Orissa High Court
Anil @ Ajaya Digal & Another vs State Of Odisha on 13 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.412 of 2017
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 8th March, 2017 passed by the learned Sessions Judge,
Kandhamal, Phulbani in Sessions Trial No.3 of 2013.
----
Anil @ Ajaya Digal & Another :::: Appellants.
-versus-
State of Odisha :::: Respondent.
Appeared in this case by Hybrid Arrangement
(virtual/physical mode)
============================================
For Appellants :::: Mr. R.K. Mohapatra,
Advocate.
For Respondent :::: Mr.S.K. Nayak,
Addl. Government Advocate.
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
DATE OF HEARING:: 03.11.2023, DATE OF JUDGMENT::13.11.2023
D.Dash, J. The Appellants, by filing this Appeal, have assailed the judgment of
conviction and order of sentence 8th March, 2017 passed by the learned
Sessions Judge, Kandhamal, Phulbani in Sessions Trial No.3 of 2013
arising out of G.R. Case No.224 of 2012 corresponding to K. Nuagaon P.S.
Case No.40 of 2012 of the Court of learned Sub-Divisional Judicial
Magistrate, (S.D.J.M.), Balliguda.
The Appellants (accused persons) have been found guilty of
commission of offence under section-302/34 of the Indian Penal Code,
1860 (for short 'the IPC'). Accordingly, each of them has been sentenced
{{ 2 }}
to undergo imprisonment for life and pay fine of Rs.50,000/- (Rupees Fifty
Thousand) with the default stipulation to further to undergo rigorous
imprisonment for a period of one (1) year. In the event of realization of the
fine amount, the shall be paid to the next of kin of the deceased as
compensation.
2. Prosecution Case:-
03.08.2012, Jayakrushna Mallick had taken his TATA Magic
vehicle to Daringbadi carrying some passengers. At about 8.30 pm, he and
his Helper-Panchanan (P.W.2) were coming back to their village
Kanjamundi. On the way, near a small water body, locally known as
Chechelchua near village Garhingia, the accused persons asked their
vehicle to stop. When they did so, they dragged Jayakrushna out and
assaulted him. A struggle between them ensured. Panchanan when tried to
intervene, the accused persons further assaulted him. In course of struggle,
they all were drifted to the cultivable field nearby. It is stated that the
accused persons then assaulted Jayakrushna and smothered him down in
the muddy field and Jayakrushna was choked to death. Panchanan went to
Kanjamandi and reported the matter to Jayakrushna's brother, Bijaya
(P.W.1) who came to the spot and saw his brother Jayakrushna lying dead.
Bijaya (P.W.1), then getting a report written by one Santosh Kumar Nayak
(P.W.9), presented the same with the Inspector-in-Charge (IIC) of K.
Nuagaon Police Station, it was around 10.15 pm on 03.08.2012.
On receiving the written report, the I.IC.(P.W.11) treated the same as
FIR (Ext.1) and registering the case, took up investigation.
3. The Investigating Officer, (I.O.-P.W.11), in course of investigation,
examined the Informant (P.W.1) and other witnesses. He (P.W.11), having
CRLA NO.412 OF 2017
{{ 3 }}
visited the spot, prepared the spot map (Ext.11) in presence of the
witnesses. He too held the inquest over the dead body of the deceased and
prepared the report to that effect (Ext.2). The dead body of the deceased
was sent for post mortem examination by issuing necessary requisition.
The wearing apparels of the accused were seized under seizure list (Ext.8).
The incriminating articles were sent for chemical examination through
Court. On completion of investigation, the Final Form was submitted
placing these accused persons to face the trial for commission of offence
under section-302/34 of the IPC.
4. Learned Sub-Divisional Judicial Magistrate, Balliguda having
received the report as above, took cognizance of the said offences and
committed the case to the Court of Sessions for trial. That is how the trial
commenced by framing of charge against the accused persons for
commission of offence under section-302/34 of the IPC.
5. In the trial, the prosecution had examined in total eleven (11)
witnesses. Out of them, as already stated the elder brother of the deceased
is P.W.1. P.Ws.3 & 4 are the post occurrence witnesses. P.W.9 is the
scribe of the FIR. P.W.7 is a witness to the seizure of wearing apparels of
the accused Anil. P.W.5 is the Doctor, who medically examined accused
Paramananda whereas P.W.6 is Doctor, who had held the postmortem
examination over the dead body of the deceased. The I.O., at the end, has
come to the witness box as P.W.11.
6. The defence case is that of complete denial. However, they have not
examined any witness in support of his defence, but has examined two
witnesses in support of their plea.
CRLA NO.412 OF 2017
{{ 4 }}
7. The Trial Court, on going through the evidence of the Doctor
(P.W.6), who had held postmortem examination over the dead body of
Jayakrushna and submitted his report as well as the evidence of
Investigating Officer, P.W.11, who had held inquest over the dead body
and has proved his report (Ext.2) and other witnesses has held the death of
the deceased to be homicidal as a result of the injuries he had sustained.
This aspect was not under challenge before the Trial Court and that is also
the situation before us.
8. Learned Counsel for the Appellants (accused persons) instead of
attacking the evidence of the prosecution witnesses mainly P.W.2, who is
the eye witness to the occurrence submitted from the beginning that on the
basis of available evidence as also the surrounding circumstances which
emanate from the evidence of the prosecution witnesses, the accused
persons ought not have been convicted for commission of offence under
section-302/34 of the IPC and instead the conviction should have been
recorded for commission of offence under section-304-II/34 of the IPC and
accordingly, the accused persons ought to have been visited with
appropriate sentence. He submitted that the evidence on record do not
reveal that there was prior enmity and the incident when is said to have
been taken all of a sudden and in course of struggle taking place between
the deceased and the accused persons which continued for quite some time
and in that process, they were drifted to a little distance, on the face of the
evidence of the Doctor (P.W.6) who had conducted postmortem
examination that such death was possible for inhalation of the mud. He
contended that it's a case for conviction of the accused persons for offence
under section-304-II/34 of the IPC. In support of the same, he has relied
upon the decision in cases of Anbazhagan Vrs. State represented by
CRLA NO.412 OF 2017
{{ 5 }}
Inspector of Police rendered by the Hon'ble Apex Court on 20.07.2023 in
Criminal Appeal No.2043 of 2023, Sahajan Ali & Others Vrs. State of
Maharashtra etc. in Criminal Appeal No.458-459 of 2014 and Sikandar
Ali Vrs. State of Maharashtra in Criminal Appeal No.430 of 2014,
disposed of by common judgment on 23.07.2017 and Kala Singh @
Gurnam Singh Vrs. State of Punjab, Criminal Appeal No.1040-1041 of
2021 disposed of on 21st September, 2021.
9. Learned Counsel for the State-Respondent, submitted that keeping
in view the evidence relating to the role of the accused persons and the acts
done which has directly resulted the death of the deceased, the conviction
of the accused persons for commission of offence under section-302 of the
IPC is just and proper.
10. Keeping in view the submissions made, We have carefully read the
judgment passed by the Trial Court. We have also extensively travelled
through the depositions of the prosecution witnesses (P.Ws.1 to 11) and
have perused the documents admitted in evidence and marked Exts.1 to 19.
11. Proceeding to address the submissions made, let's first of all over
view the evidence of the Doctor, who had conducted postmortem over the
dead body of the deceased. On dissection, he(P.W.6) had found that
cranium and spinal canal, scalp, skull & vertebra were found intact,
petechial haemorrhagic spots present in the substance of brain and layers
of meninges, mouth, pharynx and oespohagus contained mud, stomach was
congested, large and small intestine, liver, spleen were congested. The
cause of death was due to blockage of airways leading to asphyxia. He
(P.W.6) has further stated that by inhalating mud such death can taken
place.
CRLA NO.412 OF 2017
{{ 6 }}
The eye witness P.W.2 has stated that when they were coming on
their vehicle on their way, the accused persons were coming from opposite
side and then accused Anil obstructed their vehicle. He has further stated
that when they stopped their vehicle, accused-Paramananda abused them in
filthy languages in challenging as to why they were focussing the headlight
on them. He then stated that accused-Anil dragged the collar of the
deceased and dragged him outside the vehicle; whereafter, accused
Paramananda gave fist blows on his face and other places. He has further
stated that due to the struggle, accused Anil and Paramananda fell on the
mud on the paddy field and the accused persons inflicted repeated blows.
He states that head of Jayakrushna was pressed into the mud lying in the
paddy field. The incident is stated to have taken place all of a sudden
without any prior planning. There was a quarrel and struggle ensued on the
road and the incident finally took place in the paddy field, which was
muddy.
Evidence on record is not clear as to which of the accused pressed
the head of the deceased into mud. The accused persons were not armed.
The fight took place on the heat of passion and at no point of time any arm
has been used. In view of all these aforesaid, we are unable to conclude
that both the accused persons pressed the head of the deceased into mud
and that action appears to be a part of the sudden unarmed fight. We are
also not in a position to conclude that the accused persons had any
intention to cause death or cause such bodily injuries as is likely to cause
death, though we attribute to them the knowledge that such act is likely to
cause death.
For all the aforesaid, we are of the considered view that the accused
persons are guilty of culpable homicide not amounting to murder
punishable under section-304-II read with 34 of the IPC.
CRLA NO.412 OF 2017
{{ 7 }}
12. In the circumstances, we set aside the conviction recorded by the
Trial Court under section-302 read with section-34 of the IPC and instead,
convict them under section-304-II read with section-34 of the IPC and
reduced the sentence to undergo rigorous imprisonment for a period of
eight (8) years.
13. The Appeal is accordingly disposed of.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G.Satapathy),
Judge.
Narayan
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 14-Nov-2023 14:20:42
CRLA NO.412 OF 2017
