Orissa High Court
Sidheswar Pradhan 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.340 of 2011
(An appeal U/S. 374(2) of the Code of Criminal
Procedure, 1973 against the judgment passed by Shri
G.C. Panigrahi, Addl. Sessions Judge, Deogarh in S.T.
No.42 of 2009 corresponding to C.T. Case No. 32 of
2009, arising out of Deogarh PS Case No. 11 of 2009 of
the Court of SDJM, Deogarh)
Sidheswar Pradhan ... Appellant
-versus-
State of Orissa ... Respondent
For Appellant : Mr.A. Sahoo,Advocate
For Respondent : Mr.P.K. Mohanty, ASC
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :06.10.2023
DATE OF JUDGMENT:04.12.2023
G. Satapathy, J.
1. This appeal U/S. 374(2) of the Cr.P.C. by the
convict assails the judgment of conviction and order of
sentence passed on 25.11.2010 by learned Additional
Sessions Judge, Deogarh in S.T. Case No. 42 of 2009
convicting the Appellant for commission of offence
punishable U/S. 302 of IPC and sentencing him to the
punishment of rigorous imprisonment for life with fine of
Rs. 10,000/- in default whereof, to undergo rigorous
imprisonment for a further period of six months with
stipulation of setting up the pre trial detention against the
substantive sentence.
2. The prosecution case in short was, on
13.01.2009 at about 7:30pm while Nilamani Pradhan
(hereinafter referred to as the "deceased") was sleeping
on a cot in the house of his grandson PW1 Pratap Kumar
Pradhan, the convict Sidheswar Pradhan who is another
grandson of the deceased entered inside the house and
demanded some money from the deceased who replied to
have no money and told as to where from he would bring
money, to which the convict being annoyed, pull down
the deceased from the cot and broke down his both legs
by assaulting with a bamboo stick. The above incident
was witnessed by the mother, sister and cousin of the
PW1 who with much difficulty rescued the deceased by
bolting the door from inside and thereafter, shifted the
deceased to DHH, Deogarh by a Rickshaw, but the
deceased succumbed to injury on the next date at
9:30am in the morning.
3. After the death of the deceased, on 14.01.2009
at about 10am, PW 1 lodged an FIR against the convict
under Ext.1 before the IIC, Deogarh who registered
Deogarh PS Case No. 11 of 2009 for commission of
offence punishable U/S. 302 of IPC and directed SI of
Police PW 11 M.R. Pradhan to investigate the matter.
Accordingly, PW 11 in the course of investigation
examined the informant and other witnesses, conducted
inquest over the dead body under Ext.2 and sent the
dead body for Post Mortem Examination. PW 11 also
arrested the convict at about 1:00pm on 14.01.2009 and
seized the weapon of offence i.e. one bamboo stick vide
seizure list Ext.3. PW 11 also seized the wearing apparels
and blood sample of the deceased under Ext.9 as well as
seized the wearing apparels of the convict as well as his
nail clippings under Ext.10. As usual on conclusion of
investigation, the charge-sheet was submitted against the
convict for offence U/S.302 of IPC under which
cognizance was taken and the case of the convict was
committed to the Court of Sessions where the convict
faced the trial after denying to the charge.
4. In the course of trial, the plea of the convict
was of complete denial of the occurrence.
5. In support of the charge, the prosecution
examined altogether 11 witnesses and proved 10
documents vide Ext. 1 to 10 as well as identified five
material objects vide MO I to V as against no evidence
whatsoever by the defence.
6. After appreciating the evidence on record upon
hearing the parties, the learned Additional Sessions
Judge, Deogarh convicted the Appellant by mainly relying
upon the evidence of PW Nos. 3, 6 and 7.
7. Mr. A. Sahoo, learned counsel for the Appellant
at the inception has submitted not on merit, but only to
persuade this Court to alter the conviction of the
Appellant for the offence punishable U/S. 302 of IPC to
304-II IPC and for reduction of the sentence accordingly.
It is, accordingly, submitted by the learned counsel for
the Appellant that considering the manner in which
incident had occurred and the role attributed to the
Appellant, the conviction of the Appellant deserves to be
altered. According to Mr. Sahoo, the case does not fall
within the first clause of Section 300 of IPC and all that
can be attributed to the Appellant to "his knowledge, but
not intention".
8. On the other hand, Mr. P.K. Mohanty, learned
ASC has submitted that the learned trial Court has rightly
held the Appellant guilty of offence punishable U/S. 302
of IPC since the act of the Appellant does not fall any of
the exception to Section 300 of IPC so as to make him
liable for culpable homicide not amounting to murder. It
is, accordingly, prayed by Mr. P.K. Mohanty to dismiss the
appeal.
9. After having bestowed an anxious consideration
to the rival submissions and on going through the
impugned judgment of conviction keeping in view the
evidence available on record, the moot question that
arises out for consideration is whether the conviction of
the Appellant for offence U/S. 302 of IPC is liable to be
altered to one U/S. 304-I or II of IPC since the Appellant
has made a limited prayer for alteration of his conviction
and reduction in sentence. A careful and meticulous
scrutiny of evidence on record including the evidence of
PW Nos.3, 6 and 7, indisputably it appears that the
Appellant demanded money from the deceased, but when
the later replied to have no money with him, the
Appellant assaulted the deceased by means of bamboo
lathi on the legs of the deceased causing fracture. In
addition, it transpires from the evidence of PW No.7 that
the Appellant had also dragged the deceased while he
was sleeping on a cot and made the deceased fall on the
ground before assaulting.
10. In the above situation, the evidence of Doctor
would throw some more light to find out as to whether
the Appellant was having requisite intention to kill the
deceased or the knowledge of the Appellant as to his act
likely to cause death. In this case, the Doctor PW8 had
conducted autopsy over the dead body and in his
evidence, PW8 had found two lacerated wound with bone
deep on the left leg and right knee as external injuries,
but he further testified to have noticed fracture of left &
right "tibia and fibula" bones as well as fracture of left
second and third ridge and rupture of legs vessels. The
cause of death of the deceased was opined by PW8 to be
on account of shock due to injuries of leg bones and
vessels. Further, PW8 had also answered to the query
about possibility of injuries by split bamboo lathi
produced before him in affirmatively.
11. Since only argument canvassed before this
Court is that the act of the Appellant was at best can be
considered to be culpable homicide not amounting to
murder, it would be appropriate to see as to whether the
act of the Appellant squarely false within the scope or
ambit of third clause of Section 299 of IPC which speaks
of the knowledge of the offender that he is likely by such
act to cause death, but had no intention to kill the
deceased. There is a fine distinction between intention
and knowledge. In arriving at finding whether the
offender was having requisite intention or knowledge, it
can be inferred from various facts and circumstance, like
the nature of weapon used, the seat of assault, the
nature of injuries caused, the circumstance preceding to
the assault, the weapon used was carried or not and the
manner of weapon used etc which are not exhaustive, but
selective few.
12. In the present case at hand, the admission of
Doctor in cross-examination that no external injury was
found on the person of the deceased above the knees
and the age of the deceased was about 105 years at the
relevant time of death and the injuries might be possible
due to fall from a reasonable height are indicative of the
fact that the Appellant was not having any intention to
cause death which get supports from the evidence of PW6
that the Appellant dragged the deceased from the cot and
made him to fall on the ground. The above circumstance
of evidence makes it more favourable to the Appellant
while deducing his intention to cause death of the
deceased when it is admittedly found from the evidence
on record that he was not carrying any weapon of offence
i.e. bamboo lathi herein. Besides, the evidence also
suggests that the deceased was immediately taken to
hospital where he died while undergoing treatment on the
next day of occurrence. There is also absolutely no
evidence to indicate that the Appellant was having any
intention to cause such bodily injury as his likely to cause
death, but certainly he can be attributed with knowledge
that the injuries inflicted by him to the deceased was
likely to cause death of the later. Had there been any
intention on the part of the Appellant, he could have
assaulted the deceased on his head, but that being not
so, it would be inappropriate to attribute intention of the
Appellant to commit murder of the deceased
13. Albeit, the learned trial Court had come to a
finding that the Appellant had killed the deceased, but it
has not directed itself to find out as to whether the act of
the Appellant in killing the deceased would come under
any of the exception to Sec. 300 of IPC which speaks of
culpable homicide not amounting to murder and such act
of the Appellant would make him liable for offence U/S.
304-I or II of IPC. The narration and discussion of
evidence in the preceding paragraph coupled with
analysis of evidence on record, this Court is of the
considered view that since the deceased was a
centenarian and he was found to have been assaulted by
the Appellant on his legs causing fracture and he being
dragged by the Appellant, the act of the Appellant in
killing the deceased would come U/S. 304-II of IPC and
this Court, therefore, altered the conviction of the
Appellant to one U/S. 304-II of the IPC. It appears from
the genesis of the case that the Appellant being a poor
person and had faced the trial in custody and he
remained in the custody w.e.f. the date of his arrest on
14.01.2009 till he was released on bail pursuant to an
order passed by this Court on 18.04.2017. Thus, the
Appellant is, accordingly, sentenced to the period already
undergone for offence U/S. 304-II of IPC, but taking into
consideration his poverty, no separate sentence of fine is
awarded to the Appellant.
14. In the result, the appeal is allowed in part to
the extent as indicated above. The judgment of conviction
and order of sentence passed by learned Additional
Sessions Judge, Deogarh in S.T. Case No. 42 of 2009 are
accordingly modified to the extent indicated in the
preceding paragraph.
(G. Satapathy)
Judge
I Agree
(D.Dash)
Judge
Signed by: PRIYAJIT SAHOO Orissa High Court, Cuttack,
Designation: Jr. Stenographer Dated the 4th day of December, 2023/Priyajit
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 05-Dec-2023 18:02:11
