Orissa High Court

Dinabandhu Sahu vs State Of Orissa on 27 March, 2023

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    CRA NO.198 OF 1996

              (From the judgment and order dated 15th July, 1996 passed
              by learned District and Sessions Judge, Dhenkanal-Angul,
              Dhenkanal in S.T. No.142 of 1993)

                   Dinabandhu Sahu
                                                              ...        Appellant

                                                -versus-

                    State of Orissa                           ...        Respondent



                Advocates appeared in the case through hybrid mode:

                       For Appellant : Mr.Yuvraj Parekh,
                                       Advocate (Amicus Curiae)

                                                            -versus-

                      For Respondent: Mr.S.K.Mishra,
                                      Addl. Standing Counsel

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                       CORAM:

                                      JUSTICE SASHIKANTA MISHRA

                                                    JUDGMENT

27.03.2023.

Sashikanta Mishra,J. The Appellant questions the correctness of the

judgment of conviction and sentence passed on 15th

July, 1996 by the learned Sessions Judge, Dhenkanal-

Angul, Dhenkanal in S.T. Case No.142 of 1993

whereby, the Appellant being convicted for the offence

under Section 304 Part-I of I.P.C. was sentenced to

undergo Rigorous Imprisonment for ten years and to

pay fine of Rs.1,000/-, in default, to undergo further

R.I. for one year.

2. Bereft of unnecessary details, the prosecution case

is as follows;

On 17th March, 1993, the accused-Appellant along

with his son were transporting firewood on their

bullock cart in their village. At that time accidentally

one of the wheels of the bullock cart came in contact

with a stone in the land belonging to one Niranjan

Sahu (deceased). As a result, the bullock cart capsized.

The Appellant freed the bullocks and tried to uproot

the stone by means of a crow bar. While he was doing

so, the deceased came to the spot and asked as to why

he was removing the stone. The accused became

enraged at this and after abusing him in obscene

language dealt two blows on his head causing bleeding

injuries. Further, the deceased fell down on the ground

losing consciousness. At that time when his elder

brother (Khageswar Sahu) intervened and tried to

rescue his brother, he too was assaulted. One Murali

Naik arrived at the spot hearing the shouts of

Khageswar and separated them. There was profuse

bleeding from the head of the deceased because of the

injury. Since he did not regain consciousness, he was

shifted to Dera Hospital, but as his condition did not

improve, Khageswar lodged written report before the

Bikrampur P.S. on 17th March, 1993. This led to

registration of Bikrampur P.S. Case No.9(4)/1993

under Sections 341/307/323/34 of I.P.C. followed by

investigation. In course of investigation, the deceased

having succumbed to his injuries, the case turned to

one under Section 302 of I.P.C. As such, charge was

submitted under Sections 302/341/323/34 of I.P.C.

3. The accused took the plea of denial and of false

implication because of previous dispute.

4. To prove its case, the prosecution examined 12

witnesses, out of whom P.W.2 is the informant and

elder brother of the deceased, P.W.1 is the doctor who

examined the deceased at the first instance and

P.W.11 is the autopsy surgeon. All other witnesses are

co-villagers including family members of the deceased.

P.W.12 is the I.O. Besides, the prosecution also proved

20 documents and three material objects. The defence

did not adduce any evidence, either oral or

documentary.

5. After appreciating the evidence on record, the Court

below found clear evidence of assault by the accused

on the deceased by means of a crowbar at the relevant

time causing bleeding injuries, which ultimately

caused his death. As such, the appellant was convicted

and sentenced as already stated herein before.

6. Head Mr. Yuvraj Parekh, learned Amicus Curiae

and Mr. S.K.Mishra, learned Addl. Standing Counsel

for the State.

7. Mr. Parekh has assailed the impugned judgment

by contending that the prosecution case cannot be

believed because of non-examination of independent

witnesses including Murali Naik, who was named in

the F.I.R. He further contends that the informant being

the elder brother of the deceased, his evidence could

not have been relied upon by the Court below without

seeking corroboration. Finally, Mr. Parekh would

contend that even otherwise, the order of conviction

under Part-I of Section 304 I.P.C. is entirely wrong

having regard to the specific finding of the Court below

that the accused had no intention to cause death of

the deceased. According to Mr. Parekh, at best the

conviction could be one under Part-II of Section 304

I.P.C. It is alternatively submitted that the offence took

place more than 25 years ago. The accused was aged

about 52 years at that time. Now he is aged about 82

years. Therefore, even if he is convicted under Section

304 Part-II I.P.C., a lenient sentence should be

imposed.

8. Mr. S.K. Mishra, learned Addl. Standing Counsel,

on the other hand, submits that in view of the clear

evidence of the informant (P.W.2) regarding the

occurrence, no further corroboration is necessary.

Moreover, the prosecution case is otherwise proved

from the evidence of the two doctors as regards the

injuries sustained by the deceased and that the same

were responsible for causing death of the deceased. As

regards the order of conviction under Section 304 Part-

I I.P.C., Mr. Mishra, fairly submits that in the absence

of intention, the conviction should have been under

Part-II of Section 304 of I.P.C. As to the sentence, Mr.

Mishra submits that death of a human being having

occurred because of assault by the accused, no

leniency should be shown to him.

9. This Court has gone through the evidence on

record. It is seen that the informant was examined as

P.W.2. He vividly described the occurrence as

mentioned in the F.I.R. He specifically deposed that

after the quarrel relating to removal of the stone by the

accused from the land of the deceased, he dealt two

blows with the crowbar on the head of the deceased

causing bleeding juries. Nothing has been elicited from

him in cross-examination to disbelieve such sworn

testimony. Moreover, his evidence relating to the

injuries sustained by the deceased is fully corroborated

by the evidence of the Doctor (P.W.1), who had

examined the deceased on police requisition on the

same day. It is in his evidence that he had found the

following three injuries on the person of the deceased;

(i) Lacerated injury 6"X1" bone deep over the right parietal region.

(ii) Lacerated injury 5"X1" bone deep over the occipital region. X-ray of scalp shows lenial fracture over right parietal region, extending from front parietal region to occipital parietal region.

    (iii)         Depressed      fracture   over      right
                  parietal region.

10. That apart, this Court finds that P.W.2 was also

injured in the occurrence being assaulted by the

accused. Such injuries have been proved by the Doctor

(P.W.1), who examined him. There is also evidence of

P.W.11, the autopsy surgeon, who opined that the

head injuries were fatal in ordinary course of nature

and that the brain injury is sufficient in ordinary

course of nature to cause death. She further testified

that the cause of death was due to coma resulting from

the injuries found on the body of the deceased.

11. It is well settled that corroboration is only a rule of

prudence and not to be insisted upon in each and

every case. In the present case, this Court finds the

evidence of P.W.2, who is himself an injured victim,

clear, consistent, credible, trustworthy and free from

any doubts whatsoever. There is thus, no reason to

discard his evidence. Moreover, being a close relation

(elder brother) of the deceased, it would only be natural

for him to name the actual culprit than to let him go

scot free by falsely implicating someone else.

Similarly, non-examination of Murali Naik the other

eye witnesses pales into insignificance when the

consistent and credible ocular evidence is supported

by medical evidence available on record. Therefore, the

contentions raised by Mr. Parekh are not acceptable.

12. Coming to the other ground raised by Mr. Parekh

that the conviction should not have been under

Section 304 Part-I of I.P.C, this Court finds from the

evidence that there is not a whisper of the act in

question being committed by the accused with any

premeditation. On the contrary, the evidence reveals

that the occurrence had taken place in course of a

sudden quarrel which in turn had arisen out of a

trivial issue, namely removal of stone by the accused

from the land of the deceased. In course of such

altercation between the accused and the deceased, the

former dealt two blows with the crowbar on the head of

the deceased. Thus, by no stretch of imagination can

it said that he had a definite intention of causing death

of the deceased though it can be reasonably held that

while using the crowbar as a weapon, he obviously

had the knowledge that the same would either cause

death or cause such bodily injuries as would result in

death.

13. A reading of the impugned judgment reveals that

the trial Court has also arrived at similar findings and

categorically held that such incident appears to have

taken place on the spur of the moment and that

intention of killing the deceased being absent, it is

culpable homicide not amounting to murder which

would fall under Part-I of Section 304 I.P.C.

14. Section 304 of I.P.C. reads as follows;

"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

From the foregoing narration of the facts and

evidence, it is more than evident that the case would

not come under Part-I of Section 304 of I.P.C., rather

Part-II would be applicable. This Court holds

accordingly.

15. As regards the sentence is concerned, it is seen

that the accused was in custody all through during

trial and was bailed out during the present appeal. As

such, he has spent little more than three years in

custody. Having regard to the fact that the occurrence

took place more than 25 years ago and that the

accused-Appellant being aged 52 years then, is now

aged about 82 years, this Court is of the considered

view that ends of justice would be best served if the

sentence is confined to the period of custody already

undergone by the accused.

16. In the result, the appeal is partly allowed. The