Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 325 (ORI)

Duryodhana Khatua v. State Of Orissa

2021-07-23

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K.Mishra, J. - In this appeal, 13 appellants assail the judgment of conviction and order of sentence passed by the learned Sessions Judge, in S.T.No.16 of 1997 holding them guilty of offences under sections 148, 302, 307/149 of the Indian Penal Code 1860 (hereinafter referred to as 'Penal Code') and sentencing them to undergo imprisonment for life. No separate sentence has been passed for the offence under sections 148, 307/149 of the Indian Penal Code. The sentence has been passed only under section 302/149 of the Indian Penal Code. The Investigating Officer however had submitted charge sheet for the offence under sections 148, 302, 307/34 of the Indian Penal Code and charges were framed under the aforesaid penal provisions of the Penal Code. 2. Bereft of unnecessary details the prosecution case is that the occurrence took place on 03.05.1996 at about 7 A.M., on the village road of village Kamira in front of the house of one Shyamsundar Dalal. On the preceding day i.e. 02.05.1996 at about 11 A.M. a quarrel ensued between the accused-appellant, Suresh Barik on one hand and deceased Hrudananda Pradhan on the other hand because of the fact that the accused Suresh Barik allegedly assaulted two labourers who worked in the sugarcane field of the deceased. On the date of occurrence, the deceased being in the company of one Seshadev Pradhan had been to the Medicine shop of that village to purchase medicine. Having purchased the medicine while they were returning, in front of the house of Shyamsundar Dalal the accused persons in a group being armed with weapons came up and surrounded him in order to take revenge relating to the incident occurred on the previous day. All the accused persons, as per the prosecution case assaulted the deceased mercilessly as a result of which he fell down on the ground having sustained bleeding injuries on his body. He succumbed to the injuries. The father of the deceased namely, Tirtha Pradhan went to rescue his son, but he was also assaulted brutally, as a result of which he sustained injuries and his life was at stake. On this incident, Laskar Pradhan (P.W.5) lodged a report before the I.I.C., Boud Police Station. The Investigating Officer took up investigation of the case and after taking necessary steps finding a prima facie case submitted charge sheet against the appellants as stated above. 3. On this incident, Laskar Pradhan (P.W.5) lodged a report before the I.I.C., Boud Police Station. The Investigating Officer took up investigation of the case and after taking necessary steps finding a prima facie case submitted charge sheet against the appellants as stated above. 3. The accused took a plea of complete denial to the allegations. They further took the plea that the case against them has been foisted on false allegations on account of political rivalry. 4. The prosecution examined 11 witnesses to establish its case. P.W.5, Laskar Pradhan is the informant in this case. He along with P.Ws.1 (Basudeb Mahanandia), P.W.2 (Rabindra Pradhan) P.W.3 (Sridhari Pradhan) P.W.4 (Tirtha Pradhan) and P.W.6 (Sajana Naik) are the eye witnesses to the occurrence. P.W.7, Dr.Silla Gangadharan is the Radioilogy Specialist. He has conducted the X-ray examination on P.W.4, Tirtha Pradhan and found that there was a fracture of shaft of left femur under his report, Ext.4. X-ray Plate is Ext.5. P.W.9, Dr.Rajkishore Sethi had conducted the post mortem examination over the dead body of the deceased and gave his opinion on the weapon of offence i.e., M.O.I. P.W.8, Dibakar Singh, S.I. of Police, took up investigation of the case on being directed by the I.I.C., R.K.Singh. P.W.10, Rajendra Kumar Singh is the Inspector of Police who has taken over charge of the investigation after transfer of P.W.8 and submitted charge sheet. P.W.11, Dr.Arjuna Sahu, Medicine Specialist, District H.Qrs Hospital, Boud examined the injured (P.W.4-Tirth Pradhan) on police requisition. In addition to all these evidences of the witnesses the prosecution has also relied upon 14 documents as exhibits and two material objects, M.O.I being the tangia. M.O.II being a pair of chappals. The defence on the other hand has examined D.W.1, Jitendra Prasad Bhukta. He speaks about political rivalry and the litigation between Duryodhan Khatua and Laskar Pradhan regarding some landed properties. 5. Learned Sessions Judge, Boud accepted the version of the eye witnesses and the testimony of the Doctors and came to the conclusion that the accused persons did the deceased Hrudananda Pradhan to death in furtherance of their common object and made an attempt on the life of Tirtha Pradhan (P.W.4) by committing rioting with deadly weapons. Therefore, he came to the conclusion that the prosecution has proved its case beyond reasonable doubt. Therefore, he came to the conclusion that the prosecution has proved its case beyond reasonable doubt. However, there is no discussion in the judgment regarding applicability of Section 34 or Section 149 of the Indian Penal Code in this case. 6. The prosecution in order to establish the homicidal nature of death of the deceased has relied upon the testimony of P.W.9 Dr.Rajkishore Sethi, who has conducted post mortem examination over the dead body of Hrudananda Pradhan. There is no dispute about the identity of the dead body that was subjected to post mortem examination on 04.05.1996 by P.W.9 and on post mortem examination he found the following external injuries: i) Lacerated wound of size 2' x 1' x 1' situated over the scalp on parietal region 2 cms away from the midline on the left side. ii) An abrasion of size 2' x 1' over left thigh. iii) Swelling of size 2' x1' x ' situated over the occipital region of the skull 1' above the occiput On dissection clotted blood was found present. iv) Haematoma of size 2' x 1' ' over the right temporal region just above the right ear. Dissection revealed presence of clotted blood. v) Bleeding from left ear from inside. vi) Swelling of size 3 x 2 x 1' over the left ankle joint, Dissection reveals presence of clotted blood. Fracture of bone. vii) Incised wound of size around leg except tag of skin size 1' in width in the anterior aspect. The size of the wound 5 x 2 x 2 i.e. up to the anterior aspect. The bones were cut. All the materials at that place were cut. The Doctor further opined that the injuries were ante mortem in nature. Death was caused due to massive hemorrhage and nerogic shock and probably caused within 24 hours of the post mortem examination. Ext.11 is the post mortem report prepared by P.W.9. He further deposed that on 23.05.1996 he examined M.O.I, i.e., tangia and opined that the incised cut injury, described as injury no.7 could be probably caused by that weapon. In cross-examination he has stated that injury Nos. 1 to 6 can be caused by fall. But he did not find any punctured or pierced wound. He further stated that thenta and barchi would cause a pierced injury. He did not find any injury on the backside of the neck. In cross-examination he has stated that injury Nos. 1 to 6 can be caused by fall. But he did not find any punctured or pierced wound. He further stated that thenta and barchi would cause a pierced injury. He did not find any injury on the backside of the neck. He also did not find any external punctured wound near or at the ear from which blood was coming out. He further stated that if multiple blows were dealt on the same part of the leg by tangia (M.O.I) then only injury no.7 can be caused because the breadth of the blade portion of M.O.I is 1.9 inches whereas the breadth of the injury is 5 inches. It is apparent from the testimony of this witness as well as the contents of Ext.11 that the Doctor has not mentioned whether the death of the deceased was homicidal or not. He has also not opined whether death was caused due to this injury inflicted on the deceased though he has stated that death was caused due to massive haemorrhage and nerogic shock and probably caused within 24 hours prior to the Post Mortem report. It is the duty of the Court to examine that aspect. It is also found from the impugned judgment that the Sessions Judge has not given any specific finding anywhere in the impugned judgment that the death of the deceased was homicidal. We have considered the materials on record and we are of the opinion that the death of the deceased was homicidal in nature. 7. Reverting back to the narration of the witnesses, it is seen that P.W.1, Basudev Mahanandia has stated that he heard a shout coming from the village danda in front of the house of Syamasundar Dalal. He went there and found accused-Basanta Kumar Sahu armed with a tangia, accused, Damana Sahu being armed with a thenta, accused Suresh Barik being armed with thenta and ten other accused persons being armed with lathies were present there. He found accused Basanta Sahu dealt a blow by a tangia on the right leg of deceased Hrudananda Pradhan. Accused Damana Sahu dealt a thenta blow on the backside neck of Hruda. Accused Suresh Barik dealt a thenta blow near the left ear of Hruda. Other accused persons dealt lathi blows of his person as a result of which deceased Hruda sustained injuries and he became senseless. Accused Damana Sahu dealt a thenta blow on the backside neck of Hruda. Accused Suresh Barik dealt a thenta blow near the left ear of Hruda. Other accused persons dealt lathi blows of his person as a result of which deceased Hruda sustained injuries and he became senseless. He further stated that due to blow on his leg by tangia, it was almost amputated. He further stated that Tirtha Pradhan, the father of the deceased, Hrudananda came to his rescue, but accused Damana Sahu dealt a blow by Thenta on his left ear. So there was a cut of that ear. Tirtha sustained injuries and became senseless. In the cross-examination he has admitted that he has not stated before the I.O. that 10 (ten) other accused persons dealt lathi blows on Hrudananda. 8. P.W.2, Rabindra Pradhan has also deposed in the same manner attributing specific axe blow on accused Basanta Sahu and attributing thenta blows on accused Damana Sahu and Suresh Barik and that all other accused persons assaulted by means of lathies. In cross-examination he has admitted that he has not stated before the I.O. that all other accused persons dealt blows by lathi on the deceased Hrudananda. He also admitted that he has not stated before the I.O. that accused Jogi, Dirja, Sada and Bidya and all other accused persons dealt blows on Tirtha Pradhan. 9. P.W.3, Sridhari Pradhan has also stated in the similar manner, but he has admitted that he has not stated before Police that other accused persons dealt blows by lathi on Hrudananda. 10. P.W.5, Laskar Pradhan denied the defence suggestion that he has not mentioned in the F.I.R. that he found accused persons dealing blows on his brother and his father. The evidence of P.W.6, Sajana Naik is also similar. She deposed that accused Basanta Sahu has given a blow on the right leg of Hrudananda. Accused Damana Sahu dealt a barchi blow on the backside neck of Hrudananda and accused Suresh dealt a barchi blow on his left ear and other accused persons dealt blows on him. He denied the suggestion that he has not stated before the I.O. that all other accused persons dealt blows on Hrudananda. 11. P.W.4,Tirtha Pradhan is the injured. He happens to be the father of the deceased. He denied the suggestion that he has not stated before the I.O. that all other accused persons dealt blows on Hrudananda. 11. P.W.4,Tirtha Pradhan is the injured. He happens to be the father of the deceased. He has stated that when he went to rescue his son, accused Bida, Sada, Dujya and Abhi dealt blows by lathies on his leg for which he sustained fracture of bone. Accused Suresh Barik dealt a thenta blow on his left ear. He admitted in the cross-examination that he did not have good relationship with Khatua family and that they have excommunicated him on the allegation that the deceased Hrudananda eloped and lived with a girl belonging to a Scheduled Caste. 12. It is apparent from the record that there was some fraction between the villagers of Kamira and some of the witnesses have admitted about pendency of the cases between them and also there is material on record to show that there was rivalry between the informant and other prosecution witnesses on one hand and the accused-appellants on the other hand. In this background, the evidence has to be assessed. 13. First it is noticed that though there is specific allegation against three accused persons namely Basanta Sahu, Damana Sahu and Suresh Barik. The allegation as far as the offence under section 307/149 of the Indian Penal Code against all other accused persons are omnibus and that too there is major contradictions in the evidence of the eye witnesses as far as their complicity in the crime is concerned and that they have not stated before the I.O. that all other accused persons assaulted the deceased, Hrudananda by means of lathi blow. 14. However, there are evidences on record to show that appellant No.12, Basant Kumar Sahu, appellant No.13, Damana Sahu and appellant No.10, Suresh Barik assaulted the deceased by means of an axe and spear respectively. Appellant-Basanta Sahu dealt a blow by means of an axe on the left leg of the deceased. It is apparent from the evidence of Doctor (P.W.9) that he found an incised wound of size 5' x 2' x 2 . He has opined that this injury can be caused by M.O.I, the tangia. So the materials available on record reveals that appellant-Basanta Sahu did assault on the deceased by means of axe on his left leg causing almost severance of the leg of the deceased. He has opined that this injury can be caused by M.O.I, the tangia. So the materials available on record reveals that appellant-Basanta Sahu did assault on the deceased by means of axe on his left leg causing almost severance of the leg of the deceased. The opinion of the Doctor is also fortified by the contents of the post mortem report, Ext.11 and his opinion on examination of M.O.I, which are contemporaneous to the investigation of the case. As far as appellant No.13, Damana Sahu and appellant No.10, Suresh Barik are concerned, all the prosecution witnesses stated that they assaulted the deceased by means of two barchhi or thenta, which are sharp pointed weapon and they can cause stab or pierced injury. It is admitted by the Doctor (P.W.9) that there is no incised or piercing injury on the back of the deceased or on his ear. So, the evidence as far as these two appellants are concerned appears to be shaky in the sense that the eye witnesses deposed that assault on the deceased in a vivid manner, but the Doctor has not found any corresponding injury caused by spear on the body of the deceased. So, there appears some doubt about the complicity of these two appellants in committing the death of the deceased Hrudananda. 15. Coming to the offence under section 307 of the Indian Penal Code or attempt to murder, rioting etc., P.W.4, Tirtha Pradhan has categorically stated that he was assaulted by Bidyadhar Khatua, appellant No.11, Sadananda Khatua, appellant No.2, Duryodhana Khatua, appellant No.1 and Abhimanyu Khatua, appellant No.4. As a result of their assault by lathi, he sustained fracture of a bone. He further stated that accused Suresh Barik, appellant No.10 dealt a thenta blow on his left ear for which he sustained a cut injury. Dr.Arjuna Sahu (P.W.11) has stated that he found one lacerated injury of size 1' x ' situated over the left ear transversely and a fracture of shaft of left femur with swelling of left thigh. The injuries were grievous in nature. The evidence of P.W.7, Radiology Specialist also shows that the injured sustained a grievous injury. In order to establish the case of attempt to commit murder the prosecution must establish two essential ingredients, they are mens rea and actus reus. 16. The injuries were grievous in nature. The evidence of P.W.7, Radiology Specialist also shows that the injured sustained a grievous injury. In order to establish the case of attempt to commit murder the prosecution must establish two essential ingredients, they are mens rea and actus reus. 16. In this case though there is evidence that the appellant namely, Bidyadhar Khatua, appellant No.11, Sadananda Khatua, appellant No.2, Duryodhana Khatua, appellant No.1 and Abhimanyu Khatua, appellant no.4 assaulted Tirtha Pradhan by means of lathi, the prosecution has not brought home any materials to show that the accused persons had the intention to commit murder of Tirtha Pradhan (P.W.4). In our considered opinion, as grievous injuries were caused by these appellants on p.w.4, the appellants are liable for the offences under section 325/34 of the Indian Penal Code. As far as Section 307 of the Indian Penal Code is concerned, accordingly, the conviction of the appellant Bidyadhar Khatua, appellant No.11, Sadananda Khatua, appellant No.2, Duryodhana Khatua, appellant No.1 and Abhimanyu Khatua, appellant No.4 under section 307/149 of the Penal Code is converted to a conviction under section 325/34 of the Penal Code. 17. As far as the offence under section 302 of the Indian Penal Code is concerned, it is seen that appellant Jogendra Barik and Bidyadhar Khatua have died in the meantime and the appeal abated as far as they are concerned. As far as the offence of committing murder is concerned, the appellant Basant Kumar Sahu has inflicted fatal blow on the leg of the deceased, as a result of which his left leg got almost severed and led to hemorrhagic shock and loss of blood and death. So, the appellant No.12, Basant Kumar Sahu is liable to be punished for the offence under section 302 of the Penal Code. 18. However, the evidence of the prosecution as far as appellant No.13-Damana Sahu and appellant No.10-Suresh Barik are concerned, the evidence available on record do not inspire confidence as the witnesses versions are not supported by medical evidence. Thus, keeping in view the contradiction between medical evidence and oral evidence and the fact that there is litigation between the parties and political rivalry between them, we are of the opinion that benefit of doubt should be given to appellant No.10, Suresh Barik and appellant No.13, Damana Sahu. Hence they are acquitted of the offences under sections 302/149 of the Penal Code. Hence they are acquitted of the offences under sections 302/149 of the Penal Code. 19. In this case, learned Additional Government Advocate submits that the offence under section 302/149 of the Indian Penal Code is proved against the appellants as it is not disputed by the prosecution that they were present at the spot being armed with different weapons. 20. As far as applicability of section 149 of the Indian Penal code is concerned, this Court relies upon the reported case of Nallamsetty Yanadaiah and others-vrs.-State of Andhra Pradesh, AIR 1993 Supreme Court 1175 (1177) wherein the Supreme Court has held that for the purpose of application of Section 149 of the Indian Penal Code, the prosecution has to prove the presence and participation in an unlawful assembly. The presence of these accused was mentioned consistently by all the witnesses. In a case of this nature, particularly, when the occurrence has taken place in a village, several villagers might have gathered and therefore, the further test is whether their participation has been proved so that they are being members of an unlawful assembly can be accepted safely. In that view of the matter, the trial court accepted the evidence of the injured who consistently deposed that these accused who were convicted under section 302/149 of the Indian Penal Code, were present and also participated in the occurrence by inflicting injuries. That view was upheld by the High Court and accepted by the Honble Supreme Court. 21. In the case of Allauddin Mian and others,Sharif Mian and another-vrs.State of Bihar reported in AIR 1989 Supreme Court 1456 (1464), the Honble Supreme Court held that in order to invoke Section 149 of the Indian Penal Code, it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under section 149 of the Indian Penal Code. 22. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under section 149 of the Indian Penal Code. 22. In applying this principle to the present case, it is seen that there is enough contradiction in the evidence of the eye witnesses namely, P.Ws.1 to 6 about the complicity of all other appellants excepting Suresh Barik and Damana Sahu about the assault on the deceased. In fact all the material witnesses have not stated before the I.O. in their respective statements recorded under section 161 of the Code that the other appellants have assaulted the deceased by means of a lathi. This is a major contradiction which goes to the root of the evidence of the witnesses. So we are of the opinion that the offence under section 302/149 of the Penal Code has not been established against the appellant No.10-Suresh Barik and appellant No.13-Damana Sahu. 23. In the ultimate analysis, we are of the opinion that the conviction of Basanta Kumar Sahu, appellant No.12 under section 302 of the Indian Penal Code though appears to be technically incorrect as he was charged for committing offences under sections 302/34 of the Penal Code, he is guilty of the offence under section 302 of the Penal Code i.e. committing culpable homicide amounting to murder, we do not disturb his conviction and sentence in view of the provisions of Section 464(1) of the Code. As far as appellant No.10, Suresh Barik and appellant No.13, Damana Sahu are concerned, we set aside their conviction under section 302/307/149 of the Penal Code. But their conviction under section 307 of the Penal Code is converted to an offence under section 325/34 of the Penal Code and they are sentenced to undergo R.I. for two years under section 325/34 of the Penal Code. The sentence of appellant No.12, Basanta Kumar Sahu for life is not disturbed. 24. In the result, the appeal is allowed in part. The conviction under sections 302/307/149 of the Penal Code and sentence to undergo imprisonment for life recorded vide judgment and order dated 09.03.1998 by the learned Sessions Judge, Phulbani in S.T.No.16 of 1997 is set aside. The sentence of appellant No.12, Basanta Kumar Sahu for life is not disturbed. 24. In the result, the appeal is allowed in part. The conviction under sections 302/307/149 of the Penal Code and sentence to undergo imprisonment for life recorded vide judgment and order dated 09.03.1998 by the learned Sessions Judge, Phulbani in S.T.No.16 of 1997 is set aside. Appellant Basant Kumar Sahu is convicted under section 302 of the Penal Code and not under section 302/149 of the Penal Code and his sentence to undergo imprisonment for life is upheld. The conviction of appellant No.10, Suresh Barik and appellant No.13, Damana Sahu under section 307 of the Penal Code is converted to section 325/34 of the Penal Code and they are sentenced to undergo R.I. for a period of two years. The period undergone by the appellant No.10, Suresh Barik and Appellant No.13, Damana Sahu be set off unless their detention in any other case is required. Since appellant No.9, Jogendra Barik and appellant No.11, Bidyadhar Khatua died in the meantime, the appeal against them has abated. All other appellants are acquitted from the charges leveled against them. They be set at liberty if they are in custody. The appellant no.12 stated to be already undergone imprisonment and pre-matured release by the State Government. This dismissal of his appeal shall not be construed as an order for rejecting such pre-mature release.