Nidhia Champia vs State Of Odisha
2023 Latest Caselaw 8050 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                               JCRLA NO.07 OF 2017

        In the matter of an Appeal under section-383 of the Code of Criminal
        Procedure and from the judgment of conviction and order of sentence
        dated 11.03.2016 passed by the learned Additional District &
        Sessions Judge, Jajpur in Criminal Trial Case No.225 of 2014.

                                      ----

             Nidhia Champia                         .....         Appellant
                                        -versus-
             State of Odisha                        ....           Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode:

=================================================

For Appellant - Mr. Vivekananda Jena, Advocate,

For Respondent - Mr. Sitikant Mishra, Additional Standing Counsel.

CORAM:

MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:07.07.2023::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 11.03.2016 passed by the

learned Additional District & Sessions Judge, Jajpur in Criminal Trial

No.225 of 2014 arising out of G.R. Case No.52 of 2014

corresponding to Jenapur P.S. Case No.05 of 2014 of the Court of

learned Judicial Magistrate First Class, Chandikhole.

JCRLA NO.07 OF 2017 {{ 2 }}

The Appellant (accused), thereunder, has been convicted for

committing the offence under section-302 of the Indian Penal Code,

1860 (for short 'the IPC') and accordingly, has been sentenced to

undergo imprisonment for life with payment of fine of Rs.25,000/- in

default to undergo rigorous imprisonment for a period of two years.

2. The prosecution case is on 14.01.2014, one Sukumari, the

daughter-in-law of one Sagar Sidhu had gone to the house of the

accused for threshing paddy sheaves. Pandaba , son of Sagar and

husband of Sukumari having returned home from his work place, in

the afternoon, went to the house of the accused in search of his wife.

Finding his wife in the house of the accused-Pandaba , he scolded her

as to why she had come to work therein threshing the paddy sheaves

on that 'Makara Sankaranti Day'. At that time, it is said that the

accused came to the place from his house by holding an axe and it is

stated that he then dealt blow on the head of the Pandaba on its blunt

side of the axe, which resulted the fall of Pandaba on the ground.

Sagar (Pandaba's father) and others then rushed to the spot and after

sprinkling water, the deceased was shifted to the house, where he

succumbed to the injuries.

A written report to the above effect being lodged by Sagar, the

father of Pandaba (deceased) with the Inspector-In-Charge (IIC),

JCRLA NO. 07 OF 2017 {{ 3 }}

Jenapur Police Station, the same was treated as F.I.R. and case being

registered, the Investigating officer (I.O.-P.W.21) took up the

investigation.

3. In course of investigation, the I.O. (P.W.21) examined the

Informant (P.W.1) who had lodged the F.I.R., Ext.3, as also other

witnesses including Sukumari, the wife of the deceased. He then

proceeded to the spot and prepared spot map, Ext.12. Finding the dead

body in the house, the I.O. (P.WQ.21) held inquest over the same and

prepared his report (Ext.1) in presence of the witnesses. The dead

body was then sent for postmortem examination. He also seized the

napkin, which was tied on the neck of the deceased to prevent the

bleeding and that was noted down in the seizure list under Ext.2/1.

The accused surrendered at the Police Station, when the I.O. (P.W.21)

was visiting the spot. It is stated that the accused then stated that he

had kept the axe inside the bush behind his house which he would

give recovery if taken to that place. The statement of the accused led

the I.O. (P.W.21) and others in giving recovery of that axe from near

the bushes on the backside of the house of the accused which was

then seized under seizure list, Ext.5. Some incriminating articles

including wearing apparels of the deceased were seized by the I.O.

(P.W.21) and those were sent for chemical examination through

JCRLA NO. 07 OF 2017 {{ 4 }}

Court. The I.O. (P.W.21) on transfer, handed over the charge of

investigation of the case to his successor in Office i.e. P.W.20. The

subsequent I.O. (P.W.20), then examined some other witnesses and

finally on completion of investigation submitted the Final Form,

placing the accused to face the trial for commission of offence under

section-A/302 of the IPC.

4. Learned Judicial Magistrate First Class (J.M.F.C.),

Chandikhole 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 against the accused for the said offences.

The plea of defence is that of complete denial and false

implication has tendered no evidence.

5. In the trial, the prosecution examined in total twenty one (21)

witnesses, who are P.Ws.1 to 21. The Informant, who happens to be

the father of the deceased is P.W.1 and the F.I.R. which he had lodged

Ext.3 being scribed by another, he has been examined as P.W.8. The

eye witnesses to the occurrence are P.Ws. 6, 7, 10, 11 and 19. The

witness to the extra-judicial confession is P.W.4 and the witnesses to

the recovery of the axe at the instance of the accused are P.W.9 and

P.W.10. When the Doctor who had conducted autopsy over the dead

JCRLA NO. 07 OF 2017 {{ 5 }}

body of the deceased has come to the witness box as P.W.13; as

already stated the two I.Os. are P.Ws. 20 and 21.

The prosecution besides leading evidence by examining the

above witnesses has also proved several documents which have been

admitted in evidence and marked Exts.1 to 13. Important of those are

the F.I.R., Ext.3, whereas the inquest report and postmortem report

are Exts.1 and 6 respectively. The so called statement of the accused

has been admitted in evidence and marked as Ext.4 and the spot map

is Ext.12. The other important document i.e. Ext.11 which is the

Chemical Examiner's report.

6. Learned Counsel for the Appellant (accused) at the beginning

without disputing the nature of death of Pandaba to be homicidal as

is his evident from the overwhelming evidence on record coming

from the lips of the Doctor, P.Ws. 13, the I.O.(P.W.20) and other

witnesses as also the concerned reports prepared in that connection

and without proceeding the impeach the evidence of the witnesses

with regard to the role of the accused and the act done by him

confined his submission on the question of alteration of conviction to

one under section-304-I of the IPC from section-302 of the IPC as has

been fixed by the Trial Court. He contended that when the evidence

of P.Ws. 6, 7, 10, 11 and 19 are read together, the circumstances

JCRLA NO. 07 OF 2017 {{ 6 }}

under which the incident took place and the manner in which the

accused is said to have dealt the blow upon the deceased, their

relationship as well as the fact that the parties hail from rural

background, mostly having high temper showing abnormal and

unexpected behavior in silly matters; the Trial Court ought not to

have convicted the accused for under section-302 of the IPC. In this

connection, he has invited our attention to the depositions for all those

witnesses and also had taken to the F.I.R., Ext.3. He thus urged for

appropriate reduction in the sentence.

7. Learned Counsel for the Respondent-State submitted all in

favour of the finding of the Trial Court holding the accused guilty for

commission of the offence under section-302 of the IPC. He

contended that the accused having dealt blow on the head of the

deceased by a heavy sharp cutting weapon even though it was a single

blow, the offence committed by the accused would stand categorized

under section-302 of the IPC.

8. Keeping in view the submissions made; we have carefully gone

through the judgment passed by the Trial Court and we have also

extensively travelled through the depositions of the prosecution

witnesses i.e. P.Ws. 1 to 13 and have perused the documents which

have been admitted in evidence and marked as Exts.1 to 21.

JCRLA NO. 07 OF 2017 {{ 7 }}

9. The deceased is the brother-in-law (wife's brother of the

deceased). The incident took place in the village on the threshing floor

near the house of the accused on Makara Sankranti Day. P.W.6, the

wife of the deceased has stated that on that day, her sister-in-law

(sister of the accused) had called her to their threshing floor for

threshing paddy sheaves and accepting the request, she had gone

there. She has further stated to have been working there for three days

prior to the day when the incident took place and her husband

(deceased), was absent at home, being engaged in work in another

village. She further states that when she was there on the threshing

floor, the accused went to met her after returning from work and

asked her as to why she was working on that 'Makara Sankranti Day'.

This P.W.6 then wanted to convince the deceased, but the deceased

then wanted to assault her. From this evidence of P.w.6, it is quite

clear that the deceased then was in an aggressive mood. She has then

implicated the accused in saying that he from his house with an axe

and assaulted her husband (deceased) on the blunt side of the axe on

his head and went away. This witness, P.W.6 has further stated that

her husband (deceased) then had consumed liquor and the accused too

had consumed liquor. It being a Makar Sankranti Day, looking at the

status of the parties and the background from which they hail, judicial

JCRLA NO. 07 OF 2017 {{ 8 }}

notice of the fact can be taken that of such a day, these people observe

the festival with pomp and gaiety by consuming liquor and other food

items. The accused had given only one blow. When P.W.6 and other

witnesses which we would discuss later in detail do not state that from

the beginning such blow was aimed at the head of the deceased, the

blow has not been given on the sharp side of the axe, but its blunt side

has been used. When this P.W.6 had stated that the deceased in the

said incident had abused the accused and his wife that being denied

during trial, the defence has proved the same during examination of

the first I.O. (P.W.21) after drawing the attention of P.W.6 to that part

of her statement during trial as to have not been stated in course of

investigation to the I.O. (P.W.21). This touches facet the genesis, the

omission would stand as contradiction. Thus, there appears the

suppression as to the initial happenings in the said incident especially;

the role of the accused, The other wife of the deceased has been

examined as P.W.7. She has simply stated that when the deceased

asked as to why she had come to work on that Makara Sankranti Day,

the accused came with an axe and assaulted her husband. This witness

although has not stated in her previous statement to have followed the

deceased to the threshing floor of the accused, which she has denied

the same during trial, that has however been proved through the I.O.

JCRLA NO. 07 OF 2017 {{ 9 }}

P.W.21, which being an omission of the material aspect of the

occurrence, amounts to contradiction.

P.W.10 has stated that there had occurred a quarrel between the

deceased and P.W.6 first. This accused had admitted during cross-

examination to have not seen the assault. When P.W.10 states to have

gone to the threshing floor of the accused at the relevant time to call

P.W.9; P.W. 9 is however not stating so. This P.W.11 had also not

stated in her previous statement as to have seen the actual assault

being made by the accused upon the head of the deceased by means of

that axe, using its blunt side.

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 which

commensurate with the act done by him.

10. 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 considered opinion that the sentence to undergo rigorous

JCRLA NO. 07 OF 2017 {{ 10 }}

imprisonment for a period of 10 (ten) years would be just and proper

and meet the ends of justice.

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

and order of sentence, the Appeal stands disposed of.

(D. Dash), Judge.

                                     Dr.S.K. Panigrahi, J.     I Agree.


                                                                             (Dr.S.K.Panigrahi),
                                                                                    Judge.

             Narayan




Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 24-Jul-2023 15:08:57


                               JCRLA NO. 07 OF 2017