Debraj Putel vs State Of Odisha
2022 Latest Caselaw 5436 Ori

      1




               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                     CRA No.53 of 1991

           Debraj Putel                       ....                   Appellant


                                        -versus-

           State of Odisha                    ....               Opposite Party


                      For Petitioner : Mr. Sk. Zafarulla, Advocate
                                                   (Amicus Curiae)
                      For Opposite Party : Mr. P.K. Maharaj, ASC

               CORAM: JUSTICE V. NARASINGH
                                Date of hearing : 09.09.2022

                               Date of judgment : 12.10.2022

V. Narasingh, J.

1. 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

CRA No.53 of 1991 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

CRA No.53 of 1991 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. 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,

CRA No.53 of 1991 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.

CRA No.53 of 1991

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

CRA No.53 of 1991 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:

"... 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..."

CRA No.53 of 1991

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

CRA No.53 of 1991 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.

CRA No.53 of 1991

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. 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

CRA No.53 of 1991 Court Legal Services Authority is called upon to disburse the same

forthwith as per the procedure prescribed.

(V. NARASINGH) Judge Orissa High Court, Cuttack Dated the 12th of October, 2022/ Pradeep

CRA No.53 of 1991