Orissa High Court
Chatrubhuja @ Sambaru Naik vs State Of Odisha on 24 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.56 of 2016
In the matter of an Appeal under section 374(2) of the Code of Criminal
Procedure, 1973 and from the judgment of conviction and order of
sentence dated 27.08.2016 passed by the learned Additional Sessions
Judge, Bonai in Sessions Trial No.123/64/158 of 2011-2013.
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Chatrubhuja @ Sambaru Naik ..... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
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For Appellant - Mr.B.L.Tripathy
(Advocate)
For Respondent - Mr.S.S. Mohapatra
Addl. Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING :26.06.2023 : DATE OF JUDGMENT: 24.07.2023
D.Dash, J. The Appellant from inside the jail, has assailed the judgment of
conviction and order of sentence dated 27.08.2016 passed by the learned
Additional Sessions Judge, Bonai in Sessions Trial No.123/64/158 of
2011-2013 arising out of G.R. Case No.47 of 2011 corresponding to
Lahunipada P.S. Case No.20 of 2011 of the Court of learned Sub-
Divisional Judicial Magistrate (S.D.J.M.), Bonai.
The Appellant (accused) thereunder has been convicted for
committing the offence under section-302 of the Indian Penal Code, 1860
(for short 'the IPC'). Accordingly, he has been sentenced to undergo
imprisonment for life with payment of fine of Rs.10,000/- (Rupees Ten
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Thousand) in default to undergo rigorous imprisonment for a period of six
months.
2. The prosecution case is that on 30.01.2011 around 10 p.m. when
Karunakar Kuanr was alone in his house, this accused came there with an
iron rod and intentionally caused his death by assaulting him by means of
said iron rod. Receiving the injuries when the heath condition of the
Karunakar became critical; he was shifted to the local hospital and
subsequently therefrom referred to the Rourkela General Hospital (RGH)
where he succumbed to the injuries.
Sraban Kumar Kuanr (Informant-P.W.1) having lodged a written
report with the Inspector-in-Charge (I.I.C.), Lahunipada Police Station.
On 31.01.2011 around 5 p.m., the same being treated as F.I.R. (Ext.1), the
I.I.C. registered the case and directed the Sub-Inspector of Police (I.O.-
P.W.11) to take up investigation.
3. In course of investigation, the I.O. (P.W.11) examined the
Informant (P.W.11), visited the spot and prepared the spot map. He also
examined other witnesses and then having gone to the Hospital at
Rourkela held inquest over the dead body of the deceased and prepared
the report to that effect which has been admitted in evidence and marked
Ext.2. He then sent the dead body for post mortem examination and
arrested the accused. While in police custody, pursuant to the statement
the accused is said to have led the police and others in giving recovery of
the iron rod from the place where that had been kept and then there was
the seizure of that iron rod. The seizure list to that effect has been
prepared by the I.O. (P.W.11). The seized incriminating materials were
sent for chemical examination through court. On completion of
investigation, the I.O. (P.W.11) submitted the Final Form placing the
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accused to face the Trial for commission of offence under section 302,
I.P.C. for intentionally causing the death of Karunakar.
4. Learned S.D.J.M., Bonai having received the Final Form as above,
took cognizance of the said offences and after observing the formalities,
committed the case to the Court of Sessions. That is how the Trial
commenced by framing the charge for the said offences against the
accused.
4. In course of Trial, the prosecution examined in total eighteen (18)
witnesses. Out of whom, P.W.1, who is the son of the deceased is the
Informant who had lodged the F.I.R. (Ext.1) whereas P.W.2 is the brother
of the Informant and P.W.3 is the wife of the deceased. The Doctor who
had conducted the autopsy over the dead body of the deceased has been
examined as P.W.13 and the Doctor who has initially treated the deceased
has been examined as P.W.10. The I.O. has come to the witness box as
P.W.11.
The prosecution having led the evidence by examining the above
witnesses has also proved several documents, which have been marked
Exts.1 to 17. Of those, the important are the F.I.R. (Ext.1) and the Inquest
Report as well as the Post Mortem Examination Report which are Ext.2
and 16. The statement of the accused while in police custody relating to
the recovery of the weapon, i.e.. iron rod has been admitted in evidence
and marked Ext.5/1.
5. The plea of defence is denial and false implication. No evidence has
however been tendered in support of the defence.
6. The Trial Court relying upon the evidence of P.W.4 projected as the
eye witness to the occurrence and finding the same to have been receiving
the corroboration from other evidence including the evidence of the
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Doctor (P.W.13) having held the death of Karunakar to be homicidal has
rendered the finding that it is this accused who had intentionally caused
the death of Karunakar by assaulting him by means of iron rod on vital
part of his body.
7. Learned Counsel for the Appellant, from the beginning instead of
questioning the finding returned by the Trial Court that the accused had
assaulted the deceased by that iron rod which has ultimately led to his
death confined her submission on the point of recording of conviction for
commission of offence under section 304, Part-I of the I.P.C. and not
section 302 of the I.P.C. as held by the Trial Court. She submitted that the
factual settings of the case as emanate from the evidence on record being
cumulatively viewed with the medical evidence falling from the lips of
P.W.10 and P.W.13, the accused ought not to be held guilty for
commission of offence under section 302 of the I.P.C. and instead he
ought to have been convicted for having committed the offence under
section 304, Part-I of the I.P.C. Having submitted as above, she contended
for appropriate reduction of the quantum of sentence further placing that
the accused has by now languished in custody for more than twelve years.
8. Learned Counsel for the State submitted all in favour of the finding
of the Trial Court that with the available evidence on record, the accused
has committed the offence under section 302 of the I.P.C. He submitted
that the facts and circumstances emerging from the evidence on record
when seen with the evidence of the Doctors (P.W.10 and P.W. 13), the
Trial Court cannot be said to have erred by holding the accused guilty of
commission of offence under section 302, I.P.C.
9. Keeping in view the submissions made; we have carefully gone
through the judgment passed by the Trial Court. We have also extensively
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travelled through the depositions of the prosecution witnesses i.e. P.Ws. 1
to 18 and have perused the documents which have been admitted in
evidence and marked as Exts. 1 to 17.
10. The solitary eye-witness examined by the prosecution is P.W.4. He
has stated that at the relevant time, he saw the accused assaulting
Karunakar with an iron rod on his head and other parts of his body. As per
his evidence, receiving the blows, Karunakar fell on the ground. His
evidence is silent as to how the occurrence began or what was the reason
for the said incident to take place or who was the initiator of any
discussion if any and when in course of discussion, at what point of time,
the accused took recourse to use the iron rod in assaulting the deceased.
The Doctor who had first treated the deceased when was taken to
the local hospital has deposed to have noted one lacerated injury on the
head of the deceased and other laceration on the right shoulder. That has
also been stated by the other Doctor who had held autopsy over the dead
body of the deceased that there was one head injury and that has proved
fatal. P.W.4 has not stated as to whether this accused had gone to the place
where the incident took place carrying that iron rod. He is also not stating
as to whether the deceased was totally unarmed. It is a case of solitary
blow on the head of the deceased when the death too has not been
instantaneous. The deceased had been taken to local hospital and then
being referred was taken to RGH. No evidence is forthcoming to show
that the accused had any prior planning for the same.
In order to address the submission of the learned counsel for the
Appellant which is now only confined as to categorization of the offence
committed by the accused upon acceptance of his role in entirety, as stated
by the prosecution witnesses, we feel it apposite to glance at the evidence
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of the Doctor who had held the Post Mortem Examination over the dead
body of the deceased, i.e., P.W.13. He has stated to have noticed one ante
mortem fracture of right humorous 7'' above the elbow where there was a
lacerated opening of 1'' diameter up to bone deep anterior to the fracture
end of bones. He has further stated that there was ante mortem stitched
lacerated would of 3'' long and full scalp deep on the right anterior upper
frontal area. As stated by him, there was a depressed area on subcutaneous
tissues of scalp under the lacerated wound of right side due to lacerated
splitting of the tissue and the length started from 2 ½'' away from the
right eye brow towards the posterior extending up to length 5'' presence
of ante mortem hematoma of 7'' long 5 ½'' width around the above
mentioned wound. He has found the right side hemisphere of brain
surface were covered with ante mortem blood and clots approximately
150 ml due to the injury to the blood vessels. At the same time, he has
opined that all the injuries were ante mortem in nature and might have
been caused by any hard, blunt and cylindrical object. He further opined
through his report that the duration of the injuries was within 6 to 18 hours
prior to the death of the deceased. He has opined the probable cause of
death to be due to comma for the head injury.
Cumulatively viewing all these circumstances appearing in the
entire evidence as above discussed, we are of the view that the offence
could be properly categorized as one punishable under section-304 Part-I
of the IPC and thus the accused is liable for commission of offence
punishable under section-304 Part-I of the IPC. Accordingly, he is to be
visited with the sentence commensurate the act done by him.
11. In the result, the Appeal stands allowed in part. The conviction
recorded against the accused under section-302 of the IPC is modified to
one under section-304 Part-I of the IPC and consequentially, we are of the
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considered opinion that the sentence of rigorous imprisonment for a
period of twelve (12) years would be just and proper and meet the ends of
justice.
12. With the modification as to the judgment of conviction and order of
sentence to the extent as aforesaid, the Appeal stands disposed of.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi),
Judge.
Himanshu
Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 24-Jul-2023 15:48:02
JCRLA No.56 of 2016
