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2022 DIGILAW 494 (ORI)

Debraj Putel v. State of Odisha

2022-10-12

V.NARASINGH

body2022
JUDGMENT V. Narasingh, J. - Heard Mr. Sk. Zafarulla, learned Amicus Curiae for the Appellant and Mr. P.K. Maharaj, learned Public Prosecutor appearing for the State. 2. The Appellant-Debraj Putel along with three other accused persons faced trial for the charge under Sections 302/34 IPC in S.C Case No.29/8 of 1990 arising out of Kantabanji P.S. Case No.121 of 1989 for committing the murder of one Sashidhar Putel. 3. On conclusion of trial, learned Addl. Sessions Judge, Titlagarh by judgment dated 28.11.1990 while acquitting three other accused persons, namely, Nepal @ Bhagaban Putel, Asabati @ Ashmati Putel and Sundermati Putel for the charge under Section 302/34 IPC, convicted the Appellant-Debraj Putel under Section 304-II IPC and sentenced him to undergo R.I for seven years. 4. Assailing the same, the present CRA has been filed. 5. Accused-Nepal @ Bhagaban Putel was convicted under Section 342 IPC and was directed to undergo R.I for six months. Accused-Asabati @ Ashmati Putel and Sudermati Putel were convicted under Section 323 IPC and sentenced to undergo R.I. for six months each. 6. In a separate appeal vide CRA No.341 of 1990 while the appeal stood abated in respect of the accused persons, namely, Asabati @ Ashmati Putel and Sundermati Putel, this Court confirmed the order of conviction of accused-Nepal @ Bhagaban Putel under Section 342 IPC. 7. To drive home the charge, the prosecution examined 17 witnesses and 23 documents were marked as exhibits. Weapons of offence were marked as M.O. I (one wooden handle of RAPHA) and M.O-II (one Thenga). 8. The prosecution case in brief is that on 24.11.1989 at about 2.00 P.M one herd of cow damaged Gobi crops raised in the Bari of one Bhaji Putel and he drove out the cow as a result of which there was a hot exchange of words between said Bhaji Putel and one Sashidhar Putel. 9. It is the assertion of the prosecution that during the quarrel, which ensued on driving out the herd of cow, the present Appellant along with others came to the spot and started assaulting the said Sashidhar Putel for which he sustained bleeding injuries on his head and under his left ear and fell down on the ground. 10. 9. It is the assertion of the prosecution that during the quarrel, which ensued on driving out the herd of cow, the present Appellant along with others came to the spot and started assaulting the said Sashidhar Putel for which he sustained bleeding injuries on his head and under his left ear and fell down on the ground. 10. P.W.5-Ratnabati Putel, who is stated to be an eye witness and related to both accused as well as said Sashidhar Putel shouted for help and then P.W.4 and others came to the spot and tried to rescue Sashidhar Putel. 11. It is stated that injured Sashidhar Putel was shifted to hospital but unfortunately during the course of treatment, he passed away after three days of occurrence and thus Kantabanji P.S. Case No.121 of 1989, which was initially registered under Section 307/34 IPC was turned to one under Section 302/34 IPC. 12. As already noted, out of 17 witnesses examined P.Ws.5, 6, 8 and 10 have been cited as ocular witnesses. Mainly relying on the evidence adduced by them, coupled with the statement of P.W.16, the doctor, who initially treated the injured and P.W.15, the doctor, who conducted the post-mortem of the deceased at Burla Medical College and Hospital and submitted his report vide Ext.16 and P.W. 17 the I.O., learned trial court found the present Appellant to be guilty of having committed an offence under Section 304-II IPC while acquitting him under Section 302 IPC and as already noted, the present Appellant was directed to undergo R.I for 7 years under Section 304-II IPC. 13. At this stage, it is apt to be noted, as borne out from the record, that the present Appellant was taken into custody on 25.11.1989 and he continued in incarceration till he was granted bail by this Court in 1991. 14. Mr. Sk. Zafarulla, learned Amicus Curiae, submitted with vehemence that the approach of the learned trial court is ex facie erroneous in as much as admittedly the Appellant was charged under Section 302/34 IPC. Hence, in the event of acquittal of other accused persons under Section 302 IPC, the conviction of the Appellant under Section 304-II IPC independently cannot be sustained and in this context, he relied on the judgment of this Court in the case of Purna Badnaik vrs. State of Orissa, reported in (2002) 22 OCR 244. 15. Mr. P.K. Maharaj, learned Addl. State of Orissa, reported in (2002) 22 OCR 244. 15. Mr. P.K. Maharaj, learned Addl. Standing Counsel for the State, while supporting the impugned judgment passed by the learned trial court submitted that the Appellant was rightly convicted by the trial court and this Court should not interfere with the same in the absence of any mitigating circumstances. 16. On a bare perusal of the judgment cited above by the learned Amicus Curiae, it can be seen that initially the conviction of the Appellant along with other co-accused therein was under Section 302/34 IPC and this Court taking note of the acquittal of the co-accused arrived at the finding that the Appellant therein (Purna Badnaik) could not have been convicted under Section 302/34 IPC. 17. But, in the present case the Appellant has been found guilty under Section 304-II IPC as such the reliance on the said judgment is of no assistance to the Appellant. 18. Referring to the evidence on record of P.W.5, it is urged with vehemence by the learned Amicus Curiae that there is discrepancy in the evidence of P.W.5 as stated in the FIR and in her deposition in court. In as much as it is submitted that P.W.5 has not attributed any specific overt act to the Appellant in the FIR yet, while deposing in court has improved upon the said version attributing specific assault by the present Appellant. But the learned trial court failing to take note of such exaggeration, on a mechanical appreciation has found the Appellant guilty. 19. It is trite law that FIR is not an encyclopedia but it is an information given at the first instance. No doubt, the contradictions in the FIR and the subsequent version have to be borne in mind while evaluating the complicity of the accused. But, that cannot be the sole basis to discard the testimony of a witness who has otherwise withstood the scrutiny of cross-examination and whose version is found to be cogent. 20. The other witness on which the learned trial court has relied upon is P.W.6 who is the wife of the deceased Sashidhar Putel. She in her examination in chief has clearly stated thus: '... 20. The other witness on which the learned trial court has relied upon is P.W.6 who is the wife of the deceased Sashidhar Putel. She in her examination in chief has clearly stated thus: '... Debraj Putel gave a blow with handle of a RAPHA on the left side head of my husband Sashidhar Putel causing profuse bleeding on the left side and right side head of my husband due to the blows...' 21. In her cross-examination she has stated thus: ...Accused Debraj Putel gave 10 to 12 blows with the handle of a RAPHA on the head of my husband Sashidhar Putel.... It is not a fact that I did not state before the police that accused Debraj Putel gave Thenga blows on the left side head of my husband Sashidhar Putel. I found only two bleeding injuries on the head of my husband on its front side. Accused Debraj Putel did not give any other blow to my husband excepting giving blows on the left side of his head...' 22. The other two witnesses relied on by the learned trial court are P.Ws.8 and 10 who claimed to be eye witnesses. 23. But it is apposite to note that P.W.17 the I.O in paragraphs- 6 and 7 of his deposition has admitted that P.Ws.8 and 10 have exaggerated their evidence before the court regarding the specific role of the accused persons. 24. Hence, this Court has to examine as to whether on the basis of the evidence of P.Ws.5 and 6, the conviction of the accused-Appellant Debraj Putel can be sustained, coupled with the evidence of I.O (P.W.17) and the doctors P.Ws.15 and 16. 25. The evidence as adduced by P.W.6 the wife of the deceased-Sashidhar Putel has been extracted herein above. P.W.5 who has withstood the scrutiny of the cross-examination as has clearly stated about the role attributed to the Appellant that he dealt a blow with the handle of a RAPHA on the left side of the head of the deceased Sashidhar Putel. 26. Taking into account the genesis of the offence, the evidence of P.Ws. 5 and 6 the approach of the learned trial court in convicting the Appellant-Debraj Putel under Section 304-II IPC cannot be faulted in as much as each person is supposed to have the knowledge of his overt act. 26. Taking into account the genesis of the offence, the evidence of P.Ws. 5 and 6 the approach of the learned trial court in convicting the Appellant-Debraj Putel under Section 304-II IPC cannot be faulted in as much as each person is supposed to have the knowledge of his overt act. Hence, this Court is persuaded to sustain the conviction of the Appellant under Section 304-II IPC. 27. On the question of sentence, it is noted that at the time of occurrence, which took place more than three decades back, the present convict Appellant was of impressionable age of 16 years and there is nothing on record to show that he had any criminal proclivity and on being released, he has misused the trust reposed in him. 28. If the entire prosecution case is accepted at its face value and as rightly held, the Appellant is guilty of committing an offence under Section 304-II IPC. 29. The legislature in its wisdom while enacting Section 304-II IPC has prescribed punishment which may extend to 10 years or with fine or with both. 30. Law is no longer res integra that while sentencing an accused his conduct during and after the occurrence has to be taken into account since this Country does not follow the retributive jurisprudence. 31. As already noted, the age of the Appellant was 16 years at the time of occurrence and in the meanwhile 33 years have passed and his conduct does not indicate any innate criminal proclivity. 32. Hence, this Court relying on the judgments of the apex Court in the matter of sentencing in the case of Mohinder Pal Jolly vrs. State of Punjab, reported in AIR 1979 SC 577 , Sarup Singh vrs. State of Haryana, reported in (2009) 16 SCC 479 and Gobindan vrs. State represented by the Deputy Superintendent of Police, reported in (2022) 87 OCR (SC) 487, directs the sentence of the Appellant-Debraj Putel for the offence under Section 304-II IPC to be reduced to the period of incarceration already undergone. 33. The bail bond stands cancelled and the surety be discharged. 34. The appeal, accordingly, stands disposed of. 35. Before parting with the matter, this Court places on record its appreciation for the assistance rendered by Mr. Sk. Zafarulla, learned Amicus Curiae and the fairness of Mr. P.K. Maharaj, learned Addl. 33. The bail bond stands cancelled and the surety be discharged. 34. The appeal, accordingly, stands disposed of. 35. Before parting with the matter, this Court places on record its appreciation for the assistance rendered by Mr. Sk. Zafarulla, learned Amicus Curiae and the fairness of Mr. P.K. Maharaj, learned Addl. Standing Counsel appearing for the State, who made submissions keeping in view the onerous responsibility, discharged by a Public Prosecutor. 36. The fees of Mr. Sk. Zafarulla, learned Amicus Curiae is assessed at Rs.10,000/- (rupees ten thousand) and the Orissa High Court Legal Services Authority is called upon to disburse the same forthwith as per the procedure prescribed.