Orissa High Court
Sudarsan Mohakud vs State Of Odisha on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.280 OF 2022
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 31.03.2022 passed by the learned Additional Sessions
Judge, Karanjia, in Sessions Trial Case No.140 of 2013 (17/2017) arising
out of G.R. Case No.7 of 2013.
Sudarsan Mohakud .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
..........................................................................
For Appellant - Mr.A.Mishra
Advocate.
For Respondent- Mr.S.S.Kanungo,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING :05.04.2023 : DATE OF JUDGMENT: 05.05.2023
D.Dash, J. The Appellant, by filing this Appeal, has challenged the judgment of
conviction and order of sentence dated 31.03.2022 passed by the learned
Additional Sessions Judge, Karanjia, in Sessions Trial Case No.140 of
2013 (17/2017), arising out of G.R. Case No.7 of 2013, corresponding to
Mahuldiha P.S. Case No.1 of 2013 of the Court of the learned Sub-
Divisional Judicial Magistrate (S.D.J.M.), Karanjia.
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The Appellant (accused) thereunder has been convicted for
commission of offence under section-302 of the Indian Penal Code, 1860
(for short 'the IPC') and accordingly, has been sentenced to undergo
imprisonment for life and pay fine of Rs.50,000/- in default to undergo
rigorous imprisonment for a period of one (01) year with further stipulation
that the fine being realized, be paid to the wife of the deceased
(Informant).
2. Prosecution case is that on 02.01.2013 at about 4 p.m., when
Parbati Mohakud (informant-P.W.5), the wife of Krushna Mohakud
(deceased), was in the house and her husband Krushna was working in the
bari, she heard hullah from outside. Hearing hullah, when she came, she
saw that the accused, who is the younger brother of her husband, was
quarreling with her husband in connection with their cultivable land. It is
said that all of a sudden, in course of quarrel, accused Sudarshan dealt a
heavy blow by means of a wooden plank picking it from the threshing
floor where it was lying on the waist of Krushna and receiving the blow,
he shouted and fell down. It is further stated that when Krushna was lying
on the ground, accused dealt fist blows on his chest and pressed his neck.
The wife of Krushna i.e P.W.5 and her son P.W.4 rushed to the spot when
accused ran away at their sight. They shifted Krushna to their house
where after sometime, Krushna breathed his last.
3. On the next day, i.e. on 03.01.2013 morning, the wife of the
deceased Krushna (Informant- P.W.5) went to the Mahuldiha Police
Station with the local Choukidar and lodged a written report. On
receiving the said report, the Officer-in-Charge (OIC) of Mahuldiha P.S.
treated it as the FIR (Ext.4) and upon registration of the case, took up
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investigation. The Investigating Officer (I.O-P.W.13) examined the
informant and other witnesses. He then visited the spot and prepared the
spot map. He also held inquest over the dead body of the deceased, and
sent the same for Post Mortem Examination by issuing requisition.
Incriminating articles including that wooden plank (M.O.-I) were seized
under seizure lists and sent for chemical examination through Court. On
completion of investigation, the I.O. (P.W.13) submitted the Final Form
placing the accused to face the trial for commission of offence under
section 302 of IPC.
4. Learned SDJM, Karanjia having received the Final Form, took
cognizance of the above offence and after observing formalities,
committed the case to the Court of Sessions. That is how the Trial
commenced by framing the charge for the said offence against the
accused.
5. In the Trial, the prosecution in total examined thirteen (13)
witnesses. As already stated informant is P.W.5 and her son is P.W.4.
This P.W.5 is the wife of the deceased whereas P.W.4 is the son of the
deceased. The scribe of the FIR is P.W.9 and the Doctor, who had
conducted autopsy over the dead body of the deceased, is P.W. 10. The
I.O. has come at the end 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 Ext.1 to 11.
Out of those, the FIR is Ext.4, whereas the Post Mortem Report is Ext.5
and the Inquest Report is Ext.1. The spot map has come to be proved as
Ext.8 besides the seizure lists and the opinion of the Doctor (P.W.10) by
examining that wooden plank in saying about the possibility of the injury
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noticed by him if can be caused by that is Ext.6. The incriminating
articles including the wooden plank have been produced during the Trial
and marked as Material Objects (M.O-I to M.O.-V).
6. The defence case is that of complete denial and false implication.
Despite opportunity, the accused has not led any evidence either oral or
documentary.
7. The evidence of the Doctor (P.W.10), who had conducted post
mortem over the dead body of the deceased is that he had noticed one
lacerated injury of the size of 6 c.m. x 1 c.m. x 0.5 c.m., present on the
right side back and on dissection, he had noticed the walls of abdomen to
have been congested, peritoneum containing blood, liver and right kidney
being lacerated with a lacerated injury of the size of 2 c.m. x 1 c.m. x 1
c.m. in right lobe of the liver and lacerated injury of the size of 1 c.m. x
0.5 c.m. x 0.5 c.m. in the right kidney. According to his evidence, the
death was on account of shock and hemorrhage due to the rupture of the
liver and right kidney and the death was within 12-18 hours of his
examination. The injuries have been noted by this P.W.10 in his report
(Ext.5) which he has proved. His affirmative evidence is that the deceased
died on account of these injuries which are possible by that wooden plank
which he had examined on being asked by the I.O. (P.W.13) With such
evidence of P.W.10, we also find the evidence of P.W.13, who had held
inquest over the dead body of the deceased and noticed the injuries on the
person of the deceased which he too had noted in his report Ext.1. The
wife and son of the deceased i.e. P.W.5 and P.W.4 respectively have also
stated about the death of the deceased to have occurred after receiving
the injuries. This evidence coming from the lips of the witnesses have not
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at all been challenged by the accused in the Trial and that is also the
situation before us. In view of all these above, we hold that the death of
the deceased was homicidal in nature.
8. Learned counsel for the Appellant (accused) from the beginning,
instead of questioning the finding of the Trial Court as regards the act and
role of the accused in assaulting the deceased confined his submission
that even for said act and the role of the accused; the offence committed
by him would be one under section 304-I of the I.P.C. He submitted that
the prosecution evidence reveals that there was dispute relating to the
cultivable land between the accused and the deceased and for that reason,
the quarrel between them had been initiated and in course of the quarrel, it
is said by P.W.4 and P.W.5 that the accused dealt a blow by that wooden
plank which resulted in the fall of the deceased on the ground and then it
is said that he gave some fist blows and pressed the neck of the deceased.
He further submitted that it would be evident from the evidence of the
Doctor (P.W.10) that he had noticed only one external injury and two
internal injuries corresponding to said external injury. He has not stated
anything about pressing of the neck and on finding any such feature
consistent with the smothering, strangulation, constriction or throttling.
He further submitted that the wooden plank which has been seized when
is said to have been used by the accused in assaulting the deceased was
lying on the floor nearby and that in course of the quarrel it is said to have
been picked up by the accused in assaulting upon the deceased. He thus
submitted that the incident took place all of a sudden and there was no
prior planning by the accused for the said incident when P.W.4 and P.W.5
are not stating anything with regard to the fact as to who initiated the
quarrel which must stand to the benefit of the accused in inferring that it
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is the deceased who started the quarrel and ignited the same. According to
him all these circumstances surrounding the incident being cumulatively
viewed, the accused ought not to have been convicted the offence under
section 302 of IPC and instead of he should have been convicted for the
offence under section 304-II of IPC.
9. Learned counsel for the State submitted all in favour of the
conviction being recorded against the accused for commission of offence
under section 302 of IPC. According to him, the heavy wooden plank used
and the force with which the blow was dealt as evident from the internal
injuries corresponding to the external injury having been established, the
conviction recorded under section 302 of IPC cannot be found fault with.
10. Keeping in view the submissions made, we have carefully read the
judgment of conviction passed by the Trial Court. We have also travelled
through the depositions of the witnesses P.W.1 to P.W.13 and have perused
the documents admitted in evidence and marked Ext.1 to Ext.11.
11. P.W.4 and P.W.5 are the witnesses to the occurrence and they are
none other than the son and wife of the deceased respectively. It has been
stated by P.W.4 that the accused assaulted his father with a wood having
four corners near his house and thereafter, he strangulated the neck of his
father. He is not stating about any quarrel to have taken place first and that
in course of the quarrel, the accused assaulted. P.W.5, the wife of the
deceased however has stated that there was previous land dispute between
the accused and her husband who are two brothers. It is her evidence that
accused assaulted her husband by that wooden plank and thereafter pressed
on his neck till he dead. This pressing of neck part is not stated by the
Doctor (P.W.10). The widow of the deceased has further stated that there
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was altercation between the accused and the deceased and in course of the
same; the accused all of a sudden assaulted the deceased on his waist by
means of wooden plank resulting the fall of the deceased. He too states that
accused then sat over the chest of the deceased and throttled him to death.
The Doctor conducting post mortem examination has found one lacerated
injury on the right side back of the deceased and that is said to have caused
two internal injuries causing damage to the kidney and liver which has
resulted the death. He is silent to have noticed any such marks or features
consistent with the throttling of the neck of the deceased. He, however,
states that the blow on the right of the back is possible by that wooden
plank M.O.-I. Thus it appears from the evidence of the wife of the deceased
(P.W.5) that there being quarrel between the two i.e. the accused and the
deceased who are two brothers on account of land dispute which was
existing prior to the incident, the accused assaulted once on the right side
back of the deceased and that part is receiving the corroboration from the
evidence of P.W.10. There is no evidence that the accused had dealt any
further blow with that wooden plank. The seat of injury is the right side
back of the deceased. The evidence of P.W.12 reveals that the accused and
the deceased were residing in one compound and civil dispute between
them was going on and during his spot visit, he too has not noticed any
blood stained nor any such mark of violence at the spot.
12. Having carefully considered all above circumstances emerging from
the evidence, we are of the considered view that for said act and the role of
the accused, the offence can be properly categorized as one punishable
under section 304-I of IPC. Therefore, We are thus inclined to modify the
impugned judgment of the Trial Court in convicting the accused for the
offence punishable under section 302 of IPC and instead the accused is
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hereby convicted for the offence punishable under section 304-I of IPC.
Accordingly, the accused is sentenced to undergo rigorous imprisonment
for a period of ten (10) years and pay fine of Rs.25,000/- in default to
undergo rigorous imprisonment for a period of one (1) year with further
stipulation that fine if so realized, would be paid to the wife of the deceased
(informant- P.W.5).
13. The Appeal is accordingly allowed in part. With the above
modification of the judgment of conviction and order of sentence dated
31.03.2022 passed by the learned Additional Sessions Judge, Karanjia in
Sessions Trial Case No.140 of 2013 (17/2017), the Appeal stands disposed
of.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi),
Judge.
Gitanjali
GITANJALI Digitally signed by
GITANJALI NAYAK
NAYAK Date: 2023.05.05
CRLA NO.280 OF 2022
