Braja Majhi vs State Of Odisha
2023 Latest Caselaw 8030 Ori

                                                IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                            JCRLA No.13 of 2016

                                        (In the matter of an Appeal under Section 383 of the Code of
                                        Criminal Procedure, 1973 and from the judgment of conviction
                                        and order of sentence dated 5th December, 2015 passed by the
                                        learned Additional Sessions Judge, Dharamgarh, in C.T.
                                        (Sessions) No.57 of 2013.)

                                       Braja Majhi                               ....           Appellant
                                                                    -versus-
                                       State of Odisha                           ....         Respondent



                                       Advocates appeared in the case:
                                       For Appellant             :
                                                                      Mr. Sarat Chandra Mekap, Adv.
                                                                    -versus-

                                       For Respondent               :          Mr. Siti Kant Mishra, ASC



                                                        CORAM:
                                                        MR. JUSTICE D. DASH
                                                        DR. JUSTICE S.K. PANIGRAHI

                                                         DATE OF HEARING:-27.06.2023
                                                        DATE OF JUDGMENT:-24.07.2023

                           Dr. S.K. Panigrahi, J.

1. The Appellant, by filing this Appeal from inside the jail, has

called in question the judgment of conviction and the order of

sentence 5th December, 2015 passed by the learned Additional

Sessions Judge, Dharamgarh, in C.T. (Sessions) No.57 of 2013

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 1 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 arising out of G.R. Case No.242 of 2013 corresponding to

Junagarh P.S. Case No.90 of 2013 of the Court of the learned

Sub-Divisional Judicial Magistrate (S.D.J.M.), Dharamgarh.

2. The Appellant (accused) thereunder has been convicted for

committing the offences under section 341/302/452/323 of the

Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, he

has been sentenced to undergo imprisonment for life and pay

fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo

rigorous imprisonment for six (6) months for the offence under

section 302 of the IPC; rigorous imprisonment for one (1) year

and pay fine of Rs.1000/- (Rupees One Thousand) in default to

undergo rigorous imprisonment for the offence under section

452 of the IPC; and rigorous imprisonment for one (1) month for

the offence under section 323 of the IPC with further stipulations

that the substantive sentences would run concurrently and out

of the realized fine amount, a sum of Rs.1000/- (Rupees One

Thousand) be paid to the victim (P.W.3) as compensation.

I. CASE OF THE PROSECUTION:

3. On 15.06.2013, it was around 10.00 a.m., Sibarati Majhi, the

mother-in-law of the informant, namely, Gonda Majhi (P.W.1)

was proceeding on the road. It was then the accused suddenly

came and assaulted her by means of a lathi causing head injury

and he also assaulted her on his leg. Receiving the assault, the

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 2 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 deceased lost her sense. So, P.W.1 (informant), being the son-in-

law of Sibarati (deceased) brought her to his house being helped

by his wife, namely, Sutaya Majhi (P.W.4). Sibarati died after

sometime. It is further stated that the accused then forcibly

entered into the house of one Hetu Majhi (P.W.5) and dragged

his wife, namely, Susila Majhi (P.W.3) out of their house by

holding her hands. Bana Majhi and Hetu Majhi (P.W.5) came to

rescue the victim (Susila) and they snatched away the lathi from

the accused.

4. On the same day, around 6.00 p.m., Gonda Majhi (P.W.1) lodged

a written report with the Sub-Inspector of Police (S.I) attached of

Chiliguda Police Out Post (P.W.13).

The S.I. of Police (P.W.13), receiving the said written report

from the informant (P.W.5), entered the said fact in the station

diary book maintained at the Chiliguda Police Out Post and took

up preliminary investigation. Simultaneously, he sent the

written report to the Inspector-in-Charge (I.I.C.) of Junagarh P.S.

The I.I.C, receiving the written report of the informant (P.W.1)

from P.W.13, treated the same as the FIR (Ext.1) and after

registering the case, directed P.W.13 to take up investigation.

5. In course of investigation, the Investigating Officer (I.O.-P.W.13)

examined the informant (P.W.1) and recorded his statement as

well as the statements of other witnesses under section 161 of

Signature Not Verified pg. 3 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 the Code of Criminal Procedure, 1973. He then held the inquest

over the dead body of the deceased by going to the spot and

prepared the inquest report (Ext.2) as well as spot map (Ext.8).

He then sent the dead body of the deceased for post mortem

examination by issuing necessary requisition. The incriminating

articles including the wearing apparels of the deceased were

seized and sent for chemical examination through Court. On

completion of the investigation, the I.O. (P.W.13) submitted the

Final Form placing the accused person to face the Trial for

commission of offences under section 341/302/452/307/3023 of

the IPC.

6. Learned S.D.J.M., Junagarh, 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.

7. The prosecution, in support of its case, has examined in total

thirteen (13) witnesses. As already stated, the informant (P.W.1),

who happens to be the son-in-law of the deceased, has been

examined as P.W.1 and he is the eye witness to the occurrence.

P.W.2 is a witness to the inquest held over the dead body of the

deceased by the I.O. (P.W.13), P.Ws.4, 5 & 7 are three other eye

witnesses whereas P.W.9 is the scribe of the FIR and P.Ws.3 & 4

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 4 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 are the two daughters of the deceased. The Doctor, who had

conducted the autopsy over the dead body of the deceased, has

been examined as P.W.10 and the other Doctor, who had

examined the other injured, Susila (P.W.3) has come to the

witness box as P.W.8. The I.O., at the end, has been examined as

P.W.13.

Besides leading the evidence by examining the above

witnesses, the prosecution has also proved several documents,

which have been admitted in evidence and marked Exts.1 to 11.

Out of those, the important are the FIR (Ext.1), the post mortem

report (Ext.5), inquest report (Ext.2) and the Chemical

Examination Report (Ext.11). The seizure lists have been proved

and marked Ext.3 and Ext.7.

8. The defence has not tendered any evidence in support of the

plea of denial and false implication.

II. SUBMISSIONS ON BEHALF OF THE APPELLANT:

9. Learned Counsel for the Appellant (accused), from the very

beginning, instead of impeaching the finding of the Trial Court

as regards the nature of death of Sibarati to be homicidal and

that the evidence on record establishing that the act of having

assaulted the deceased, which led to his death as also assaulting

P.W.13 by entering into the house, confined his submission on

the score that even accepting the prosecution version as it Signature Not Verified pg. 5 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 emerges from the evidence of all the witnesses examined on its

behalf as also other documents including the post mortem report

(Ext.5) and the evidence of the Doctor (P.W.10), conviction the

accused for committing the offence under section 302 of the IPC

could not stand. According to him, basing upon the evidence on

record, the conviction ought to have been for commission of the

offence under section 304-I of the IPC. In that view of the matter,

he urged for appropriate reduction of the sentence imposed

upon the accused on that count.

III. SUBMISSIONS ON BEHALF OF THE RESPONDENT/ STATE:

10.Learned Additional Standing Counsel for the State-Respondent

submitted that keeping in view the evidence of informant

(P.W.1) and three other eye witnesses (P.Ws.4, 5 & 7) as well as

the evidence of the Doctor (P.W.10) and his report (Ext.5) read

with Ext.6, the opinion expressed by him on the query of the I.O.

(P.W.13), the accused has been rightly convicted for the offence

under section 302 of the I.P.C, which needs no alteration.

IV. COURT'S ANALYSIS AND REASONING:

11.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

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 6 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 perused the documents admitted in evidence marked as Exts.1

to 11.

12.The evidence on record reveal that the deceased and the

members of the prosecution party as well as the accused hail

from rural background and are permanent residents of that

village under the jurisdiction of Kalahandi. It has been stated in

the FIR (Ext.1) lodged by P.W.1 that when the deceased was

going on the road, the accused came running holding a lathi and

assaulted on her head and leg, which made her senseless and

thereafter, he (son-in-law of the deceased) with his wife

(daughter of the deceased) brought the deceased to their house

and after one hour, she died. It has been the evidence of P.W.4

that the accused assaulted her mother by a lathi, firstly on her

leg and then on her head. Her evidence is specific that single

lathi blow on the head of her mother was given by the accused.

13.P.W.5, another son-in-law of the deceased, when has stated that

he heard that the deceased was killed by the accused; he has

further gone to say that on his arrival, he found the accused

assaulting the deceased by means of a Thenga. Even if his

evidence is accepted for a moment that he had seen the assault

upon the deceased by the accused, he does not give any details

as to the blows being dealt on any part of the body of the

deceased. The Doctor (P.W.10), who had conducted the autopsy

Signature Not Verified pg. 7 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 over the dead body of the deceased, has found fracture of skull

on right occipital region and fracture of right mandible. On

internal examination, he has further noticed the brain materials

to have been congested. According to him, the death was on

account of cranio cerebral injury. His evidence is not on the

score that such injuries on the head leading to the death of the

deceased was the result of successive blows by the lathi and not

on account of the solitary blow. He has also stated that the head

injuries are possible by fall on a rough and hard surface. In view

of the evidence of P.W.5, thus the possibility of the deceased

falling on the ground receiving the blows on the legs and then

sustaining the head injuries is not altogether ruled out.

14.P.W.1 is not in a position to say as to what was the reason for the

quarrel between the accused and the deceased. Furthermore,

P.W.4 has stated that there was a quarrel between the accused

and the mother. She is, however, not stating the reason for the

same. This shows that some happenings prior to the assault is

being suppressed.

15.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 act and role played by the accused in respect

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 8 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 of Sibarati Majhi (deceased), he would be liable for conviction

under section 304-I of the IPC.

16.In that view of the matter, this Court, while confirming the

conviction of the accused under sections 341/452/323 of the IPC,

alters the conviction under section 302 of the IPC to one under

section 304-I of the IPC. Consequently, the Appellant (accused)

is sentenced to undergo rigorous imprisonment for a period of

ten (10) years and pay fine of Rs.5,000/- (Rupees Five Thousand)

in default to undergo rigorous imprisonment for six (6) months

for the said offence. Considering the above altercation of

conviction and modification of sentence; we too modify the

sentence for the offence under section 452 of the IPC that on that

count, the Appellant (accused) by confining it to the sentence of

rigorous imprisonment for one (1) year only and not to pay fine

while not tinkering with the sentence and ordered for

commission of offence under section 323 of the IPC. It is further

stipulated that the substantive sentences would run

concurrently and in the event of realization of fine of Rs.5,000/-

(Rupees Five Thousand), the same would be paid to the victim,

namely, Susila Majhi (P.W.3).

17.With the above modification as to the judgment of conviction

and order of sentence dated 5th December, 2015 passed by the

Signature Not Verified pg. 9 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38 learned Additional Sessions Judge, Dharamgarh, in C.T.

(Sessions) No.57 of 2013, the Appeal stands disposed of being

allowed in part.

( Dr. S.K. Panigrahi ) Judge

D. Dash, J. I agree.

( D. Dash ) Judge

Orissa High Court, Cuttack, Dated the 24th July, 2023/

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 10 Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2023 13:00:38