Orissa High Court
Baya @ Surjyamani Tarei vs State Of Odisha on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.150 of 2020
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 17th December, 2019 passed by the learned Additional
Sessions Judge, Khallikote, in Sessions Trial Case No.172 of 2013.
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Baya @ Surjyamani Tarei .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Sarat Kumar Jena
(Advocate)
For Respondent - Mr.S.K. Nayak
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 26.04.2023 : Date of Judgment:05.05.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in question
the judgment of conviction and the order of sentence dated 17th
December, 2019 passed by the learned Additional Sessions Judge,
Khallikote, in Sessions Trial Case No.172 of 2013 arising out of G.R.
Case No.203 of 2007 corresponding to Khallikote P.S. Case No.80 of
2007 in the Court of the learned Judicial Magistrate First Class
(J.M.F.C.), Khallikote.
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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, 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 said offence.
2. Prosecution Case:-
In the evening of 16.07.2007, Arata Tarei (Informant-P.W.10)
returned to his house and went to take bath with his uncle Surendra
Tarei (D.W.1). During that time, they heard hue and cry of some ladies
from the 'Village Danda' area. So, both came out and saw that the
accused was quarrelling with the father of the Informant (P.W.10) and
threatening him. The Informant (P.W.10) and his uncle Surendra
(D.W.1) then intervened to subside the matter. At that time, accused
suddenly with a Katuri (Kati) inflicted a blow on the left side of the neck
of Jogendra Tarei (deceased). As result, he fell on the ground and
became unconscious. The Informant (P.W.10), his uncle Surendra
(D.W.1) and Saura Tarei (P.W.2) shifted the deceased to Community
Health Centre (CHC), Khallikote in an auto rickshaw. The Medical
Officer present there declared the patient dead.
3. The written report, being lodged by the son of the deceased
(P.W.10) with the Officer-in-Charge (O.I.C.) of Khallikote P.S. on
16.07.2007 at about 9.30 p.m., he treated it as F.I.R and immediately
registered the case and took up the investigation.
4. In course of investigation, the Investigating Officer (I.O.)
examined the informant (P.W.10) and recorded his statement as well as
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the statements of other witnesses under section 161 of the Code of
Criminal Procedure, 1973. The I.O. visited the spot and held inquest
over the dead body of the deceased and prepared the report under Ext.5.
He sent the dead body for post mortem examination by issuing proper
requisition. He also seized blood stained earth and sample earth from the
spot in presence of the witnesses in relation to he said incident. In the
night around 11.15 p.m., the I.O. seized one Katuri (Kati) with wooden
handle and one blood stained lungi from the house of the accused in
presence of witnesses and prepared the seizure list. The accused was
found absent in the house on that day and also on the next day. The I.O.,
having got the information that the accused had voluntarily surrendered
in the Court of the learned J.M.F.C., Khallikote, made a prayer for
remand of the accused for investigation. That being allowed, the accused
had been taken on police remand for three days. In the meantime, the
I.O. had sent that Katuri (Kati) for examination by the Medical Officer
to render his opinion as to whether the injuries found on the person of
the deceased were possible by said Katuri (Kati). The incriminating
articles were also sent for chemical examination through Court. On
completion of the investigation, the I.O. submitted the Final Form
placing the accused person to face the trial for commission of offence
under section 302 of the IPC.
4. Learned J.M.F.C., Khallikote, having taken cognizance of the said
offence, 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 offence against this accused in causing the murder of the
deceased.
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5. The prosecution, in support of its case, has examined in total
thirteen (13) witnesses. Out of them, P.W.8 is the wife of the deceased
as well as the mother of the informant, who has also been examined as
P.W.10. This P.W.10 has been projected as an eye witness to the
occurrence. The brother-in-law of the deceased has come to the witness
box as P.W.9. The Doctor, who had conducted the post mortem
examination over the dead body of the deceased is P.W.13. P.Ws.1 & 2
are the witnesses to the seizures and P.Ws.3 to 7, 11 & 12 have also
been examined being projected by the prosecution as eye witnesses.
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 8. Out of those, the
importants are the FIR (Ext.4) and the post mortem report (Ext.6). One
of the seizure lists has been proved and marked Ext.2. The inquest report
has been admitted in evidence and marked Ext.5.
During trial, the Katuri (Kati) recovered and seized as well as
Lungi & Gamuchha of the accused were also produced and those have
been marked as material objects, i.e., M.O.I to M.O.III respectively.
6. The plea of the defence is that of complete denial and false
implication. It has been specifically stated by the accused that the
occurrence night was a dark rainy one and when he with the Informant
(P.W.10) came back after taking bath, they saw the deceased lying dead
and the spade, plough and Katuri (Kati) were nearby. So, they shifted
him to the CHC where he was declared dead. The accused has examined
the uncle of P.W.10, who happens to be the younger brother of the
deceased as D.W.1.
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7. The Trial Court, keeping in view the evidence of the Doctor
(P.W.13), who had conducted the autopsy over the dead body of the
deceased and his repot (Ext.6) as also other evidence, has arrived at the
conclusion that the death of the deceased was homicidal and it was on
account of complications arising from the neck injuries sustained by
him.
Careful reading of the evidence of the Doctor (P.W.13) shows that
he had noted one cut wound with clean cut margins present on the left
side of the neck of size 9 cm X 5 cm into vertebra column deep present
almost obliquely with upper end lying 8 cm below left ear lobule while
the lower end lying 3 cm above supra sterna notch. The corresponding
internal injury, i.e. penetration and cutting of the streno cleido mastoid
muscle, vessles on left side and went upto the spinal cord by cutting the
vertebra at C-5/6 level having been noticed on dissection that too has
been reflected in the post mortem report (Ext.6) and stated during trial.
P.W.13, in his report, has also noted that the trachea had been cut,
superficially at the lower lobe. His positive evidence is that the death
was on account of the complications resulting from the neck injury and
it was thus a homicidal death.
The other witness including the informant (P.W.10) have also
stated to have seen the deceased lying with neck injury and he, being
shifted to the Hospital for treatment, was declared dead. With such
evidence on record remaining wholly un-impeached, we find absolutely
no difficulty in recording our concurrence with the finding of the Trial
Court that the death of the deceased was homicidal.
8. Learned Counsel for the Appellant (accused), from the very
beginning, instead of questioning the finding of the Trial Court as
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regards the act of the accused in assaulting the deceased, submitted that
the circumstances prior to the incident and thereafter, as have emanated
from the evidence, being cumulatively viewed, the Trial Court ought not
to have convicted the accused under section 302 IPC and the conviction,
at best could have been for the offence under section 304-I of the IPC
and appropriate sentence commensurate the same ought to have been
imposed.
In support of the same, he has placed the entire evidence of
P.W.10, who is the sole eye witness to the occurrence. He further
submitted that in course of a quarrel between the accused and the
deceased, when it is said that suddenly the accused brought out a Katuri
(Kati) and assaulted the deceased on his head, there was absolutely no
prior planning and despite and lack of intention also gets inferred.
According to him, all these circumstances being cumulatively viewed,
the accused is liable to be convicted for commission of offence under
section 304-I of the IPC.
9. Learned Additional Government Advocate for the Respondent,
while refuting the submission, as above, contended that since as per the
evidence, the accused assaulted the deceased on his head by Katuri
(Kati) and when the injuries resulting from that blow have been found to
be fatal, it cannot be said that the accused had intentionally caused the
death of the deceased as punishable under section 302 of the IPC. He
also submitted that the size of the injury being seen the force used for
causing such injury, can be inferred. He, therefore, supported the finding
of the Trial Court in convicting the accused under section 302 IPC.
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10. 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 perused the documents admitted
in evidence marked as Exts.1 to 8.
11. The sole and star witness for the prosecution is the son of the
deceased (P.W.10). He has stated that hearing the noise, when he went
with uncle Surendra (D.W.1), he saw the accused quarrelling with his
father, namely, Jogendra (deceased). He further states to have intervened
and attempted to pacify the matter. As per his evidence, then the
accused brought one Katuri (Kati) and assaulted his father on the left
side of his neck, which led to his fall. He further states that his mother
(P.W.8) and others, namely, Jamuna Tarei (P.W.5), Chhabi Tarei
(P.W.6), Pitabas Tarei (P.W.7), Sugyan Tarei and Phula Tarei were
present at the spot and had seen the occurrence. Fact remains that out of
the above persons, those who have been examined in the Trial, have not
supported the prosecution case. P.W.10 has also stated that he separated
his father and accused when they were quarrelling with each other. He,
however, is silent as to what the accused did after dealing the blow upon
his father (deceased). He also does not state that the accused
immediately fled away from the spot. His further evidence is that the
accused was aggrieved because according to him, the deceased had
amalgamated his cultivating land with the land of the accused by
removing the middle ridge. Although he states that for the same, the
deceased had asked the accused to settle the matter by measurement, it
is not stated by him that since when, such dispute had started. If we see
the evidence of P.W.8, who is the wife of the deceased and mother of
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the informant (P.W.10), we find that the accused, who is cousin of the
deceased used to work in Mumbai and eight days prior to the incident,
he had come to the village. She has further stated that two days before
the incident, the accused had asked her husband (deceased) as to why
his cultivable land have been amalgamated within the cultivable lands of
her husband (deceased). Her further evidence is that her deceased
husband then had told the accused to take the land if he has
amalgamated the same with his lands. This part of the evidence reveals
that the deceased was also in a challenging mood without the
intention/desire to resolve the dispute by taking measurement in the
field which has been stated by P.W.10.
The reply of the deceased emits something foul when he says that
go for measurement as if it was so easy a job. The prosecution has not
come forward to show as to whether the middle ridge in between the
land of the accused and the deceased was actually removed or not.
When P.W.10 at one stage says that it was the accused, who was
quarreling with the deceased, later he had said that both were quarreling
with each other. P.W.8, however, does not say that both were
quarrelling with each other. It is her evidence that the accused quarreled
with her husband (deceased) and receiving the reply from her husband,
the accused dealt the blow by that Katuri (Kati) resulting his death. It is
also not the evidence of P.Ws.8 & 10 that the accused was carrying that
Katuri (Kati) with him from the very beginning when he went and asked
the deceased about the amalgamation of his land with the land of the
deceased holding the said Katuri (Kati). The blow appears to be solitary
and it is not stated by P.Ws.8 & 10 that after giving that blow, the
accused even had made any further attempt to deal another blow, which
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was somehow thwarted. The evidence of P.W.8 & 10 if read together
thus appear that they are not truthful in their version with regard to all
the happenings before the deceased actually received the injury. The
incident, as it appears, took place all of a sudden and that too more
importantly, in course of the quarrel when the accused, who was mostly
remaining at a far off place and had come to his native place and when
finding that his cultivable lands have been amalgamated with those of
the deceased by removing the middle ridge; having got the vague
answer and suggestion which was simply impossible to carry on, the
accused had been annoyed.
12. P.W.8, the wife of the deceased is also stating that on account of
the amalgamation of the lands with the lands of the accused, the incident
took place. She is not stating that the relationship between the accused
and the deceased was not going on well or that the accused was in the
habit of picking up quarrel with the deceased and that on any prior
occasion, such a quarrel had ever taken place between them having its
origin to the previous dissention. Taking a cumulative view of all these
above circumstances, this Court is of the view that the offence could be
properly categorized as one punishable under section-304 Part-I of the
IPC. We are thus of the considered opinion that for the role played by
the accused, he would be liable for conviction under section-304 Part-I
of the IPC.
13. In that view of the matter, the conviction is altered to one under
section 304 Part-I of the IPC and consequently, the Appellant (accused) is
sentenced to undergo rigorous imprisonment for a period of ten (10) years
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and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo
rigorous imprisonment for six (6) months.
14. With the above modification as to the judgment of conviction and
order of sentence dated 17th December, 2019 passed by the learned
Additional Sessions Judge, Khallikote, in Sessions Trial Case No.172 of
2013, the Appeal stands disposed of.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K. Panigrahi),
Judge.
Digitally signed
BASUDE by BASUDEV
NAYAK
V NAYAK
Basu
Date: 2023.05.05
17:10:14 +05'30'
CRLA No.150 of 2020
