Birsa Kujur vs State Of Orissa
2023 Latest Caselaw 15449 Ori

Orissa High Court

Birsa Kujur vs State Of Orissa on 4 December, 2023

Author: G. Satapathy

Bench: D. Dash, G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                  CRLA No.89 of 2012
(An appeal U/S. 374(2) of the Code of Criminal
Procedure against the judgment passed by Shri
A.C.Behera, Adhoc Addl. Sessions Judge, Sundargarh in
S.T. No.141/33 of 2011 corresponding to G.R. Case No.
129 of 2011, arising out of Rajgangpur PS Case No. 62 of
2011 of the Court of JMFC, Rajgangpur)

  Birsa Kujur                  ...             Appellant
                             -versus-
  State of Orissa              ...              Respondent

     For Appellant :        Mr.B.R.Dalai, Advocate
     For Respondent:        Mr.S.N.Das, ASC.

       CORAM:
          HON'BLE MR. JUSTICE D. DASH
          HON'BLE MR. JUSTICE G. SATAPATHY

                     DATE OF HEARING :10.10.2023
                     DATE OF JUDGMENT:04.12.2023

G. Satapathy, J.

1. This appeal by convict Bisra Kujur assails his

conviction for offence U/S. 302 of IPC and sentence of life

imprisonment with payment of fine of Rs.3,000/- in

default whereof, to undergo rigorous imprisonment for

further six months in a judgment passed on 25.10.2011

by learned Adhoc Additional Sessions Judge, Sundargarh

in S.T. No. 141/33 of 2011.

2. The prosecution case in brief is, on 20.04.2011

at about 5 P.M. while Samara Kujur of village

Ranipia(Sangapani) (hereinafter referred to as deceased)

was first asleep on a cot on the verandah of his house,

the convict came there being armed with a sal lathi and

assaulted the deceased by giving successful blows on his

head, neck and outer parts of his body resulting in his

instantaneous death and the convict went away from

there by throwing the lathi, but the incident was

witnessed by the wife of deceased P.W.2-Jauri Kujur on

whose commotion others reached to the spot and P.W.1-

Kumari Geeta Kujur disclosed them about the incident.

3. On the above incident on the same day at

about 10.30 P.M., P.W.1-Geeta Kujur(daughter of the

deceased) lodged an FIR against the convict by Ext.1

before the IIC, Rajgangpur Police Station who registered

P.S. Case No. 62 of 2011 for offence U/S. 302 of IPC and

entrusted the investigation to SI of Police P.W.6-Saroj

Kanta Samal who examined the witnesses including the

informant and recorded their statement, held inquest

over the dead body vide Ext.2, prepared the spot map

under Ext.10 and dispatched the dead body to

Government Hospital, Rajgangpur for post mortem

examination and seized the lathi stained with blood along

with sample & blood stained earth under seizure list

Ext.3. P.W.6 also arrested the convict and seized his

wearing apparels under Ext.5 so also the wearing

apparels of the deceased under Ext.4 and got the nail

clippings and blood sample of the convict collected and

seized the same under Ext.6. P.W.6 also dispatched the

aforesaid seized articles including the wearing apparels of

the convict and sal lathi to RFSL, Sambalpur for chemical

examination. This is how P.W.6 conducted investigation

and on completion of investigation, he submitted charge

sheet against the convict for offence punishable U/S. 302

of IPC, resulting in taking cognizance for said offence by

learned Magistrate and thereafter, the trial ensued in the

present case after denial of the convict to the charge of

murder.

4. In support of its charge, the prosecution

examined altogether six witnesses and relied upon the

documents Exts. 1 to 12 as against no evidence

whatsoever by the defence. Of the witnesses examined,

P.W.1 is the informant, whereas P.W.2 is the wife of the

deceased, P.W.3 a co-villager and P.W.4 a Constable are

the seizure witnesses, P.W.5 is the doctor who conducted

autopsy over the dead body of deceased and lastly P.W.6

is the IO.

5. In the course of trial, the plea of the convict

was denial simpliciter and false implication with ignorance

of the crime. After appreciating the evidence upon

hearing the parties, the learned Adhoc Additional

Sessions Judge, Sundargarh convicted the appellant for

offence U/s. 302 of IPC by mainly relying upon the

evidence of daughter and wife of the deceased examined

as P.Ws. 1 and 2.

6. In assailing the impugned judgment of

conviction and sentence, the learned counsel for the

appellant has submitted that although the learned trial

Court has believed the evidence of P.Ws.1 and 2, but

P.W.1 is a post occurrence witness, whereas it would not

be safe to believe the version of P.W.2 as a eye witness

because she had stated in examination-in-chief that the

convict dealt two blows to her husband, but admitted in

cross-examination that convict had given four to six

blows to her husband which assumes great significance

when the doctor P.W.5 specifically stated to have only

seen one injury on the head of the deceased. While

summing up his argument, learned counsel for the

appellant has further submitted that in view of the

aforesaid evidence, P.W.2 cannot be believed and thereby

benefit of doubt ought to be extended to the appellant

and thereby, the appellant be acquitted of the charge by

setting aside the impugned judgment of conviction and

order of sentence. However, learned counsel for the

appellant by taking through this Court to the evidence of

doctor has alternatively prayed to modify the conviction

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

sentence of the convict to the period already undergone.

In reply, Mr. S.N.Das, learned ASC has

submitted that in a true case, there may be little bit of

exaggeration in the evidence of witnesses on account of

lapse of time and the pain for losing a nearest one, but

the evidence of P.W.2 in this case having not impeached

by the defence, the conviction of the appellant cannot be

questioned. Accordingly, the learned counsel for the State

has prayed to dismiss the appeal. Moreover, learned ASC

without further conceding has submitted that the

conviction of the appellant being on touchstone of legal

parameter cannot be altered or modified.

7. At the outset, it is noticed that there is no

direct evidence except the evidence of eye witness

account of P.W.2, who is the wife of the deceased, but it

would be fallacious to reject her evidence enbloc merely

because of her status as the wife of deceased unless her

evidence is impeached to the effect that she had not seen

the incident. True it is that P.W.2 had admitted in cross-

examination that the convict had given four to six blows

on her husband, but she could only see two blows and

thus, the aforesaid evidence may not be fatal to the

prosecution case to disbelieve the version of P.W.2 who

has stated in her examination-in- chief that she saw that

the convict assaulted her husband sleeping on a cot

through a "sal lathi" on the back side of head and neck

and her husband sustained injuries and expired

instantaneously on the bed.

8. Admittedly, P.W.1 is a post occurrence witness

and her evidence transpired that she and her three

sisters and brother were in the garden nearer to their

house at the time of the occurrence and on the call of her

mother in loud voice, they all reached to their house by

running and found the convict running away from their

house throwing a lathi. Her evidence also transpired that

the accused had given blows on the back of head and

neck of the deceased and she lodged the F.I.R. vide Ext.1

on the same day in the night and thereby, there is no

delay in lodging of F.I.R. Although, P.Ws. 1 and 2 had

been cross-examined thoroughly, but no contradiction

was either elicited or proved to disbelieve their evidence.

9. On coming back to the evidence of Doctor-

P.W.5, it transpired that he had conducted postmortem

over the dead body of the deceased on Police requisition

and found one lacerated injury 1'' x 1/2'' over occipital

region bleeding from right ear. P.W.5 had also opined the

death of the deceased to be "homicidal" in nature and the

deceased was assaulted by hard and blunt object, which

had caused head injury on occipital region and

instantaneous death of the deceased. Further, P.W.5 had

affirmatively opined to the query of P.W.6 about the

possibility of injury by the lathi in Ext.9. The cross-

examination of P.W.5 did not yield anything for the

defence, rather it supported the prosecution case when it

was elicited from P.W.5 in cross-examination that the

injury found on the head of the deceased was not

possible otherwise than assault and the said injury may

be the outcome of one blow or more than that. It was

also elicited in the cross-examination of P.W.5 that the

weapon was stained with blood at one place.

10. A cumulative reappraisal of evidence on record

and a careful scrutiny of impugned judgment vis-a-vis the

evidence of material witnesses, which could not be

impeached by the defence in cross-examination and such

evidence lending assurance to one another, this Court is

quite convinced that the prosecution has established that

the deceased died a homicidal death due to assault of the

deceased on the relevant date and time of occurrence.

11. The next question that is required to be

answered on the alternative submission of the appellant

is whether the act of the convict falls within the

parameter of Section 304 of IPC and if so, which part of

Section 304 of IPC is attracted. In this regard, the final

opinion given by the doctor as to cause of death of the

deceased as evident from his evidence and Ext.7, the

postmortem report are very much relevant, but on

conjoint reading of evidence of P.W.5 & Ext.7, it appears

that the injury on the person of the deceased was a

brain-stem injury causing immediate collapse of the body

and the deceased was assaulted by hard and blunt object

which had caused head injury on occipital region and

imminent death of the deceased. The nature of death was

homicidal and the said injury can cause the death of a

person instantaneously in ordinary course of nature.

P.W.5 had admitted in cross-examination that the said

injury may be outcome of one blow or more than that,

but he had seen only one injury on the head of the

deceased.

12. On scrutiny of evidence of eye witness (P.W.2)

in the teeth of the aforesaid medical evidence on record,

it transpired that P.W.2, the wife of the deceased had

seen the convict assaulting her husband sleeping on a cot

through a "sal lathi" on the backside of his head and

neck, but she had not clarified in her evidence as to how

many blows dealt by the convict. However, her cross-

examination had yielded to have seen two blows out of

four to six blows given by the convict on her husband by

means of lathi which was at the door corner of their

house and the same belong to them. The aforesaid

evidence of P.W.2 would make it clear that the convict

had not come to their house being armed with any

weapon of offence which is clearly indicative of accused

not having any clear intention either to cause death of

the deceased or causing such bodily injury as is likely to

cause death of the deceased, but is the knowledge of the

convict to the consequence of the assault by means of

lathi on the head can be ruled out? And the answer would

be negative since knowledge of a person as to cause

death of a person by assaulting on his head with a lathi is

certain. At the same time, it is not disputed that both the

convict and deceased belong to lower-strata of the

society being tribal persons. Further, the motive behind

the crime is conspicuously absent in the evidence of

prosecution witnesses and the aforesaid situation,

especially when the deceased died of single injury due to

assault by the convict which the doctor had confirmed in

his evidence to be possible by one blow or more by the

weapon of offence, the benefit of Section 304 Part-II of

IPC can be extended to the appellant since the act of the

convict can be categorized for the said offence, but not

for Section 304 Part-I of IPC.

13. What would be the appropriate punishment to

the appellant for offence U/S 304 Part-II of IPC would

predominantly depends on his social and economic status

and other factors like education, occupation and

dependants of the convict etc. In this case, there is no

dispute that the convict belongs to lower strata of society

and he is a member of tribal community as well as he

was earning livelihood from cultivation and he would now

be nearer to 50 years. Besides, after release of the

convict on bail by this Court, no adverse report has been

received about the conduct of the convict. Additionally,

the convict was arrested on 21.04.2011 and faced the

trial in custody, but was subsequently granted bail by this

Court on 16.09.2014. In the aforesaid situation and

circumstance, this Court considers that the substantive

sentence of the appellant be reduced to the period

already undergone, but he has to pay the fine or

otherwise has to suffer default sentence as ordered by

the learned trial Court.

14. In the result, the appeal is allowed in part to

the extent indicated above. Consequently, the judgment

of conviction passed on 25.10.2011 by learned Ad-hoc

Additional Sessions Judge, Sundergarh in S.T. No. 141/33

of 2011 is hereby accordingly modified from Sec. 302 of

IPC to Sec. 304 Part-II of IPC and the appellant is

sentenced to the period already undergone with fine of

Rs.3,000/-, in default whereof, to undergo rigorous

imprisonment for further six months.

15. Since the appellant is on bail, in case he pays

the fine, his bail bonds shall stand discharged, failing

which the concerned Court shall issue appropriate

warrant to commit the appellant to custody to suffer the

default sentence.

(G. Satapathy) Judge

I Agree

(D.Dash) Judge

Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Kishore

Signed by: KISHORE KUMAR SAHOO

Location: High Court of Orissa Date: 05-Dec-2023 17:58:41