Orissa High Court
Jalandhar Samal vs State Of Orissa on 4 December, 2023
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.98 of 2012
(An appeal U/S.383 of the Code of Criminal Procedure,
1973 against the judgment passed by Smt. Madhumita
Das, Additional District and Sessions Judge, First Track
Court, Jagatsinghpur in ST No.86 of 2011(CT48/11)
corresponding to G.R. case no. 12 of 2011 arising out
of Biridi PS Case No.2 of 2011 of the Court of SDJM,
Jagatsinghpur)
Jalandhar Samal ... Appellant
-versus-
State of Orissa ... Respondent
For Appellant : Mr. R.N. Nayak, Amicus Curiae
For Respondent : Mr. P.K. Mohanty, ASC
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :16.10.2023
DATE OF JUDGMENT:04.12.2023
G. Satapathy, J.
1. This appeal is directed against the judgment of
conviction and order of sentence passed on 16.11.2012
by the learned Additional Sessions Judge, First Track
Court, Jagatsinghpur in ST No.86 of 2011 convicting the
appellant for committing offences U/Ss.302/323 of IPC
and sentencing him to undergo imprisonment for life with
fine of Rs.10,000/- in default whereof, to undergo
imprisonment for further one year for offence U/S.302 of
IPC and further, to undergo Rigorous Imprisonment (RI)
for six months for offence U/S.323 of IPC with stipulation
of running of sentences concurrently.
An overview of prosecution case
2. On 09.01.2011 at about 7 AM in the morning
while one Bishnu Charan Samal(hereinafter referred to as
the 'deceased') was sitting in front of his courtyard of his
house in village Sadeikana, his younger son Jalandhar
Samal (hereinafter referred to as the 'convict') hit to his
head by means of an iron hammer, as a result, the
deceased died at the spot. The incident occurred on
account of household quarrel and when the mother of the
convict protested, the convict pushed her causing
swelling injury to her left eye.
On this incident, PW3-Dibakar Samal who is the
nephew of the deceased lodged an FIR against the
convict vide Ext.3 before the in-charge, Biridi Police
Station and, accordingly, Biridi PS Case No.2 of 2011 was
registered for offences U/Ss.302/323 of IPC. The matter
was accordingly, investigated into and charge-sheet was
placed against the convict for commission of offences
punishable U/Ss.302/323 of IPC for committing patricide
and causing hurt to his mother.
3. Finding prima facie case, cognizance was taken
for offences U/Ss.302/323 of IPC and the convict was
sent to trial when he denied to the charge for offences
U/Ss.302/323 of IPC.
4. In support of the charge, the prosecution
examined altogether 11 witnesses and proved 15
documents under Exts.1 to 15 as against no evidence
whatsoever by the defence. Of the witnesses, PW3 is the
informant, whereas PW4 is the mother of the convict and
wife of the deceased as well as an eye witness to the
occurrence, PW1 is the doctor who conducted PM
examination over the dead body of the deceased, PW10 is
the IO, PWs.2 and 5 are the witnesses to extra judicial
confession of the convict, PWs.6, 7 and 8 are the seizure
witnesses and lastly, PW11 is the witness to the
disclosure statement of the convict.
5. The plea of the convict in the course of trial was
one of complete denial.
6. After appreciating the evidence on record upon
hearing the parties, the learned trial Court came to a
conclusion that the deceased suffered a homicidal death
and the convict was responsible for such death of his
father as well as was also responsible for causing simple
hurt to his mother. Learned trial Court accordingly,
convicted the appellant for offences punishable
U/Ss.302/323 of IPC and sentenced him to the
punishment indicated supra.
Rival Submissions
7. Mr. R.N. Nayak, learned Amicus Curiae at the
outset has submitted that he is not arguing the appeal on
merits, rather he is arguing to persuade this Court to
alter the conviction of the appellant from Sec. 302 of IPC
to Section.304 Part-I of the IPC and reduction in the
sentence. Mr. Nayak, accordingly, has submitted that
considering the manner in which the incident had
occurred and the role attributed to the appellant, the
conviction of the appellant deserves to be altered from
Sec.302 of IPC to Sec.304 Part-I of the IPC and thereby,
the sentence of the convict may kindly be reduced to the
period already undergone.
8. On the other hand, Mr. P.K. Mohanty, learned
ASC has, however, submitted that the learned trial Court
has not committed any illegality or perversity in
convicting the appellant for offence U/S.302 of IPC as
well as 323 of IPC since the prosecution has established
its case beyond all reasonable doubt against the appellant
for committing patricide and the act of the appellant
squarely falls within the firstly clause to Section 300 of
IPC and hence, no exception to Section 300 of IPC is
attracted in this case and, thereby, the convict having
been rightly convicted for offence U/Ss.302/323 of IPC,
the present appeal merits no consideration. Mr. P.K.
Mohanty, accordingly, has prayed to dismiss the appeal.
Analysis of law and evidence
9. After having considered the rival submissions
upon perusal of record including the impugned judgment,
this Court considers that the only question falls for
consideration is whether the conviction of the appellant
herein for offence punishable U/S.302 of IPC is required
to be altered to Section 304 Part-I or Part-II of the IPC.
10. Since the evidence on record clearly depicts the
details of occurrence and the role attributed to the
appellant, there appears no dispute that the deceased
had suffered a homicidal death which is, however,
evident from the external injuries as noticed in the PM
report by Doctor-PW1, which reads as under:
External Injury
(i) A lacerated injury of size 1" x ½" present on
right side of the forehead with fracture of
frontal bone.
(ii) Lacerated injury size 1" x ½" present over
right malar eminence on right cheek with
fracture of the bone.
Further, PW1 had, accordingly, opined in his
evidence that the injuries were ante mortem in nature
and sufficient to cause death of a person in ordinary
course of nature and cause of death was due to
haemorrhage and shock due to the injury to the brain.
PW1 had further answered to the query of the IO as to
the possibility of the injury by the said weapon of
offences i.e. an iron hammer on police requisition by a
report under Ext.2, where he affirmatively answered that
the injuries to the deceased may be caused by this
hammer. It, therefore, clearly found from the medical
evidence that the deceased died of injuries which were
possible by the said weapon of offence "hammer".
11. On coming back to the evidence of eye witness-
PW4, it transpired that the deceased was her husband
and the convict is his younger son and prior to the
occurrence, there was quarrel between the deceased and
convict and the convict dealt blows by means of a
hammer on the head and near the ear of the deceased,
as a result, the deceased struggled with his life and died.
Additionally, the hammer which was seized by the IO was
sent for chemical examination, but it was found stained
with human blood as per the chemical examination report
vide Ext.15. It is, therefore, very clear from the evidence
that the deceased died due to assault by the convict with
said "hammer".
12. Adverting to the contention of the convict-
appellant for alteration of conviction for offence U/S.304
Part-I of IPC, it unambiguously appears from the
evidence that there was a quarrel between the father
(deceased) and his son (convict) prior to the occurrence
and the convict was not carrying the "hammer" to the
place of occurrence, rather the evidence suggests that in
the course of quarrel, the convict dealt blow by means of
said weapon of offence "hammer", but it is not forth
coming from the evidence of PW4 as to how many blows
the convict had given to the deceased and the cross
examination of the Doctor reveals that injury No.i and ii
can be possible if somebody would fall from a sufficient
height and dashed against a hard and blunt object.
Although, the learned trial Court has come to a
conclusion that the deceased died due to assault of the
convict, but it has not directed itself as to whether the act
of the convict squarely falls on any of the exception to
Section 300 of IPC and it simply arrived at a conclusion
that the convict committed murder of his father, but the
evidence clearly suggests that the convict was not having
any requisite intention to murder the deceased as he had
never carried any weapon of offence, rather the
occurrence had taken place in a spur of moment without
any premeditation pursuant to a quarrel and, thereby, the
act of the convict squarely falls under exception 4 to
Section 300 of IPC which speaks "culpable homicide is not
murder, if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel
and without the offender having taken undue advantage
or acted in a cruel or unusual manner".
13. Admittedly, there is a thin line of difference
between Section 304 Part-I and 304 Part-II of the IPC. In
former, the intention of the offender is relevant, whereas
in the later, knowledge of the offender as to his act is
relevant. In this case, the appellant, of course, was found
not to have any intention to kill the deceased, but the act
of hitting the deceased by means of hammer itself reveals
the intention of convict to cause such bodily injury as it
likely to cause death of the deceased since a blow by
hammer on the head of the person with force can
definitely cause death of said person and the Doctor has
also opined in this case that the injuries to the deceased
were sufficient to cause death of a person in ordinary
course of nature. In the ultimate analysis of evidence on
record, this Court feels that the thin line of the difference
as exists between Section 304 Part-I and Part-II of IPC
cannot be favourably extended to the appellant, rather
the act of the appellant could be categorized as an
offence U/S.304 of Part-I of IPC which is punishable with
"imprisonment for life" or imprisonment of either
description for a term which may extend to "ten years".
14. In this case, the appellant was in custody
during trial and his case was conducted by a State
Defence Counsel and he is all along in custody after his
conviction and the appeal was filed with the aid of High
Court Legal Services Committee and at the time of his
conviction, the convict-appellant was aged about 38
years and in the meantime, around 12 years have
elapsed and, thereby, the age of the convict-appellant
would be 50 years right now. In such circumstance, this
Court by taking into consideration the status of the
convict-appellant considers it appropriate to sentence him
to undergo Rigorous Imprisonment for a period of ten
years with fine of Rs.1,000/- in default whereof, to
undergo Rigorous Imprisonment for three months for 304
Part-I of IPC. Further, this Court does not feel it proper to
award any separate sentence to the appellant-convict for
offence U/S.323 of IPC.
15. In the result, the appeal is allowed in part.
Consequently, the judgment of conviction and order of
sentence passed by the learned Additional District and
Sessions Judge, First Track Court, Jagatsingpur in ST
No.86 of 2011 (CT No.48 of 2011) are modified to the
extent indicated above.
(G. Satapathy)
Judge
I Agree
(D.Dash)
Judge
Orissa High Court, Cuttack,
Dated the 4th day of December, 2023/Subhasmita
Location: High Court of Orissa
