Purushottam Bariha @ Nanku vs State Of Orissa
2021 Latest Caselaw 6785 Ori

                           HIGH COURT OF ORISSA: CUTTACK.

                                   CRLA No.33 of 2005

        From the judgment of conviction and order of sentence dated 07.01.2005
        passed by Sri A.K. Patnaik, Additional District and Sessions Judge,
        Jharsuguda in S.T. Case No.289/10 of 2003/ C.T. 292 of 2003.

                                              ---------

        Purushottam Bariha @ Nanku                            ......       Appellant.

                             - Versus-

        State of Orissa                                       ......        Respondent.

                     For Appellant       :         Mr. Bhabani Shankar Dasparida.
                                                   Mr. D.P. Dhal, M.K. Das, K. Dash
                                                   and S.K. Parida.

                     For Respondent      :        Sk. Zafrulla,
                                                  Additional Standing Counsel.

                                             ---------

        CORAM:

                             SHRI JUSTICE S. K. MISHRA
                                      AND
                            MISS JUSTICE SAVITRI RATHO

        Date of Hearing:-29.06.2021      and Date of Judgment- 02.07.2021

S. K. MISHRA, J.     This is a case of dual homicide.

02. In this CRLA, the convict/ appellant assails his conviction and

sentence to undergo imprisonment for life and to pay a fine of Rs.3,000/- in

default to undergo R.I. for one month under Section 302 of the Indian Penal

Code, 1860 (hereinafter referred to as "the Penal Code" for brevity)

recorded by the learned Additional District and Sessions Judge,

Jharsuguda in S.T. Case No.289/10 of 2003/ C.T. 292 of 2003, as per the

judgment of conviction and order of sentence dated 07.01.2005.

03. Bereft of unnecessary details, the case of the prosecution is that

in the evening of 01.03.2003 the deceased persons, accused and one Ganesh

were coming in a tractor bearing No.OR-15B-8904 with trolley bearing

No.OR15B-8906 loaded with sand. The two deceased picked up a quarrel

with the accused when the accused disapproved the quality of the sand and

the accused suddenly being enraged, slapped the deceased Bhalu and then

pushed him from the trolley of the tractor, as a result of which, Bhalu after

being struck on the body of the tractor fell down. The driver of the tractor

Murali Naik immediately stopped the tractor. All of them ran towards Bhalu

and found him gasping. Seeing this, other deceased Thubi abused the

accused as to why he pushed his brother; but the accused drew out an iron

jack rod from the tractor and dealt two blows on the head of Thubi, as a

result of which, he fell down and died. Bhalu, who was gasping, also died.

Thereafter, the accused fled away towards Keldamal jungle with the iron

rod. The informant, the driver of the tractor with Ganesh then loaded the

dead body of the two deceased on the trolley and came towards the house of

the tractor owner to give information. While coming, the tractor driver

seeing a scooter coming from the front, went to a side; but capsized on the

right side of the road over a dry nala and the dead body of two deceased

were buried below the sand of the trolley. Later, the villagers of Sialrama

came and pulled out the two dead bodies from the sand. The report was

lodged by Murali Naik (driver of the tractor) which was received by the

O.I.C., Laikera Police Station at the spot and it was treated as F.I.R.

The O.I.C., Laikera Police Station, on the point of jurisdiction,

sent the F.I.R. to Kolabira Police Station and the O.I.C., Kolabira Police

Station again registered the same as Kolabira P.S. Case No.8 dated

02.03.2003 and took up investigation. In course of investigation of the case;

he examined the witnesses; held inquest over the dead bodies, sent them for

postmortem examination; visited the spot; examined more witnesses; seized

the wearing apparels of the deceased persons; searched for the accused in

Keldamal jungle and apprehended him; on the information of the accused,

recovered the iron jack rod from the jungle and seized the same; sent the

material exhibit for chemical examination and on completion of

investigation, submitted charge-sheet against the accused.

04. The plea of the accused is one of denial.

05. In order to prove its case, the prosecution examined 8 witnesses

so also relied upon the documents marked as Exts.1 to 18 and material

objects marked as M.Os.I to III. No evidence has been led by the defence.

P.Ws.1-Ganesh and 2-Murali Naik are the two eye witnesses to

the occurrence. P.Ws.3- Khatu Kalo is the post occurrence witness. P.W.5-

is the Grama Rakhi. P.W.4- Dr. Omprakash Patel was the doctor who

conducted post-mortem over the dead bodies of deceased Bhalu Marei and

Thubi Marei. P.W.6-Dr. Dolamani Patel was the doctor who examined the

nail clipping of the accused and the weapon of offence i.e. iron jack rod.

P.W.7-Sayad Mujibur Raheman, the then O.I.C. of Laikera Police Station

who sent the report of the informant to the Kolabira Police Station on the

ground of jurisdiction and P.W.8-Kashinath Nayak was the O.I.C., Kolabira

Police Station who conducted investigation in this case and filed charge-

sheet against the accused.

06. On an appraisal of evidence on record, the trial court held the

prosecution to have proved the charge against the accused on the basis of

evidence of P.W.4 and the post-mortem reports Exts.6 and 7.

07. On examination of evidence of P.W.4-Dr. Omprakash Patel, it

is revealed that he conducted post-mortem on the dead body of deceased

Bhalu Marei and Thubi Marei. On examination, he found the following

external injuries on the dead body of deceased Bhalu Marei;

(i) Abrasion on the right cheek of seize 3" x 3";

(ii) Swelling in the right parietal bone of size 2' x 2".

(iii) Abrasion on the right chest of size 3" x 2 mm.

(iv) Abrasion on the right side of neck of size 1" x 3 mm.

(v) Abrasion in the right knee of size 1" x 1".

(vi) Abrasion on the left leg of size 3" x 2".

He also found the following internal injuries:

(i) Fracture of right maxilla; and

(ii) Injury to right middle meningeal artery which was ruptured.

He also found about 250 ML of rice fermented liquor from the stomach of

deceased Bhalu Marei. Rigor mortis was present all over the body at the

time of post-mortem. He opined that the death was due to shock as a result

of injuries to face and head. The injuries to face and head were sufficient to

cause death in ordinary course.

P.W.4- Dr. Omprakash Patel also conducted post-mortem over

the dead body of deceased Thubi Marei and found the following external

and internal injuries, those are:

External Injuries-

(i) Abrasion on the right cheek of size 4" x 2".

(ii) Abrasion on the right forearm of size 1" x ½".

(iii) Abrasion on the left shoulder joint of size ½" x

½".

(iv) Bruise over the right peterion (on the right size of the head)

of size 2" x 2".

Internal Injuries-

(i) Fracture of right angler of mandible.

(ii) Fracture of right temporal bone.

(iii) Injury to right middle meningeal artery and blood clot

around it.

He also found about 50 ml. of fermented rice in the stomach of the deceased.

He opined that cause of death was due to shock as a result of sudden injury

to brain. The internal injuries are sufficient to cause death in ordinary

course. The injuries are possible by assault with an iron jack rod. Thus, from

the evidence of the doctor P.W.4, it is clear that death of both the deceased

was homicidal in nature.

08. Once it is held that deaths of the deceased were homicidal in

nature, it is the duty of the Court to assess the evidence to find out whether

the complicity of the accused has been brought home beyond all reasonable

doubt and whether he has requisite mens rea to commit the offence of

murder.

09. There are two eye-witnesses to the occurrence i.e. P.Ws.1-

Ganesh Bhoi and 2- Murali Naik. P.W.1 stated in his evidence that the

occurrence took place in the month of March, 2003. It was 7.00 or 7.30 P.M.

He, both the deceased persons, the informant P.W.2 and the appellant/

accused went in the tractor, driven by P.W.2, to Kunapali "Jora" to bring

sand. They had loaded sand and were returning to their village. On the way,

the accused-Nanku told near Kelda village that the sand was unfit.

Thereafter, Nanku and Bhalu picked up quarrel on the same issue.

Thereafter, Nanku pushed Bhalu from the moving tractor as a result of

which Bhalu fell down. P.W.2 stopped the tractor. They got down from the

tractor and found that Bhalu sustained head injury. Thubi being the brother

of Bhgalu, got enraged and threatened Nanku saying "MAAGIHA TATE

NAI CHHADEN, MO BHAIKE THELIDELU". Thereafter, Nanku brought

out a jack road from the trolley and dealt two blows on the head of Thubi.

Thubi died due to those two blows on his head. Bhalu also died at the spot

after falling from the tractor.

P.W.2 (Murali Naik) is the informant in this case who stated in

his examination in court that he was driving the tractor carrying sand loaded

by the labourers i.e. P.W.1-Ganesh Bhoi, both the deceased, namely, Bhalu

and Thubi and the accused-Nanku from Khunapali Jora. Ganesh was

sitting beside him, whereas Thubi, Bhalu and Nanku were sitting on the

sand loaded. On the way at 7.00 P.M., accused- Nanku told that the sand

were unfit, being coarse, for which there was altercation between the

accused and Bhalu. The accused dealt two or three slaps to Bhalu and

pushed him from the moving tractor. Bhalu fell down from the tractor and

sustained injuries in his hand and below his nose. This witness further stated

that he stopped the tractor and all of them went to Bhalu, where he was

lying, and found that Bhalu was struggling for life. Thubi got enraged and

threatened Nanku saying "MAAGIHA NANAKU MARIDELU MUIN

TATE NAIN CHHADEN". He also stated that Thubi is the brother of

Bhalu. Thereafter, Nanku brought out a jack rod from the trolley and dealt

two blows on the head of Thubi. Thubi died due to those two blows on his

head. Bhalu also died at the spot falling from the tractor. Both the witnesses

i.e. P.Ws.1 and 2 unequivocally corroborated each other.

Thus, it is clear that the occurrence took place out of a quarrel

between the appellant/accused and both the deceased persons without any

premeditation. We take note of the reported judgment passed in the case of

Rambir -vrs.- State NCT Delhi: AIR 2019 SC 2264 wherein the Hon'ble

Supreme Court having examined the exception 4 to Section 300 of the Penal

Code has come to the conclusion that following four ingredients

are required to attract the provisions of exception 4 to Section 300 of

the I.P.C. Those are:

(i) There must be a sudden fight;

(ii) There was no premeditation;

(iii) The act was committed in a heat of passion; and

(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.

While rendering the judgment in the case of Rambir (supra), the Hon'ble

Supreme Court has taken into consideration its earlier reported case i.e. the

case of Surinder Kumar -vrs.- Union Territory, Chandigarh: reported in

(1989) 2 SCC 217.

10. From the evidence in this case, we come to the conclusion that

there was a sudden fight between the appellant/accused and one of the

deceased because of the fact that the appellant/accused questioned the

quality of the sand. He assaulted Thubi by picking up a jack rod when Thubi

threatened him for assaulting his brother Bhalu. There was no

premeditation on the part of the appellant/accused and the acts were

committed in a heat of passion. Furthermore, the appellant had not taken

any undue advantage or acted in a cruel or unusual manner.

11. Applying the aforesaid principles to the case in hand, we are of

the opinion that in this case offence under Section 304, Part-I of the

I.P.C. has been committed by the appellant.

12. Therefore, we allow the appeal in part. Accordingly, the

conviction and sentence to undergo imprisonment for life and to pay a fine

of Rs.3,000/- in default to undergo R.I. for one month under Section 302 of

the Penal Code recorded by the learned Additional District and Sessions

Judge, Jharsuguda in S.T. Case No.289/10 of 2003/ C.T. 292 of 2003, as per

the judgment of conviction and order of sentence dated 07.01.2005 are

hereby set aside. Instead, the appellant is convicted for the offence under

Section 304, Part-I of the Penal Code and sentenced to undergo R.I. for 10

years. The period of detention already undergone by the appellant during

investigation, the trial as an U.T.P. and during the pendency of the appeal be

set off under Section 428 of the Code.

13. Accordingly, this CRLA is allowed in part.

14. The T.C.Rs. be sent back to the court below forthwith.

15. As the restrictions due to resurgence of Covid-19 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 concerned Advocate along with seal, 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.

.........................

(S. K. Mishra) Judge

Savitri Ratho, J. I agree.

........................

(Savitri Ratho) Judge

Orissa High Court, Cuttack, Dated the 2nd July, 2021/B. Jhankar