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2021 DIGILAW 290 (ORI)

Dev Dirda v. State Of Orissa

2021-07-05

D.DASH

body2021
JUDGMENT D. Dash, J. - The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and order of sentence dated 3rd May, 2010 passed by the learned Additional Sessions Judge, Malkangiri in Criminal Trial No.24 of 2007. The Appellant as the sole accused having faced the Trial for commission of the offence under section 302 of the IPC, has been found guilty of the offence under section 304-II of the IPC and accordingly, he has been sentenced to rigorous imprisonment for a period of seven years with usual benefit of set off as provided under section 428 of the Cr.P.C. 2. The prosecution case, in short, is that on 28th day of November, 2006 during morning hours, Nanga Madhi (the deceased) and the accused had been to Malkangiri to sell fire-wood and Anda Madhi who has been examined in P.W.1 in the trial, had accompanied them. In the afternoon, on their way back home from Malkangiri, there ensued a quarrel concerning cock fighting on the foot of hillock. The accused all of a sudden became got annoyed and assaulted the deceased by a lathi on his hand and head which resulted his fall on the ground. The accused then also assaulted the deceased on his chest with a piece of stone. The deceased died at the spot itself. Anda Madhi (P.W.1) was witnessing the incident and he was threatened by the accused not to disclose it to anybody in the village so as to avoid the recurrence of the same situation which the deceased faced. After return, P.W.1 for some time did not disclose the incident before anybody. However, on the next day, it was told by him to the villagers and soon thereafter, the accused absconded from the village. The elder brother of the deceased (P.W.12) on receiving the information about the incident came to the village and having collected further information, reported the matter in writing at Malkangiri P.S. Pursuant to the same, Malkangiri P.S. Case No.165 of 2006 was registered and investigation started. The Investigating Officer (P.W.13) having completed the investigation, submitted charge sheet placing the accused for Trial in the Court of law. 3. The Investigating Officer (P.W.13) having completed the investigation, submitted charge sheet placing the accused for Trial in the Court of law. 3. In the Trial, the prosecution in order to bring home the charge against the accused examined 13 witnesses and proved the FIR (Ext.6), Inquest Report (Ext.1), Postmortem Report (Ext.4) and other documents such as seizure lists, spot map, chemical examination report etc. The learned Trial Court, having analyzed the evidence on record, and upon their evaluation found the evidence with regard to the happening of the incident as also to the role of the accused in assaulting the deceased by means of that lathi on his head and stone on his chest as acceptable. However, relying on the evidence of the doctor (P.W.11), who conducted the post mortem examination and opined that the said injury on the head resulting subdural hematoma leading to coma, to be the cause of death and further taking into account the circumstances leading to the incident as also the role played by the accused as emanating from the evidence of P.W.1, the solitary eye witness, the Trial Court has held the accused guilty of offence under section304-II of the IPC and thus has been sentenced as aforesaid. The accused, in the Trial, had taken the plea of denial. However, no evidence has been let in from his side. 4. Heard the Learned Amicus Curie for the Appellant. I have also heard Mr. P.C. Das, learned Additional Standing Counsel. 5. In course of hearing, Learned Amicus Curie has placed the judgment as to the discussion of the evidence on record and side by side has invited attention of the Court to the depositions of the witnesses especially P.W.1 and taken me through that in for as the authorship of the injuries upon the deceased is concerned and the attribution of the same to this accused. In support of the same, he has argued that the conduct of P.W.1 is highly suspicious that he having seen the incident has chosen to remain silent at home and informed the villagers only on the next morning that to without assigning any good reason. He further submits that this P.W.1 has not stated as to what was he doing at the time when the accused was assaulting the deceased. He further submits that this P.W.1 has not stated as to what was he doing at the time when the accused was assaulting the deceased. It is stated that when as per the evidence of this witness (P.W.1) after the first blow on the head, the accused caused the next injury on his chest, said silence of this P.W.1 in remaining there all through as a mute spectator runs against normal human conduct as ordinarily in that situation, everyone would be showing the response in his own way to save the injured in restraining the accused at least in dealing the subsequent blow on chest. He also submits that when this P.W. 1 does not assign any such plausible reason in not showing the response, his presence there at that point of time has to be doubted. In view of such evidence on record, according to him, on the face of the evidence of the doctor (P.W.11) that such injury on the head which has caused the death is possible by means of a fall from a height, the Trial Court ought not to have held the accused guilty of the offence for which he has been convicted. 6. Mr. P.C. Das, learned Additional Standing Counsel submits all in favour of the finding recorded by the Trial Court in convicting the accused for commission of offence under section 304-II of the IPC. According to him, as per the evidence of P.W.1, the incident took place all of a sudden and in course of quarrel for a silly reason and keeping in view the nature and behavior of the members of the community in the area, the Trial Court finding no plausible reason for P.W.1 to falsely implicate the accused has committed no mistake in holding the accused guilty for the offence under section 304-II of the IPC. He, therefore, submits that the judgment of conviction is well in order and so also the sentence as awarded. 7. In the backdrop of the submission, as above, the evidence of P.W.1, the eye witness, first needs the careful scrutiny. This P.W.1 has stated that on the day of occurrence in the afternoon, the accused assaulted the deceased by means of a lathi on the head and when he fell down, he again assaulted him by a stone on his chest. This P.W.1 has stated that on the day of occurrence in the afternoon, the accused assaulted the deceased by means of a lathi on the head and when he fell down, he again assaulted him by a stone on his chest. The tenor of the evidence of this witness when taken into account goes to show that there was no such time gap between the first and the second blow. In such situation the witness (P.W.1) to remain non-responsive as commented upon by the learned Amicus Curie urging for taking an adverse view as to its acceptance is of no significance. More so, it being not there in the evidence that at the relevant time, none other than the accused was holding any weapon and he as per the evidence being then in an assaulting spree, the witness to be non-reactive is rather the expression of conduct as natural in that situation. Thus the contention of the learned Amicus Curie that said conduct of P.W.1 be taken to doubt his evidence as to his presence there at the spot to have seen the incident cannot be countenanced with. The witness having been cross-examined, no such other material has come to surface so as to discard his evidence as to the role of the accused in assaulting the deceased. The evidence of P.W.1 further derives support from the circumstances post the incident as have been deposed to by other prosecution witnesses. With the foregoing discussion, P.W.1 getting a threat from the accused having remained silent in the night and coming to disclose the matter in the morning before the villagers has very little to do in adversely affecting his version which otherwise firmly stands. The evidence of this ocular witness (P.W.1), who is not said to be having any such animosity with the accused in my considered view, is wholly believable. The evidence of the doctor is clear on the point that the death was on account of coma which resulted from the head injury for the solitary blow on the head and that was in course of the quarrel for the silly reason as stated. 7. The evidence of the doctor is clear on the point that the death was on account of coma which resulted from the head injury for the solitary blow on the head and that was in course of the quarrel for the silly reason as stated. 7. Keeping in view the reason for happening of the incident and its manner as well as the role played by the accused and those taken together with other surrounding circumstances, the finding of the Trial Court holding the accused guilty for commission of offence under section 304-II of the IPC is thus held to be sustainable .The quantum of sentence, in the facts and circumstances of the case, as has been imposed by the Trial Court is found to be just and proper. 8. In the result, the JCRLA stands dismissed. 9. The LCR received be sent back forthwith for further action as per this Judgment and in accordance with law. 10. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.