has come to a just and proper conclusion. It requires no interference. 9. However, it is apparent from the record that the appellant was not a habitual offender. The incident actually has taken place because of intoxicated condition. So, we are of the opinion that, as per our judgment passed in Shyam Sundar Jena vs. State of Orissa, decided on 16.12.2020 in JCRLA No.73 of 2006, the appellant is entitled to be considered for premature release by the State Government. His case may be considered as per our direction given in the aforesaid case. Send the Trial Court Records along with a copy of this judgment to the trial court forthwith. The JCRLA is disposed of. As the restrictions due to resurgence of COVID-19 are continuing, the learned counsel for the parties may utilize a printout of this judgment available in the High Court’s website, at par with certified copy, subject to attestation by Mr. Sidhartha Samal, Advocate, in the manner prescribed, vide Court’s Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No.4798 dated 15.04.2021.