Dhiren Dalei & vs State Of Odisha
2023 Latest Caselaw 10154 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.483 of 2016

  In the matter of an Appeal under Section 374(2) of the Code of
  Criminal Procedure, 1973 and from the judgment of conviction
  and order of sentence dated 17th August, 2016 passed by the
  learned Sessions Judge, Mayurbhanj, in S.T. Case No.63 of 2014.
                                     ----

      Dhiren Dalei &                          ....        Appellants
      Dillip Dalei

                                 -versus-

      State of Odisha                         ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

              For Appellants     -        Mr.Niranjan Lenka
                                          (Advocate)

              For Respondent -            Mr.S.K. Nayak,
                                          Additional Government Counsel
  CORAM:
  MR. JUSTICE D.DASH
  DR. JUSTICE S.K. PANIGRAHI

  Date of Hearing : 21.07.2023        :     Date of Judgment:28.08.2023

D.Dash,J.     The Appellants, by filing this Appeal, has called in

question the judgment of conviction and order of sentence dated

17th August, 2016 passed by the learned Sessions Judge,

Mayurbhanj, Baripada in S.T. Case No.63 of 2014 arising out of

G.R. Case No.425 of 2013 corresponding to Kaptipada P.S. Case

CRLA No.483 of 2016 {{ 2 }}

No.130 of 2013 of the Court of the learned Sub-Divisional Judicial

Magistrate (S.D.J.M.), Udala.

The Appellants (accused persons) thereunder have been

convicted for committing the offence under section 302/34 of the

Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, they

have been sentenced to undergo imprisonment for life and pay

fine of Rs.10,000/- (Rupees Ten Thousand) each in default to

undergo rigorous imprisonment for one (1) year for the said

offence.

2. Prosecution Case:-

On 04.11.2013, one Rasa Biswal (P.W.3), in the absence of

the Officer-in-Charge of Kaptipada Police Station, presented a

written report before the Assistant Sub-Inspector of Police (ASI-

P.W.11) of said Police Station. It is stated therein that on

17.10.2013 morning around 9.00 a.m., the accused persons were

chasing the bull on the village road and then Narendra, who is

the son of Rasa told them as to why they were chasing the bull

towards that side instead of somewhere-else as the bull would

damage then paddy crops grown by them. Hearing this from

Narendra, accused Dillip abused him in obscene language by

saying <SALA MAGIA99 and thereafter, it is said that accused

Dhiren, who is the father of accused Dillip, assaulted the

deceased brutally by giving kicks, slaps and fist blows and by

means of a wooden plank. It is further stated that Narendra,

CRLA No.483 of 2016 {{ 3 }}

receiving the injuries, lost his sense and with the help of villagers,

was shifted to the Sub-Divisional Hospital at Udala wherefrom

he was shifted to S.C.B. Medical College & Hospital, Cuttack

being so advised by the Doctor for better treatment. The in-charge

OIC, having received the said written report (Ext.4), treated the

same as FIR and registering the case, directed A.S.I. (P.W.11) to

take up investigation.

In course of investigation, the Investigating Officer (I.O.-

P.W.11) examined the informant (P.W.3) and then proceeded to

the spot and prepared the spot map (Ext.5). He also examined

other witnesses and seized incriminating articles including the

wooden plank on production by the accused Dhiren under

seizure list. On 05.11.2013, he arrested the accused persons and

forwarded them in custody to Court. He then on 08.11.2013

received information from the I.I.C., Mangalabag P.S. that

Narendra met his death during his treatment in S.C.B Medical

College & Hospital. He, having earlier issued requisition to the

Medical Officer of Sub-Divisional Hospital, Udala Hospital,

received the injury report. Thereafter, another police officer

(P.W.13) took charge of investigation from P.W.11 by the order of

the Superintendent of Police, Mayurbhanj. He collected all those

papers including the post mortem report of the U.D. Case

registered at Mangalabag P.S. on account of death of Narendra

while undergoing treatment there. On 08.11.2014, that I.O.

CRLA No.483 of 2016 {{ 4 }}

(P.W.13), being transferred, he handed over the investigation of

the case to P.W.9, who was then the OIC of the P.S, who,

completion of the investigation, submitted the Final Form placing

the accused persons to face the Trial for commission of offence

under section 302/34 of the IPC.

3. Learned S.D.J.M., Udala, on receipt of above Final Form,

took cognizance of the said offences and after observing all the

formalities, committed the case to the Court of Sessions. That is

how the Trial commenced by framing the charge for the aforesaid

offences against this accused persons.

4. The defence has not tendered any evidence in support of

the plea of denial and false implication.

5. Mr.N.Lenka, learned Counsel for the Appellants (accused

persons), from the very beginning, without questioning the

finding of the Trial Court that Narendra met a homicidal death,

contended that even accepting the prosecution version, as

presented through the evidence tender during trial, taking into

account all the surrounding circumstances such as the reason for

which the trouble started so suddenly and for the role played by

thee accused persons as well as the act done by them when the

death of the deceased has taken place after seventeen days of the

incident in course of treatment, they ought not to have been

convicted for commission of offence under section 302 of the IPC

CRLA No.483 of 2016 {{ 5 }}

and instead, ought to have been convicted for commission of

offence under section 304-I of the IPC. He, therefore, urged that

altercation of conviction of the accused persons to under under

section 304-I of the IPC and for imposition of appropriate

sentence.

6. Mr.S.K.Nayak, learned Additional Government Advocate

for the Respondent-State, placing the evidence of the informant

(P.W.3) and the other eye witnesses (P.W.4) as well as that of the

Doctor (P.W.12), who had conducted the post mortem

examination over the dead body of the deceased, submitted that

for the role played by the accused persons and the overt act done

by them upon Narendra (deceased), the Trial Court has rightly

held them guilty for commission of offence under section 302 of

the IPC.

7. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

from the side of the prosecution as P.Ws.1 to 13 and have perused

the documents admitted in evidence marked as Exts.1 to 9.

8. The informant (P.W.3), in her FIR (Ext.4) has in a general

manner, stated that when the accused Dillip was chasing one bull

on the road, her son Narendra stated as to why he was so driving

the bull towards their area as thereby the bull would damage

CRLA No.483 of 2016 {{ 6 }}

their paddy crop. It has further been indicated in the FIR (Ext.4)

that accused Dillip then got enraged and having abused

Narendra, he, with his father began to assault Narendra

mercilessly by means of split wood and by giving kicks, fist

blows and slaps and then thrashed him on the ground. In her

evidence, she has stated that at the relevant time, she saw the

accused persons driving the bull towards their village and when

her son Narendra told them to drive the bull to another side, the

accused persons assaulted him and then thrashed him on the

ground. The wife of the deceased (P.W.4) has, however, stated

that she had seen the accused persons quarreling with her

husband Narendra and then accused Dhiren assaulted Narendra

by means of a wooden plank and she further states that accused

Dillip also assaulted and then both of them thrashed Narendra on

the ground whereafter he lost his sense. It has also been stated

during cross-examination that accused Dillip assaulted Narendra

by giving fist blows. So, it appears that there was no prior

planning for the incident and it happened all of a sudden when

the accused persons are said to have been chasing the bull on the

road by the side of the house of the deceased and it was only

when deceased asked them to drive the bull towards another

side, a quarrel ensued. It is not stated as to whether the accused

persons were chasing the bull holding the split wood or lathi

whatever we may say. The death, in the case, has taken place

CRLA No.483 of 2016 {{ 7 }}

seventeen days after the incident when the deceased was

undergoing treatment at S.C.B. Medical College & Hospital,

Cuttack. It is the evidence of the Doctor (P.W.10), who had first

examined the deceased that he had noted a hematoma on the

occipital region. The Doctor (P.W.12), who had conducted

autopsy over the dead body of the deceased says to have noticed

multiple abrasions on the left side front of his chest and circular

shaped surgical hole of the size of 0.5 cm diameter each present

on scalp at both side temporal area. According to him, the cause

of death was due to complications arising out of injury to the

spinal cord at the level of C-4 and C-5. The accused persons as

well as the deceased hail from rural background and are the

members of Scheduled Tribe. Judicial notice can be taken of the

fact that ordinarily their temper run high and for silly reason,

they too may a time exhibit the behaviour and response which is

not ordinarily expected.

9. Taking a cumulative view of all these above circumstances

appearing in the evidence, as discussed; we are of the view that

the offence could be properly categorized as one punishable

under section 304-I of the IPC. We are thus of the considered

opinion that for the role played by the accused persons and the

act done, they would be liable for conviction under section 304-I

of the IPC.

CRLA No.483 of 2016 {{ 8 }}

10. In that view of the matter, this Court, alters the conviction

under section 302 of the IPC to one under section 304-I of the IPC.

Consequently, the Appellants (accused persons) are sentenced to

undergo rigorous imprisonment for a period of ten (10) years for

the said offence.

11. With the above modification as to the judgment of

conviction and order of sentence dated 17th August, 2016 passed

by the learned Sessions Judge, Mayurbhanj, in S.T. Case No.63 of

2014, the Appeal stands disposed of.

Since both the accused persons, namely, Dhiren Dalei and

Dillip Dalei are on bail, the Trial Court is directed to take further

necessary steps in accordance with law so that the accused

persons served out the sentence, as has been awarded

hereinabove.

(D. Dash), Judge.

Dr.S.K. Panigrahi, J. I Agree.

(Dr.S.K. Panigrahi), Judge.

Signature Not Verified Digitally Signed Basu NAYAK Signed by: BASUDEV Reason: Authentication Location: OHC Date: 29-Aug-2023 14:14:45

CRLA No.483 of 2016