Orissa High Court
Duryodhan Pahi vs State Of Orissa on 7 January, 2021
ORISSA HIGH COURT: CUTTACK
JCRLA Nos.87 of 2007
From the judgment of conviction and order of sentence dated 11.09.2007
passed by Shri A.K. Panda, Additional Sessions Judge (F.T.C.-II), Bhadrak
in Sessions Trial Case No.12/166 of 2007/2006.
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Duryodhan Pahi ......... Appellant
-versus-
State of Orissa ......... Respondent
For Appellant : Mr. Kausik A. Guru, Amicus Curiae
For Respondent : Mr. Gajendra Rout (A.S.C.)
PRESENT:
THE HONOURABLE SHRI JUSTICE S.K.MISHRA
AND
THE HONOURABLE MISS JUSTICE S. RATHO
Date of judgment: 07.01.2021
S.K.Mishra, J. This is a case of uxoricide. The convict-appellant-
Duryodhan Pahi has been convicted for committing murder of his
wife, on 24.04.2006, at about 7 A.M. to 7.30 A.M., under Section 302
of the Indian Penal Code, 1860 (hereinafter referred to as 'the Penal
Code' for brevity) by the learned Additional Sessions Judge (F.T.C.-
II), Bhadrak in Sessions Trial No.12/166 of 2007/2006 and sentenced
to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in
default, to undergo rigorous imprisonment for two months. The sole
appellant assails his conviction.
2. The prosecution alleged that on 24.04.2006 at about 7
A.M. to 7.30 A.M., a quarrel took place between the appellant and his
wife in their house with regard to some clothes kept in a box inside
the house. When the deceased refused to give the key of the box to
the accused, the accused brought out a crowbar to break open the
lock of the box. The deceased protested. As a result of which, the
appellant became angry and assaulted the deceased by means of the
crowbar on her waist and head. As a result of assault, the deceased
sustained severe bleeding injuries and died at the spot.
Dusasan Pahi (P.W.1) lodged an F.I.R. before the
O.I.C., Bhadrak Rural P.S. A criminal case was registered. S.I. of
Police Ramesh Chandra Singh took up investigation of the case. In
course of investigation, he examined the informant, eye-witness and
other witnesses. He conducted inquest over the dead body of the
deceased in presence of witnesses and prepared a inquest report and
then sent the dead body for postmortem examination; seized the
weapon of offence; collected blood stained earth and sample earth
from the spot; seized the wearing apparels of the deceased after
postmortem examination. He took steps to record the statement of
the sole witness-Basanti Pahi under Section 164 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for
brevity). He also made a query to the Medical Officer and finally
dispatched material objects to the State Forensic Science Laboratory,
Bhubaneswar for chemical examination. On completion of
investigation, finding a prima facie case under Section 302 of the
Penal Code, he submitted charge sheet against the appellant.
3. The defence took the plea of complete denial to the
charge. During his examination under Section 313 of the Code, the
appellant denied his complicity in the crime and took the plea that
during the course of quarrel, a push and pull was going on between
him and the deceased and in course of such push and pull, the
deceased dashed against a pillar and died at the spot.
4. In order to bring whom the charge, the prosecution
examined 11 witnesses. P.W.2, Basanti Pahi is the solitary eye-
witness to the occurrence. P.W.1, Dusasan Pahi is the informant of
the case. He happens to be brother of the accused. P.W.3, Surendra
Pahi, P.W.4, Padmabati Pahi, P.W.5, Mayadhar Pahi, P.W.6, Sarat
Chandra Pahi are witnesses who reached the spot immediately after
the occurrence, P.W.7, Ajay Kumar Naik is the seizure witness.
P.W.8, Sridhar Naik scribed the F.I.R, P.W.9, Dr. Pradeep Kumar
Nayak, Medical Officer, conducted postmortem over the dead body of
the deceased. P.W.10, Pravat Kumar Biswal, and P.W.11, Ramesh
Chandra Singh are two Investigating Officers, who conducted
investigation of this case.
In addition to examination of witnesses, prosecution
has relied upon certain documents marked as Ext.1 to Ext.11 and 6
materials objects marked as M.O.I to M.O.VI.
5. The accused, on the other hand, neither examined any
witness nor led any documentary evidence in his defence to prove his
case.
6. Mr. K. A. Guru, learned Amicus Curiae appearing on
behalf of the appellant does not dispute the findings recorded by the
learned Additional Sessions Judge (F.T.C.-II), Bhadrak regarding the
homicidal nature of death of the deceased and the complicity of the
appellant in commission of the crime. However, he very emphatically
argues that this case cannot be held to be a case of murder
punishable under Section 302 of the Penal Code. Instead, he argues
that the appellant should have been convicted for the offence of
culpable homicide not amounting to murder punishable under Section
304, Part-I of the Penal Code. Accordingly, Mr. Guru, learned Amicus
Curiae prays to allow the appeal in part by converting the conviction
under Section 302 of the Penal Code to one under Section 304, Part-I
of the Penal Code. He also argues that since the appellant is in
custody for more than 14 years, the period undergone should be
awarded to him as punishment. As the appellant is a poor man, who
could not engage any counsel to argue the case in the appellate
Court, fine should not be imposed.
7. Mr. G. N. Rout, learned Additional Standing Counsel
for the State however submits that conviction of the appellant under
Section 302 of the Penal Code is correct and does not require
interference by the appellate Court. He urges the Court to dismiss the
appeal upholding the conviction of the appellant under Section 302 of
the Penal Code and sentence of imprisonment for life.
8. Since, there is no dispute regarding homicidal nature
of death of the deceased and complicity of the appellant in
commission of the crime, we do not consider it expedient to re-
examine the evidence of the prosecution witnesses and come to the
conclusion that the learned Additional Sessions Judge has correctly
come to the conclusion that the death of the deceased was homicidal
in nature and the appellant assaulted the deceased by means of a
crowbar.
9. The next question arises before us is that whether this
case is culpable homicide not amounting to murder or a case of
culpable homicide amounting to murder. The contents of the F.I.R.
reveals that on 24.04.2006 at about 7.30 A.M the elder brother of
informant, namely, Duryodhan Pahi, the present appellant asked the
deceased to give him cloth, which he had brought from Delhi. As a
result of which, there was a quarrel between the appellant and the
deceased, as she denied to give the same. She told that after return
of their son, Kalindi, the cloth will be handed over to him. Then,
appellant tried to forcibly break open the box by means of a crowbar.
Then the deceased caught hold of the crowbar. Thereafter, the
appellant assaulted the deceased on her waist as a result of which
she fell down. Immediately thereafter the appellant gave 7 to 8 blows
by means of a crowbar below ear of the deceased. The deceased
died.
10. The evidence of P.W.9, Dr. Pradeep Kumar Khuntia
reveals that postmortem examination was held on 24.04.2006. He
found one lacerated wound of sixe 3'' x 2'' x 1'' present in left parietal
bone of skull. The skin and underlined tissues were steered and
lacerated. There was fracture of bone with protusion of brain tissue
through this injury. He also found that lacerated wound 4'' x 2'' x 1''
present in right temporal area of the skull behind the right ear. So,
the doctor found two injuries on the head of the deceased, which
belies the statement of the informant in the F.I.R. that 7 to 8 blows
were given by means of a crowbar on the head of the deceased.
Moreover, there is no injury on the waist of the deceased.
11. Examination of the evidence of sole eye-witness in this
case, i.e., P.W.2, Basanti Pahi, reveals that she happens to be the
sister-in-law (JAA) of the deceased. The occurrence took place about
one year back at about 7 to 7.30 A.M in the house of the accused. At
that time, when this witness was going on the road, she found that a
quarrel between the accused and the deceased was going on.
Therefore, she stopped there and found that the accused assaulted
the deceased by means of a crowbar on her waist for which she fell
down on the ground. Thereafter, the accused assaulted by that
crowbar on her head for which she sustained bleeding injury and
died. When she raised hulla, others came to the spot. She admitted
that her statement was recorded under Section 164 of the Code by
the Magistrate.
In course of cross-examination, she stated that after
hearing the quarrel she saw that the deceased was separating paddy
from rice sitting in her house. During the quarrel, the deceased stood
up. The accused was also standing in front of the deceased holding a
crowbar. After hearing the quarrel, she came to know that they were
quarrelling for some clothes which were kept inside the box and the
accused was holding the crowbar to break open the box. The
deceased tried to snatch away the crowbar from the accused. Thus, it
is apparent from the materials available on record that the appellant
never made preparation for commission of the offence of murder. The
incident took place in a spur of moment due to a petty quarrel
between husband and his wife regarding some clothes brought from
Delhi and kept inside the box in the house. Appellant asked the
deceased to give the clothes. It is the consistent case of the
prosecution that the appellant brought crowbar to force open the box.
This Court in the case of Rabinarayan Gochhayat vs. State of
Orissa, CRA No.269 of 2000, as per the judgment dated 28.09.2020,
after taking into consideration the reported cases of Reg. -vrs.-
Govinda; (1877) ILR 1 Bom 342, Virsa Singh vs. State of Punjab;
AIR 1958 SC 469, Rajwant and another -vrs.- State of Kerala;
AIR 1966 SC 1874, State of Andhra Pradesh -vrs.- Rayavarapu
Punnayya and Another; (1976) 4 SCC 382, held that if any of the
four conditions, as enumerated below, is not satisfied, then the
offence will be culpable homicide not amounting to murder. Those
are:-
(i) The act was done with the intention of causing
death; or
(ii) with the intention of causing such bodily injury as the
offender knew to be likely to cause the death of the person
to whom the harm is caused: or
(iii) with the intention of causing bodily injury to any
person, and the bodily injury intended to be inflicted is
sufficient in the ordinarily course of nature to cause death;
or
(iv) With the knowledge that the act is so imminently
dangerous that it must in all probability cause death, or such
bodily injury as is likely to cause death, and without any
excuse for incurring the risk of causing death or such injury
as is mentioned above.
12. There is no material on record to show that the
appellant did the act i.e. assault on the deceased with the intention of
causing death or with intention of causing such bodily injury as the
offender knew to be likely to cause the death of the person to whom
the harm is caused, or had the intention of causing such bodily injury
sufficient, in the ordinarily course of nature to cause death, or he has
knowledge that the act is so imminently dangerous that it must in all
probability cause death. The learned Additional Standing Counsel
argues that since the appellant assaulted the deceased by means of a
crowbar, such an inference has to be drawn. We accept the argument
advanced by the learned Amicus Curiae because there is no
preparation on the part of the appellant to commit such an offence.
Secondly, the crowbar, which he was holding at the time of assault
was picked up by him to forcibly open lock of the box containing the
clothes. That is the case of the prosecution. So, the incident took
place because of a petty quarrel between husband and his wife
regarding some clothes and by no stretch of imagination such an act
by the appellant can be held to be done with an intention to cause
death or such bodily injury intended to be inflicted is sufficient in the
ordinarily course of nature to cause death or act is so imminently
dangerous that it must in all probability cause death.
13. In that view of the matter, we are not in agreement
with the conclusion reached by the learned Addl. Sessions Judge to
the effect that the appellant committed an offence of culpable
homicide amounting to murder, punishable under Section 302 of the
Penal Code. We are of the opinion that this case squarely falls within
the exceptions and can be termed as second degree homicide i.e.
culpable homicide not amounting to murder punishable under Section
304, Part-I of the Penal Code.
14. In the result, the JCRLA is allowed in part. The
impugned judgment of conviction and order of sentence dated
11.09.2007 passed by the learned Additional Sessions Judge (F.T.C.-
II), Bhadrak, in Sessions Trial No.12/166 of 2007/2006, convicting
the appellant under Section 302 of the Penal Code and sentencing
him to undergo imprisonment for life and to pay fine of Rs.2000/- in
default to undergo R.I. for two months are hereby set aside. Instead,
the appellant is found guilty for commission of offence of culpable
homicide not amounting to murder punishable under Section 304,
Part-I of the Penal Code. He is convicted under Section 304 (Part-I) of
the Penal Code.
15. Accordingly, the appellant-Duryodhan Pahi is
sentenced to undergo imprisonment for the period already undergone
which is calculated to be more than ten years. Moreover, we are not
inclined to impose any fine, as the appellant happens to be an elderly
person aged about 70 years belonging to humble walk of life. Since
the appellant has already undergone the sentence, the appellant be
set at liberty forthwith, unless his detention is required in any other
case.
Accordingly, the JCRLA is disposed of.
The L.C.R. be returned back to the trial court
forthwith.
As restrictions are continuing for COVID-19, learned
counsel for the parties may utilize the soft copy of this judgment
available in the High Court's website or print out thereof at par with
certified copies in the manner prescribed, vide Court's Notice
No.4587, dated 25.03.2020.
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S.K.Mishra, J.
S.Ratho, J. I agree
...............................
S. Ratho, J.
Orissa High Court, Cuttack
The 7th January, 2021/TDTUDU
