Purti Jhadia vs State Of Orissa
2023 Latest Caselaw 9193 Ori

    IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRA NO.80 of 1993

  (In the matter of application under Section 378(4) of
  the Code of Criminal Procedure, 1973.)

  Purti Jhadia                            ....     Appellant
                               -versus-

  State of Orissa                         ....   Respondent


  For Appellant            :         Mr. B. Pujari, Advocate


  For Respondent           :         Mr. P.K. Pattnaik, AGA

        CORAM:
                    JUSTICE G. SATAPATHY

                    DATE OF JUDGMENT: 14.08.2023


G. Satapathy, J.

1. The convict is in an appeal against the

judgment passed on 11.02.1993 by the learned

Session Judge, Koraput at Jeypore in Sessions Case

No. 86 of 1992 convicting the appellant for offence

punishable U/S. 304-II of the Indian Penal Code,

1860 (in short the 8IPC9) and sentencing him to

undergo Rigorous Imprisonment for three years with

benefit of set off U/S. 428 of Cr.P.C. as against the

substantive sentence. The learned trial Court by the

aforesaid judgment, however, acquitted the co-

accused Bhokoda @ Haldhar Jhadia and Ladi Jhadia.

2. The prosecution case in brief was on 23rd

January, 1992 (Thursday) at about 4 P.M., one Linga

Jhadia (hereinafter referred to as the 8deceased9)

while dancing in an inebriated condition in Pathar

Devi Festival, pushed one Guramani, the sister of

the accused Bhokoda @ Haldhar Jhadia and Ladi

Jhadia, as a result she fell down and her head struck

on a stone resulting in bleeding injury to her for

which, the accused Ladi Jhadia slapped the deceased

and thereafter, appellant Purti assaulted the

deceased by Lathi, whereas co-accused persons

assaulted the deceased by giving fist and kick blows.

Due to assault, the deceased fell down on the

ground sustaining bleeding injuries and he was

carried to his house by his sons and others. The

deceased, however, succumbed to injuries on

Sunday.

3. On this incident, a Panchayati meeting

was convened wherein the accused persons and

appellant admitted to have killed the deceased.

Accordingly, PW1 (Sitaram Jhadia) orally reported

the matter to the O.I.C., Kashipur, who registered

P.S. Case No.2 of 1992 and took up investigation, in

the course of which, he examined the witnesses,

seized the Lathi (MOI), got the autopsy done over

the dead body of the deceased. On conclusion of

investigation, PW7-O.I.C.(Kashipur), submitted a

charge sheet against three accused persons

including the appellant resulting in trial in the

present case.

4. In substantiation of its case, the

prosecution examined altogether eight witnesses

and relied upon documents under Ext.1 to 12 and

material object (MOI) as against the oral evidence of

four witnesses and two documents under Exts. A

and B.

5. The plea of the accused persons was one

of complete denial and false implication of the

charge.

6. After appreciating the evidence on record

upon hearing the parties, the learned trial Court by

the impugned judgment convicted the appellant and

sentenced him to punishment indicated supra, while

acquitting the co-accused persons.

7. A cursory glance of impugned judgment

would go to disclose that the learned trial Court

convicted the appellant by mainly relying upon the

following:

(i) The ocular evidence of PWs. 1 to 3 & 5.

(ii) The extra judicial confession of the accused made in the Panchayati.

(iii) The seizure of MOI on production by appellant.

(iv) The medical evidence.

8. For attracting the offence U/S. 304-II of

the IPC, the prosecution is obliged to establish that

even if the accused had no intention to cause such

bodily injury as was likely to cause death of the

deceased, but he had the knowledge that the injury

was likely to cause death of the deceased. Keeping

in mind the aforesaid ingredients of the offence, the

evidence led by the prosecution has to be

scrutinized. Indeed PW1 was projected as eye

witness to the occurrence, but his admission in para-

10 of the cross-examination relegated him to the

post occurrence witness as he was found stated to

have not seen the assault on the back of his father

(deceased). On the other hand, the evidence of

PWs.2 and 5 transpired that the appellant had

assaulted the deceased with a Lathi (MOI) on the

back of neck of the deceased, but the evidence of

Doctor (PW8) transpired no injury on the neck or

face of the deceased. The testimonies of PWs. 2 and

3 also revealed that they had not seen the assault

on PW1 but PW3 had spoken about the assault made

by the appellant with MOI on the deceased. The

testimony of PW5 also transpired that the appellant

dealt blow on the head of the deceased.

9. Admittedly, the evidence transpired that

the deceased was assaulted on Thursday and he

died on Sunday, but during Thursday to Sunday, the

deceased was absolutely in his house and he was

given one injection by a local Malaria Inspector on

Saturday morning and the deceased had not taken

any medicine for the injury sustained by him nor

was he treated by any Doctor during those days.

The cross-examination of PW1 disclosed that his

father had taken fermented rice water(Handia). The

prosecution evidence also transpired that the

deceased had pushed the aunt of the appellant, as a

result she fell down and received injury on her head

and thereafter, the appellant and co-accused

persons assaulted the deceased. It is to be kept in

mind that the appellant is a tribal person and no

clear knowledge can be attributed to him that any

assault by means of a single blow with a Lathi on

the deceased would cause death and there appears

no dispute that the deceased was in an inebriated

condition and was also the aggressor in this case

because he had pushed the aunt of the appellant to

the ground while dancing in the festival just before

the assault on him. However, the evidence on record

also transpired that the deceased was not provided

with any medical treatment save and except the

injection given to him by the Malaria Inspector as

noted above and thereby, the negligence in the

treatment of the deceased cannot be ruled out,

which in the circumstance assumes great

significance, particularly failure of the prosecution to

come up with convincing evidence that the deceased

had not died on account of negligence in treatment.

10. The testimony of PW8 also transpired that

the appellant had also sustained injury on the left

side of forehead which was simple. Besides, PW7

had also admitted in the cross-examination

<Guramani had made a station diary entry alleging

that Linga (deceased) had given a push to her

causing head injury and he had also sent her for

medical examination, but the allegation made by

Guramani did not reveal a cognizable case=. On the

other hand, the defence had examined one

Government Doctor as DW1, who had proved the

injury on Guramani Jhadia.

11. A careful perusal of the evidence of the

PWs.7 & 8 together with DW1, it can never be said

that the allegation made by Guramani did not reveal

a cognizable case and there appears to this Court

that the prosecution had not come up with clean

hand by revealing the true genesis of the case. On

the next aspect, it appears that after careful and

meticulous appreciation of the evidence, the learned

trial Court had given the benefit of doubt to co-

accused persons on the same set of evidence while

convicting the appellant for offence U/S. 304-II of

the IPC by taking into account the assault made on

the deceased by the appellant with a Lathi, but it

has already been found by this Court that the

prosecution had withheld some relevant facts in this

case by not explaining as to how the appellant

sustained injury as well as her aunt, who had

reported the matter to the IO-PW7 three days prior

to the F.I.R. lodged by PW1 in this case.

12. It is equally surprising that the learned

trial Court after considering the evidence of the

Doctor and the eye witnesses had returned with a

finding in the impugned judgment that the death of

the deceased was neither <natural= nor <accidental=,

but was homicidal, despite the Doctor(PW8) having

neither opined in Ext.10(PM Report) nor deposed in

his evidence the cause of death of the deceased to

be <homicidal= in nature. Nonetheless, the learned

trial Court had relied upon the extra-judicial

confession of the accused persons made before the

Panchayati, but it appears from the testimony of the

prosecution witnesses that such statement of the

accused persons before Panchayati, could not be

considered as an extra-judicial confession of the

accused persons, which was evident from the

evidence of PW2 as he stated <accused persons

came to Panchayati and told we killed, do whatever

you would like to do, go to the Police Station and

report=. The aforesaid piece of evidence by no

stretch of imagination can be held voluntary and

truthful; rather the same appears to be a statement

made by the accused persons on annoyance. The so

called extra-judicial confession of the accused

persons in the aforesaid situation pales into

insignificance.

13. Albeit, MOI was seized on production by

the appellant, but the same was lying near the place

of worship as stated by PW4 in his evidence and that

apart, it was never sent for chemical examination so

as to establish any connection of appellant with the

crime. In the aforesaid situation, especially when it

did not transpire from the evidence of PW8 that the

deceased suffered a homicidal death and the

deceased was having found remained in his house

without any proper treatment for a period of around

four days, except the injection administered to him

by the Malaria Inspector just one day before his

death, which assumes significance particularly when

the Malaria Inspector was not examined by the

prosecution, it cannot be considered that the

prosecution had established/proved that the

deceased suffered homicidal death, which in the

circumstances rendered the conviction of the

appellant for offence U/S. 304-II of the IPC as

unsustainable.

14. However, the prosecution had established

that the appellant had assaulted the deceased by

means of a Lathi on his head causing one injury to

his head and abrasion to the left knee and the

deceased at best can be considered to have died on

account of negligence in his treatment, but not by

the assault of the appellant which was not

established by the prosecution beyond all reasonable

doubt. Hence, the act of the appellant falls within

the ambit of Section 324 of IPC. Consequently, the

prosecution had found to have established the guilt

of the accused for offence U/S. 324 of IPC, but as

per the record, the appellant had already suffered

incarceration for a period of more than one and half

years together with the agony and rigmarole of the

trial and appeal for near about thirty years, which in

the circumstance is considered by this Court to be

sufficient punishment to the appellant.

15. In the result, the appeal is partly allowed

on contest, but in the circumstance, there is no

order as to costs. The conviction of the appellant is,

accordingly, modified to one U/S. 324 of IPC and he

is sentenced to the period already undergone by him

in this case. The appellant be discharged of his bail

bonds in this case.

(G. Satapathy) Judge

Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 14-Aug-2023 18:38:40

Orissa High Court, Cuttack, Dated the 14th day of August, 2023/S.Sasmal