Orissa High Court
Banguru @ Sudarsan Nayak vs State Of Odisha on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA Nos.9 of 2018
CRLA No.73 of 2018
AND
CRLA No.444 of 2018
In the matter of Appeals under section 374(2) of the Code of Criminal
Procedure, 1973 and from the judgment of conviction and order of
sentence dated 21st December, 2017 passed by the learned Sessions
Judge, Mayurbhanj, Baripada, in S.T. Case No.15 of 2013.
----
Banguru @ Sudarsan Nayak .... Appellants
(In CRLA No.9/2018)
Dilu Das @ Sibani Das
(In CRLA No.73/2018)
Dama @ Damadar Pradhan
(In CRLA No.444/2018)
-versus-
State of Odisha
(In all the Appeals) .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.Pulakesh Mohanty, Advocate
(In CRLA No.9/2018)
Mr.Niranjan Lenka, Advocate
(In CRLA No.73/2018)
Mr.Lalitendu Bhuyan, Advocate
(In CRLA No.444/2018)
For Respondent - Mr.Sitikant Mishra, ASC
(In all the Appeals)
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing : 13.04.2023 : Date of Judgment:05.05.2023
D.Dash,J. Since in all these three Appeals, the judgment of conviction and
order of sentence dated 21st December, 2017 passed by the learned
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Sessions Judge, Mayurbhanj, Baripada, in S.T. Case No.15 of 2013
corresponding to G.R. Case No.157 of 2011 (C.T. No.583 of 2012)
arising out of Kaptipada P.S. Case No.50 of 2011 on the file of the
learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Udala, has been
called in question, those were heard together for being disposed of by
this common judgment.
These Appellants (accused persons) faced the trial for commission
of the offence under section 302/34 of the Indian Penal Code, 1860 (for
short, 'the IPC'). The Trial Court, has found the accused persons guilty
of the offence under section 302 of the IPC. Accordingly, these accused
persons have been sentenced to undergo imprisonment for life and pay
fine of Rs.5,000/- (Rupees Five Thousand) each in default, to undergo
rigorous imprisonment for two (2) months for the offence under section
302 IPC.
2. Prosecution Case:-
On 04.06.2011 around 7.00 p.m., when Birendra Mohanty
(deceased), who is the husband of Mandakini Mohanty (Informant-
P.W.1) was returning home near the rice godown situated at Gandhi
Chhak of Kaptipada, those accused persons, who used to work in the
shop running in the name of "Jhinkeswar Sweet Stall", appeared and
attacked him. Birendra, receiving said injuries, was taken to Community
Health Centre (CHC), Kaptipada. His condition when became serious,
as advised by the treating Doctor of Kaptipada Hospital, was taken to
S.C.B. Medical College & Hospital, Cuttack. The incident, having taken
place on 04.06.2011, Mandakini (Informant-P.W.1), the wife of
Birendra presented a written report with the Officer-in-Charge (OIC) of
Kaptipada Police Station on 06.06.2011 at around 10.30 p.m. It is stated
CRLA Nos.9, 73 & 444 of 2018
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that as the members of the Kaptipada Bazar Committee took time for
settlement of the dispute with the accused persons and as they failed
because the accused persons remained as absconders, there was the
delay in presenting the report. In the report, it had been said that the
deceased was battling for life. The O.I.C., receiving the said report,
immediately registered the case for commission of the offence under
section 341/323/325/34 of the IPC and directed one Assistant Sub-
Inspector of Police (ASI) attached to the Kaptipada P.S. to take up
investigation. The Investigating Officer (I.O.-P.W.23), in course of
investigation, examined the informant (P.W.1) and visited the spot. He
also prepared the spot map (Ext.8) and examined other witnesses at the
spot. He then sent the injury requisition to the Medical Officer,
Kaptipada CHC. On 07.06.2011, receiving the information from
Mangalabag Police Station regarding the death of Birendra during his
treatment in the S.C.B. Medical College & Hospital, Cuttack, he
searched for the accused persons but did not find them and on
09.07.2011, he received the record of the U.D. case registered at
Mangalabag Police Station. The case, having thus turned to one under
section 302 of the IPC, the charge of investigation was handed over to
another Sub-Inspector of Police (S.I.-P.W.22), who on completion of the
investigation, submitted the Final Form placing the accused persons to
face the trial for commission of offence under section 302/34 of the IPC.
3. Learned S.D.J.M., Udala, 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
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trial commenced by framing the charges for the above offences against
these accused persons.
4. In the Trial, the prosecution has examined the wife of the
deceased, who is the informant, as P.W.1. A person, who runs betel shop
in Kaptipada Bazar, has come to the witness box as P.W.2. The
daughters of the deceased and informant have been examined as P.Ws.3
& 4. The independent witnesses are P.Ws.5, 6, 14 & 17 whereas P.Ws.7,
10, 12 & 13 are the witnesses to the so-called confession made by the
accused persons in a meeting and their undertaking to meet the
treatment expenses of the deceased. Two person, who run a saloon near
the rice godown of Kaptipada Bazar, have been examined as P.Ws.8 & 9
whereas the owner of that Sweet Stall is P.W.11. P.W.16 is a witness to
the occurrence. The Doctor of SCB Medical College & Hospital,
Cuttack, who had conducted the post mortem examination over the dead
body of the deceased is P.W.20 and the Doctor of Kaptipada CHC, who
had initially examined the deceased and submitted the injury report is
P.W.21. P.W.24 is a nephew of the deceased whereas the I.Os have
come to the witness box as P.Ws.22 & 23.
Besides leading the evidence by examining the above witnesses
(P.Ws.1 to 24); the prosecution has proved several documents, which
have been admitted in evidence and marked Exts.1 to 8. Out of those,
the importants are the FIR (Ext.1) whereas the inquest report is Ext.2
and the post mortem report is Ext.5. The injury report is Ext.6 and the
spot map has been admitted in evidence and marked as Ext.8.
5. The plea of the defence is that of complete denial and false
implication. The accused persons have, however, not examined any
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witness on their behalf in support of the plea nor have they proved any
document.
6. The Trial Court, having examined the evidence of the Doctor
(P.W.21), who had initially examined the deceased at Kaptipada CHC
and his report, i.e., Ext.7 as also the evidence of the Doctor, who has
held autopsy over the dead body of the deceased and has proved his
report (Ext.5), has arrived at a conclusion that the death of Birendra was
homicidal in nature. In fact, this aspect of the case was not under
challenge before the Trial Court and that is also the situation before us.
It has been clearly deposed by the Doctor (P.W.21), who had
initially examined the deceased shortly after the incident that he had
noticed three blunt injuries on the upper arms, right; left shoulder and
over the neck and he then finding the condition of the deceased to be
serious, had referred the matter to S.C.B. Medical College & Hospital,
Cuttack where Birendra died in course of his treatment. The evidence of
the Doctor, who had conducted the post mortem examination over the
dead body of Birendra, i.e., P.W.20 is clear on the score that he had
noticed an abrasion of the size of 2 X 1 cm on the dorsum of right great
toe with brownish scab formation and on dissection he had noted gross
contusion of pre-vertebral and para bertebral mussels and fascia at lower
cervical segment with collection of haemotoma at site tissue spaces, C-7
vertebra to be fractured and interiorly dislocated in relation to C-6 of the
body with the underline spinal cord being swollen, bruised and
edematous for a length of about 5 cm underneath C-7 of the body.
His positive evidence is that the cervical injury has been fatal and
it can cause the death in ordinary course of nature. With such evidence
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on record, we find absolutely no difficulty in according our agreement
with the finding of the Trial Court as to the nature of death of the
deceased Birendra.
7. Learned Counsels for the Appellants (accused persons), from the
very beginning, instead of impeaching the finding of the Trial Court that
the accused persons had assaulted the deceased, which has ultimately
led to his death, confined their submission as to modification of the
conviction to one under section 304 Part-II of the IPC and thus
appropriate reduction of sentence. They submitted that even accepting
the prosecution evidence as placed, the accused persons could at best be
said to have committed the offence under section 304 Part-II of the IPC
but not under section 302 of the IPC. Inviting the attention of this Court
to the evidence on record as to how the incident began and culminated
as have been deposed to by the witnesses, they submitted that the entire
evidence let in by the prosecution if are accepted on their face value, it
would be clear that for the act done by the accused persons, they could
be held guilty for commission of offence under section 3041 Part-II of
the IPC and not under 302 of the IPC. In this connection, they have
invited our attention to the depositions of all the witnesses including the
Doctor who had conducted the post mortem examination, i.e., P.W.20.
Having placed the fact and circumstances leading to the incident,
the happenings in the said incident and the role attributed to the accused
persons as to have been played as against the deceased, they submitted
that the Trial Court has fallen in error in convicting the accused persons
for the offence under section 302 of the IPC and sentencing them
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thereunder. They accordingly prayed for modification of the order of
conviction and award of appropriate sentence commensurate the crime.
8. Learned Counsel for the State refuting the above submission,
contended that the facts and circumstances which have emerged in the
evidence of the witnesses who had seen the incident and also those who
had arrived thereafter, being viewed with the evidence of the Doctors
(P.Ws.20 & 21), the Trial Court has rightly convicted the accused under
section 302 of the IPC.
9. Keeping in view the submissions made, we have carefully read
the entire judgment passed by the Trial Court. We have also gone
through the deposition of all the witnesses (P.Ws.1 to 24) and have
travelled perused the documents admitted in evidence and marked
Exts.1 to 8.
10. Proceeding straight way to address the submission of the learned
counsels for the accused persons, which concern with the modification
of the conviction, let us first of all have a glance at the evidence of
P.W.1, the wife of the deceased. She has stated that having gone to
Kaptipada CHC, when she asked her husband regarding the incident, he
had told that the accused persons being under intoxication by taking
liquor, dashed him for which altercation started between him on one
hand and the accused persons on the other and that was followed by
tussle amongst them and he then had stated that the accused persons
having lifted him and threw on the ground and then assaulted by stone.
The evidence of this witness do not reveal as to what was her husband's
statement that which accused dashed him first and then who did what
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and other details. It reveals from the evidence of P.W.1 that her husband
described the incident especially as to the role played by the accused
persons therein in an omnibus manner. The same is the evidence of
P.W.2 that the deceased told him that all the accused persons dashed
him and there was an altercation and then he stated that the accused
persons assaulted on his back bone with stone. He is not stating the fact
as to what P.W.1 stated that about the deceased telling her that the
accused persons, having lifted the deceased, had also thrown him.
P.W.3, the daughter of the deceased has stated that her father had told
her that accused persons assaulted him whereas another daughter of the
deceased (P.W.4) has stated that her father had disclosed before her to
have been assaulted by these accused persons and they had lifted and
thrown him and thereafter assaulted him on his back bone by means of
stone. It is also the evidence of P.W.7 that the deceased in an omnibus
manner stated to have been assaulted by these accused persons. The eye
witness to the occurrence is P.W.16, who has stated to have seen the
accused persons assaulting the deceased seriously and then to have left
the place. The above, being the evidence of the eye witness and the
witnesses, who have heard about the incident from the deceased, when
we approach the evidence of the Doctor (P.W.20), who had conducted
the autopsy over the dead body of the deceased, it is seen that he had not
only one abrasion that too on dorsum of right great toe and that injury
although is said to be ante mortem in nature, according to him is not
fatal. His evidence is that the deceased met his death on account of
shock following the spinal injury to the neck. He has deposed that the
internal injury on the neck could have been caused due to sudden
movement of vertebral column resulting in bending of the spine. But his
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evidence is again that if a person, while going on the road, falls on the
front side by stumbling, the spinal injury may be possible.
The prosecution has not shown through evidence any such motive
behind the crime and it is also not stated that the accused persons had
any prior enmity and thus were having the axe to grind against the
deceased or were in a mood to take revenge. They state that the accused
persons were intoxicated. The incident is said to have arisen when there
was a dash between one of the accused persons and the deceased while
crossing the road and there being an altercation, thereafter, it is stated in
an omnibus manner that the accused persons assaulted the deceased.
Only one external injury has been noticed on the dead body of the
deceased and no corresponding internal injury found by the Doctor
(P.W.20) during post mortem examination.
Taking a cumulative view of all these above circumstances
emanating from the entire evidence, as discussed; this Court is of the
view that the offence could be properly categorized as one punishable
under section-304 Part-II of the IPC and, therefore, we are of the
considered opinion that for the role played by these accused persons, they
would be liable for conviction under section 304-II of the IPC.
In that view of the matter, the conviction is altered to one under
section 304-II of the IPC and accordingly, the Appellants Banguru @
Sudarsan Nayak, Dilu Das @ Sibani Das, Dama @ Damadar Pradhan
are sentenced to undergo rigorous imprisonment for a period of seven (7)
years and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to
undergo rigorous imprisonment for six (6) months which would be just
and proper and meet the ends of justice. The fine, being realized, be
CRLA Nos.9, 73 & 444 of 2018
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paid to the Informant-P.W.1 (wife of the deceased) towards
compensation.
11. With the above modification of the judgment of conviction and
order of sentence dated 21st December, 2017 passed by the learned
Sessions Judge, Mayurbhanj, Baripada, in S.T. Case No.15 of 2013,
these Appeals stand disposed of.
Since the Appellants (accused persons), namely, Banguru @
Sudarsan Nayak, Dilu Das @ Sibani Das & Dama @ Damadar Pradhan
are on bail, they are directed to surrender before the Trial Court within
two weeks hence to receive further instruction in serving out the
remaining sentence, if any.
(D. Dash)
Judge
Dr.S.K.Panigrahi, J I agree.
(Dr.S.K.Panigrahi)
Judge
BASUD Digitally
by BASUDEV
signed
Basu EV NAYAK
Date:
2023.05.05
NAYAK 17:09:31 +05'30'
CRLA Nos.9, 73 & 444 of 2018
