Orissa High Court
Chandan Mallick @ Behera vs State Of Orissa on 28 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.8 of 2021
In the matter of an Appeal under section 383 of the Code of
Criminal Procedure and from the judgment of conviction and order of
sentence dated 25th February, 2020 passed by the learned 2nd Additional
Sessions Judge, Bhubaneswar in C.T. Case No.7/44 of 2019.
Chandan Mallick @ Behera .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Ms. Geetanjali Majhi,
Mr. G.B. Parida
Advocates
For Respondent- Mr. D.K. Mishra,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing :21.08.2023 : Date of Judgment: 28.08.2023
D.Dash, J. The Appellant, by filing this Appeal from inside the Jail,
has assailed the judgment of conviction and order of sentence dated 25th
February, 2020 passed by the learned 2nd Additional Sessions Judge,
Bhubaneswar in C.T. Case No.7/44 of 2019, arising out of C.T Case No.
4892 of 2018, corresponding to Airfield P.S. Case No.353 of 2018 of the
Court of the learned Sub-Divisional Judicial Magistrate (SDJM),
Bhubaneswar.
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The Appellant (accused) thereunder has been convicted for
committing the offence under section 302 of Indian Penal Code, 1860
(in short, 'the IPC') and he has been sentenced to undergo imprisonment
for life and pay fine of Rs.10,000/- (Rupees Ten Thousand), in default to
undergo Rigorous Imprisonment for 6 (six) months.
Prosecution Case :-
2. On 28.10.2018, around 4.30 p.m. one Pankaj Nayak, who happens
to be the daughter-in-law of Abhimanyu Nayak as the informant
presented a written report (Ext.7) with the Inspector-in-Charge (IIC) of
Airfield Police Station. It is stated therein that on the previous afternoon,
around 1 p.m., the accused assaulted Abhimanyu and left him in front of
the house in a senseless condition. It has also been stated that when
Pankaj (Informant-P.W.10) wanted to call the Police, the accused gave
threat to her. She therefore called her husband and other family
members and on their arrival, shifted her father-in-law to Capital
Hospital, Bhubaneswar. Abhimanyu, being treated in the hospital, was
discharged in the evening; but his health condition deteriorated at home
which initiated his shifting to the Capital Hospital again. The Doctor in
the Hospital at Bhubaneswar after examination at that time, referred the
case to the SCB Medical College and Hospital, Cuttack for better
treatment. The written report to the above effect being treated by the IIC
as the FIR, he registered the case and took up investigation.
3. In course of investigation, the Investigating Officer (I.O-P.W.11)
examined the informant (P.W.10) and other witnesses. On 29.10.2018,
Abhimanyu while undergoing treatment at Cuttack, met his death.
Having received the said information, the I.O (P.W.11) seized all the
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documents of Mangalabag P.S. U.D Case No.1959 of 2018, which had
been initiated on receipt of the information of death of Abhimanyu from
the Hospital. The accused then being arrested, was forwarded in custody
to Court. The dead body was sent for Post Mortem examination. In
course of investigation, the wearing apparels of the accused as well as
the deceased had been seized. The above seized incriminating articles
were then sent for chemical examination through Court.
On completion of investigation, Final Form was submitted by the
I.O (P.W.11) placing this accused to face the Trial for commission of
offence under section 302 of the IPC.
4. Learned SDJM, Bhubaneswar having received the Final Form as
above, took cognizance of the offences under section 302 of the IPC and
after observing the formalities, committed the case to the Court of
Sessions for trial. That is how the Trial commenced against the accused
by framing the charge for the said offence against the accused.
5. In the Trial, prosecution in total has examined twelve (12)
witnesses. As already stated P.W.10 happens to be the daughter-in-law
of the deceased who had lodged the FIR whereas P.W.9 is the daughter
of Abhimanyu and P.W.3 and P.W.7 are the sons of Abhimanyu and
P.W.7 is the husband of the Informant (P.W.10). The wife of the
deceased has come to the witness box as P.W.5. P.W.2, P.W.6 and
P.W.7 are the sons of the deceased. The Doctor, who had conducted
autopsy over the dead body of the deceased, has been examined as
P.W.12 whereas the Investigation Officer is P.W.11.
6. Besides leading the evidence by examining the above witnesses,
the prosecution has also proved several documents which have been
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admitted in evidence and marked Ext.1 to 14/1. Out of those, the
important are the FIR (Ext.7), seizure list (Ext.1), Inquest Report
(Ext.2), Post Mortem Report (Ext.14) and the Chemical Examiner's
Report which has been admitted in evidence and marked as Ext.11.
7. The accused being called upon has not tendered any evidence in
support of his plea of denial and false implication.
8. Learned counsel for the Appellant (accused) at the outset without
challenging the nature of death of Abhimanyu, placing the role of this
accused as emanate from the evidence of the eye witnesses (P.W.9 and
P.W.10) contended that the Trial Court for said act of the accused ought
not to have convicted him for the commission of offence under section
302 of the IPC and instead the accused ought to have been held guilt for
the offence punishable under section 304-II of the IPC. Accordingly, he
urged for altercation of conviction and imposition of sentence as deemed
just and proper.
9. Learned counsel for the State while supporting the finding of
conviction of the accused for commission of offence under section 302
of the IPC submitted that the accused having caused the deceased to
death by inflicting the injuries on his head, has rightly held him guilty
for commission of offence under section 302 of the IPC.
10. Keeping in view the submissions made, we have carefully read
the impugned judgment passed by the Trial Court. We have also gone
through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.12
and have perused the documents admitted in evidence and marked Ext.1
to Ext.14/1.
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11. Admittedly, P.W.10 is the daughter-in-law of the deceased, who
had lodged the FIR (Ext.7). It is her evidence that she had seen the
accused assaulting her father-in-law (deceased) by giving fists, kicks
and also causing injury by a small stone (metal). She has further stated
that when she tried to intervene, the accused abused and threatened her;
so she raised hullah when others came. She is not stating that when
accused came to their house and called her father-in-law to go with him
and accordingly, her father-in-law went with the accused; the accused
was holding even that small stone (metal). She has also not stated that
after she intervened and was threatened, the accused went on assaulting
the deceased. P.W.9, the daughter of the deceased has stated that during
that time, she had gone to the house of P.W.10 and finding her father
absent, requested P.W.10 to call her father and therefore, P.W.10 went
out of the house and sometime, thereafter she (P.W.10) raised hullah and
then having came out of the house, she saw accused assaulting her
father. She does not state as to the manner of assault. It is also not stated
by her that the accused was then holding the small sized stone (metal).
The incident having taken place on 27.10.2018, the death has
occasioned on 29.10.2018. The Doctor (P.W.12), who had conducted
post mortem examination has stated that the cause of death was on
account of the injury to the brain and its complications. As per her
evidence, on dissecton, she had found thick sub-arachnoid haemorrhage
diffusely present over entire brain and contusion necrosis over right
fronto temporal area. The prosecution has not tendered any evidence to
establish the motive. These witnesses are not stating that the accused
was not pulling on well with the deceased. Rather, P.W.10 states that on
being called by the accused, the deceased went with him which militates
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the prior enmity. No evidence is forthcoming as to what happened after
the deceased and the accused went and P.W.10 heard the hue and cry.
Accused was not holding any arm at that time when he came to call the
deceased. It is also not stated by the prosecution witnesses that the
accused was carrying that small stone (metal) with him from the
beginning. When it is stated by P.W.3, who is the son of the deceased
that one Kabi Panda had witnessed the occurrence, the prosecution has
not examined that Kabi Panda, who is an independent witness. It has
further been stated by P.W.5, who is the mother-in-law of P.W.10 and
wife of the deceased that she had seen accused and her husband taking
liquor on that day.
12. Cumulatively viewing all these circumstances appearing in the
entire evidence as above discussed, we are of the view that the offence
could be properly categorized as one punishable under section-304 Part-
II of the IPC. In that view of the matter, the accused is liable for
commission of offence punishable under section-304 Part-II of the IPC.
Accordingly, he is to be visited with the sentence commensurate the act
done by him.
13. In the result, the Appeal stands allowed in part. The conviction
recorded against the accused under section-302 of the IPC is modified to
one under section-304 Part-II of the IPC and consequentially, we are of
the considered opinion that imposition of the sentence to undergo
rigorous imprisonment for a period of seven (7) years with fine of
Rs.5000/- (Rupees Five Thousand) in default to undergo rigorous
imprisonment for three (03) months would be just and proper and meet
the ends of justice.
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14. With the above modification as to the judgment of conviction and
order of sentence, the Appeal stands disposed of.
(D. Dash),
Judge.
Dr.S.K.Panigrahi, J. I agree.
(Dr.S.K.Panigrahi),
Judge.
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 29-Aug-2023 17:25:25
