Laxman Jaipuria & Two Others vs State Of Orissa
2021 Latest Caselaw 68 Ori

               HIGH COURT OF ORISSA ; CUTTACK


                         JCRLA NO.38 0F 2012

    From the judgment and order of conviction dated 19.12.2011
    passed by the learned Ad hoc Additional Sessions Judge,
    Sundargarh in S.T. Case No.172/37 of 2011.

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Laxman Jaipuria & two others ... Appellants

Versus

State of Orissa ... Respondent

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For Appellant nos.1 & 3: Mr. Sahasransu Sourabh

For Appellant no.2 : Mr. Tusharkant Sahoo (Amicus Curiae)

For Respondent : Sk. Jafrulla, Addl. Standing Counsel.

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PRESENT:

THE HONOURABLE MR. JUSTICE S.K.MISHRA AND THE HONOURABLE MISS JUSTICE SAVITRI RATHO

Date of Judgment: 5th January, 2021

S.K.Mishra,J. All the three appellants faced trial for the offences under Sections 294/324/326/307/302/34 of the Indian Penal Code (hereinafter referred to as the "Penal Code" for

brevity). The trial was conducted under the supervision of the learned Ad hoc Addl. Sessions Judge, Sundargarh in S.T. No.172/37 of 2011. As per judgment dated 19.12.2011, the learned Ad hoc Addl. Sessions Judge, Sundargarh came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt under Sections 294/326/307/34 of the Penal Code. However, the learned Ad hoc Addl. Sessions Judge came to the conclusion that the offence under Sections 302/323/324/34 of the Penal Code has been established beyond reasonable doubt. Hence he convicted them for the aforesaid offences.

They have been sentenced to undergo imprisonment for life and to pay a fine of Rs.3000/- (Rupees three thousand only) each, in default to undergo R.I. for six months each for the offence under Section 302/34 of the Penal Code, to undergo R.I. for three years each for the offence under Section 324/34 of the Penal Code and to undergo R.I. for six months each for the offence under Section 323/34 of the Penal Code. Such conviction and sentences are assailed in this appeal.

2. The case of the prosecution in brief is that the three appellants are related to each other. On 18.1.2011 the appellants-accused had cut the branch of a mahul tree of Bisi alias Bisikesan Jaipuria and Madhaba Jaipuria of their village Beldhipa situated at Mankadkendukhet. On the next day, i.e. on 19.1.2011 at about 3.00 P.M. Bisi Jaipuria, P.W.7, his brother Madhaba Jaipuria (the "deceased" for

brevity) their wives Sumitra Jaipuria (not examined in this case), Kumudini Jaipuria-P.W.1 (the informant in this case) and their children had gone near the said mahul tree. The appellants were present there being armed with axe/tangia and falsia and when the aforesaid Bisikesan @ Bisi and Madhaba asked the appellants-accused the reason for cutting the branch of their mahul tree, the appellants suddenly got annoyed upon them and abused them in filthy languages and also assaulted Madhaba Jaipuria, Bisikesan Jaipuria and Kumudini Jaipuria by their weapons. As a result of the assault Madhaba Jaipuria sustained severe injuries. Bisikesan Jaipuria also received severe injuries and they were shifted to Hospital. Kumudini Jaipuria also suffered injuries. After incident, Kumudini Jaipuria, P.W.1, lodged a report before the I.I.C., Hemgir Police Station on 19.1.2011 at about 7.00 P.M. Thereafter, the I.I.C. registered P.S. case No.6/2011 and directed the S.I. Bhramarabara Patel, P.W.8, to investigate into the case.

3. The I.O., P.W.8, Bharamarabara Patel, S.I. of Police, examined the witnesses including the informant, dispatched the dead body for post mortem examination, effected seizures, arrested the accused persons, recorded the discovery statement of Purna Chandra Jaipuria, recovered the weapon of offence and finding a prima facie case submitted the charge sheet for the aforesaid offences.

4. The defence took the plea of complete denial to the involvement of the appellants in the alleged incident.

5. In order to bring home the charges levelled by the prosecution, it examined eight witnesses. P.W.1 is the informant-cum-injured who is the wife of deceased Madhaba P.W.7 is another injured and so also the elder brother of the deceased. P.W.2 is the co-villager of P.Ws.1 and 7 who had assisted P.W.2 in taking Madhaba and Bisi from the spot to their house and thereafter to the Hospital. P.Ws.3 and 4 are also the co-villagers of P.Ws.1, 7 and 2 and out of them, P.W.3 is a witness to the disclosure statement of accused Purna Chandra Jaipuria and so also the seizure of the weapons vide Exts.3 and 4. P.W.4 is a witness to the seizure of blood stained earth and sample earth from the spot and branch of the mahula tree vide Exts.5, 6 and 7. The rest three witnesses i.e. P.Ws.5, 6 and 8 are the official witnesses and out of them, P.W.5 is a police constable who is a witness to the seizure of the wearing apparels of the deceased, accused person and the collected blood sample and nail clippings of the accused persons vide Exts.8,9 and 10, 11 and 12. P.W.6 is the doctor who had conducted P.M. examination over the dead body of the deceased and had prepared the P.M. report, query report along with the injury reports of injured Bisi Jaipuria and Kumudini Jaipuria vide Exts.13,14,15 and 16 and P.W.8 is the sole Investigating Officer of the case, who

has submitted charge sheet against the accused persons after completing investigation of the case.

In addition to examination of these witnesses, the prosecution has relied upon 23 documents as exhibits. But no material objects were produced by the prosecution at the time of trial. The defence, on the other hand, has neither examined any witness nor produced any document in support of their case.

6. Learned Ad hoc Addl. Sessions Judge mainly basing on the evidence of P.W.1, Kumudini Jaipuria, P.W.7, Bisi Jaipuria, injured eye witnesses in this case, and P.W.2, Rudra Jaipuria, the immediate post occurrence witness, came to the conclusion that the presence of P.W.1 and P.W.7 cannot be doubted. He further took into consideration the evidence of P.W.6, Dr. Mahendra Tanty, the contents of Ext.13, post mortem examination report, Exts.15 and 16, the injury reports relating to Bisi Jaipuria and Kumudini Jaipuria and came to the conclusion that the prosecution has established its case beyond reasonable doubt for commission of offences by the appellants under Section 323/324/302/34 of the Penal Code, but he came to the conclusion that the offences under Sections 326/294/307 of the Penal Code have not been made out against him.

7. In assailing the conviction of the appellants, the learned counsel for the appellant nos.1 and 3, Mr. S. Sourav,

argued that there are contradictions in the evidence of P.W.1 and P.W.7 with their own previous statements recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code" for brevity). He also pointed out certain contradictions between P.Ws.1 and 7 regarding the assault and the manner of the assault on the deceased as well as others. Placing reliance on the evidence of P.W.6, the Doctor who has conducted post mortem examination, it was argued by the learned counsel for the appellant nos.1 and 3 that in this case the offence under Section 302 of the Penal Code has not been made out and, therefore, they should be acquitted.

8. Mr. Tusharkanta Sahoo, learned amicus curiae, appearing on behalf of appellant no.2, submitted that as per the ratio laid down by the Hon'ble Supreme Court in the case of Rambir Vrs. State NCT Delhi; AIR 2019 SC 2264, it is not a case of culpable homicide amounting to murder punishable under Section 302 of the Penal Code., rather it is an offence under Section 304 Part I of the Penal Code. He drew attention of the Court to Exception 4 to Section 300 of the Penal Code and submitted that there was a sudden quarrel, there was no premeditation on the part of the appellants, the act was committed in a heat of passion; and the offender had not taken any undue advantage or acted in a cruel or unusual manner. Hence, he submitted that the offence under section 302 of the Penal Code

should be converted into offence under Section 304, Part-1 of the Penal Code and as the appellant no.2 is in custody for about 10 years (the period of incarceration shall be completed on 20.1.2021).

9. Sk. Jafrulla, learned Addl. Standing Counsel for the State, argued that since the appellant did not dispute the homicidal death of the deceased Madhaba Jaipuria, there is no need to dwell upon the same. He termed the contradiction between the evidence of P.W.1-Kumudini Jaipuria and P.W.7-Bisi Jaipuria to be natural and normal discrepancy in the evidence of witnesses and, therefore, argued that the appellants should not be acquitted of the offence under Section 302 of the Penal Code. He further strenuously submitted that it is not a case of culpable homicide not amounting to murder punishable under Section 304, Part-1 or Part-II of the Penal Code, as the appellants were armed with axes and falsias and, therefore, he contended that the learned Ad hoc Addl. Sessions Judge has correctly convicted the appellants under Section 324/302/34 of the Penal Code. He, therefore, prayed to dismiss the appeal by upholding the findings recorded by the learned Ad hoc Addl. Sessions Judge.

10. At the outset, it is taken note of the fact that none of the counsel appearing for the appellants has challenged the conviction of the appellants under Sections 323/324/34 of the Penal Code. So this Court is not inclined to discuss the evidences regarding the offences under Sections

323/324/34 of the Penal Code. Moreover, there is no challenge of the findings of the learned Ad hoc Addl. Sessions Judge regarding the homicidal nature of the death of the deceased. The fact that the appellants do not challenge these findings coupled with the evidence of P.W.6 and the contents of Ext.13, we are of the opinion that definitely the death of the deceased was homicidal in nature.

11. The question that remains to be determined in this appeal is that examination of evidence of P.W.1, Kumudini Jaipuria, reveals that she has stated that Purna Chandra Jaipuria assaulted Madhaba Jaipuria, the deceased, by axe on his head, hand and leg. Thereafter, Laxman Jaipuria and Padman Jaipuria assaulted Bisi Jaipuria by means of a falsia and tangia on the head, leg and waist.

12. P.W.7, Bisi Jaipuria has stated that Padman Jaipuria assaulted Madhaba Jaipuria by means of a falsia on the back of his neck. He further stated that Purna Chandra Jaipuria assaulted Madhaba Jaipuria by means of a Tangia on his head. He has further implicated Laxman Jaipuria, who has assaulted Madhaba Jaipuria on his leg by a tangia.

P.W.7 further stated that Padman Jaipuria assaulted him on his left fore arm by falsia, Purna Jaipuria assaulted on the left side leg by a tangia and Laxman Jaipuria assaulted on the right side waist by a tangia.

13. The evidence of P.W.6, Dr. Mahendra Tanty, reveals that the deceased has sustained the following external injuries:-

(i) Laceration of size 4" x 2" on the frontal region of head.

(ii) Abrasion of size 3" x .5 cm on the right arm.

(iii) Incised injury on left knee joint of size 5" x 3".

(iv) Incised injury on right palm of size 3 cm x 3".

(v) Cut injury (incised) of size 3" x .1 cm on the index finger.

(vi) Cut incised injury of size 3 cm x 1.5 cm on the base of the right thumb.

(vii) Abrasion of the right glutel region of size 7 1/2"

x .5 cm.

The skull bone was fractured and there was no other injuries on the dissection of the body. The death has been caused because of the injury to vital organ like brain, neurogenic shock and hypovolumic shock due to severe bleeding from brain and other injuries found on the different parts of the body of the deceased.

14. A joint reading of all the evidences available in the shape of the narration of the eye witnesses as well as the Doctor, who has conducted the post mortem examination, reveals that certain discrepancy in the evidence made by the prosecution.

Firstly, as stated by P.W.7, Padman Jaipuria assaulted Madhaba Jaipuria by means of a falsia on the back of the neck. However, on the post mortem examination, no injury was found on the back side of the

deceased. It is stated by P.W. 7 that Purna Chandra Jaipuria assaulted the deceased by means of an axe on his head. However, P.W.1 stated that Purna assaulted the deceased on his head and leg. It is also pointed out by the learned counsel appearing for the appellants that P.W.7 has not stated before the I.O. in his statement recorded under Section 161 of the Code that the accused Padman Jaipuria assaulted first on the back side neck of Madhaba Jaipuria and accused persons, namely Laxman Jaipuria and Padman Jaipuria, assaulted Madhaba Jaipuria and that after receiving the two blows from Purna and Padman, his brother fell down on the ground; and that the accused Laxman Jaipuria assaulted on his leg by a tangia; and that accused Padman Jaipuria assaulted him on his right fore arm; and that after such assault, he sustained injuries and fell down on the ground and that Purna Jaipuria assaulted by a tangia and that accused Laxman Jaipuria assaulted him by a tangia near his right side waist. He has also not stated before the Police that only accused Laxman Jaipuria and Padman Jaipuria had assaulted him and that only accused Purna Jaipuria had assaulted his deceased brother Madhaba Jaipuria. This aspect of the case has to be considered together with the fact that P.W.1 has stated that the family of the accused persons and the family of the informant were not pulling on well. There appears to be some strength in the arguments made by the learned counsels appearing for the appellants. P.W.7 has also stated that after knowing that the accused persons were cutting

the branch of a muhul tree at the spot; he along with Madhaba and others had moved to the spot. After their arrival at the spot there was a quarrel between the accused persons on the one hand and he and his deceased brother on the other hand. Thus, from the aforesaid materials available on record, the following conclusions are reached by this Court:-

(i) There was civil dispute between the family of the informant side and the family of the appellant side.

(ii) There was a quarrel between the two groups one being the appellants and the other being the deceased, his wife, his elder brother, his sister-in- law and two children.

(iii) The prosecution has not proved any premeditation or preplanning on the part of the appellants.

(iv) There appears to be some contradictions between the evidences of P.W.1-Kumudini Jaipuria, P.W.7-

Bisi Jaipuria and P.W.6-

Dr.Mahendra Tanty regarding the exact seats of injuries and the manner of assault by the appellants.

(v) Though it is argued by Sk.Jafrulla, learned Addl. Standing Counsel for the State that since the appellants were holding axes and falsias (falsia is a variety of axe used for cutting wood etc.), this Court takes note of the fact that axes and falsias are common implements used by the villagers in their day to day work. So if a person is holding an axe especially when there is evidence that either of the previous day or on the same day there was cutting of the

Mahula tree, it cannot be presumed that there was pre-meditation or pre- planning to commit the murder. Axes are common instruments and appellants holding the same cannot be said to be a result of premeditation or pre-planning.

(vi) The act appears to have been committed in the heat of passion. There is no material to show that the offender has taken any undue advantage or acted in cruel manner.

15. So keeping in view the aforesaid consideration, this Court is of the opinion that offence under Section 302 of the Penal Code is not made out rather the offence under Section 304 (Part-1) of the Penal Code, i.e. the offence of culpable homicide not amounting to murder have been made out. As the other two appellants, namely, Padman Jaipuria and Laxman Jaipuria also share the common object; they are also liable of the offence under Section 304 (Part-1) read with Section 34 of the Penal Code. The offences under Sections 323/324/34 of the Penal Code have been well made out. This Court is not inclined to disturb the said conviction.

16. In the result the appeal is allowed in part. The conviction of the appellants under section 302/34 of the Penal Code is hereby set aside. The appellant no.2-Purna Chandra Jaipuria is convicted under Section 304, Part-I of the Penal Code. Similarly, appellants Padman Jaipuria and Laxman Jaipuria are convicted under Section 304

(Part-1)/34 of the Penal Code by setting aside the order of conviction under Section 302/34 of the Penal Code. All of them are found guilty of the offences under Sections 323/324/34 of the Penal Code.

17. It is brought to our notice that all the three appellants are in custody since 20.1.2011 and their incarceration shall complete 10 years on 20.1.2021. They are in custody for almost ten years. Hence all the appellants are sentenced to undergo rigorous imprisonment for ten years for the offence under Section 304 (Part-I)/34 of the Penal Code, no separate fine is imposed as the appellants belong to very humble walk of life and are members of the reserved category. Period undergone during investigation and trial as UTP, and after conviction during pendency of the appeal be set off. They be released from the custody on the completion of ten years incarnation. No separate sentences are passed under Sections 323/324/34 of the Penal Code.

18. L.C.R. be returned to the lower court immediately.

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S.K.Mishra, J Savitri Ratho,J.

I agree.

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Savitri Ratho, J Orissa High Court, Cuttack Dated 5th January, 2021/A.K.Behera.